Friday, May 30, 2008

Blackstone ss38

"Section 38. Chapter 10 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 10"

Chapter the tenth.

Of the PEOPLE, whether ALIENS,

Having, in the eight preceding chapters, treated of persons
as they stand in the public relations of magistrates, I
now proceed to consider such persons as fall under the denomination
of the people. And herein all the inferior and subordinate
magistrates, treated of in the last chapter, are included.

The first and most obvious division of the people is into
aliens and natural-born subjects. Natural-born subjects are such
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, such as are born out of it. Allegiance is
the tie, or ligamen, which binds the subject to the king, in return
for that protection which the king affords the subject. The thing
itself, or substantial part of it, is founded in reason and the nature
of government; the name and the form are derived to us
from our Gothic ancestors. Under the feodal system, every owner
of lands held them in subjection to some superior or lord, from
whom or whose ancestors the tenant or vasal had received them:
and there was a mutual trust or confidence subsisting between
the lord and vasal, that the lord should protect the vasal in the
enjoyment of the territory he had granted him, and, on the
other hand, that the vasal should be faithful to the lord and defend
him against all his enemies. This obligation on the part of
the vasal 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 almost the same terms as our
antient oath of allegiance[a]: except that in the usual oath of fealty
there was frequently a saving or exception of the faith due to a
superior lord by name, under whom the landlord himself was
perhaps only a tenant or vasal. But when the acknowlegement
was made to the absolute superior himself, who was vasal to no
man, it was no longer called the oath of fealty, but the oath of
allegiance; and therein the tenant swore to bear faith to his sovereign
lord, in opposition to all men, without any saving or exception:
"contra omnes homines fidelitatem fecit[b]." Land held
by this exalted species of fealty was called feudum ligium, a liege
fee; the vasals homines ligii, or liege men; and the sovereign their
dominus ligius, or liege lord. And when sovereign princes did
homage to each other, for lands held under their respective sovereignties,
a distinction was always made between simple homage,
which was only an acknowlegement of tenure[c]; and liege homage,
which included the fealty before-mentioned, and the services consequent
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 disputed of what species the homage was to
be, whether liege or simple homage[d]. With us in England, it
becoming a settled principle of tenure, that all lands in the kingdom
are holden of the king as their sovereign and lord paramount,
no oath but that of fealty could ever be taken to inferior lords,
and the oath of allegiance was necessarily confined to the person
of the king alone. By an easy analogy the term of allegiance was
soon brought to signify all other engagements, which are due
from subjects to their prince, as well as those duties which were
simply and merely territorial. And the oath of allegiance, as ad-
ministred for upwards of six hundred years[e], contained a promise
"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 sir Matthew Hale[f] makes
this remark; that it was short and plain, not entangled with long
or intricate clauses or declarations, and yet is comprehensive of
the whole duty from the subject to his sovereign. But, at the revolution,
the terms of this oath being thought perhaps to favour
too much the notion of non-resistance, the present form was introduced
by the convention parliament, which is more general
and indeterminate than the former; the subject only promising
"that he will be faithful and bear true allegiance to the king,"
without mentioning "his heirs," or specifying in the least wherein
that allegiance consists. The oath of supremacy is principally
calculated as a renuntiation of the pope's pretended authority:
and the oath of abjuration, introduced in the reign of king William[g],
very amply supplies the loose and general texture of the
oath of allegiance; it recognizing the right of his majesty, derived
under the act of settlement; engaging to support him to
the utmost of the juror's power; promising to disclose all traiterous
conspiracies against him; and expressly renouncing any claim
of the pretender, by name, in as clear and explicit terms as the
English language can furnish. This oath must be taken by all
persons in any office, trust, or employment; and may be tendered
by two justices of the peace to any person, whom they shall suspect
of disaffection[h]. But the oath of allegiance may be tendered[i]
to all persons above the age of twelve years, whether natives,
denizens, or aliens, either in the court-leet of the manor, or in
the sheriff's tourn, which is the court-leet of the county.

But, besides these express engagements, the law also holds
that there is an implied, original, and virtual allegiance, owing
from every subject to his sovereign, antecedently to any express
promise; and although the subject never swore any faith or allegiance
in form. For as the king, by the very descent of the
crown, is fully invested with all the rights and bound to all the
duties of sovereignty, before his coronation; so the subject is
bound to his prince by an intrinsic allegiance, before the superinduction
of those outward bonds of oath, homage, and fealty;
which were only instituted to remind the subject of this his previous
duty, and for the better securing it's performance[k]. The
formal profession therefore, or oath of subjection, is nothing
more than a declaration in words of what was before implied in
law. Which occasions sir Edward Coke very justly to observe[l],
that "all subjects are equally bounden to their allegiance, as if
they had taken the oath; because 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 same." The sanction of an
oath, it is true, in case of violation of duty, makes the guilt still
more accumulated, by superadding perjury to treason; but it
does not encrease the civil obligation to loyalty; it only strengthens
the social tie by uniting it with that of religion.

