Article 1, Section 8, Clause 4 (Citizenship)
[Volume 2, Page 583]
St. George Tucker, Blackstone's Commentaries 1:App. 184--85, 254--59; 2:App. 90--1031803
1. Congress being authorized to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States, it may well be questioned how far the states can possess any concurrent authority, on these subjects.
If, however, a doubt should arise respecting the former, it might be presumed, that the rights intended to be conferred by this uniform rule of naturalization, should be, in general, confined to such as might be derived from the federal government, without infringing those rights which peculiarly appertain to the states. Thus a person naturalized pursuant to the laws of the United States, would undoubtedly acquire every right that any other citizen possesses, as a citizen of the United States, except such as the constitution expressly denies, or defers the enjoyment of; and such as the constitution or laws of the individual states require on the part of those who are candidates for office under the authority of the states. Five years residence, for example, is required by the laws of Virginia, before any naturalized foreigner is capable of being elected to any office under the state. It is presumable that his being naturalized under the laws of the United States would not supercede the necessity of this qualification.
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4. Congress have power to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States.
As to the former of these powers; by the first articles of confederation and perpetual union between the states, it was agreed, that the free inhabitants of each state, paupers, vagabonds, and fugitives from justice excepted, should be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall, in every other, enjoy all the privileges of trade and commerce, &c. The dissimilarity of the rules of naturalization in the several states, had long been remarked as a fault in the system, and, as combined with this article in the confederation, laid a foundation for intricate and delicate questions. It seems to be a construction scarcely avoidable, that those who come under the denomination of free inhabitants of a state, (although not citizens of such state), were entitled in every other state to all the privileges of free citizens of the latter, that is, to greater privileges than they may be entitled to in their own state: our free negroes, for example, though not entitled to the right of suffrage in Virginia, might, by removing into another [Volume 2, Page 584] state, acquire that right there; and persons of the same description, removing from any other state, into this, might be supposed to acquire the same right here, in virtue of that article, though native-born negroes are undoubtedly incapable of it under our constitution: so that every state was laid under the necessity, not only to confer the rights of citizenship in other states, upon any whom it might admit to such rights within itself, but upon any whom it might allow to become inhabitants within its jurisdiction. But were an exposition of the term "inhabitants" to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty would not be removed. The very improper power would still have been retained by each state, of naturalizing in every other state. In one state, residence for a short time conferred all the rights of citizenship; in another, qualifications of greater importance were required: an alien, therefore, legally incapacitated for certain rights in the latter, might, by previous residence only in the former, elude his incapacity; and thus the law of one state, be preposterously rendered paramount to the law of another, within the jurisdiction of such other. By the laws of several states, certain descriptions of aliens, who had rendered themselves obnoxious, and other persons whose conduct had rendered them liable to the highest penalties of the law, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence, beyond the short period allowed by the treaty of peace with Great Britain. We owe it to mere casualty, that very serious embarrassments on this subject have not occurred. The constitution, and the several acts of naturalization passed by congress, have therefore wisely provided against them by this article, and by an explicit declaration contained in the law, that no person heretofore proscribed by any state, shall be admitted a citizen, except by an act of the legislature of the state in which such person was proscribed.
The federal court, consisting of judges Wilson and Blair, of the supreme court, and judge Peters, district judge in Pennsylvania, at a circuit court held for the district of Pennsylvania, in April, 1792; decided, "that the states, individually, still enjoy a concurrent jurisdiction upon the subject of naturalization: but that their individual authority cannot be exercised so as to contravene the rule established by the authority of the union: the true reason for investing congress with the power of naturalization (said the court,) was to guard against too narrow, instead of too liberal a mode of conferring the right of citizenship. Thus the individual states cannot exclude those citizens, who have been adopted by the United States; but they can adopt citizens upon easier terms, than those which congress may deem it expedient to impose."
