the British empire. From these considerations Sir Matthew Hale deduces this consequence : "that though there should be an usurper of the crown, yet while he is in full possession of the sovereignty, it is treason for any subject to practise any thing against his crown and dignity; and, therefore, although the true prince should regain his sovereignty, attempts formerly made against the usurper (unless these have been made in defence or aid of the rightful king) have always been punished with death, on account of that temporary allegiance which was due to the usurper as king de facto. And after king Edward IV., of the house of York, recovered the crown, which had been usurped by three successive sovereigns of the house of Lancaster, treasons committed against Henry VI., the last usurper of that line, were capitally punished; though Henry himself had been declared by parliament an usurper." This oath of allegiance, or rather the allegiance itself, is held not only applicable to the political capacity of the king, or regal office, but also to his natural person, or blood royal. For the misapplication of their allegiance to the crown or regal capacity, exclusive of the person of the king, the Spensers were banished in the reign of Edward II. Hence arose that principle of personal attachment and affectionate loyalty, which induced our forefathers on various occasions, but especially in the case of the princes of the house of Stuart, to hazard all that was dear to them— life, fortune, and family-in defence and support of their liege lord and sovereign. I have no doubt but the same principle would actuate their sons, were it God's will that their loyalty to the house of Brunswick should be tried in the same fiery furnace. This allegiance, therefore, both expressed and implied, is the peremptory duty of all the king's subjects, divided however into the natural distinctions of local and temporary, or universal and perpetual. Their rights are also distinguished by the same criterions of time and locality, natural born subjects having a great variety of rights, which they acquire by their birth, and can neither forfeit by distance, place, nor time, except by their own misconduct in the breach of any known law. Aliens are in some degree in the same position, though their rights are much more circumscribed, being acquired only by their residence within the king's dominions, and of which they are deprived whenever they withdraw from his protection. I will endeavour to point out some of the principal lines whereby they are distinguished from native subjects, descending to farther particulars as 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. A woman alien cannot be endowed, unless she marries by the king's license; in which case she may be endowed: neither can a husband alien be a tenant by courtesy, that is, hold an estate in right of his wife. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent as that property, to the king of Great Britain, and which would of course be inconsistent with the allegiance which he owes to his own natural liege lord; and besides, in process of time, the nation might become subject to foreign influence, and of course liable to many inconveniences. Among other reasons which might be given for the constitution of this point, it seems to have been intended by way of punishment for the alien's presumption in attempting to procure any landed property, that by the civil law such contracts were made void. For the vender is not affected by it, he having resigned his right, and received an equivalent in exchange. Nevertheless, an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation; because personal estate is of a transitory and movable nature; and besides, this indulgence to strangers is necessary for the advancement of trade and commerce. Aliens may trade as freely as other people, only they were subject to certain higher duties at the customhouse, but which were removed by the 24 George III. There were also some obsolete statutes of Henry VIII., which prohibited alien artificers from working for themselves in this kingdom; but it is generally held that they were virtually repealed by statute 5 Elizabeth, c. 7. But Mr Hargrave says, that the statute 32 of Henry VIII. is still unrepealed, notwithstanding its apparent opposition to good policy and the improved spirit of commerce and the age in which we live.* An alien may bring an action concerning personal property; may make a will, and dispose of his personal estate in Great Britain; but it is not so in France, when on the death of an alien, the king is entitled to claim and take possession of all his property, by the droit d'aubaine, or jus albinatus, unless indeed the alien enjoyed any peculiar exception. But when these rights of an alien are mentioned, it must be borne in mind that it is only friendly aliens, that is, the natives of those countries which are in peace and amity with ourselves, who are entitled to these privileges. Aliens, or natives of foreign countries at war with ourselves, have no such rights and privileges during the continuance of the war, unless by the king's special favour. But an alien enemy could sue in our courts on a ransom bill, before all ransoms of captured ships were prohibited by statute 22 Geo. III., c. 2.; and Lord Mansfield, in a case of that kind, declared from the bench, 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."+ *Coke. Litt. 2. n. 7. + Doug. 625. When it is said, that an alien is one that is born out of the king's dominions or allegiance, it must be understood with some degree of restriction. Before the Restoration, the common law, with a very few exceptions, made every man born out of the kingdom an alien, so that after that happy event, when the throne and the altar were restored, a particular act of parliament became necessary" for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles." This maxim of the common law proceeded on the general principle that every man owes a natural allegiance to the sovereign under whose protection he is born, and that he cannot owe two such allegiances, or serve two masters at once. The children of the king's ambassadors born abroad were always held to be the king's natural subjects, because the father, though residing in a foreign country, owes not even a local allegiance to the prince to whom he is sent, but is the representative of his own sovereign, who owes allegiance to no man. So also with regard to his son; he was supposed by a sort of fiction to be born under the king of Great Britain's allegiance, represented by his father the ambassador. In the same sense the children of other British subjects who are born under the roof of the British ambassador, are, to all intents and purposes, British