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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 [371] house by the line of Lancaster, treasons committed against

Henry VI., were capitally punished; though Henry had been declared an usurper by parliament.

allegiance is

This oath of allegiance, or rather the allegiance itself, is To whom held to be applicable not only to the political capacity of the due. king, or regal office, but to his natural person, and bloodroyal: 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 Edward II. 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.

is the duty of

This allegiance then, both express and implied, is the Allegiance duty of all the king's subjects, under the distinctions here all subjects. 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 this volume. 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 particulars when they come in course.

they may

An alien born may purchase lands, or other estates: but Aliens, wha not for his own use; for the king is thereupon entitled to do." them. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with

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that property, to the king of England; which would probably be inconsistent with that, which he owes to his own [ 372 ] 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 :" 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: 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 were subject to certain higher duties at the customhouse, but these are now almost entirely done away:" 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. Also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate: not as it was in France, where the king at the death of an alien was entitled to all he was worth, by the droit d'aubaine or jus albinatus, unless he had a peculiar exemption. The French law is now however assimilated to ours in this respect. 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.

Who is an alien, and

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When I say, that an alien is one who is born out of the

u Cod. l. 11 tit. 55.

▾ 7 Rep. 17.

W See ante 330.

* But there does not seem any other authority for this but Blackstone's

1 Woode. Lec. 273, n. 1.

y Lutw. 34.

z A word derived from alibi natus. Spelm. Gl. 24.

a Code Civil, l. 1, tit. 1, art. 11, and 1. 3, tit. 1, art. 726.

ral born sub

king's dominions, or allegiance, this also must be under- who a natustood with some restrictions. The common law indeed ject. stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the Restoration,b "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 [373] 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: 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 his 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. But by several more modern statutes, 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 naturalborn 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. 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 after the same shall accrue.

years

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The children

of aliens are

The children of aliens, born here in England, are, genenatural-born rally speaking, natural-born subjects, and entitled to all the In which the constitution of France

subjects.

Denizen, what he

may do.

privileges of such.

differed from ours; for there, by their jus albinatus, when it existed, if a child were born of foreign parents, it was an alien. But the law in this respect is now nearly the same

as ours. g

A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English sub[374]ject: a high and incommunicable branch of the royal prerogative. 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: i 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.j KA denizen is not excused1 from paying the alien's duty, and some other mercantile burthens, but these are now much lessened. 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."

Naturalization, how

m

Naturalization cannot be performed but by an act of parperformed. liament: 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. No bill for naturalization can be received in either house of parliament, without such disabling clause in it:P nor without a clause disabling the person from obtaining

f Jenk. Cent. 3, cites Treasure François, 312.

Code Civil, lib. 1, tit. 1, art. 9. As to what must be done by an alien on arriving in this country, see ante

p. 273.

7 Rep. Calvin's case, 25.

i 11 Rep. 67.

J Co Litt. 8. Vaugh. 285.

* See as to where a denizen may inherit, Principles of Real Property, p. 162.

1 Stat. 22 Hen. VIII. c. 8.
m See ante p. 330.

"Stat. 12. Wm. III. c. 2.
o Ibid.

P Stat 1 Geo. I. c. 4.

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. 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 been usually dispensed with by special acts of parliament, previous to bills of naturalization of any foreign princes or princesses.s

tempts at a

turalization

on this sub

ject.

These are the principal distinctions between aliens, [375] denizens, and natives: distinctions, which it hath been Frequent atfrequently endeavoured since the commencement of this general nacentury to lay almost totally aside, by one general naturali- act. zation 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 partial acts 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 Wm. III. c. 2;t 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

4 Stat. 14 Geo. III. c. 84.

Stat. 7 Jac. I. c. 2.

Stat. 4 Ann. c. 1. 7 Geo. II.

c. 3. 9 Geo. II. c. 24. 4 Geo. III.
c. 4.

Stat. 13 Geo. II. c. 3.

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