Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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ALIENS

I.38.1

ALIENS In the early days of Rome, a foreigner, unless under the protection of a patron and occupying the position of a client, was without the protection of the law, both as to his person and his property. Whatever the Roman citizen took from him, he acquired by the same title that he did the "unclaimed shell on the beach" which he picked up. Exceptions to this general rule owed their origin to special treaties which secured to members of a foreign political community certain rights within the commonwealth of Rome; and it is not unlikely that these treaties formed the primitive structure which gradually gave rise to the body of private international law known as the ius gentium, side by side with the civil law. The principle of the total and absolute exclusion of foreigners, is clearly traceable in both the constitution and the civil law of the Roman common wealth during its early period. But the presence of a large number of foreigners within the dominion, and the necessities of trade, not only gave rise to the treaties referred to, but led the Roman lawyers to devise means whereby disputes between aliens and the citizens of Rome might be settled. They refused to decide these cases in accordance with the civil law, to whose benefits none but the citizens of the Roman commonwealth were admitted. From the rules of law, which were common to Rome and the several Italian tribes, and which were applied in settling the controversies to which members of such tribes might be a party, the Roman jurists built up a system of law which, though suggested in its origin by the spirit of scorn and disdain with which the Roman citizen looked upon all foreigners, became, with the aid of Greek ideas—as a body of laws common to all nations—the source of many of the principles of natural justice.*7

I.38.2

—In England an alien is defined as one born out of the allegiance of the king. In the United States an alien is one born out of the jurisdiction of the United States, who has not been naturalized under the constitution and laws of the United States. The children of ambassadors and ministers at foreign courts, though born on foreign soil, are not aliens.

I.38.3

—As distinguished from aliens, natives are all persons born within the jurisdiction and allegiance of the United States. This follows the rule of the common law. In settling the rule relative to the distinction between aliens and citizens, in the jurisprudence of the United States, the courts held that the subject of alienage, under our constitution, is a national subject, and that the law on this subject, which prevailed in the states, became the common law of the United States when the federal union was established. Citizenship as distinguished from alienage is a national right.

I.38.4

—To create allegiance by birth, the person must be born, not only with in the territory, but within the allegiance of the government. A citizen cannot renounce his allegiance to the government of the United States without its permission, to be declared by law; and as there is no existing legislation bearing on this subject, the rule of the common law remains unchanged.

I.38.5

—By the fourteenth amendment to the constitution, "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside." The citizens of the federal union are, therefore, not to be treated, within the territory and jurisdiction of the different states, as aliens.

I.38.6

—During the residence of aliens in a country, they owe a local allegiance to its government, and are equally bound with natives to obey all laws for the maintenance of the peace and the preservation of public order, which do not especially relate to the rights and the conduct of citizens. This principle is universally recognized and adopted, as being alike dictated by justice and the public safety. If an alien commits an unlawful act, or is involved in disputes, with a citizen, or any other resident foreigner, he is amenable to the ordinary tribunals of the country. In New York, resident aliens are liable to be enrolled in the militia, provided they are lawfully seized of any real estate within the state; and they are, in that case, declared to be subject to duties, assessments, and taxes, as if they were citizens. They can not, however, exercise any of the political rights and privileges which do, and ought to, form the sole and exclusive prerogatives of citizenship. They are, therefore, not capable of voting at an election, or of being elected or appointed to any office of public trust or honor. In addition to this, they are also incapable of serving as jurors.

I.38.7

—Should an alien come to the United States with the intention of making it his permanent home, he will find in the law an easy means of removing his disabilities, and securing all the rights of citizenship, including that of taking an active share in the administration of the government. The acts of congress regulating and providing for the naturalization of foreigners need not be more than referred to here. A person naturalized under those acts, becomes entitled to all the privileges and immunities of native citizens, except that a residence of seven years is required to enable him to hold a seat in congress, and that no person, save a native born citizen, is eligible to the office of governor in some of the states, or of president of the United States.

I.38.8

—The unjust and inhospitable rule by which the most civilized states of antiquity were characterized, prevailed in many parts of Europe, down to the middle of the last century. The law which claimed, for the benefit of the state, the effects of a deceased foreigner who left no native heirs, existed in France as late as the commencement of the French revolution. This rule of the French law was not only founded on the Roman law, but it was also justified by the narrow and singular policy of preventing the wealth of the kingdom from passing into the hands of foreigners. This provision of the droit d'aubaine was abolished by the constitution of the first constituent assembly, in 1791, and foreigners were admitted, on very liberal terms, and were declared capable of acquiring and disposing of property in the same manner as native citizens. This doctrine was more or less followed by subsequent legislation, and the treaties of France with other governments.

