CHAPTER THE TENTH. OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.

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CHAPTER THE TENTH.

OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.

 

HAVING, in the eight preceding chapters, treated of perfons as they ftand in the public relations of magiftrates, I now proceed to confider fuch perfons as fall under the denomination of the people. And herein all the inferior and fubordinate magiftrates, treated of in the laft chapter, are included.

 

THE firft and moft obvious divifion of the people is into aliens and natural-born fubjects. Natural-born fubjects are fuch as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, fuch as are born out of it. Allegiance is the tie, or ligamen, which binds the fubject to the king, in return for that protection which the king affords the fubject. The thing itfelf, or fubftantial part of it, is founded in reafon and the nature of government; the name and the form are derived to us from our Gothic anceftors. Under the feodal fyftem, every owner of lands held them in fubjection to fome fuperior or lord, from whom or whofe anceftors the tenant or vafal had received them: and there was mutual truft or confidence fubfifting between the lord and vafal, that the lord fhould protect the vafal in the enjoyment of the territory he had granted him, and, on the

other

 

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other hand, that the vafal fhould be faithful to the lord and defend him againft all his enemies. This obligation on the part of the vafal was called his fidelitas or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almoft the fame terms as our antient oath of allegiancea: except that in the ufual oath of fealty there was frequently a faving or exception of the faith due to a fuperior lord by name, under whom the landlord himfelf was perhaps only a tenant or vafal. But when the acknowlegement was made to the abfolute fuperior himfelf, who was vafal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant fwore to bear faith to his fovereign lord, in oppofition to all men, without any faving or exception: “contra omnes bomines fidelitatem fecitb.” Land held by this exalted fpecies of fealty was called feudum ligium, a liege fee; the vafals bomines ligii, or liege men; and the fovereign their dominus ligius, or liege lord. And when fovereign princes did homage to each other, for lands held under their refpective fovereignties, a diftinction was always made between fimple homage, which was only an acknowlegement of tenurec; and liege homage, which included the fealty before-mentioned, and the fervices confequent upon it. Thus when Edward III, in 1329, did homage to Philip VI of France, for his ducal dominions on that continent, it was warmly difputed of what fpecies the homage was to be, whether liege or fimple homaged. With us in England, it becoming a fettled principle of tenure, that all lands in the kingdom are holden of the king as their fovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was neceffarily confined to the perfon of the king alone. By an eafy analogy the term of allegiance was foon brought to fignify all other engagements, which are due from fubjects to their prince, as well as thofe duties which were fimply and merely territorial. And the oath of allegiance, as ad-

 

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a 2 Feud. 5, 6, 7.

b 2 Feud. 99.

c 7 Rep. Calvin’s cafe. 7.

d 2 Carte. 401. Mod. Un. Hift. xxiii. 420.

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W w 2

miniftred

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miniftred for upwards of fix hundred yearse, contained a promife “to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom.” Upon which fir Matthew Halef makes this remark; that it was fhort and plain, not entangled with long or intricate claufes or declarations, and yet is comprehenfive of the whole duty from the fubject to his fovereign. But, at the revolution, the terms of this oath being thought perhaps to favour too much the notion of non-refiftance, the prefent form was introduced by the convention parliament, which is more general and indeterminate than the former; the fubject only promifing “that he will be faithful and bear true allegiance to the king,” without mentioning “his heirs,” o fpecifying in the leaft wherein that allegiance confifts. The oath of fupremacy is principally calculated as a renuntiation of the pope’s pretended authority: and the oath abjuration, introduced in the reign of king Williamg, very amply fupplies the loofe and general texture of the oath of allegiance; it recognizing the right of his majefty, derived under the act of fettlement; engaging to fupport him to the utmoft of the juror’s power; promifing to difclofe all traitorous confpiracies againft him; and expreffly renouncing any claim of the pretender, by name, in as clear and explicit terms as the Englifh language can furnifh. This oath muft be taken by all perfons in any office, truft, or employment; and may be tendered by two juftices of the peace to any perfon, whom they fhall fufpect of difaffectionh. But the oath of allegiance may be tenderedi to all perfons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the fheriff’s tourn, which is the court-leet of the count.