Allegiance, both express and implied, is however distinguished
by the law into two sorts or species, the one natural,
the other local; the former being also perpetual, the latter temporary.
Natural allegiance is such as is due from all men born
within the king's dominions immediately upon their birth[m]. 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 themselves. Natural allegiance is therefore a
debt of gratitude; which cannot be forfeited, cancelled, or altered,
by any change of time, place, or circumstance, nor by any
thing but the united concurrence of the legislature[n]. An Englishman
who removes to France, or to China, owes the same allegiance
to the king of England there as at home, and twenty years
hence as well as now. For it is a principle of universal law[o],
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: for this natural
allegiance was intrinsic, and primitive, and antecedent to the
other; and cannot be devested without the concurrent act of that
prince to whom it was first due. Indeed the natural-born subject
of one prince, to whom he owes allegiance, may be entangled
by subjecting himself absolutely to another; but it is his own act
that brings him into these straits and difficulties, of owing service
to two masters; and it is unreasonable that, by such voluntary act
of his own, he should be able at pleasure to unloose those bands,
by which he is connected to his natural prince.

Local allegiance is such as is due from an alien, or stranger
born, for so long time as he continues within the king's dominion
and protection[p]: and it ceases, the instant such stranger transfers
himself from this kingdom to another. Natural allegiance is therefore
perpetual, and local temporary only: and that for this reason,
evidently founded upon the nature of government; that allegiance
is a debt due from the subject, upon an implied contract
with the prince, that so long as the one affords protection, so
long the other will demean himself faithfully. As therefore the
prince is always under a constant tie to protect his natural-born
subjects, at all times and in all countries, for this reason their allegiance
due to him is equally universal and permanent. But, on
the other hand, as the prince affords his protection to an alien,
only during his residence in this realm, the allegiance of an alien
is confined (in point of time) to the duration of such his residence,
and (in point of locality) to the dominions of the British empire.
From which considerations sir Matthew Hale[q] deduces this consequence,
that, though there be an usurper of the crown, yet it
is treason for any subject, while the usurper is in full possession of
the sovereignty, to practice any thing against his crown and dig-
nity: wherefore, although the true prince regain the sovereignty,
yet such attempts against the usurper (unless in defence or aid of
the rightful king) have been afterwards punished with death;
because 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 house by the line of Lancaster, treasons committed
against Henry VI were capitally punished, though Henry had
been declared an usurper by parliament.

This oath of allegiance, or rather the allegiance itself, is
held to be applicable not only to the political capacity of the king,
or regal office, but to his natural person, and blood-royal: and
for the misapplication of their allegiance, viz. to the regal capacity
or crown, exclusive of the person of the king, were the
Spencers banished in the reign of Edward II[r]. And from hence
arose that principle of personal attachment, and affectionate loyalty,
which induced our forefathers (and, if occasion required,
would doubtless induce their sons) to hazard all that was dear to
them, life, fortune, and family, in defence and support of their
liege lord and sovereign.

This allegiance then, both express and implied, is the duty
of all the king's subjects, under the distinctions here laid down,
of local and temporary, or universal and perpetual. Their rights
are also distinguishable by the same criterions of time and locality;
natural-born subjects having a great variety of rights, which
they acquire by being born within the king's ligeance, and can
never forfeit by any distance of place or time, but only by their
own misbehaviour: the explanation of which rights is the principal
subject of the two first books of these commentaries. The
same is also in some degree the case of aliens; though their rights
are much more circumscribed, being acquired only by residence
here, and lost whenever they remove. I shall however here endeavour
to chalk out some of the principal lines, whereby they
are distinguished from natives, descending to farther particulars
when they come in course.

