Alien, a person who was born out of the jurisdiction and allegiance of a country, and who is not a citizen of that country. Not all foreign-born persons are aliens by our law, because they may be within certain excepted classes, as the children of the nation's ambassadors born in other countries, or of American citizens temporarily sojourning abroad; or they may have become citizens by naturalization. In the United States citizenship and alienage are determined by the laws of the federal government. The subject of naturalization under these laws is treated elsewhere. (See Natu-ralization.) - Attica, the foremost state of ancient Greece, treated foreigners with much liberality. While Sparta was jealous of strangers and excluded them, at Athens foreigners were freely admitted, and at one time constituted half her residents. They were subjected to taxes and to some other light burdens and disabilities which were not imposed on native citizens; but on the whole the policy observed toward them was humane and generous. and sometimes they were received into citizenship. In other states of Greece individuals and sometimes whole classes of aliens were endowed with civil rights, such as the privilege of intermarriage, of holding real property, and of exemption from special taxation.
In Rome, under the emperors, foreigners could acquire and dispose of property, could devise and inherit it, and sue in the courts; and they enjoyed other rights accorded by the jusgentium, that is to say, the mere natural rights of persons, though Alicante they were deemed the especial and distinctive privilege of Roman citizens. In Germany and France, in the later periods, foreigners were not only denied civil rights, but were forced to invoke the protection of the native barons or seigneurs, who imposed the heaviest exactions as the price of their protection. In France, in some districts, the alien was forbidden, after a certain term of residence, to leave the lord's domain; and if he died within it, leaving no heirs there, the lord claimed the right of succession to his property. This prerogative of the seigneurs, later assumed by the sovereign himself, was what in modern times was known as the droit d'aubaine. It has existed down to a very recent period in Europe, at least in the milder form of the droit de detraction, and practically exists now, or did only a few years ago, as Mr. Attorney General Cushing suggested, in many of our own states; and it is the subject of clauses in some of our latest treaties with European powers.
This droit d'aubaine, as it was asserted by the king of France, consisted sometimes in a right to levy a tax on strangers on certain occasions, and sometimes in the claim of inheriting to strangers who left no heirs within the kingdom. It was abolished in France in 1790, restored by the Code Napoleon on the plea of reciprocity, and abolished finally in 1819, when the right of succession was conceded to foreigners to the same extent as it was enjoyed by native-born Frenchmen. The French legislation has had the effect to break down this exaction in other European states; but Great Britain and the United States have not been so liberal. A very recent treaty with Prussia, which will illustrate the present international practice on this point, contained provisions intended to relieve the subjects of Prussia from their disabilities in respect to real and personal property here, and declared that on the death of such an alien in possession of property, his heirs should have reasonable time to sell it and withdraw the proceeds, "exempt from all droits of detraction on the part of the government of the United States." Soon after the conclusion of this treaty, the Prussian minister complained that his countrymen did not enjoy in all our states the benefit of the treaty stipulation, and the question arose whether the federal government could make a treaty whose provisions of this character could bind the states; for though the federal government has supreme and exclusive cognizance of questions of citizenship and alienage merely, yet each state is at liberty to make its own laws in relation to the enjoyment and devolution of property within its own limits.
The opinion of the attorney general was very clear and explicit to the effect that the treaty-making power of the general government must bind the states as to the provisions in question. But, so far as ap-pears, no decision on the subject has ever been made by the courts. - As to real property, subject to the right of forfeiture in the state or sovereign, aliens under the common law may take by act of the party, as the phrase is, though they may not take by act of the law. In other words, an alien may take real estate by purchase, or even by devise, these being acts of parties; but he cannot take by inheritance, for that is a mere operation of the law. When the alien takes, as in the two former cases, the estate vests in him, and he may hold it against every one but the state; nor can the state enforce its right of forfeiture without proceedings for that purpose, or, in legal phraseology, without an inquest of office found. Until this is done, the alien may exercise complete legal domain over the property, just as a citizen may do. But though he may sell it, his grantee takes no better title than the alien had, and he is therefore as liable to forfeit the lands as the alien was.
