1902 Encyclopedia > Alien


ALIEN, obviously derived from the Latin alienus, is the technical term applied by British constitutional law to any one who does not enjoy the privileges of a British subject. The jealousy which has generally existed against communicating the privileges of citizenship to foreigners has its foundation in mistaken views of political economy. It arose from the impression that the produce of the energy and enterprise of any community is a limited quality, of which each man's share will be the less the more competitors there are; superseding the just view that the wealth of a state depends on the number and energy of the producers. Thus the skilled workmen who would increase its riches have often been jealously kept out of a country. But, on the other hand, special temptations, including the gift of citizenship, have often been offered to skilled foreigners by states desiring to acquire them as citizens. Britain has occasionally received industrious and valuable citizens, driven forth by the folly or tyranny of other powers, as in the memorable instance of the revocation of the edict of Nantes, which sent the Spitalfields colony and many other Frenchmen to this country. Looking on the full benefit of British citizenship as a transcendent boon, the principle of our older legislation on the subject has been to allow friendly aliens to possess at least a portion of it. There never existed in Britain a law so harsh as the Droit cVAubaine of France, which confiscated to the crown all the property of a deceased alien. The courts of justice have ever been opened to them, and they have thus been entitled to protect themselves from any inequalities which do not apply to them by special law. It seems to be a rule of the general public law that an alien can be sent out of the realm by exercise of the crown's prero-gative ; but in modern practice, whenever it has seemed necessary to extrude foreigners, a special Act of Parliament has been obtained for the purpose. (See Phillimore's Internat. Law, vol. i., p. 133 ; Forsyth's Cases and Opinions on Const. Laiu, p. 181.)

Our law, save with the special exceptions mentioned afterwards, admits to the privileges of subjects all who are born within the British dominions. In the celebrated question of the post-nati in the reign of James I. of England, it was found, after solemn trial, that natives of Scotland born before the union of the crowns were aliens in England, but that those born subsequently enjoyed the privileges of English subjects. A child born abroad, whose father or whose grandfather on the father's side was a British subject, may claim the same privilege, unless at the time of his birth his father was a traitor or felon, or engaged in war against the British empire (4th Geo. II. c. 22). Owing to this exceptional provision, some sons of Jacobite refugees, born abroad, who joined in the rebellion of 1745, were admitted to the privilege of prisoners of war, because, as the conduct of their fathers deprived them of the privileges of citizenship, they were held not to be liable to its burdens.

It has been enacted with regard to the national status of women and children that a married woman is held to be a citizen of the state of which her husband is for the time being a subject; that a natural-born British woman, having become an alien by marriage, and thereafter being a widow, may be rehabilitated by certificate of the Secretary of State; that where a father or a widow becomes an alien, the children in infancy becoming resident in the country where the parent is naturalised, and being naturalised by the local law, are held to be subjects of that country; that those of a father or of a widow readmitted to British nationality become British subjects also; and that the children of a father or of a widow who obtains a certificate of naturalisation, becoming resident with such parent in the United Kingdom, become naturalised (33 and 34 Vict. c. 14, s. 10). The same statute provides that a declaration of alienage before a justice of peace or other competent judge, having the effect of divesting the declarant of the character of a British subject, may be made by a naturalised British subject desiring to resume the nationality of the country to which he originally belonged, if there be a convention to that effect with that country; by natural-born subjects who were also born subjects of another state according to its law; or by persons born abroad having British fathers.

The main characteristic disabilities to which aliens have been subjected are incompetency to exercise political privileges, such as that of electing or being elected to sit in Parliament, and incapacity to hold landed property. The privilege of sitting on a jury was also counted among the political rights from which they are excluded; but when a foreigner is on trial, he had in England the privilege of the jury de medietate Ungues, in which half the panel consisted of foreigners, a privilege which was taken away in 1870, and never existed in Scotland. An alien enemy can neither by himself nor assignee sue for the recovery of a debt due to him in this country, unless by the Queen's special licence. But his right to do so revives when the war is terminated. (See Mr Justice Story's judgment in Society for Propagation of the Gospel v. Wheeler, 2 Gallison's Reports, 127, and Phillimore's Inter-national Law, iii. 121.)