I.38.9

—According to the common law, an alien can not acquire a title to real property by descent, or a title created in any other way by mere operation of law. The law quœ nihil frustra never casts the freehold upon an alien heir who can not keep it. It is understood to be the general rule, that even a native subject can not take by representation from an alien, because the latter has no inheritable blood through which a title can be obtained. The statute of 11 and 12 Wm. III., however, was passed to cure this disability, enabling natural born subjects to inherit, under certain restrictions, the estate of their ancestors, notwithstanding that those under whom they claimed or from whom they derived their title, were aliens. The provisions of this statute have been amplified by those of 33 and 34 Vict., c. 14, by which aliens are enabled to take, acquire, hold and dispose of real and personal property of every description, (except British ships), and to transmit a title to land, in all respects as natural born British subjects.

I.38.10

—The former statute is in force in several of the United States, but even where it is not, the courts are very liberal in their construction of the common law, and willing to conform to the enlarged policy of the present day in rather contracting than extending the disabilities attaching to alienage. As to the question touching the distinction of the ante nati and post nati, at one time the subject of much controversy, the doctrine was finally settled in this country, and persons born in England, or elsewhere out of the United States, before the 4th of July, 1776, and who continued to reside out of the United States after that event, were considered aliens, and incapable of inheriting an estate in lands in the United States.

I.38.11

—Again, according to the common law, although an alien may purchase land, or take it by devise, he is still exposed to the danger of having his lands forfeited to the state, upon an inquest of office found, that is, on inquiry as to whether the sovereign is entitled to the possession of the property, real or personal, as against any other claimant. The alien's title is held to be good against every person but the state. If he should die before an inquest is had, the inheritance can not descend, but escheats. If he should undertake to sell to a citizen, the prerogative right of forfeiture is not barred, and the purchaser takes the property subject to the right of the government to seize it. His conveyance is good as against himself, but the title is voidable by the sovereign upon the proper inquiry being had. According to Lord Coke, an alien merchant is the only one who may take a leasehold interest in land; he is, however, restricted to a house, and if he dies before the termination of the lease, the remainder of the term is forfeited to the sovereign. The reason is, that the law gave him the privilege of habitation only, as essential to his trade, and not for the benefit of his representatives.

I.38.12

—In many of the states the disabilities of aliens in respect to holding lands are removed by statute, though under certain conditions, such as that the aliens must be residents, or have declared their intention of becoming citizens, or both. As far as personal property is concerned, aliens are capable of acquiring, holding and transmitting it as are citizens, and they can bring suit for the recovery and protection of their property.

I.38.13

—According to the authority of jurists such as Grotius, Bynkershoek and Martens, a state has the right, on the breaking out of hostilities with a foreign government, to treat persons as enemies who owe allegiance to that government, and to deal with their property found within the territory of the state as the property of enemies. It has the right to confiscate such property and to detain aliens as prisoners of war. But modern governments, while modifying and softening this rigorous doctrine by stipulations and treaties, have more or less made special provision in their own legislation, for the security of the persons and property of aliens whose government may be at war with them, Thus it was provided by the great charter—though similar privileges had been granted fifteen years before, in 1200, by special charter*8—that, on the breaking out of war, foreign merchants found in England, and belonging to the country of the enemy, should be attached "without harm of body or goods" until it should be ascertained how English merchants were treated by the enemy; and "if our merchants," the charter says, "be safe and well treated there, theirs shall be likewise with us."*9

I.38.14

—The statutes and judicial decisions which followed this liberal provision of the great charter, tended rather to increase than diminish its privileges. Alien merchants are allowed forty days to depart the realm with their goods; which period is extended for another forty days in case they are prevented from departing on account of accident. The legislation of the United States is dictated by the same wise and humane policy. The act of congress of July 6, 1798, c. 73, authorizes the president, in case of war, to determine the conduct to be observed toward subjects of the hostile government, who, being aliens, may be within the United States, and in what cases and on what security, their residence should be permitted; and it declared in reference to those who were to depart, that they should be allowed such reasonable time as might be consistent with the public safety, and according to the dictates of humanity and national hospitality, "for the recovery, disposal and removal of their goods and effects, and for their departure." Yet, notwithstanding this, it was held that the strict right of confiscating the property of resident aliens whose government was in hostility to ours, still existed in congress, and that the question as to what should be done with this kind of property, was one rather of policy than of law, and that the exercise of that right rested in the sound discretion of the sovereign body of the nation.