subjects, and not the subjects of that sovereign in whose dominions they are born. It is, therefore, very customary for our countrywomen residing abroad, to repair for their accouchement to the house of his majesty's ambassador, which preserves their rights as British subjects. To encourage foreign commerce, it was enacted+ 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 sea by her husband's consent, might inherit as if they had been born in England; and it has accordingly been so adjudged in behalf of merchants. But by several statutes of more modern date, these restrictions have been still farther taken off, so that all children born abroad in foreign countries, whose fathers (or grandfathers by the father's side) were natural born subjects, are now esteemed natural born subjects themselves. Unless indeed these 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 the crown of Great Britain. All these exceptions to the common law, however, are in cases where the father or grandfather is a natural born subject; but there is no provision made for the children who have been born abroad, of a mother a natural born British subject who has married a foreigner. And in the case of the count Duroure, who was a Frenchman, and had married an Englishwoman, by whom he had a son born in France, it was decided that * Statute 29 Car. II., c. 6. † 25 Edward III., st. 2. the son could not inherit his mother's lands in England, because he was to all intents and purposes an alien. Yet the grandchildren of such male ancestors are not privileged in respect of the alien's duty, except they be protestants, and actually reside within the realm; neither are they enabled to claim any estate or interest, unless the claim is made within five years after the same shall accrue. The children of aliens born in Great Britain are, generally speaking, esteemed natural born subjects, and entitled to all the privileges of such, unless the alien parents are acting in the realm as enemies. In this particular the constitution of France differs from ours; for by their jus albinatus in that kingdom, a child born of foreign parents is an alien. A DENIZEN is an alien born, who has obtained, ex donatione legis, letters patent from the king to make him a British subject, a high and incommunicable branch of the royal prerogative. A denizen is, therefore, a sort of middle state between an alien and a natural born subject, and partakes of both their natures. He may either purchase lands at his discretion, or succeed to them by will or devise, neither of which an alien can do, but he cannot take by inheritance, which a natural born subject can do; for the denizen's parent, through whom he must claim, being an alien, had consequently no inheritable blood, and therefore 'could not convey any to his son. And upon a like defect of hereditary blood, a denizen's issue born before denization, cannot inherit his real property, but his issue born after may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens. All denizens are absolutely barred the privilege of being either members of the privy council, or of the great council of the nation-parliament-and that too either of the house of peers or commons. Neither can they enjoy any office of civil or military trust, nor be capable of accepting any grant of lands from the crown. Natural born subjects may devise a title by descent, through their parents or any ancestor, though they may have been aliens. But by a subsequent statute,* the following restriction has been superadded: that no natural born subject shall devise a title through an alien parent or ancestor, unless he be born at the time of his ancestor's death, who dies seised of the estate which he claims by descent. With this exception, that if a descent shall be cast upon the 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 co-parceners. NATURALIZATION can only be performed by act of parliament, for the act of naturalization puts the alien in exactly the same state as if he had been born under the king's allegiance, with this exception, that he, * 11 & 12 W. and M., c. 6, 25 Geo. II., c. 39. as well as a denizen, is incapable of being a member of the privy council or parliament, or of holding offices, grants, &c. This restriction was found necessary by our ancestors after the Revolution, arising out of a jealousy of the partiality which the prince of Orange so glaringly showed towards his Dutch favourites, on whom he bestowed titles, and would have bestowed all the crown lands in the kingdom, had not the parliament remonstrated with him in a way not to be misunderstood. Without this disabling clause, no bill of naturalization can be received; nor without a clause disabling the person from obtaining any immunity in trade thereby in any foreign country, unless he shall reside in Great Britain for seven years next after the commencement of the session in which he has been naturalized. Neither can any person be naturalized or restored in blood, unless he has 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 in the cases of foreign princes and princesses, these provisions have usually been dispensed with by special acts of parliament, previous to the introduction of bills for their naturalization. These are the principal distinctions between aliens, denizens, and natives, and which parliament has frequently endeavoured to set aside since the Revolution by one general act of naturalization in favour of all foreign protestants. It was attempted in the reign of queen Anne. But after three years' experience of its inexpediency, it was repealed, with the exception of the clause which has just been mentioned for naturalizing the children of British parents born abroad. Every foreign seaman who serves for two years in time of war on board a British man of war is, by virtue of the king's proclamation, ipso facto naturalized, under the restrictions, however, of the statute of 12 Wil. III., already noticed; and all foreign protestants and Jews, after a residence of seven years in any of the American colonies, without having been absent for more than two months at a time, and also all foreign protestants who have served two years there in a military capacity, or have been employed for three years 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 already mentioned, shall on taking the oaths of allegiance and abjuration,† or, in some particular cases, an affirmation to the same effect, be naturalized to all intents and purposes, as if they had been natural born subjects of the British crown. Except as to sitting in parliament, holding offices, and receiving grants of land, &c. from the crown. They are therefore adinissible to all the other privileges to which protestants or Jews born in * 12 Wil. III. 4 Geo. II., c. 21. |