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himself in difficulties, and in a conflict of duties, as Lord Hale observed ; but it is only in very few cases that the municipial laws would affect him. If there should be war between his parent state and the one to which he has attached himself, he must not arm himself against the parent state; and if he be recalled by his native government, he must return, or incur the pain and penalties of a contempt. Under these disabilities, all the civilized nations of Europe adopt (each according to its own laws the natural born subjects of other countries.
The French law, as well since as before their revolution, will not allow a natural born subject of France to bear arms, in time of war, in the service of a foreign power, against France; and yet, subject to that limitation, every Frenchman is free to abdicate his country.
(2.) An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. So, also, it is said, that in every case, the children born abroad, of English parents, were capable, at common law, of inheriting as natives, if the father went and continued abroad in the character of an Englishman,and with the approbation of the sovereign. The statute of 25 Edw. III. stat 2., appears to have been made to remove doubts as to the certainty of the common law on this subject, and it declared, that children thereafter born without the ligeance of the king, whose father and mother, at the time of their birth, were natives, should be entitled to the privileges of native subjects, except the children of
a 1 Hale's P. C. 68.
b Pothier's Traite du droit de Propriété, No. 94. Code Napolcon, No. 17. 21. Toullier, Droit civil Francais, tom. 1. No. 266.
c7 Co. Calvin's case, 18. a.
d Hyde v. Hill, Cro. E. 3 Bro. tit. Descent, pl. 47. tit. Denizen, pl. 14.
mothers who should pass the sea without leave of their husbands. The statute of 7 Ann, c. 5. was to the same general effect; but the statute of 4 Geo. II. c. 31. required only that the father should be a natural born subject at the birth of the child, and it applied to all children then born, or thereafter to be born. Under these statutes it has been held, that to entitle a child born abroad to the rights of an English natural born subject, the father must be an English subject; and if the father be an alien, the child cannot inherit to the mother, though she was born under the king's allegiance.
The act of Congress of the 14th of April, 1802, establishing a uniform rule of naturalization, affects the issue of two classes of persons: (I.) By the 4th section, it was declared, that "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 states, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized, or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States." This provision appears to apply only to the children of persons naturalized, or specially admitted to citizenship; and there is colour for the construction, that it may have been intended to be prospective, and to apply as well to the case of persous thereafter to be naturalized, as to those who had previously been naturalized. It applies to all the children) of persons duly naturalized," under the restriction of residence and minority, at the time of the naturalization of the parent. The act applies to the children of persons duly naturalized, but does not explicitly state, whether it was intended to apply only to the case where both the parents were duly naturalized, or whether it would be sufficient for one of them only to be naturalized, in order to
a Doe v. Jones, 4 Term Rep. 300.
confer, as of course, the right of citizens upon the resident children, being under age. Perhaps it would be sufficient for the father only to be naturalized; for in the supplementary act of the 26th of March, 1804, it was declared, that if any alien, who should have complied with the preliminary steps made requisite by the act of 1802, dies before he is actually naturalized, his widow and children shall be considered as citizens. This provision shows, that the naturalization of the father, was to have the efficient force of conferring the right on his children; and it is worthy of notice, that this last act speaks of children at large, without any allusion to residence or minority; and yet, as the two acts are intimately connected, and make but one system, the last act is to be construed with reference to the prior one, according to the doctrine of the case Ex parte Overington. (2.) By a subsequent part of the same section, it is declared, that "the children of persons, who now are, Jor have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: provided that the right of citizenship shall not descend to persons, whose fathers have never resided within the United States." This clause is certainly not prospective in its operation, whatever may be the just construction of the one preceding it. It applied only to the children of persons who then were, or had been citizens; and consequently the benefit of this provision narrows rapidly by the lapse of time, and the period will soon arrive, when there will be no statute regulation for the benefit of children born abroad, of American parents, and they will be obliged to resort for aid to the dormant and doubtful principles of the English common law. This provision leaves us likewise in doubt, whether the act intended by the words, "children of persons," both the father and mother, in imitation of the statute of 25 Edw. III.; or the father only, according to the more liberal
a 5 Binney, 371.
declaration of the statute of 4 Geo. II. This clause differs from the preceding one, in being without any restriction as to the age or residence of the child; and it appears to have been intended for the case of the children of natural born citizens, or of citizens who were original actors in our revolution, and therefore it was more comprehensive and more liberal in their favour. But the whole statute provision is remarkably loose and vague in its terms, and it is lamentably defective in being confined to the case of children of parents who were citizens in 1802, or had been so previously. The former act of 29th January, 1795, was not so; for it declared generally, that the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States." And when we consider the universal propensity to travel, the liberal intercourse between nations, the extent of commercial enterprise, and the genius and spirit of our municipal institutions, it is quite surprising that the rights of the children of American citizens, born abroad, should, by the existing act of 1802, be left so precarious, and so far inferior in the security which has been given, under like circumstances, by the English
We proceed next to consider the disabilities, rights and duties of aliens.
alien cannot acquire a title to real property by desgent, or created by other mere operation of law. The law que nihil frustra, never casts the freehold upon an alien heir who cannot keep it. This is a well settled rule of the common law. It is understood to be the general rule, that even a natural born subject cannot take by representation from an alien, because the alien has no inheritable blood through which a title can be deduced. If an alien purchases land, or if land be devised to him, the general rule is, that in these cases, he may take and hold, until an
a Calvin's case, 7 Co. 25. a. 1 Vent. 417. Jackson v. Lunn, 3 Johns. Cas, 109. Hunt v. Warnicke, Hardin's Rep. 61.
inquest of office has been had; but upon his death, the land would instantly, and of necessity, (as the freehold cannot fo be kept in abeyance.) without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent." If an alien, according to a case put by Lord Coke, arrives in England, and hath two sons born there, they are of course natural born subjects; and if one of them purchases land, and dies without issue, his brother cannot inherit as his heir, because he must deduce his title by descent, through his father, who had no inheritable blood. But the case, as put by Coke, has been denied to be the law by the majority of the court in Collingwood v. Pace, and it was there held, that the sons of an alien could inherit to each other, and derive title through the alien father. The elaborate opinion of Lord Ch. B. Hale, was distinguished by his usual learning, though it was rendered somewhat per plexing and obscure by the subtlety of his distinctions, and the very artificial texture of his argument. It is still ad mitted, however, that a grandson cannot inherit to his grandfather, though both were natural born subjects, provided the intermediate son was an alien, for the grandson must, in that case, represent his father, and he had no inheritable blood to be represented; and the reason why the one brother may inherit from the other, is, that as to them the descent is immediate, and they do not take by representation from the father. The law according to Lord Hale, respects only the mediate relation of the brothers as brothers, and not in respect of their father, though it be true
a Collingwood v. Pace, 1 Sid. 193. 1 Lev. 59. S. C. Co. Lilt. 2. k. Plowed. 229. b. 230. a. Jackson v. Lunn, supra. Fox v. Southack, 12, Mass. Rep. 143. 8 ib. 445. Fairfax v. Hunter 7. Cranch, 603, 619, 620. Orr v. Hodgson, 4 Wheaton, 453. Governeur v. Robertson, 11 Wheo_ ton, 332. In North Carolina, an alien may take by purchase, but he cannot take by devise, any more than he can inherit. 2 Haywood, 37. 104. 108.
b Co. Litt. 8. a.
e 1 Sid. 193. 1 Vent. 413.