LECTURE XXV.

OF ALIENS AND NATIVES.

We are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.

(1.) Natives are all persons born within the jurisdiction and allegiance of the United States. If they were resident

This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. Calvin's Case, 7 Co. Lynch v. Clarke, 1 Sandford's Ch. R. 584. 639. In this last case, the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States, was extensively and learnedly discussed, and it was adjudged that the subject of alienage, under our national compact, was a national subject, and that the law on this subject which prevailed in all the United States, became the common law of the United States when the union of the states was consummated; and the general rule above stated is, consequently, the governing principle or common law of the United States, and not of the individual states separately considered. The right of citizenship, as distinguished from alienage, is a national right, character or condition, and does not pertain to the individual states separately considered. The question is of national, and not individual sovereignty, and is governed by the principles of the common law which prevail in the United States, and became, under the constitution, to a limited extent, a system of national jurisprudence. It was accordingly held, in that case, that the complainant, who was born in New-York of alien parents, during their temporary VOL. II.

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citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation. If a person was born here before our independence, and before that period voluntarily withdrew into other parts of the British dominions, and never returned; yet, it has been held that his allegiance accrued to the state in which he was born, as the lawful successor of the king; and that he was to be considered a subject by birth.a It *40 was admitted, that this claim of the state to the alle

giance of all persons born within its territories prior to our revolution, might subject those persons who adhere to their former sovereign, to great inconveniences in time of war, when two opposing sovereigns claimed their allegiance; and under the peculiar circumstances of the case, it was, undoubtedly, a very strong application of the common law doctrine of natural and perpetual allegiance by birth. The inference to be drawn from the discussion in the case of M'Ilvaine v. Coxe, would seem to be in favour of the more reasonable doctrine, that no antenatus ever owed any allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king's allegiance in another part of his dominions, and never afterwards, prior to the treaty of peace, returned and settled here. The United States did not exist as an independent government until 1776; and it may well be doubted whether the doctrine of allegiance by birth be applicable to the case of persons who did not reside here when the revolution took

sojourn there, and returned while an infant, being the first year of her birth, with her parents to their native country, and always resided there afterwards, was a citizen of the United States by birth. This was the principle of the English common law in respect to all persons born within the king's allegiance, and was the law of the colonies, and became the law of each and all of the states when the Declaration of Independence was made, and continued so until the establishment of the constitution of the United States, when the whole exclusive jurisdiction of this subject of citizenship passed to the United States, and the same principle has there remained.

Ainslie v. Martin, 9 Mass. Rep. 454. b 2 Cranch, 280. 4 Ibid. 209.