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. 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 Mathew Hale (q) deduces this consequence, that though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty to

[ *371] *practice 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 an 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 Henry 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.

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

emigrate and abandon his native country, unless there is some positive restraint by law, or he 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 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 quis invitus civitate mutetur; neve in civitate maneat invitus. Hæc sunt enim fundamenta firmissima nostræ libertatis, sui quemque juris et retinendi et dimittendi esse dominum." Mr. Lawrence, in his edition of Wheaton's International Law has discussed this subject on general principles, taking a view opposed to that of the English and American courts, and more in harmony with that which has generally prevailed among the American people and in the executive councils. The claim on the part of Great Britain of a right to search American vessels for British seamen, which brought on the war of 1812, was based upon this doctrine of perpetual allegiance, and though resisted on other grounds, was denied also as inconsistent with a general principle of international law, which permitted expatriation where emigration was not forbidden. The supreme court of Kentucky has declared the right of expatriation to be a practical and fundamental American doctrine, and that where no statute regulation on the subject exists, the citizen may in good faith abjure his country and his allegiance, and the assent of the government was to be presumed. Alsberry v. Hawkins, 9 Dana, 178. This view is in harmony with the prevailing American sentiment, to which the government is at this time endeavoring to give effect by treaties with European nations. Negotiations were opened with the European courts, with this end in view, during the administration of President Johnson, and at the present time there is every prospect of their being generally successful.

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 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 *they are distinguished from [ *372] natives, descending to farther 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) (5) 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. 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) for personal estate is of a transitory and movable nature; and besides, this indulgence to strangers is necessary for the advancement of trade.(6) Aliens also may trade as freely as other people, only they are subject to certain higher duties at the custom-house ;(7) 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. Also an alien may bring an action concerning personal property, and 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.(8) 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 favour, during the time of war.(9)

[*373]

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

(u) 7 Rep. 17.

(8) Co. Litt. 2.
(t) Cod. 1. 11, tit. 55.
(2) A word derived from alibi natus. Spelm. Gl. 24.

(w) Lutw. 34.

(5) The lands which aliens take, by deed or devise, they may hold as against all persons except the sovereign. People v. Conkling, 2 Hill, 67; Wadsworth v. Wadsworth, 12 N. Y. 376; Wright v. Saddler, 20 id. 320; Cross v. De Valle, 1 Wal. 1; Wilbur v. Tobey, 16 Pick. 179. 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 one cannot take lands by descent who must claim by representation through an alien. Jackson v. Green, 7 Wend. 333; Levy v. McCartee, 6 Pet. 102. But one brother may inherit from another, notwithstanding the father is an alien; the descent as to the brothers being immediate. Collingwood v. Pace, Sid. 193.

Some of the American states have abolished the disability of aliens to hold lands, which,. as to those states, rest upon no sound reasons.

(6) By statute 7 and 8 Vic. c. 66, an alien friend may hold every species of personal property except chattels real, and may take and hold any lands, houses and other tenements for the purpose of residence or occupation, or for the purpose of any business, trade or manufacture, for any term not exceeding twenty-one years.

(7) [Repealed, except as to some city duties, by statute 24 Geo. II, st. 2, c. 16.]

(8) [But by the Code Civile the droit d'aubaine does not exist against natives of countries wherein such right is not enforced against Frenchmen.]

(9) During the late civil war in the United States, it was held that the people within the limits occupied by the insurgents, and controlled by their military forces, were to be regarded as being, and as having the rights only of, alien enemies, irrespective of their sympathies as between the belligerents. Alexander's Cotton, 2 Wal. 404.

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 children of his majesty's English subjects, born in foreign countries during the late troubles." And this maxim of the law proceeded upon Yet the 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. 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 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 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 Britian.(10) 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, naturalborn subjects, and entitled to all the *privileges of such.(11) In which [*374] 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) (12)

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 land 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. 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 burthens. And no denizen can be 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.(h)

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 Rep. 18.

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

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

(g) Stat. 22 Hen. VIII c. 8.

(a) Cro. Car. 601. Mar. 91. Jenk. Cent. 3. (c) Jenk. Cent. 3, cites Treasure Francois, 312. (f) Co. Litt. 8. Vaugh. 285. (e) 11 Rep. 67. (h) Stat. 12 W. III, c. 3.

3

(10) By statute 7 and 8 Vic. c. 66, s. 3, every person born abroad, of a mother who is a natural-born subject of the United Kingdom, is "capable of taking to him, his heirs, executors 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 Wm. III, c. 6, and 25 Geo. II, c. 39.

By statute 21 and 22 Vic. c. 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.]

