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LECTURE XXV.

OF ALIENS AND NATIVES.

We are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.

(1.) Natives are all persons born within the jurisdiction and allegiance of the United states.* If they were resi

* This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. Calvin'* Cose, 7 Co. Lynch v. Clarke, I Sandford's Ch. R. 584, 639. In this last case the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States was extensively and learnedly discussed, and it was adjudged that the subject of alienage, under our national compact, was a national subject, and that the law on this subject which prevailed in all the United States, became the common law of the United States when the union of the states dent citizons at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation. If a person was born here before our independence, and before that period voluntarily withdrew into other parts of the British dominions, and never returned; yet, it has been held, that his allegiance accrued to the state in which he was born, as the lawful successor of the king; and that he was to be considered a subject by birth.11 It was *40 admitted, that this *claim of the state to the allegiance of all persons born within its territories prior to our revolution, might subject those persons who adhered to their former sovereign, to great inconveniences in time of war, when two opposing sovereigns claimed their allegiance; and under the peculiar circumstances of the case, it was, undoubtedly, a very strong application

was consummated; and the general rule above stated is, consequently, the governing principle or common law of the United States, and not of the individual states separately considered. The right of citizenship, as distinguished from alienage, is a national right, character or condition, and does not pertain to the individual states separately considered. The question is of national, and not individual sovereignty, and is governed by the principles of the common law which prevail in the United States, and became, under the constitution, to a limited extent, a system of national jurisprudence. It was accordingly held in that case, that the complainant, who was born in New York of alien parents, during their temporary sojourn there, and returned while an infant, being the first year of her birth, with her parents to their native country, and always resided there afterwards, was a citizen of the United States by birth. This was the principle of the English common law in respect to all persons born within the king's allegiance, and was the law of the colonies, and became the law of each and all of the states when the Declaration of Independence was made, and continued so until the establishment of the constitution of the United States, when the whole exclusive jurisdiction of this subject of citizenship passed to the United States, and the same principle has there remained. » Ainslie v. Martin, 9 Mass. Rep. 454.

of the common law doctrine of natural and perpetual allegiance by birth. The inference to be drawn from the discussion in the case of UTIlvaine v. Coxe:* would seem to be in favor of the more reasonable doctrine, that no antenatus ever owed any allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king's allegiance in another part of his dominions, and never afterwards, prior to the treaty of peace, returned and settled here. The United States did not exist as an independent government until 1776; and it may well be doubted whether the doctrine of allegiance by birth be applicable to the case of persons who did not reside here when the revolution took place, and did not, therefore, either by election or tacit assent, become members of the newly created state. The ground of the decision in the latter case was, that the party in question was not only born in New-Jersey, but remained there as an inhabitant until the "4th of October, 1776, when the legislature of that state asserted the right of sovereignty, and the claim of allegiance over all persons then abiding within its jurisdiction. By remaining there after the declaration of independence, and after that statute, the party had determined his right of election to withdraw, and had, by his presumed consent, become a member of the new government, and was consequently, entitled to protection, and bound to allegiance. The doctrine in the case of Respublica v. Chapman,b gons *also to deny the *41 claim of allegiance, in the case of a person who, though born here, was not here, and assenting to our new governments, when they were first instituted. The language of that case was, that allegiance could only

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attach upon those persons who were then inhabitants. When an old government is dissolved, and a new one formed, "all the writers agree," said Ch. J. M'Kean, " that none are subjects of the adopted government who have not freely assented to it." The same principle was declared by the supreme court of New-York, in Jackson v. White,'1 and it was held, that though a British subject resided here as a freeholder on the 4th of July, 1776, and was abiding here on the 16th of July, 1776, when the convention of the state asserted the right of sovereignty, and the claim of allegiance over all such persons; yet, that, under the circumstances, the person in question being a British officer, and a few weeks thereafter placed on his parole, and in December, 1776, joining the British forces, was to be deemed an alien, and as having never changed his allegiance, or elected to become a party to our new government. The doctrine in the case of Ainslie v. Martin was contrary, also, to what had been held by the same court in the cases of Gardner v. Ward, and Kilham v. Ward,b where it was decided, that persons born in Massachusetts before the revolution, who had withdrawn to a British province before our independence, and returned during the war, retained their citizenship, while the same persons, had they remained in the British province until after the treaty of peace, would have been British subjects, because they had chosen to continue their former allegiance, and there was but one allegiance before the revolution. This principle was asserted by the same court in the case of Phipps,0 and I consider it to be the true and sound law on the subject.

• 20 Johns. Rep. 313.

b 2 Mase. Rep. 236, 244, note.

« 2 Pick. Rep. 394, note. See, also, Dupont v. Pepper, State Reports, 8. C. p. 5, S. P. In Inglis v. The Trustees of the Sailors' Snug Harbor, 3 Peters' U. S. Rep. 99, 122, 123, it was adjudged that the rights of election between the new and old government did exist at the revolution in

*To create allegiance by birth, the party must be *42 bom, not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a state while abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs." It is equally the doctrine of the English common law, that during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.b

It is the doctrine of the English law, that natural born subjects owe an allegiance, which is intrinsic and perpetual, and which cannot be divested by any act of their own.0 In the case of Macdonald, who was tried for high treason, in 1746, before Lord Ch. J. Lee, and who, though bom in England, had been educated in France, and spent his riper years there; his counsel spoke against the doctrine of natural allegiance as slavish, and repugnant to the principles of their *revolution. The court, *43 however, said, that it had never been doubted, that a subject born, taking a commission from a foreign prince,

1776, to all the inhabitants; and that the only difficulty was, as to the time and as to the evidence of the election, so as to determine the question of allegiance and alienism. There was a reasonable time allowed for to elect to remain a subject of Great Britain, or to be*ome a citizen of the United States. Ibid. 160.

Vattell, b. 1, ch. 19, sec. 217; b. 3, ch. 13, sec. 199.

b Calvin's case, 7 Co. 18 a. Vaughan, Ch- J., in Craw v. Ramsey, Yaugh. Rep. 281. Dyer's Rep. 224 a. pi. 29. An alien, says Lord Coke, in Calvin's case, is a person out of the ligeance of the king. It is not extra regmim, nor extra legem, but extra ligeantiam. To make a subject born, the parents must be under the actual obedience of the king, and the place of birth be within the king's obedience, as well as within his dominions.

'Story's case, Dyer's Rep. 298 b. 300 b. 1 Blacks. Com. 370, 371. 1 Hals's P. C. 68. Foster's Crown Law, 7, 59, 183.

Vol. II. 5

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