ALIEN. An alien is one who is born out of the ligeance (allegiance) of the king. (Littleton, 198.) The word is derived from the Latin alienus ; but the word used by the English or other law writers in Latin is alienegena. The con dition of an alien, according to this de finition, is not determined by place, but by allegiance [ALLEGIANCE], for a man may be born out of the realm of Eng land, or without the dominions of the king, and yet he may not be an alien. It is essential to alienage that the birth of the individual occurred in a situation and under circumstances which gave to the king of this country no claim to his alle giance.
The following instances will serve to illustrate the description of an alien. The native subject of a foreign country con tinues to be an alien, though the country afterwards becomes a part of the British dominions. Thus, persons born in Scot land before the union of the crowns by the accession of James I., were aliens in England even after that event ; but those who were born afterwards were adjudged to be natural-born subjects. This ques tion was the subject of solemn discussion in the rei: , of that prince ; and the re ported jut • ent of the court has guided lawyers in all similar controversies. Persons born in those parts of France which formerly belonged to the crown of England, as Normandy, Guienne, and Gascony, were not considered as aliens so long as they continued so annexed ; and, upon the same principle, persons born at this day in any of our colonial Doesessions are considered native subjects. A man, born and settled at Calais whilst It was in the possession of the English, fled to Flanders with his wife; then preg nant ; and there, after the capture of Calais by the French, had a son : the issue was held to be no alien. If the king's enemies invade the kingdom, and a child is born among them, the child is an alien.
The children of ambassadors, and other official residents in foreign states, have always been held natives of the country which they represent and in whose ser vice they are. This rule prevailed even at a time when the law of alienage was stricter than it now is. It has been since so far extended by various enactments, that all children born abroad, whose fathers or grandfathers on the father's side were natural subjects, are now deemed to be themselves natural-born subjects, unless their fathers were liable to the penalties of treason or felony, or were in the service of a prince at war with this country. (25 Ed. III. st. 2 ; 7
Anne, c. 5 ; 4 Geo. II. c. 21; 13 Geo. III. c. 21.) The children of aliens born in Eng land are, as a general rule, the same as natural-born subjects: they are entitled to the same rights and owe the same alle giance. But the children of a British mother by an alien are aliens if they are born out of the king's allegiance.
It follows from the general principles of our law that a man may be subject to a double and conflicting allegiance ; for, though he may become a citizen of an other state (the United States of America, for instance), or the subject of another king, he cannot divest himself of the duty which he owes to his own. So that, in the event of a war between the two states. he can take no active part on behalf of one, without incurring the penalty of treason in the other. This predicament may occur without any fault of the party ; for the children of aliens are (except under peculiar circumstances) natural subjects of the state in which they were born : yet they may still be regarded as natural-born subjects of the state to which their parents owed allegiance.
Except for the term of 21 years, by 7 & 8 V. c. 66, an alien cannot hold lands in England. If he purchase lands, he takes them, but they are forfeited to the king after the fact of purchase has been ascertained by a jury. These disabilities of an alien are founded on the nature of the tenure of land in England, which always implies fealty to some superior lord. It follows from the notion of an alien, that he cannot take land by descent, nor can he be entitled to land by the courtesy of England. An alien woman is not entitled to dower of her husband's lands, unless she has been either made a denizen or naturalized. It is also said that she is entitled to dower if she has married an Englishman by licence from the king. (Cruise, Digest, i. 159.) It has been said that an alien cannot take land by devise ; but there seems to be no legal principle which shall prevent him from taking by devise, any more than from taking by purchase : the only question is, for whose benefit he takes, for he cannot hold it for his own benefit. (Ld. Hard wicke, Knight v. Duplessis, 2 Yes. 360.) An alien cannot be returned to serve on a jury, except where he is one de ntedietate linguae, that is, a jury of which one-half are foreigners.