with Notes of Reference (1803)
St. George Tucker
Of the Rights of Aliens in the United States
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 favor of the crown; nor be naturalized, but by the like favor 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 favor, 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.1
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to the nature of their situation, and for their benefit, brought over hither by them; and wherever they are not repealed, altered, or amended by the constitutional provisions, or legislative declaration, of the respective states, every beneficial statute and rule of the common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.2 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.3 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 lees 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 citizens 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.4 And here we may observe, that congress are authorized to prescribe the mode by which aliens may be naturalized, but it never was intended to authorize 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 endeavored 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 favor 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 favor 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 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 anytime 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.5
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.”
The citizens of each state shall be entitled to all privileges and immunities in the several states. C. U. S. Art. 4.
What other rights those aliens who may have taken the oath of allegiance to any state, since the adoption of the federal constitution, but have not been naturalized under the laws of the United States, may be entitled to, will be noticed under the head of denizens.
In the appendix to the succeeding volume, we shall have occasion to resume the subject of the rights of aliens to hold lands in Virginia; and shall take a view of the laws concerning escheats and forfeitures from British subjects, passed in Virginia, during the revolutionary war.
The manner in which aliens may be naturalized in the United States, will form the subject of a note under the head of naturalization. post. note 12.
1. 2 Inst. p. 55.
2. Queen Elizabeth’s charter to Sir Walter Raleigh.
3. L. V. 1705, c, 11. Edi. 1769.
4. Federalist, No. 42.
5. 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.