I.38.15

—As to the question, whether the state, where an alien may have his domicile, should enforce a judgment rendered against him, either in his native country or in another state, it seems to be the opinion of the continental jurists, that, under their municipal laws, such judgment can not be enforced; it is simply within its own territorial jurisdiction, and as far as the imperium of the state extends, that judgments rendered according to law, can be enforced. Yet, inasmuch as it is the business of the state to embody in its laws and institutions the ideas of justice and right, and as the government is bound to recognize and encourage the same tendency in the laws and institutions of all civilized states, it is held to be the better rule, that the lawful judgments of the courts of one state shall be enforcible in another, provided it be shown that the court had jurisdiction of the cause; that it was decided according to the laws in force within its jurisdiction, and that the judgment does not require the doing of anything which is contrary to the laws of the country in which it is sought to be enforced.

I.38.16

—During his domicile, an alien is subject to the police regulations and criminal law of the country where he may sojourn. Whether he can also be tried and sentenced there for offenses he may have committed elsewhere than in his native state, is a question upon which neither the legislation of the different countries of Europe, nor the opinions of jurists seem to agree. On the continent it is considered the better opinion, that, contrary to the rule prevailing in the United States and in England, where aliens are not tried for offenses committed elsewhere, aliens should be tried and punished for such offenses wherever they may be domiciled.*10

I.38.17

—The power of taxation as regards aliens, can not be exercised by a government to the same extent as regards its own citizens or subjects. Aliens should not be subject to taxation or assessment beyond what is required of them by law; and such tax or assessment should be levied on the property they possess, or should be imposed upon them by reason of the business they may carry on, in the country where they reside.

I.38.18

—Aliens can not, and should not, be held liable to military service, or to any impost for military purposes. Aliens have the right to leave the state where they may be domiciled at pleasure; and the government has no authority to prevent their departure, except in cases where they have entered into some obligation which they are bound to discharge in favor of the government, or in favor of its citizens or subjects, or in case the alien has committed some offense for which he is punishable under the laws of such government. As aliens are at liberty to depart from the country where they may be sojourning, or have been domiciled, the government has an equal right to exclude them from its territory, and in that event, an alien has no redress beyond the protection and remonstrance of his native government, in case the foreign government should exercise its right of expatriation without just cause.

I.38.19

—The relation of the citizen or subject to his government is not only such as to impose certain duties upon him in case he should reside in a foreign country, but as to secure to him certain rights. Hence he not only retains all the rights and privileges guaranteed to him by the constitution and laws of his native state, but he may also ask the protection and intervention of his government as against any oppressive or unlawful act on the part of the foreign government. And his native government is bound to use every means pointed out by the law of nations, and the dictates of humanity and justice, for the protection of its citizens or subjects in a foreign country where they may be domiciled or sojourn as aliens.

I.38.20

—See I. and II. Kent's Commentaries; Poezl in III. Bluntschli and Brater's Staatswoerterbuch, article Fremde Fremdenrechte; Foelix, Traité de Droit International Privé Heffter, Europœisches Voelkerrecht; Sir A. E. Cockburn, On Nationality.

MAX. EBERHARDT.


Notes for this chapter


7.
Maine, Ancient Law.
8.
Stubbs, Const History of England, vol. 1. p. 603.
9.
"Omnes mercatores habeant salvum et securum exire de Anglia, et venire in Angliam, et morari et ire per Angliam, tam per teriam quam per aquam, ad emendum et vendendum, sine omnibus malis toltis, per antiquas et rectas consuetudines, præterquam in tempore gwerrae, et si sint de terra contra nos gwerrina; et si tales inveniantur in terra nostra in principio gweriae, attachientur sine dampno corporum et rerum, donec sciatur a nobis vel capitali iueticiario nostro quomodo mercatores terrae nostrae tractentur, qui tunc inven entur in terra contra nos gwerrina; et si nostri salvi sint ibi, alil salvi sint in terra nostra." Such is the full provision, in the quaint law Latin of the times, of this great compact which is justly cherished as the priceless franchise of English liberty.
10.
Robert v. Mohl, Staatsrecht, Voelkerrecht u. Politik, vol. 1, pp. 731-758.

Footnotes for ALLIANCE, The Holy

End of Notes


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