But this decision seems to have been afterwards doubted by judge Iredel, 2 Dallas, 373. And the act of 5 cong. c. 71. declares, that "no alien shall be admitted to become a citizen of the United States, or of any state, unless in the manner prescribed by that act." And by a subsequent act, passed 7 cong. chapter 28, it is also declared, that any alien, being a free white person, may become a citizen of the United States, or any of them, on the conditions therein mentioned, "and not otherwise." These legislative expositions of the constitution do not accord with the judicial opinion above-mentioned. A very respectable political writer makes the following pertinent remarks upon this subject. "Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. In the states of Kentucky and Virginia, the privileges of alien friends depended upon the constitution of each state, the acts of their respective legislatures, and the common law; by these they were considered, according to the time of their residence, and their having complied with certain requisitions pointed out by these laws, either as denizens, or naturalized citizens. As denizens, they were placed in a kind of middle state between aliens and natural born citizens; by naturalization, they were put exactly in the same condition that they would have been, if they had been born within the state, except so far as was specially excepted by the laws of each state. The common law has affixed such distinct and appropriate ideas to the terms denization, and naturalization, that they can not be confounded together, or mistaken for each other in any legal transaction whatever. They are so absolutely distinct in their natures, that in England the rights they convey, can not both be given by the same power; the king can make denizens, by his grant, or letters patent, but nothing but an act of parliament can make a naturalized subject. This was the legal state of this subject in Virginia, when the federal constitution was adopted; it declares that congress shall have power to establish an uniform rule of naturalization; throughout the United States; but it also further declares, that the powers not delegated by the constitution to the U. States, nor prohibited by it to the states, are reserved to the states, respectively or to the people. The power of naturalization, and not that of denization, being delegated to congress, and the power of denization not being prohibited to the states by the constitution, that power ought not to be considered as given to congress, but, on the contrary, as being reserved to the states. And as the right of denization did not make a citizen of an alien, but only placed him in a middle state, between the two, giving him local privileges only, which he was so far from being entitled to carry with him into another state, that he lost them by removing from the state giving them, the inconveniences which might result from the indirect communication of the rights of naturalized citizens, by different modes of naturalization prevailing in the several states, could not be apprehended. It might therefore have been extremely impolitic in the states to have surrendered the right of denization, as well as that of naturalization to the federal government, inasmuch as it might have operated to discourage migration to those states, which have lands to dispose of, and settle; since, it might be a disagreeable alternative to the states, either to permit aliens to hold lands within their territory, or to exclude all who have not yet completed their probationary residence within the [Volume 2, Page 585] U. States, so as to become naturalized citizens, from purchasing, or holding lands, until they should have acquired all other rights appertaining to that character."
Here, another question presents itself: if the states, individually, possess the right of making denizens of aliens, can a person so made a denizen of a particular state, hold an office under the authority of such state? And I think it unquestionable that each state hath an absolute, and uncontrolable power over this subject, if disposed to exercise it. For every state must be presumed to be the exclusive judge of the qualifications of it's own officers and servants: for this is a part of their sovereignty which they can not be supposed to have intended ever to give up. And if there be nothing in their constitutions, respectively, to the contrary, the legislature may unquestionably, by a general law, limit, or extend such qualifications, so far as they may think proper. The law of Virginia declares, "that all persons other than alien enemies, who shall migrate into this state, and give satisfactory proof by oath or affirmation that they intend to reside therein, and take the legal oath of fidelity to the commonwealth shall be entitled to all the rights, privileges and advantages of citizens, except that they shall not be capable of election or appointment to any office, legislative, executive or judiciary, until an actual residence in the state for five years thereafter; nor until they shall have evinced a permanent attachment to the state, by intermarrying with a citizen thereof, or of some one of the United States, or purchased lands of the value of three hundred dollars therein." Now although the act of congress may operate to repeal this act, so far as relates to the rights of naturalization, or, a state of perfect citizenship, under the constitution and laws of the union; yet, as it respects the rights which the state hath power to grant, such as holding lands, or an office under the sole, and distinct authority of the state, I see no reason to doubt that the law is as valid at this day, as it was before the adoption of the constitution of the United States.
The periods of residence, required by the several acts of congress before an alien can be admitted a citizen, have been various. The act of 1 congress, 2 session, c. 3, required two years only: this period was increased to five years, by the act of 3 congress, c. 85, which was still further extended to fourteen years, by the act of 5 congress, c. 71, but the act of 7 cong., c. 28. has reduced it to five years, again. Any alien who shall have borne any hereditary title; or been of any order of nobility, in any other state, must renounce the same, on oath, at the time of his admission to take the oath of a citizen. A wise provision, the benefit of which it is to be hoped, may reach to the latest posterity.