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 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. (7) But these provisions have been usually dispensed with by special acts of (m) parliament, previous to bills of naturalization of any foreign princes or princesses. (13)

*These are the principal distinctions between aliens, denizens, and [*375] 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 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 seamen, 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 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, (0) 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; (g) which enables all Jews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute 7 Jac. I. (14) 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. (15)

(j) Stat. 1 Geo. I, c. 4.

(k) Stat. 14 Geo. III, c. 84.

(i) Ibid. (1) Stat.7 Jac. I. c. 2. (m) Stat. 4 Ann. c. 1. 7 Geo. II, c. 3. 9 Geo. II, c. 24. 4 Geo. III, c. 4. (n) Stat. 12 Geo. II, c. 3. (0) Stat. 12 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 Maritime, b. 3, c. 6. (q) Stat. 26 Geo. II, c. 26.

(r) Stat. 27 Geo. II, c. 1.

(13) [And now an alien is enabled, on complying with the provisions of the recent statute 7 and 8 Vic. c. 66, to obtain from a principal secretary of state a certificate of naturalization, conferring upon him all the rights and capacities of a natural-born British subject, except the capacity of being a member of the privy council, or of either house of parliament, and such rights and capacities, if any, as may be specially excepted in the certificate. By the same statute it is moreover enacted that any woman married or who shall be married to a natural-born subject or person naturalized, shall be deemed and taken to be herself naturalized, and shall have all the rights and privileges of a natural-born subject.]

(14) Jews were excluded from holding civil offices, not by any direct enactment, but solely by the form of the asseveration appended to the abjuration oath, and the 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 Vic. c. 52, this declaration was 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.

(15) By the constitution of the United States, congress is empowered "to establish an uniform rule of naturalization." Art. 1, § 8. The requirement of uniformity necessarily

CHAPTER XI.

OF THE CLERGY.

THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter. (1)

excludes legislation by the states on the same subject. It is competent for congress, however, when they have established an uniform rule, to give to the state courts jurisdiction under it. State v. Penney, 6 Eng. 621.

The following are the provisions of congressional legislation now in force:

That 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 :

First. That he shall have declared on oath or affirmation, before the supreme, superior, district or circuit court of some one of the states, or of the territorial districts of the United States, or a circuit or district court of the United States, or a clerk of any such court, 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, potentate, state or Sovereignty whatever, and particularly the prince, potentate, state or sovereignty whereof such alien may at the time be a citizen or subject.

Second. That 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.

Third. He must satisfy the court by evidence that he has resided within the United States five years at least, and within the state or territory where the court is held one year at least, and during that time 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.

Fourth. He shall at the time renounce any hereditary title or order of nobility, if any such he may have or belong to.

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 twentyone years, and who shall continue to reside therein to the time of making application, may, after becoming twenty-one, and after having resided five years within the United States, including the three years of minority, be admitted a citizen without the preliminary declaration herein before mentioned.

Any alien of the age of twenty-one years and upwards, who enlisted or shall enlist in the armies of the United States, either the regular or volunteer forces, and has been or shall be honorably discharged therefrom, may be admitted to become a citizen without any previous declaration, and on proof of one year's residence within the United States.

The children of parents duly naturalized, being under the age of twenty-one at the time of such naturalization, shall, if dwelling within the United States, be considered as citizens.

If an alien who shall have declared his intentions shall die before he is actually naturalized, his widow and children shall be considered as citizens on taking the oaths prescribed by law.

No alien who shall be a 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.

The statutes establishing the foregoing regulations, and also special regulations for classes of aliens resident within the country prior to the 18th day of June 1812, will be found as follows: Act of April 14, 1802, 2 Statutes at Large, 315; act of March 26, 1804, 2 id. 292; act of March 3, 1813, 2 id. 811; act of March 22, 1816, 3 id. 259; act of 26 May, 1824, 4 id. 69; act of 24 May, 1828, id. 310; act of 26 June, 1848, 9 id. 240; act of July 17, 1862, id. 1861-2, Little & Brown's ed. 597.

If an alien is naturalized, he thereby acquires all the rights of a natural born citizen, including the right to take real property by descent. Ainslie v. Martin, 9 Mass. 454. A married woman may be naturalized without the concurrence of her husband. Priest v. Cummings, 16 Wend. 617. The residence and good moral character of the applicant cannot be proved by affidavits taken out of court; the witnesses must be present for examination. Anonymous, 7 Hill, 137. The naturalization of a father ipso facto, makes his son, then residing in the United States and a minor, a citizen. State v. Penney, 5 Eng. 621.

Distinctions of color, so far as they are made important by the statutes above referred to, are perhaps inconsistent with the fifteenth amendment to the constitution of the United States, and are abolished by act of Congress of July 14, 1870.

(1) Most of what is said in this chapter is entirely inapplicable in the United States, where no established church exists.