 

BUT, befides thefe exprefs engagements, the law alfo holds that there is an implied, original, and virtual allegiance, owing

 

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e Mirror. c. 3. §. 35. Fleta. 3. 16. Britton. C. 29. 7 Rep. Calvin’s cafe. 6.

f I Hal. P. C. 63.

g Stat. 13 W. III. c. 6.

h Stat. I Geo. I. c. 13.

i 2 Inft. 121. I Hal. P. C. 64.

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form

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From every fubject to his fovereign, antecedently to any exprefs promife; and although the fubject never fwore any faith or allegiance in form. For as the king, by the very defcent of the crown, is fully invefted with all the rights and bound to all the duties of fovereignty, before his coronation; fo the fubject is bound to his prince by an intrinfic allegiance, before the fuperinduction of thofe outward bonds of oath, homage, and fealty; which were only inftituted to remind the fubject of this his previous duty, and for the better fecuring it’s performancek. The formal proffeffion therefore, or oath of fubjection, is nothing more than a declaration in words of what was before implied in law. Which occafions fir Edward Coke very juftly to obfervel, that “ all fubjects are equally bounden to their allegiance, as if they had taken the oath; becaufe it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the fame.” The fanction of an oath, it is true, in cafe of violation of duty, makes the guilt ftill more accumulated, by fuperadding perjury to treafon; but it does not encreafe the civil obligation to loyalty; it only ftrengthens the focial tie by uniting it with that of religion.

 

ALLEGIANCE, both exprefs and implied, is however fiftinguifhed by the law into forts or fpecies, the one natural, the other local; the former being alfo perpetual, the latter temporary. Natural allegiance is fuch as is due from all men born within the king’s dominions immediately upon their birthm. For, immediately upon their birth, they are under the king’s protection; at a time too, when (during their infancy) they are incapable of protecting themfelves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumftance, nor by any thing but the united concurrence of the legiflaturen. An Englifhman who removes to France, or to China, owes the fame allegiance to the king to England there as at home, and twenty years

 

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k I Hal. P. C. 61.

l 2 Inft. 121.

7 Rep. 7.

n 2 p. Wms. 124.

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hence

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hence as well as now. For it is a principle of univerfal lawo, that the natural-born fubject of one prince cannot by any act of his own, no, not by fwearing allegiance to another, put off or difcharge his natural allegiance to the former: for this natural allegiance was intrinfic, and primitive, and antecedent to the other; and cannot be devefted without the concurrent act of that prince to whom it was firft due. Indeed the natural-born fubject of one prince, to whom he owes allegiance, may be entangled by fubjecting himfelf abfolutely to another; but it is his own act that brings him into thefe ftraits and difficulties, of owing fervice to two mafters; and it is unreafonable that, by fuch voluntary act of his own, he fhould be able at pleafure to unloofe thofe bands, by which he is connected to his natural prince.

 

LOCAL allegiance is fuch as is due from an alien, or ftranger born, for fo long time as he continues within the king’s dominion and protectionp: and it ceafes, the inftant fuch ftranger transfers himfelf from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reafon, evidently founded upon the nature of government; that allegiance is a debt due from the fubject, upon an implied contract with the prince, that fo long as the one affords protection, fo long the other will demean himfelf faithfully. As therefore the prince is always under a conftant tie to protect his natural-born fubjects, at all times and in all countries, for this reafon their allegiance due to him is equally univerfal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his refidence in this realm, the allegiance of an alien is confined (in point of time) to the duration of fuch his refidence, and (in point of locality) to the dominions of the Britifh empire. From which confiderations fir Matthew Haleq deduces this confequence, that, though there be an ufurper of the crown, yet it is treafon for any fubject, while the ufurper is in full poffeffion of the fovereignty, to practice any thing againft his crown and dig-

 

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o I Hal. P. C. 68.

7 Rep. 6.

q I Hal. P. C. 60.