An alien born may purchase lands, or other estates: but not
for his own use; for the king is thereupon entitled to them[s]. If
an alien could acquire a permanent property in lands, he must
owe an allegiance, equally permanent with that property, to the
king of England; which would probably be inconsistent with
that, which he owes to his own natural liege lord: besides that
thereby the nation might in time be subject to foreign influence,
and feel many other inconveniences. Wherefore by the civil law
such contracts were also made void[t]: but the prince had no such
advantage of escheat thereby, as with us in England. Among
other reasons, which might be given for our constitution, it seems
to be intended by way of punishment for the alien's presumption,
in attempting to acquire any landed property: for the vendor is
not affected by it, he having resigned his right, and received an
equivalent in exchange. Yet an alien may acquire a property in
goods, money, and other personal estate, or may hire a house for
his habitation[u]: for personal estate is of a transitory and moveable
nature; and, besides, this indulgence to strangers is necessary for
the advancement of trade. Aliens also may trade as freely as other
people; only they are subject to certain higher duties at the custom-house:
and there are also some obsolete statutes of Henry VIII,
prohibiting alien artificers to work for themselves in this kingdom;
but it is generally held they were virtually repealed by
statute 5 Eliz. c. 7. Also an alien may bring an action concerning
personal property, and may make a will, and dispose of his personal
estate[w]: 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'aubaine
or jus albinatus
[x], unless he has a peculiar exemption. When
I mention these rights of an alien, I must be understood of alien-*friends[**P2: does this hyphen really belong here?!]
only, or such whose countries are in peace with ours; for
alien-enemies have no rights, no privileges, unless by the king's
special favour, during the time of war.

When I say, that an alien is one who is born out of the king's
dominions, or allegiance, this also must be understood with some
restrictions. The common law indeed stood absolutely so; with
only a very few exceptions: so that a particular act of parliament
became necessary after the restoration[y], for the naturalization of
children of his majesty's English subjects, 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 such allegiances,
or serve two masters, at once. Yet the children of the king's
embassadors born abroad were always held to be natural subjects[z]:
for as the father, though in a foreign country, owes not even a
local allegiance to the prince to whom he is sent; so, with regard
to the son also, he was held (by a kind of postliminium) to
be born under the king of England's allegiance, represented by his
father, the embassador. To encourage also foreign commerce, it
was enacted by statute 25 Edw. III. st. 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 passed the seas by
her husband's consent, might inherit as if born in England: and
accordingly it hath been so adjudged in behalf of merchants[a]. But
by several more modern statutes[b] these restrictions are still farther
taken off: so that all children, born out of the king's ligeance,
whose fathers were natural-born subjects, are now natural-born
subjects themselves, to all intents and purposes, without any exception;
unless their said fathers were attainted, or banished beyond
sea, for high treason; or were then in the service of a prince
at enmity with Great Britain.

The children of aliens, born here in England, are, generally
speaking, natural-born subjects, and entitled to all the privileges
of such. In which the constitution of France differs from ours;
for there, by their jus albinatus, if a child be born of foreign
parents, it is an alien[c].

A denizen is an alien born, but who has obtained ex donatione
letters patent to make him an English subject: a high
and incommunicable branch of the royal prerogative[d]. A denizen
is in a kind of middle state between an alien, and natural-born
subject, and partakes of both of them. He may take lands
by purchase or devise, which an alien may not; but cannot take
by inheritance[e]: for his parent, through whom he must claim,
being an alien had no inheritable blood, and therefore could convey
none to the son. And, upon a like defect of hereditary blood,
the issue of a denizen, born before denization, cannot inherit to
him; but his issue born after, may[f]. A denizen is not excused[g]
from paying the alien's duty, and some other mercantile burthens.
And no denizen can be of the privy council, or either house of
parliament, or have any office of trust, civil or military, or be
capable of any grant from the crown[h].

Naturalization cannot be performed but by act of
parliament: for by this an alien is put in exactly the same state
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, &c[i]. No bill for naturalization can
be received in either house of parliament, without such disabling
clause in it[k]. Neither can any person be naturalized or restored
in blood, unless he hath received the sacrament of the Lord's supper
within one month before the bringing in of the bill; and
unless he also takes the oaths of allegiance and supremacy in the
presence of the parliament[l].
These are the principal distinctions between aliens, denizens,
and natives: distinctions, which endeavors have been frequently
used since the commencement of this century to lay almost totally
aside, by one general naturalization-act for all foreign protestants.
An attempt which was once carried into execution by the statute
7 Ann. c. 5. but this, after three years experience of it, was repealed
by the statute 10 Ann. c. 5. except one clause, which was
just now mentioned, for naturalizing the children of English parents
born abroad. However, every foreign seaman who in time
of war serves two years on board an English ship is ipso facto naturalized[m];
and all foreign protestants, and Jews, upon their residing
seven years in any of the American colonies, without being
absent above two months at a time, are upon taking the oaths
naturalized to all intents and purposes, as if they had been born
in this kingdom[n]; and therefore are admissible to all such privileges,
and no other, as protestants or Jews born in this kingdom
are entitled to. What those privileges are[o], was the subject of
very high debates about the time of the famous Jew-bill[p]; which
enabled all Jews to prefer bills of naturalization in parliament,
without receiving the sacrament, as ordained by statute 7 Jac. I.
It is not my intention to revive this controversy again; for the
act lived only a few months, and was then repealed[q]: therefore
peace be now to it's manes.

End of section 38