§ 94. The next class is that of aliens. An alien is a person born in a foreign country, of foreign parents, and not naturalized within his adopted country.3 The mere fact, that a person is born in a foreign country, will not render him an alien, if his parents be not subjects of that country, but be merely journeying, or temporarily residing there.4 But the children of a mother, who is a native-born citizen married to a foreigner who is an alien, are aliens, if they be born abroad.5 So, also,
1 Bac. Abr. Pardon, H.; In the Matter of Deming, 10 Johns. 232, 483; People v. Pease, 3 Johns. Cas. 333; 2 Hawk. P. C. ch. 37 (Curwood's ed.).
2 In the Matter of Deming, 10 Johns. 233. In New York, conviction of treason creates civil death and forfeiture of property during the life of the convict.
3 Ainslie v. Martin, 9 Mass. 456; Jackson v. Wright, 4 Johns. 75.
4 Wilson v. Marryatt, 8 T. R. 31; 1 Bos. & Pul. 430; In re Bruce, 2 Cr. & Jerv. 436. This is apparently the doctrine of the common law. In England, the Statutes of 25 Edward III., Stat. 2, and 7 Anne, ch. 5, have established it, if there were any doubt thereof; but in America, the doctrine has not been established by statute to the same full extent. By the fourth section of the act of Congress of the 14th April, 1802, establishing a uniform rule of naturalization, it was enacted, "that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the States, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized, or admitted to the rights of citizenship, shall, if dwellchildren born abroad of parents who are in the service or under the allegiance of a foreign prince or king, or who have ing in the United States, be considered as citizens of the United States." Of this provision Mr. Chancellor Kent says: "This provision appears to apply only to the children of persons naturalized, or specially admitted to citizenship; and there is color for the construction, that it may have been intended to be prospective, and to apply as well to the case of persons thereafter to be naturalized, as to those who had previously been naturalized. It applies to all the children of ' persons duly naturalized,' under the restriction of residence and minority, at the time of the naturalization of the parent. The act applies to the children of persons duly naturalized, but does not explicitly state, whether it was intended to apply only to the case where both parents were duly naturalized, or whether it would be sufficient for one of them only to be naturalized, in order to confer, as of course, the rights of citizens upon the resident children, being under age. Perhaps it would be sufficient for the father only to be naturalized; for in the supplementary Act of the 26th of March, 1804, it was declared, that if any alien, who should have complied with the preliminary steps made requisite by the Act of 1802, dies before he is actually naturalized, his widow and children shall be considered as citizens. This provision shows, that the naturalization of the father, was to have the efficient force of conferring the right on his children; and it is worthy of notice, that this last act speaks of children at large, without any allusion to residence or minority; and yet, as the two acts are intimately connected, and make but one system, the last act is to be construed with reference to the prior one, according to the doctrine of the case Ex parte Overington. By a subsequent part of the same fourth section, it is declared, ' that the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States; provided that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.' This clause is certainly not prospective in its operation, whatever may be the just construction of the one preceding it. It applied only to the children of persons who then were, or had been citizens; and consequently the benefit of this provision narrows rapidly by the lapse of time, and the period will soon arrive, when there will be no statute regulation for the benefit of children born abroad, of American parents, and they will be obliged to resort for aid to the dormant and doubtful principles of the English common law. The proviso annexed to this last provision seems to remove the doubt arising from the generality of the preceding sentence, and which was whether the act intended by the words, 'children of persons,' both the father and mother, in imitation of the Statute of 25 Edward III., or the father only, according to the more liberal declaration of the Statute of 4 Geo. II. The provision also differs from the preceding one, in being without any restriction as to the age or residence of the child; and it appears to have been intended for the case of the children of natural born citizens, or of citizens who were original actors in our revolution, and therefore it was more comprehensive and more abjured their allegiance, and been naturalized in such country, are aliens; but children born in England or America, of aliens residing in the country, are entitled to all the privileges of citizens.1 This rule obtains in France only upon condition that the child, after attaining the age of twenty-one years, claim the character of a Frenchman, by declaring his intention to fix his residence there, and actually so doing within a year from such declaration.2
5 Duroure v. Jones, 4 T. R. 300; Davis 9. Hall, 1 Nott & M'Cord, 292. The terms upon which an alien may become naturalized in the United States, are prescribed in the acts of Congress of April 14, 1802, ch. 28; March 3, 1813, ch. 184; March 22, 1816, ch. 32; May 26, 1824, ch. 186; May 24, 1828, ch. 116.