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nity:

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Nity: wherefore, although the true prince regain the fovereignty, yet fuch attempts againft the ufurper (unlefs in defence or aid of the rightful king) have been afterwards punifhed with death; becaufe 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 houfe by the line of Lancafter, treafons committed againft Henry VI were capitally punifhed, though Henry had been declared an ufurper by parliament.

 

THIS oath of allegiance, or rather the allegiance itfelf, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural perfon, and blood-royal: and for the mifapplication of their allegiance, viz. to the regal capacity or crown, exclufive of the perfon of the king, were the Spencers banifhed in the reign of Edward IIr. And from hence arofe that principle of perfonal attachment, and affectionate loyalty, which induced our forefathers (and, if occafion required, would doubtlefs induce their fons) to hazard all that was dear to them, life, fortune, and family, in defence and fupport of their liege lord and fovereign.

 

THIS allegiance then, both exprefs and implied, is the duty of all the king’s fubjects, under the diftinctions here laid down, of local and temporary, or univerfal and perpetual. Their rights are alfo diftinguifhable by the fame criterions of time and locality; natural-born fubjects having a great variety of rights, which they acquire by being born within the king’s ligeance, and can never forfeit by any diftance of place or time, but only by their own mifbehaviour: the explanation of which rights is the principal fubject of the two firft books of thefe commentaries. The fame is alfo in fome degree the cafe of aliens; though their rights are much more circumfcribed, being acquired only by refidence here, and loft whenever they remove. I fhall however here endeavour to chalk out fome of the principal lines, whereby they

 

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r I Hal. P. C. 67.

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are

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are diftinguifhed from natives, defcending to farther particulars when they come in courfe.

 

AN alien born may purchafe lands, or other eftates: but not for his own ufe; for the king is thereupon entitled to thems. If an alien could acquire a permanent property in lands, he muft own an allegiance, equally permanent with that property, to the king of England; which would probably be inconfiftent with that, which he owes the his own natural liege lord: befides that thereby the nation might in time be fubject to foreign influence, and feel many other inconveniences. Wherefore by the civil law fuch contracts were alfo made voidt: but the prince had no fuch advantage of efcheat thereby, as with us in England. Among other reafons, which might be given for our conftitution, it feems to be intended by way of punifhment for the alien’s prefumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having refigned his right, and received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other perfonal eftate, or may hire a houfe for his habitationu: for perfonal eftate is of a tranfitory and moveable nature; and befides, this indulgence to ftrangers is neceffary for the advancement of trade. Aliens alfo may trade as freely as other people; only they are fubject to certain higher duties at the cuftom-houfe: and there are alfo fome obfolete ftatutes of Henry VIII, prohibiting alien artificers to work for themfelves in this kingdom; but it is generally held they were virtually repealed by ftatute 5 Eliz. c. 7. Alfo an alien may bring an action concerning perfonal property, and may make a will, and difpofe of his perfonal eftatew: 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’aubainc or jus albinatusx, unlefs he has a peculiar exemption. When I mention thefe rights of an alien, I muft be underftood of alienfriends only, or fuch whofe countries are in peace with ours; for

 

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s Co. Litt. 2.

Cod. l. II. tit. 55.

7 Rep. 17.

w Lutw. 34.

x The word is derived from alibi natws; Spelm. Cl. 24

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alien-

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alien-enemies have no rights, no privileges, unlefs by the king’s fpecial favour, during the time of war.

 

WHEN I fay, that an alien is one who is born out of the king’s dominions, or allegiance, this alfo muft be underftood with fome reftrictions. The common law indeed ftood abfolutely fo; with only a very few exceptions: fo that a particular act of parliament became neceffary after the reftorationy, for the naturalization of children of his majefty’s Englifh fubjects, 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 fuch allegiances, or ferve two mafters, at once. Yet the children of the king’s embaffadors born abroad were always held to be natural fubjectsz: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is fent; fo, with regard to the fon alfo, he was held (by a kind of plftliminium) to be born under the king of England’s allegiance, reprefented by his father, the embaffador. To encourage alfo foreign commerce, it was enacted by ftatute 25 Edw. III. ft. 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 paffed the feas by her hufband’s confent, might inherit as if born in England: and accordingly it hath been fo adjudged in behalf of merchantsa. But by feveral more modern ftatutesb thefe reftrictions are ftill farther taken off: fo that all children, born out of the king’s ligeance, whofe fathers were natural-born fubjects, are now natural-born fubjects themfelves, to all intents and purpofes, without any exception; unlefs their faid fathers were attainted, or banifhed beyond fea, for high treafon; or were then in the fervice of a prince at enmity with Great Britain.

