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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 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 natives, descending to farther particu- [372] lars 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 (3). 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 voidt: 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

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(3) 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 courtesy. 7 Co.25.

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VOL. I.

by way of punishment for the alien's presumption, in attempt. ing 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 (4): for personal estate is of a transitory and moveable 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. (5). 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. 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 (6).

When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood

u 7 Rep. 17. w Lutw, 34.

X A word derived from alibi natus. Spelm, G). 24.

(4) But a lease of lands will be forfeited to the king. Co. Litt. 2.

(5) 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.

(6) 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 eter. “nal rules of justice." Doug. 625.

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 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 embassadors born abroad were always held to be natural subjects 2: 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 merchantsa. But by several more modern statutes b these restrictions are still farther taken of: 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 naturalborn 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 (7). Yet the

y Stat. 29 Car. Il. c. 6.
z 7 Rep. 18.
2 Cro. Car. 601. Mar. 91, Jenk. Cent. 3.

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

(7) 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. And in a late 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, gene

rally speaking, natural-born subjects (8), and entitled [374] to all the privileges of such. In which the constitu

tion of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alieno (9).

A DENIZEN is an alien born, but who has obtained ex dona. tione 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 inheritancee: for his parent, through whom he must claim, being an alien, had no inheritable blood; and therefore could convey none to the son (10). And, upon

c Jenk. Cent. 3, cites treasure francois. 312.

d 7 Rep. Calvin's case. 25.
e 11 Rep. 67.

case, in which it was stated that the mother of the plaintiff was an English woman, who married a subject of France, and had a son born to him in France, it was decided that that son could not inherit his mother's lands in England. Count Duroure v. Jones, 4 T. R. 300.

(8) Unless the alien parents are acting in the realm as enemies; for my lord Coke says, it is not cælum nec solum, but their being born within the allegiance, and under the protection of the king. 7 Co. 18. a.

(9) The late learned Vinerian professor informs us, that " 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.

(10) 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. a like defect of hereditary blood, the issue of a denizen, bora before denization, cannot inherit to him ; but his issue born after, may f. A denizen is not excused 8 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 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(11). No bill for naturalization can be received in either house of parliament, without such disabling clause in iti: 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'. But these provisions have

f Co. Litt. 8. Vaugh. 285.
& Stat. 22 Hen. VIII. c. 8.
h Stat. 12 W. III. c. 2.
i Ibid.

j Stat. 1 Geo. I. c. 4.
k Stat. 14 Geo. III. c. 84.
I Stat. 7 Jac. I. c. 2.

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 favor of an after-born son; and in case of an afterborn daughter or daughters only, all the sisters shall be co-parceners.

(11) This statute 12 W. III. c. 2. was passed from a jealousy of king William's partiality to foreigners.

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