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§ 193. “Aliens.”

In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject. The rule of the common law is that every person born out of the British Dominions is an alien, and that every person born within British Dominions is a British subject. This is known as the jus soli or the territorial test of nationality, which is contrasted with the jus sanguinis or the parentage test of nationality. There are several exceptions to the territorial rule; (1) legitimate children born out of the British Dominions, whose fathers, or grandfathers on their fathers' side, were natural-born subjects, not in the service of an enemy at the time of such children's birth, are entitled to the rights of natural-born subjects (Imperial Acts 4 Geo. II. c. 21, secs. 1, 2; 13 Geo. III. c. 21); (2) children born on board British ships on the high seas are natural-born subjects; (3) legitimate children of an alien enemy, born in a part of the British Dominions which at the time of their birth is in hostile occupation, are not British subjects. (See Calvin's case, 7 Coke Rep. 4; Westlake, Priv. Internat. Law, 3rd ed. p. 323. Dicey, Conflict of Laws, p. 176.)

Although aliens resident in a British country owe no local allegiance to the Crown, they are bound equally with British subjects to obey the laws of the country. Mr. Hall considers that an alien, “in return for the protection which he receives, and the opportunities of profit or pleasure which he enjoys, is liable to a certain extent, at any rate, in moments of emergency, to contribute by his personal service to the maintenance of order in the State from which he is deriving advantage, and under some circumstances


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it may be even permissible to require him to help in protecting it against external dangers.” (Hall's Foreign Jurisdiction, p. 171.) “There is no rule or principle of international law which prohibits the government of any country from requiring aliens, resident within its territories, to serve in the militia or police of the country, or to contribute to the support of such establishments.” (Id. p. 172.)

Under ancient as well as modern jurisprudence, aliens, resident in a country of which they were neither citizens nor subjects, were for a long time regarded with jealousy and under serious disabilities. In ancient Athens foreigners were not allowed to dispose of their property by will; at their death it was confiscated to the State. In early Rome foreigners were similarly disqualified, but under the Empire they were allowed to inherit and devise property by will. By the law of France, until the beginning of this century, the Government appropriated the property of foreigners dying in that country and leaving no heirs who were natives. In England, until enabling legislation during the present reign, aliens were subject to many disqualifications, some of which still remain. An alien could not, and still cannot, own a British ship. An alien could not own real estate within the realm, and hence it was held that a lease or an agreement for a lease of land to an alien artificer was void by 32 Henry VIII. c. 16, sec. 13. (Lapierre v. McIntosh, 8 L.J. Q.B. 112.) An alien woman married to an Englishman was not entitled to dower. (Wall's Case, 6 Moore P.C. 216.) A Court of Equity would enforce, for the benefit of the Crown, a trust of real estate created in favour of an alien. (Barrow v. Wadkin, 24 Beav. 1.) An alien friend had no legal right enforceable by action to enter British territory, and this disability still remains. (Musgrove v. Chung Toy [1891], App. Cas. 272.)

On the other hand, by the terms of the Copyright Act, 5 and 6 Vic. c. 45, an alien friend who, during his temporary residence in a British colony, publishes in the United Kingdom a book of which he is the author, is entitled to the benefit of the English Copyright. (Routledge v. Low, L.R. 3 H.L. 100.) So also, by the terms of the English law of Trade Marks, a foreign manufacturer has a remedy by suit in the United Kingdom for an injunction and account of profits against a manufacturer who has committed a fraud upon him by using his trade mark for the purpose of inducing the public to believe that the goods so marked are manufactured by the foreigner. (Collins Co. v. Brown, 3 Jur. [N.S.] 929.) An alien can similarly sue to restrain the fraudulent appropriation of his trade mark, although the goods to which such trade mark is affixed are not usually sold by him in the Kingdom. (Collins Co. v. Reeves, 4 Jur. [N.S.] 865.) An alien friend, though resident abroad, is entitled to sue in England for a libel published there concerning him. (Pisani v. Lawson, 6 Bing. N.C. 90.)

The Act 7 and 8 Vic. c. 66 (1844) first allowed aliens to take and hold every species of personal property—but not real property—as fully and effectually as if they were natural-born subjects, and enacted also that lands or buildings for the purpose of residence, or for the carrying on of any trade, business, or manufacture, might be taken and held by aliens for any term of years not exceeding twenty-one.

The Naturalization Act of 1870 (33 and 34 Vic. c. 14) greatly enlarged the privileges of aliens. Under that Act real and personal property of every description may be acquired, held, and disposed of by an alien, in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through an alien, in the same manner as if he were a natural-born British subject. No right is thereby conferred on an alien to hold real property situated out of the United Kingdom. The principal provisions of these Acts have been generally adopted in the colonies by local legislation passed in the exercise of power conferred by the Act 33 and 34 Vic. c. 14, sec. 16.




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