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. 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 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prohibiting alien artificers to work for themselves in this kingdom; but it is generally held that they were virtually repealed by statute 5 Eliz.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. 7.10 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 *373] 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.12 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,(y) "for the naturalization of the 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 ambassadors 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 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 (*) 7 Rep. 17. (w) Lutw. 34. (*) A word derived from alibi natus. Spelm. Gl. 24. (y) Stat. 20 Car. II. c. 6. czarina sent several of her subjects with large sums of money into Poland, to purchase all the estates that offered for sale; at the same time professing publicly the greatest attachment to the interests of that devoted kingdom. This had a double effect; for it not only raised in that country a powerful party completely devoted to her interest, but it at the same time, and in the same ratio, devested a large proportion of power and influence from the nobles. This proved a solid foundation for her subsequent acts; for afterwards, when she laid aside the veil which covered her designs, the country was so enfeebled by the measures she had taken, that, notwithstanding the glorious and persevering struggles of a Kosciuszko, it fell an easy prey to her rapacity.-CHITTY. 8 But a lease of lands will be forfeited to the king. Co. Litt. 2.-CHRISTIAN. 9 Repealed, except as to some city duties, by stat. 24 Geo. II. st. 2. c. 16.—CHITTY. 10 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.-CHRISTIAN. "The Constituent Assembly in 1790 and 1791 entirely abolished the droit d'aubaine; but the code civil has restrained the operation of these laws to the nations of those countries in which no such right exists against Frenchmen. See Code Civil, 1. 1. tit. 1, s. 11. --COLERIDGE. 12 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 eternal rules of justice." Doug. 625.-CHRISTIAN. 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 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.13 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.1 15 The children of aliens, born here in England, are, generally speaking, naturalborn 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)16 [*374 A denizen is an alien born, but who has obtained ex donatione regis letterspatent 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 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 (a) Cro. Car. 601. Mar. 91. Jenk. Cent. 3. ()7 Anne, c. 5. 4 Geo. II. c. 21, and 13 Geo. III. c. 21. (e) Jenk. Cent. 3, cities Treasure François, 312. (d) 7 Rep. Calvin's case, 25. 13 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. See Count Duroure vs. Jones, 4 T. R. 300.-CHRISTIAN. 14 Persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States. Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States. Any woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a citizen of the United States, shall be deemed and taken to be a citizen. Act of Congress 10 Feb. 1855. 10 Stat. at Large, 604, stat. 7 & 8 Vict. c. 60, makes the same provision as to women. The children of a British mother married to a foreigner are aliens, if born abroad. Duroure vs. Jones, 4 T. R. 300. The language of the act of Congress implies the same. -SHARSWOOD. 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, five of whom thought that he could inherit, and five that he could not. On the other hand, the earl of Athlone, seventh in descent from Godart de Ginchell, created by king William in March, 1691-92, 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 native-born subject of the British crown, and he took his inheritance within the ligeance of the king accordingly. Vide Report on the Laws affecting Aliens, June, 1843.-HARgrave. 15 Unless the alien parents are acting in the realm as enemies; for my lord Coke says, it is not cœlum nec solum, but their being born within the allegiance and under the protection of the king. 7 Co. 18, a.-CHRISTIAN. 16 But now a child born in France of foreign parents may, within a year after attaining twenty-one years, claim the character of a Frenchman, declaring, if not then resident in France, his intention to fix there, and actually fixing there within a year from such declaration. Code Civil, 1. i. tit. 1, s. 9.-COLERIDGE. "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.-CHITTY. 17 By the 11 & 12 W. III. c. 6, natural-born subjects may derive a title by descent 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 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)18 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) No through their parents or any ancestor, though they are aliens. But by 25 Geo. II. c. 39, this restriction is superadded, viz. 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 favour of an after-born son; and in case of an after-born daughter or daughters only, all the sisters shall be coparceners.-CHRISTIAN. This exception, as it should seem, would have been quite superfluous, if lord Coke had not held that a son of an alien could not inherit from his brother, though the contrary has been since determined. Harg. Co. Litt. 8, a.—CHITTY. 18 As to denization in general, see 1 Chitty's Com. L. 120. The right of making denizens is not exclusively vested in the king, for it may be by parliament; but it is scarcely ever exercised by any but the royal power. It may be effected by conquest. 7 Co. 6, a. 2. Vent. 6 Com. Dig. Aliens, D. 1. The king cannot delegate this right to another. 7 Co. 25, b. Com. Dig. Aliens, D. 1. See form of letters of denization, 2 Chitty's Com. L. appendix, 327. The British law protects denizens made so by this country, but also respects the rights of those who have been declared denizens of foreign states. Thus a natural-born subject of England having been admitted a denizen of the United States of America, is entitled as such denizen to the benefit of the treaty between England and the United States, which authorizes the trade of Americans to the territories of the British East India Company, though as an English subject he would not have been permitted to carry on such a commerce. 8 T. R. 31. 1 B. & P. 430.—CHITTY. 19 Therefore a person naturalized is not even eligible to the office of constable. 5 Burr. 2788. As to naturalization in general, see Chalm. Col. Op. 382. Com. Dig. Aliens, B. 2. 