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"It is a principle of universal law, that the natural born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off, or discharge his natural allegiance to the former." Blacks. Com. Vol. I. p. 369.
The positive, and unqualified manner in which the learned commentator advances this to be a principle of universal law, would induce a supposition, that it is a point in which all the writers on the law of nature and nations are perfectly agreed. As my researches have led me to adopt a very different, or, rather, opposite conclusion, it will be the business of this note to examine the subject.
If it be contended that this is a principle of the divine law, I should wish to be informed in which of the books of the old, or new testament it is to be found. The family of the patriarch Jacob voluntarily became subjects to the Egyptian monarch. . . . And four hundred years afterwards, Moses, their prophet, and deliverer, voluntarily abandoned Egypt, his native country, and dwelt among the Midianites; and then he, with the whole of the descendants of Jacob voluntarily departed out of Egypt, under the immediate protection and guidance of Jehovah, himself. . . . David also, the man after God's own heart, abandoned his natural liege lord Saul, and went and dwelt with Achish, king of Gath; and even marched in his army against his native country, and liege lord, until the jealousy of the lords of the Philistines obliged him to turn back. I can not therefore believe that the divine law contains in it any such principle.
Neither can I well conceive how this can be considered as a principle of the law of nature; for according to that law, all men are equal. One man therefore can not owe allegiance to another, in virtue of that law; since there is neither prince nor subject among men according to the principles of it.
Nor yet does this appear to be a principle of the law of nations, though perhaps it may have been the practice of particular nations to prohibit their subjects from migrating to any other: but in this case the prohibition arises from the particular law of the state, and not from the general law and practice of nations towards each other. The law of Solon, which prohibited the Athenians from admitting any person into their commonwealth, except such as were condemned to perpetual banishment from their own country, or else such as removed their whole families to Athens for the convenience of trade, and employment of the arts they professed, was not made so much to keep out foreigners, as to invite them to settle at Athens, by giving them assurance of incorporating them in the body of the commonwealth. . . . For he made no doubt, says Plutarch, but both these sorts of people would make very good subjects, the one because they voluntarily quitted, and the other, because they were forced out of their own country. Plato says that, at Athens it was lawful for every private man, after he had examined the laws and customs of the republic, if he did not approve of them, to quit the city, and retire where he pleased with his effects. By the constitution of the Roman commonwealth, no citizen could forced to leave the commonwealth, or if he pleased, not to leave it, when he was made a member of another which he preferred to it. And therefore Cicero says, that a little before his remembrance, several citizens of Rome, men of credit and fortunes, voluntarily left that, and settled themselves in other commonwealths. And the way, says he, lies open from every state to ours, and from ours to every other. This right he extols in the most emphatic manner. "What noble rights! which by the blessing of heaven have been enjoyed by us and our ancestors, ever since the Roman state begun, that none of us should be forced to leave our country, or stay in it against our wills. This is the immovable [Volume 2, Page 586] foundation of our liberty, that every man is master of his right, and may keep it or resign it, as he pleases." These instances, which are cited by Puffendorf, on this subject, prove at least that this principle was neither to be found in the Athenian or Roman institutions.
The practice among more modern nations is various: among the Muscovites, emigration is not permitted. The citizens of Neufchatel and Valengen, in Switzerland, may quit the country, and carry off their effects in what manner they please; a citizen of Bern may, if he pleases, remove to Fribourg, and reciprocally, a citizen of Fribourg may go and settle in Bern, and he has a right to take all his effects with him. On the other hand it appears from several historical facts, particularly in the history of Switzerland and the neighbouring countries, that the law of nations established there by custom, for some ages past, does not permit a state to receive the subjects of another state into the number of its citizens. This vicious custom, says Vattel, had no other foundation than the slavery to which the people were then reduced. A prince considered his subjects in the rank of his property and riches; he calculated their numbers, as he did his flocks; and to the disgrace of human nature this strange abuse is not yet every where destroyed.
