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121, d

634, d 487, d

Ex parte

Wright v. Shelby R. R. Co. 312, n. 2 | Yale v. Dederer

163, n. 3 0. Snell

638 Yarborough v. Bank of E. 284, a, 289 v. Steele 236, d | Yates v. Boen

451, f v. Stevens

336, n. 3
v. Yates

288, n. 5 . Tallmadge 171, n. 3 Yates & McIntyre v. Curtis 400, c v. Trustees of M. E. Church Yeatman v. Dempsey

466, n. 1 230, c, 278, 6, 282, d, 287, b, Yeaton v. Fry 289, a, 420, C Yohe v. Barnet

142, a v. Vanderplank 490, n. 4 York Co. v. Hudson

293, n. 1 v. Weeks

510, n. 1
York Co. v. Regina

277, n. 1 v. Wilcox 259, 6, 260, a, 633, Yorke v. Grenaugh

n. 3 | Young v. Burton v. Wright 105, n. 1 126, n. 2,

420, n. 1 216, a, 231, C; 447, d, 447, n. 2

v. Harris

460, n. 4 Wrinkle v. Tyler

472, c
v. McClure

522, Wyatt v. Barnard

381, e
v. N. Y. Cent. R.

260, n. 3 Wyckoff v. Boggs

91
v. Paul

154, n. 3 Wyeth v. Stone 369, b, 371, a v. Wright

621, n. C Wyld v. Pickford 607, e Young's case

1 Wylly v. Collins 163, n. 4, 166, n. 1 Yule v. Yule

99, n. 5 Wyman . Hooper

229, n. 2
v. Hurlburt

357,6
v. Smith
510, n. 3

Z.
v. Winslow

508, e Wyman's Appeal

415, n. 1 Zabriskie v. Cl. Co. & C. R. 291, n. 3 Wyngert v. Norton

258, n. 4
v. Smith

489, n. 1 Wynn v. Hiday 474, Zacharie v. Nash

630, c Wynne v. Jackson 459, c Zagury v. Furnell

496, d v. Thomas 646, c Zanaswill, Sarah

288, a Ziegenfuss, Ex parte

390, d Y. Zimmerman v. Anders

288, a

Zouch v. Parsons 234, 235, i, 236, Y. & M. L. R. R. Co. v. Winans 306,

236, b, 237, 6 D. 1 Zwillebenbart 0. Alexander 630, n. 3

338,

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. (a) If they were resident citizens

(a) 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. 1. Lynch v. Clarke, 1 Sandford Ch. 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 prevailed 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 sojourn there, and returned while an infant, being the first year of her birth, with her parents to their native country, and always residod there afterwards, was a citizen of the United States by birth. This was the principle of the English common law in respect to all VOL. II.

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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; theji. Sodial tie being coeval with the existence of the nation. If : a person was born here before our independence, and before thåt 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 * 40 subject by birth. (6) It was admitted that this * claim of

the state to the allegiance 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. Core, (a) would seem to be in favor 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 place, and did not, therefore, either by election or tacit assent, become members

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.1

(6) Ainslie v. Martin, 9 Mass. 454. (a) 2 Cranch, 280. 4 Ibid. 209.

1 In the case of Dred Scott v. Sandford, 19 How. U. S. 393, it was held that a negro, wnose ancestors were imported into this country and sold as slaves, is not a citizen within the meaning of the constitution of the United States. But McLean and Curtis J. J., dissented, and Nelson and Grier J. J., expressed no opinion.

of the newly created state. The ground of the decision in the latter case was, that the party in question was not only born in New Jersey, but remained there as an inhabitant until the 4th of October, 1776, when the legislature of that state asserted the right of sovereignty, and the claim of allegiance over all persons then abiding within its jurisdiction. By remaining there after the declaration of independence, and after that statute, the party had determined his right of election to withdraw, and had, by his presumed consent, become a member of the new government, and was, consequently, entitled to protection, and bound to allegiance. The doctrine in the case of Respublica v. Chapman, (b) goes * 41 *also to deny the claim of allegiance, in the case of a person who though born here, was not here, and assenting to our new governments, when they were first instituted. The language of that case was, that allegiance could only attach upon those persons who were then inhabitants. When an old government is dissolved, and a new one formed," all the writers agree,” said Ch.J. M'Kean, " that none are subjects of the adopted government who have not freely assented to it.” The same principle was declared by the Supreme Court of New York, in Jackson v. White, (a) and it was held, that though a British subject resided here as a freeholder on the 4th of July, 1776, and was abiding here on the 16th of July, 1776, when the convention of the state asserted the right of sovereignty and the claim of allegiance over all such persons, yet, that under the circumstances, the person in question being a British officer, and a few weeks thereafter placed on his parole, having been arrested as a person disaffected to the Revolution, and in December, 1776, joining the British forces, was to be deemed an alien, and as having never changed his allegiance, or elected to become a party to our new government. The doctrine in the case of Ainslie v. Martin was contrary, also, to what had been held by the same court in the cases of Gardner v. Ward and Kilham v. Ward,(6) where it was decided that persons born in Massachusetts before the Revolution, who had withdrawn to a British province before our independence, and returned during the war, retained their citizenship, while the same persons, had they remained in the British province, until after the treaty of peace, would have

(b) i Dallas, 53.
(6) 2 Mass. 236, 244, note.

(a) 20 Johus. 313.

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