1 Chitty's Com. Law, 123 to 130, and see form of acts of naturalization, 2 Chitty's Com. L. appendix, 324 to 327. A person may become naturalized ipso facto by complying with the conditions pointed out in certain general statutes. Naturalization cancels all defects, and is allowed to have a retrospective energy, which simple denization has not, (Co. Litt. 129, a. post, 2 book, 250;) and if a man take an alien to wife, and afterwards sell his land, and his wife be naturalized, she shall be endowed of the lands sold before her naturalization. Co. Litt. 33, a. There seems to be no case in favour of this dictum of lord Coke. Naturalization is retrospective when it does not affect third persons, if the words of the act give them that effect; so if a man be naturalized, his brother or his son born before may inherit, if they be natives. See 1 Vent. 419; also vol. 2, p. 132, n. 24, and p. 250; Co. Litt. 129, a. ; 2 Rol. 93. Naturalization is not, as denization may be, merely for a time, but is absolutely forever; and not for life only, or to him and the heirs of his body, or upon condition. Cro. Jac. 539. Co. Lit. 129, a. 2. This practice of naturalizing foreigners is not peculiar to the English constitution; and though the stranger thus adopted becomes a subject of the state which welcomes him, yet he does not release himself from his natural allegiance to the government under which he was born. See 1 Bos. & P. 443. Bac. Ab. Aliens, a. 1 Wooddeson, 282. Naturalizations in a foreign country, without license, will not discharge a natural-born subject from his allegiance. 2 Chalm. Col. Op. 363. But though a natural-born subject cannot voluntarily emancipate himself from his natural allegiance, so as to exempt himself from the duties incident thereto, yet he may, by his violation of law, forfeit many of the advantages of a natural-born subject, and place himself in the situation of an alien. Thus it has been enacted, that if an English rubject go beyond the seas. and there become a sworn subject to any foreign prince or 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 parlia ment.) 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 endeavoured since [*375 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 Anne, c. 5; but this, after three years' experience of it, was repealed by the statute 10 Anne, 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 W. 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. 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. 20 state, he shall, while abroad, pay such impositions as aliens do. 14 & 15 Hen. VIII. c. 4.-CHITTY. The second mode of naturalization recently provided (7 & 8 Vict. c. 66, s. 7, 12) is much more simple. This may be obtained by every alien coming to reside in any part of Great Britain or Ireland, with intention to settle therein, upon a memorial first presented to one of the secretaries of state, who may, if he shall see fit after proper inquiries, issue a certificate granting to the memorialist, upon his taking the oath of allegiance and supremacy in the act set forth within sixty days from the day of the date of such certificate, all the rights and privileges of a natural-born British subject, except the capacity of being a member of the privy council or a member of either house of parliament, and except the rights and capacities, if any, specially excepted in obtaining such certificate. -STEWART. 20 Congress is vested with power "to establish an uniform rule of naturalization." Const. U. S. art. 1, s. 8. A mere grant of power in affirmative terms to Congress does not per se delegate an exclusive power. This arises only when the constitution has in express terms given an exclusive power to Congress or has prohibited the exercise of a like power by the States, or where there is a direct repugnancy or incompatibility in the 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. This venerable body of men, being separate and set apart from the rest of exercise of it by the States. In this last class must be reckoned the power to establish a uniform rule of naturalization. 1 Kent's Com. 390. "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Const. U. S. art. 4, s. 2. It is evident that no rule of naturalization would be uniform unless the power in Congress were held to be exclusive. By the provisions of various acts of Congress, 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: 1. He shall have declared on oath or affirmation before a circuit, district, or territorial court of the United States, or any court of record of any individual State having common law jurisdiction and a seal and clerk, or prothonotary, or before the clerks of either of the said courts, 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, state, or sovereignty whatever, and particularly by name the prince, potentate, state, or sovereignty whereof such alien may at the time be a citizen or subject. 2. 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; which proceedings shall be recorded by the clerk of the court. 3. The court admitting such alien shall be satisfied that he has resided within the United States five years at least, and within the State or Territory where such court is at the time held one year at least; and it shall further appear to their satisfaction that during that time he has 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: Provided, that the oath of the applicant shall in no case be allowed to prove his residence. 4. In case the alien applying to be admitted to citizenship shall have borne any hereditary title or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility, in the court to which his application shall be made; which renunciation shall be recorded in the said court. 5. 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 twenty-one years, and who shall have continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he shall have resided five years within the United States, including the three years of his minority, be admitted a citizen of the United States without having made any previous declaration of intention: he shall, however, make the declaration at the time of admission, and shall further declare on oath, and prove to the satisfaction of the court, that for three years next preceding, it has been the bona fide intention of such alien to become a citizen of the United States, and shall in all other respects comply with the laws in regard to naturalization. 6. When any alien who shall have declared his intentions shall die before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed by law. 7. The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the said States, under the laws thereof, |