Although Grotius denies that emigrants ought to leave the state in troops or large companies, (an opinion which is controverted by Puffendorf, and Burlamaqui), yet he allows the case to be quite different when a single person leaves his country; it is one thing, says he, to draw water out of a river, and another to divert the course of a part of that river. And Puffendorf expressly says, where there are no laws about the matter (for the laws of different countries differ in this respect), we must be determined by customs arising from the nature of civil subjection. What custom admits of, every subject is supposed at liberty to use. But if this gives no light to the matter, and the compact of subjection makes no mention of it; it must be presumed that every man reserves to himself the liberty to remove at discretion. For when a man enters into a commonwealth, it cannot be supposed that he gives up all care of himself and his fortunes, but rather that by so doing he takes the best expedient to defend and secure both. But because it often happens that the nature of the government does not suit with every private man's circumstances, or he thinks, at least, he can make his fortune with more advantage elsewhere; and since it would be unreasonable to reform and make alterations in the commonwealth at the desire, and for the benefit of only a few private subjects, the only method left is, to give them leave to remove and provide for themselves where they think best. Burlamaqui scruples not to adopt the opinion of Puffendorf, altogether. So that we have the opinion of these four jurists that every man hath a natural right to migrate from one state to another, and that this right can only be restrained under special circumstances, by the state to which he belongs, without imposing upon him an unwarrantable slavery.
Mr. Locke, in his essay on civil government seems to have examined thoroughly the foundation of this pretended right in governments to prohibit the emigration of their subjects, or citizens. There are no examples, says he, so frequent in history, both sacred and profane, as those of men withdrawing themselves, and their obedience from the jurisdiction they were born under, and the family or community they were bred up in, and setting up new governments in other places: this has been the practice of the world, from its first beginning to this day; nor is it now any more hindrance to the freedom of mankind, that they are born under constituted and antient polities, that have established laws, and set forms of government, than if they were born in the woods, among the unconfined inhabitants that run loose in them. For those who would persuade us, that by being born under any government, we are naturally subjects to it, and have no more any title, or pretence, to the freedom of the state of nature, have no other reason (bating that of paternal power) to produce for it, but only because our fathers, or progenitors passed away their natural liberty, and thereby bound up themselves and their posterity to a perpetual subjection to the government, which they themselves submitted to. 'Tis true, that whatever engagements, or promises, any one has made for himself, he is under the obligation of them, but cannot by any compact whatsoever bind his children, or posterity. For his son, when a man, being altogether as free as the father, any act of the father can no more give away the liberty of the son, than it can of any body else: he may, indeed, annex such conditions to the land he enjoyed, as a subject of any commonwealth, as may oblige his son to be of the community, if he will enjoy those possessions, which were his fathers; because that estate being his father's property he may dispose, or settle it as he pleases. And this has generally given the occasion to mistake in this matter; because commonwealths not permitting any part of their dominions to be dismembered, nor to be enjoyed by any but those of their community, the son cannot ordinarily enjoy the possession of his father, but under the same terms his father did, by becoming a member of the society; whereby he puts himself presently under the government he finds established, as much as any other subject of that commonwealth. And thus the consent of freemen, born under government, which, only, makes them members of it, being given separately in their turn, as each comes of age, and not in a multitude together; people taking no notice of it, and thinking it not done at all, or not necessary, conclude they are naturally subjects, as they are men.
