in the distribution and partition of the intestate's real and personal estate, as part of the same; and the estate, so advanced, shall be taken by such child or grand-child, towards his share of the intestate's estate. And the value, at which such estate shall be so taken, shall be the same as above expressed, or charged by the intestate, or acknowledged by the child or grand-child, if any value be so expressed, charged, or acknowledged; otherwise, at the value thereof, when given. To make a gift operate as an advancement, the statute of 1806, above quoted, makes it necessary either, 1. that it be so expressed in such gift; or, 2. that it be so charged by the intestate in writing; or, 3. that it be so acknowledged in writing by the child, whose interest will be thereby so materially affected. TITLE IX. ALIEN. AN alien is one born without the limits of the United States, and owing allegiance to a foreign country. Aliens are distinguished into alien friends and alien enemies. An alien friend is one whose country is at peace with us: An alien enemy is one whose country is at war with us. I. Of the nature of allegiance. Allegiance is the tie or ligamen which binds the citizen to the state, in return for that protection which he receives from the government of that state. 1 Bl. Com. 366. Allegiance is either express or implied. Express allegiance is where a subject of the state has taken that oath Ibid. 368. of fidelity to the government, which is prescribed by law. This constitutes a public declaration of allegiance to government, and is a confirmation of natural duty. This express allegiance, derived to us from the oath of fealty, adopted in the feudal system, is materially varied from it, and, instead of being a badge of slavery and vassalage, is an honourable acknowledgment of subjection to legal govern ment. 1 Swif. Syst.L.C.163. But, besides these express engagements, the law also holds that there is an implied, original, and virtual alle- 1 Bl, Com, 368. giance, owing from every citizen to his country, antecedently to any express promise, and although the citizen never swore any faith or allegiance in form. The formal profession of allegiance is therefore nothing more than a declaration, in words, of what was before implied in law : 2 Inst. 121. 1 Bl.Com. 369. Ibid. Ibid. 1 Swif. Syst. 164. I Bl. Com. 370. Ibid. Which occasions Sir Edward Coke to remark, that " all subjects are equally bound to their allegiance, as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same." The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason; but it does not increase the civil obligation of fidelity to government. It only strengthens the social tie, by uniting it with that of religion. Allegiance, both express and implied, is again distinguished into two sorts, or species; the one natural, the other local: the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men to their native country; for, immediately upon their birth, they are under the protection of government; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude, which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstances. It is therefore a settled doctrine, that, let a man remove himself into whatever country he pleases, he continues to owe allegiance to his native country, and is punishable for high treason for joining its enemies, and levying war upon it.* Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the state or country, and receives the protection of the government thereof: And it ceases the instant such stranger transfers himself from this country to another. Natural allegiance is therefore perpetual, whereas local allegiance is temporary, only: And for this reason, evidently founded on the nature of government; that allegiance is a debt due from the citizen, upon an implied contract with the government, that so long as the one affords * See the remarks of Judge Tucker, in which this doctrine is called in question, so far as it respects the United States. Tuck. Black. vol. i. p. 1. note K. append. See also REMARKS, CRITICAL and MISCELLANEOUS, on Blackstone's Commentaries, by James Sedgwick, chap. 12, p. 239. protection, so long the other will demean himself faithfully. As therefore the government is always under a constant tie to protect the native citizen, at all times, and in all countries, for this reason the allegiance, due from him, is equally universal and permanent. But, on the other hand, as our government affords its protection to an alien, only during his residence here, the allegiance of an alien is therefore confined to the duration of such his residence. II. Who are aliens. We have already defined an alien to be one born without the limits of the United States, and owing allegiance to a foreign country. To a precise understanding of this part of our subject, a variety of considerations are necessary; and the definition, which we have given of an alien, must be understood with some restrictions.* I Bl. Com. 370. Thus, the children of ambassadors born abroad were 3, which enacts, that the children of all natural born subjects, ral born subjects, to all intents, constructions, and purposes In regard to this subject, there are many useful principles, which grew out of American independence, and the treaty of peace with Great-Britain. Thus, in the heat of our revolutionary conflict, our legislature enacted a statute, entitled, "An act for confiscating the estates of certain persons, commonly called absentees." 30, 1779, act 2,sect,1, The first section of this statute enacts, that every inhabitant and member of the late province, now state of Massa- Absentee act, April chusetts-Bay, or of any other of the late provinces or colonies, now United States of America, who, since the 19th of April, 1775, had levied war, or conspired to levy war against the government and people of any of the said colonies or provinces, or United States; or who hath adhered See Tucker's Blackstone, vol. i. part 2, append. note L. page 98. See Appendix to the Statute Laws, Th. Ed. v. 3. New Ed. v. 2. Sect. z. Sect. 3. 2 Mass. T. R. 236. to the said king of Great-Britain, his fleet, or armies, enemies of the said provinces or colonies, or United States; or hath given to them aid or comfort; or who, since the said 19th of April, 1775, hath withdrawn, without the permission of the legislative or executive authority of this or some other of the said United States, from any of the said provinces or colonies, or United States, into parts or places under the acknowledged authority and dominion of the said king of Great-Britain, or into any parts or places within the limits of any of the said provinces, colonies, or United States; being in the actual possession, and under the power of the fleets or armies of the said king; or who, before the said 19th of April, 1775, and after the arrival of Thomas Gage, esq. (late commander in chief of all his Britannic Majesty's forces in North-America) at Boston, the metropolis of this state, did withdraw from their usual places of habitation, within this state, into the said town of Boston, with an intention to seek and obtain the protection of the said Thomas Gage, and of the said forces, then and there being under his command; and who hath died in any of the said parts or places, or hath not returned into some one of the said United States, and been received as a subject thereof, and, if required, taken an oath of allegiance to such states; shall be held, taken, deemed, and adjudged to have freely renounced all civil and political relation to each and every of the said United States, and be considered as an alien. The second section declares the property of such person to escheat and enure to the government. The third section provides process, in the nature of an inquest of office, in order to recover the property. It has been decided, that this statute cannot operate, ipso facto, to disfranchise a citizen, and make him an alien; Construction of the but that, to produce such effect, a trial and conviction must have been had under it. absentee act. 2 Mass. T. R. 236. As where one Kilham brought an action against one Kilham v. Ward & al. Ward and al., selectmen of the town of Salem, for refusing his vote at a meeting for the choice of representatives. The ground of defence was, that plaintiff was an alien; and the absentee act, above quoted, was produced against him. |