 

THE children of aliens, born here in England, are, generally fpeaking, natural-born fubjects, and entitled to all the privileges

 

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y Stat. 29 Car. II. c. 6.

z 7 Rep. 18.

a Cro. Car. 601. Mar. 91. Jenk. Cent. 3.

b 7 Ann. c. 5. and 4 Geo. II. c. 21.

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X x

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of fuch. In which the conftitution of France differs from curs; for there, by their jus albinatus, if a child be born of foreign parents, it is an alienc.

 

A DENIZEN is an alien born, but who has obtained ex donatione regis letters patent to make him an Englifh fubject: a high and incommunicable branch of the royal prerogatived. A denizen is in a kind of middle ftate between an alien, and natural-born fubject, and partakes of both of them. He may take lands by purchafe or devife, which an alien may not; but cannot take by inheritancee: for his parent, through whom he muft claim, being an alien had no inheritable blood, and therefore could convey none to the fon. And, upon a like defect of hereditary blood, the iffue of a denizen, born before denization, cannot inherit to him; but his iffue born after, mayf. A denizen is not excufedg from paying the alien’s duty, and fome other mercantile burthens. And no denizen can be of the privy council, or either houfe of parliament, or have any office of truft, civil or military, or be capable of any grant from the crownh.

 

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the fame ftate 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, &ci. No bill for naturalization can be received in either houfe of parliament, without fuch difabling claufe in itk. Neither can any perfon be naturalized or reftored in blood, unlefs he hath received the facrament of the Lord’s fupper within one month before the bringing in of the bill; and unlefs the alfo takes the oaths of allegiance and fupremacy in the prefence of the parliamentl.

 

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

d 7 Rep. Calvin’s cafe. 25.

e II Rep 67.

f Co. Litt. 8. Vaugh. 285.

g Stat. 22 Hen. VIII. c. 8.

h Stat. 12 W. III. c. 2.

I Ibid.

k Stat. I Geo. I. c. 4.

l Stat. 7 Jac. I. c. 2.

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THESE

 

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THESE are the principal diftinctions between aliens, denizens, and natives: diftinctions, which endeavors have been frequently unfed fince the commencement of this century to lay almoft totally afide, by one general naturalization-act for all foreign proteftants. An attempt which was once carried into execution by the ftatute 7 Ann. c. 5. but this, after three years experience of it, was repealed by the ftatute 10 Ann. c. 5. except one claufe, which was juft now mentioned, for naturalizing the children of Englifh parents born abroad. However, every foreign feaman who in time of war ferves two years on board an Englifh fhip is ipfo facto naturalizedm; and all foreign proteftants, and Jews, upon their refiding feven years in any of the American colonies, without being abfent above two months at a time, are upon taking the oaths naturalized to all intents and purpofes, as if they had been born in this kingdomn; and therefore are admiffible to all fuch privileges, and no other, as proteftants or Jews born in this kingdom are entitled to. What thofe privileges areo, was the fubject of very high debates about the time of the famous Jew-billp; which enabled all Jews to prefer bills of naturalization in parliament, without receiving the facrament, as ordained by ftatute 7 Jac. I. It is not my intention to revive this controverfy again; for the act lived only a few months, and was then repealedq: therefore peace be now to it’s manes.

 

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m Stat. 13 Geo. II. c. 3.

n Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 24. 2 Geo. III. c. 25.

o A pretty accurate account of the Jews, till their banifhment in 8 Edw. I. may be found in Molloy de jure maritime, b. 3. c. 6.

p Stat. 26 Geo. II. c. 26.

q Stat. 27 Geo. II. c. I.

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X x 2

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