And this mistake, it is evident Sir Matthew Hale has fallen into, when he tells us, that a lawful prince who hath the prior obligation of allegiance, can not lose that interest without his own consent, by his subjects resigning himself to the subjection of another; so that the natural born subject of one prince can not, by swearing allegiance to another prince, put off, or discharge himself from that natural allegiance; for this natural allegiance, says he, was intrinsic, and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. And the authorities which he brings in support of this opinion clearly prove that he fell into mistake from the very reason assigned by Mr. Locke. For, in the next paragraph he tells us, that there were very many that had been antiently ad fidem regis Angliae [Volume 2, Page 587] et Franciae, especially before the loss of Normandy: such were the comes marescallus that usually lived in England, and M. de Feynes, manens in Francia, who were ad fidem utriusque regis; but they ordered their homages and fealties so, that they swore or professed allegiance, only to one, viz. [that king in whose dominions they respectively resided;] the homage they performed to the other, [in whose dominions they held lands, but did not reside therein,] being not purely liege homage, but rather feudal: and therefore when war happened between the two crowns, remaneat personaliter quilibet eorum cum eo, cui fecerat ligeanteam; et faciat servitium debitum ei, cum quo non steterat in persona, namely the service due from the feud, or fee he held: but this did not always satisfy the prince, cum quo non steterat in persona, but their possessions were usually seized, and rarely, or not without difficulty restored, without a capitulation to that purpose between the two crowns. And all the cases which he there cites in support of his opinion proceed upon the same ground; namely, the right which each prince exercised to seize the lands and possessions within his dominions, which belonged to the subjects of the other with whom he was at war. Which clearly proves that the right of confiscation thus mutually claimed and exercised, did not proceed upon the ground that the party whose lands were seized had broken his natural allegiance, or that which he might be supposed to owe to the prince in whose dominions he was born; but that feudal obligation, only, which every inferior tenant owed to his superior lord, (whether such a superior were a sovereign prince, or merely a private person) of whom he held his lands. Now this power which a prince might possess over the lands and possessions of a man who never resided within his dominions, can not be construed to give him any right over the person of such a man; neither on the other hand can that prince in whose territories he happens to be born claim any right to detain him therein, merely because he first saw the light there, as Mr. Locke has most clearly shewn; the most that he can do is to prohibit him from carrying his property with him; which if it be lands he can not, and if it be goods, he may not (if the laws of the state forbid) carry away without the consent of the government.
From the whole that we have seen, it appears, that the right of emigration is a right strictly natural; and that the restraints which may be imposed upon the exercise of it, are merely creatures of the juris positivi, or municipal laws of a state. And consequently that wherever the laws of any country do not prohibit, they permit emigration, or, as I rather chuse to call it, expatriation. Now I apprehend it is altogether immaterial to us in America, whether the laws of England, France or Spain, permit the subjects of those countries, respectively, to expatriate themselves, inasmuch as I have shewn, or at least endeavoured so to do, that the municipal law of no other country upon earth hath any force, or obligation over the citizens of the United States, as such; or over the citizens of any one state in the union, otherwise, or in any greater degree than the constitution or laws of such particular state may have adopted the same: and then it obtains a force and operation, so far, and so far only, as the act of adoption extends, and not on account of any intrinsic obligation which it might be supposed to possess, or derive from any other source. And, although Virginia has adopted the common law of England, under certain restrictions, yet Virginia by a positive act of her legislature, so long since as the year 1783, declared it to be a natural right which all men have, to relinquish that society in which birth or accident may have thrown them, and seek subsistence and happiness elsewhere, and accordingly pointed out the mode in which any citizen might exercise it. The constitution of Vermont, and the first constitution of Pennsylvania contain similar declarations. Can it then be doubted that the citizens of those states, respectively, possess the right of exercising this natural privilege, whatever may be the laws of the other states in the union? If a doubt exists upon what principle it is founded? perhaps it will be answered, upon the power granted to congress by the constitution to establish an uniform rule of naturalization. I have given an answer to this, in a preceding tract. Perhaps; upon the faith of our treaties with France, England, and other European nations. But those treaties only stipulate for the conduct of the citizens of the United States, so long as they remain such; not, for their conduct after they shall have abandoned that character in the manner which the laws of the respective states permit.
If a person violates the treaties, and remains a citizen, the treaties stipulate that he shall be punished, or be abandoned by the U. States, as a pirate, and robber. But, if before he attaches himself to any other nation, he renounces his character of an American citizen, I cannot see that he is any longer amenable to the United States for his conduct; nor can they be considered as any longer responsible for a conduct which in ninety nine cases out of an hundred, they can by no possibility control, or punish; the parties having forever bidden adieu to their territory and jurisdiction.