At common law, as just implied, the alien has no inheritable blood, that is to say, he can neither take nor transmit real property by descent. Thus it was formerly held that a grandson could not inherit to his grandfather, though both were native-born subjects, if the intervening son, the grandson's father, were an alien. But a statute was passed in the reign of William III. which cured this disability, by providing that native-born citizens might inherit to their ancestors, notwithstanding the alienage of any intervening ancestor. This statute was reenacted in 1830 in New York, and in many other states before that time. - The disabilities of aliens in respect to real property have been materially lessened in most of our states; and in some they are entirely removed, as in Massachusetts, Mary-land, Florida, Ohio, Illinois, Iowa, Wisconsin, Nebraska, Dakota, and Nevada. In New York, South Carolina, Texas, and many others, the alien may take, hold, and devise lands after declaring his intention to become a citizen in conformity with the naturalization laws. In Connecticut and California the alien, if a resident in the state, may purchase, hold, inherit, and transmit lands in the same manner as a citizen.
The right of forfeiture, it should be observed, is very rarely exercised by the states; on the contrary, the legislatures are very liberal in making laws to cure defects of titles arising out of the alienage of former holders, and in releasing in favor of the natural heirs the right of escheat which may have accrued to the state by the death of an alien ancestor in possession of lands. - In respect to personal property, aliens may at common law take, hold, and dispose of it, and make and enforce contracts in respect to it, just as native citizens may do. An alien in New York may take a purchase-money mortgage on land sold by him, and on a foreclosure may buy and hold the land. But it is doubtful whether he could make such a purchase on foreclosure of his mortgage on lands in which he never had any other title than the mortgage. The revisers in 1830 proposed a section to confer the power, but it was not adopted. - An alien enemy, that is to say, the subject of a state actually at war with us, cannot maintain an action in our courts, unless he is here by license of our government or is otherwise under its protection. But an alien friend, whether resident here or not, may sustain in our courts an action like our own citizens for any injury to his person or rights.
As to nonresident aliens, an illustration of the rule is furnished by the suits for infringement of trade marks in this country, which have been in several instances maintained by English manufacturers. Suits by or against aliens, whether living here or abroad, to which a citizen of the United States is an opposite party, may be brought under the laws of the federal government in the United States circuit courts; and suits by aliens for torts in violation of the law of nations may be brought in the district courts. Upon the outbreak of a war with the alien's country his civil capacity to sue is suspended, and his property is subject to confiscation. A statute of the United States of 1798, still in force, provides that in such an event the subjects of the hostile nation within our territory may be restrained, secured, or removed as alien enemies, though they shall be allowed such time for removal of their effects as is provided by treaties with their countries. Aliens are incapable of serving on juries, voting, or holding office. Where they can hold property, they are generally subject to militia duty and the other burdens and taxes of citizens. The practice of trying aliens by a jury de medietate lin-guœ (half aliens) has fallen into general disuse.
The power to expel aliens from the state is vested in France in the minister of the interior, and in England and America theoretically in the executive, though it has never been exercised in either of the two latter countries except in pursuance of an act of parliament or of congress. Such an act was passed in England in 1848, but a report made in 1850 showed that it had not been enforced in a single instance. - In England some important points of the law respecting aliens have been lately settled by the enactment of the naturalization act of 1870. It declares that henceforth real and personal property of every description may be taken, acquired, held, and disposed of by an alien, in the same manner in all respects as by a native-born British subject; and that a title to real and personal property of every description may be derived from, through, or in succession to an alien, as it may be from a native citizen of the kingdom. The act also provides that any alien naturalized in Great Britain may make a declaration of alienage after proclamation of any treaty with his native state which insures that privilege for its subjects; and also that any person born out of her majesty's dominions of a British father may, if of full age and under no disability, make a declaration of alienage.
From the passage of the act no alien shall be entitled to be tried by a jury de medietate lingua, but shall be triable like a native British subject. Provisos of the act declare that its terms shall not qualify an alien for any office or for any municipal, parliamentary, or other franchise, nor enable him to enjoy any rights or privileges as a British subject, except the rights and privileges as to property conceded by the act. Other significant but less important provisions are contained in the statute.