Many of the special disabilities to which aliens were subject under the Navigation Act and other laws connected with our old restrictive commercial policy, have been removed or neutralised by the free trade measures of later years; but it is still impossible for an alien to be the owner of a British ship. In other respects the tendency has been to communicate some of the rights of citizenship to aliens, and to widen the definition of subjects.
Most of the acts of Parliament passed with regard to aliens during the last and the present centuries have been repealed by 33 & 34 Vict. c. 14—the Naturalisation Act, 1870. It enables aliens to take, acquire, hold, and dispose of real and personal property of every description (except British ships), and to transmit a title to land, in all respects as natural-born British subjects. But the act expressly declares that this relaxation of the law does not qualify aliens for any office or any municipal, parliamentary, or other franchise, or confer any right of a British subject other than those above expressed in regard to property, nor does it affect interests vested in possession or expect-ancy under dispositions made before the act, or by devolu-tion of law on the death of any one dying before the act.

The Act 6 <fe 7 Will. IV. c. 11 has not been repealed by the Act of 1870. It requires masters of vessels to intimate the arrival of all aliens, who are thereby bound to have their names registered and to obtain certificates of regis-tration. It is believed that these conditions have seldom been complied with or enforced.

It may be remarked that the repealed Act of 1864 (7 & 8 Vict. c. 66) was the first considerable relaxation of the alien law. It communicated to the children born abroad of a British mother the privilege of acquiring land by purchase or succession. It gave friendly aliens the privilege of holding leases for any time not exceeding twenty-one years. Before this act the rights of citizenship could only be conferred on aliens by statute; and it was enacted at the commencement of the Hanover succession, that no private naturalisation bill should be brought in unless it contained a clause disqualifying the person it applied to from being a privy councillor or a member of Parliament, and from holding any office, civil or military, and from being a freeholder; but this restriction is repealed by the act of 1844. Limited privileges could formerly be given by the sovereign's letters of denization; but by the act of 1844 an alien intending to reside and settle in Britain was enabled, by application to the Home Secretary, to obtain a certificate giving him all the rights of a natural-born subject, with certain exceptions. Naturalisation, which is accompanied by political and other rights, privileges, and obligations, may now, under the act of 1870, be obtained by applying to the Home Secretary and producing evidence of having resided for not less than five years in the United Kingdom, or of having been in the service of the crown for not less than five years, and of intention to reside in the United Kingdom or serve under the crown. Such a certificate may be granted by the Secretary of State to one naturalised previously to the passing of the act, or to a British subject as to whose nationality a doubt exists, or to a statutory alien, i.e., one who has become an alien by declaration in pursuance of the act 1870. The laws of a British colony with regard to naturalisation have effect only within the limits of that colony. Naturalisation is also effected by the operation of the law upon the acts of individuals, as a woman by marriage acquires the nationality of her husband. The naturalisation of a father carries with it that of his children in minority; and Fcelix holds that that of a widow has the same effect upon her minor children. (See Fcelix, Traite _de Droit Internat. Priv., 1. i. t. 2, s. 2 ; Savigny, Priv. Internat. Law, translated by Guthrie, pp. 26, 31, 32; Phillimore's Internat. Law, vol. i.; Bar, Das Internat. -Privat una7 Strafrecht, § 30; Gand, Code des Strangers ; Hansard on Aliens ; Heffter, Europ. Vb'lkerrecht, Sj 59 sqq.; ,Sir A. E. Cockburn on Nationality, Lond. 1869 ; Cutler _on Naturalisation, Lond. 1871).

In the United States an alien desiring to be naturalised must declare on oath his intention to become a citizen of the United States; two years afterwards must declare on oath his intention to support the constitution of the United States and renounce allegiance to every foreign power, including that of which he was before a subject; must prove residence in the United States for five years, and in the state where his application is made for one year, as a good citizen ; and must renounce any title of nobility. In France an alien desiring naturalisation must obtain per-mission to establish his domicile in France; three years after (in special cases one year) he is entitled to apply for naturalisation, which involves the renunciation of any existing allegiance. (See further, ALLEGIANCE and INTERNATIONAL LAW.)

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