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Let us now compare the situation and rights of aliens in England with those in America. An alien in England remained the subject of that king or government under which he was born; he migrated to England for the temporary purposes of merchandise, and not of perpetual residence; because, as he continued to be the subject of a foreign power, he was always supposed to retain the animum revertandi to his natural sovereign; and, consequently, whenever a war broke out between his own nation and that of Great Britain, he was (however attached to the place of his residence, it's laws or government,) considered as an enemy, unless he could obtain a special letter of license from the crown to remain in England; he could not be made a denizen, but by the special favour of the crown; nor be naturalized, but by the like favour of the supreme legislature, (whose power extends even to an alteration of the constitution itself.) Both these acquisitions must be obtained as a matter of the highest grace and favour, and not of right. Yet, under all these circumstances, an alien, whose nation is in amity with England, is clearly and indisputably entitled to the full protection of the laws in every matter that respects his personal liberty, his personal security, and his personal property, as fully and completely as if he had been naturalized by act of parliament, or had acquired all the rights of an Englishman by his birth.[Volume 2, Page 588]
An alien in America, antecedent to the revolution, was entitled to all the rights and privileges of an alien in England, and many more; to all that an alien in England could claim, because, as has been remarked elsewhere, the common law of England and every statute of that country made for the benefit of the subject, before our ancestors migrated to this country, were, so far as the same were applicable to the nature of their situation, and for their benefit, brought over hither by them; and wherever they are not repealed, altered, or amended by the constitutional provisions, or legislative declaration, of the respective states, every beneficial statute and rule of the common law still remains in force. An alien in America was also entitled to many more rights than an alien in England. 1st, By the very act of migrating to, and settling in, America, he became ipso facto a denizen, under the express stipulations of the colonial charters, (all of which, it is believed, contained similar clauses) whereby it was stipulated for the better encouragement of all who would engage in the settlement of the colonies, that they, and every of them that should thereafter be inhabiting the same, should, and might, have all the privileges of free denizens, or persons native of England. 2d, By the same act of migrating he had a right to be naturalized under the sanction of a pre-existing law, made not only for the benefit, but for the encouragement, of all in a similar situation with himself. The operation of these laws was immediate, not remote; he became a denizen, as of right, instantly; he became naturalized upon payment of the legal fees for his letters of naturalization, and taking the usual oaths.
By the adoption of the constitution of the United States, the rights of aliens to become citizens was by no means intended to be taken away. . . . on the contrary, it is expressly provided, that congress shall have power to establish an uniform rule of naturalization, throughout the United States. The dissimilarity in the rules of naturalization, in the several states, was supposed to have laid the foundation for intricate and delicate questions, under that article of the confederation which declares, that the free inhabitants of each state, paupers, vagabonds, and fugitives from justice excepted, should be entitled to all privileges and immunities of free citizens in the several states; under which provision, it seems to have been apprehended, that the free inhabitants of one state, although not citzens thereof, might be entitled to all the privileges of citizens in every other: to obviate this and similar inconveniencies, this power of prescribing an uniform rule of naturalization was vested in the federal government. And here we may observe, that congress are authorised to prescribe the mode by which aliens may be naturalized, but it never was intended to authorise it to take away the right. For, among the acts of misrule alleged against our rejected sovereign, George the third, in the declaration of independence, it is asserted, "that he had endeavoured to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners, and refusing to pass others to encourage their migration hither." Every alien coming into the United States, in time of peace, therefore acquired an inchoate right, under the constitution, to become a citizen; and when he has, in compliance with the laws, made the requisite declarations of his intention to become a citizen, and to renounce for ever all allegiance and fidelity to any foreign prince, or state, and particularly that prince or state whereof he was last a citizen or subject, he seems to have acquired a right, of which no subsequent event can divest him, without violating the principles of political justice, as well as of moral obligation. For the government, in requiring this declaration of renunciation on the part of the alien, previous to his admission to the rights of citizenship, and that at a very considerable period before his right can, by the rule prescribed, be consummated, tacitly engages not to withdraw its protection from him; and much more, not to betray him, by sending him back to that sovereign, whose allegiance he had, in the most solemn manner, disclaimed, and whose subject and adherent he could no longer be considered to be, whatever political relations the two nations may thereafter stand in, with respect to each other. If this position be just with respect to those who might, under different circumstances, have been regarded as alien enemies, (as being antecedently subjects of a power with which the United States may thereafter be at war), how much more powerfully will the same reasoning apply in favour of those who can, under no possible view of the case, be considered in that light? And, in fact, nothing could more effectually discourage emigration, (no, not even a total incapacity ever to be naturalized,) than such an interpretation of our constitution and laws, as would lay a snare for every foreigner disposed to settle in this country; from whence, upon any personal pique or national quarrel, in which he had no part or share, he might be banished, and sent back to that very sovereign whom he must have offended by making the declarations prescribed by our laws.
Aliens, in the United States, are at present of two kinds. Aliens by birth; and aliens by election. . . . 1. Aliens by birth, are all persons born out of the dominions of the United States, since the fourth day of July, 1776, on which day they declared themselves an independent and sovereign nation, with some few exceptions, viz. 1. In favour of infants, "wheresoever born, whose father, if living, or otherwise, whose mother was a citizen at the time of the birth of such infants; or who migrated hither, their father, if living, or otherwise their mother becoming a citizen of the commonwealth; or who migrated hither without father, or mother," during the continuance of the act of May, 1779, c. 55, declaring who should be deemed citizens, which was repealed October, 1783, c. 16, of that session, so far as relates to the two latter cases; but continued as to the first. 2. Such persons as have obtained a right to citizenship under the existing laws of the state, whether infants, or otherwise. Edi. 1794, c. 110. 3. Such persons as have been naturalized under the act of 1 Cong. 2 Sess. c. 3. 4. Such persons as have, or may acquire the rights of citizenship pursuant to the act of 3 Cong. c. 85, and the children of such persons duly naturalized dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization; and the children of citizens of the United States, born out of the limits and jurisdiction of the United States. But the same act declares that the right of citizenship shall not descend to persons, whose fathers [Volume 2, Page 589] have never been resident in the United States. . . . All persons born before the fourth day of July, 1776, who were not natural born subjects of the crown of Great-Britain; nor were on that day residents within, or inhabitants of the United States; nor have since that time become citizens of the United States, or some one of them, are also aliens by birth.
2. Aliens by election are all such natural born, or naturalized subjects of the crown of Great-Britain, as were born, or naturalized before the fourth day of July, 1776, and have not since become actual citizens of the United States; or, having been actual citizens, have at any time thereafter during the revolutionary war, voluntarily joined the armies of Great-Britain, and borne arms against the United States, or any of them; or been owner or part owner of any privateer or other vessel of war; or a member of the refugee board of commissioners at New-York; or have acted under their authority; or have been for any other cause proscribed by any state in the union. See V. L. 1779, c. 14 and 55. Oct. 1779, c. 18. Oct. 1783, c. 16, 17. Edi. 1785. 1786, c. 10. 1794, c. 110. L. U. S. 1 Cong. 2 Sess. c. 3. 3 Cong. c. 85.
This distinction between aliens by birth, and those by election, is of importance. Aliens by birth are generally subject to all the incapacities to which aliens are subject by the rules of the common law. Aliens by election (although during the revolutionary war they were subject to many incapacities, and even penalties) are now upon a much more eligible footing; possessing rights, (partly derived from the rules of the common law, and partly from the provisions contained in the treaty of peace in 1783, and the treaty of London in 1794) to which aliens by birth can have no claim, except as they may be derived (under the treaty of 1794) by descent, devise, or purchase, from aliens by election.
Aliens by election may then be shortly described to be those subjects of the crown of Great-Britain on the fourth day of July, 1776, who have elected to remain such, and have not since become, and continued to be, citizens of the United States, or some one of them. These, by the common law, upon the separation of the two countries, were still capable of inheriting and holding lands in the United States, notwithstanding such separation; and on the other hand, the citizens of the United States born before the separation, had the like capacity to inherit, or hold lands in the British dominions. 7 Co. Calvin's case. But it is conceived that upon the death of these antenati, as they are called, their lands in both countries, would have been liable to escheat, if their heirs should be postnati, or born after the separation. But that is provided against by the treaty of London, 1794, Art. 9, whereby it is agreed, "that British subjects, who THEN held lands in the territories of the United States; and American citizens who then held lands in the British dominions, shall continue to hold them according to the nature and tenure of their respective estates, and titles, therein: and might grant, sell or devise the same to whom they please, in like manner as if they were natives; and that neither they, their heirs or assigns, shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens."
Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.
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