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illustrious examples, that various portions of this country became, even in its infant state, distinguished asylums for the enjoyment of the principles of civil and religious liberty, by the persecuted votaries of those principles from every part of Europe.
of the volume of the Laws of Pennsylvania, edit. 1775. The Puritans of Massachusetts, under the charter of 1629, assumed the grant to them of the free exercise of religion according to the dictates of conscience; but the better opinion is, that this was a gratuitous assumption, not warranted by any sound construction of their charter; and while they claimed this right for themselves, and exercised it without any foundation in the grant, they forthwith denied to Episcopalians the privilege of using their own creed and worship. The two recent historians, Grahame and Bancroft, take different sides on this question, (if any question there can really be,) under the charter of 1629. The former, in his History of the United States, (vol. i. p. 241–247,) follows Neal and other Puritans of that age, in favour of the Puritans' claim; and the latter, in his History of the United States, (vol. i. p. 371, 372,) follows Chalmers, Robertson, and Story, in opposition to it. The leading principle in the religious system of the colony of Mas. sachusetts, was the compulsory support of public worship, and the liability of every inhabitant to taxation for its support. Anabaptists and Quakers were first exempted, and next Episcopalians, who were allowed to pay their taxes to their own clergymen. The laws still in force contain the principle, that a religious establishment of the Christian Protestant religion, and public worship, ought to be maintained by legal coercion. Dakes v. Hill, 10 Pick. Rep. 333.
Some of the colonial governments provided for the enjoyment of religious liberty in the largest sense, as allowing every man the free exercise and enjoyment of religious profession and worship without discrimination, and this was the language of the constitution of New York of 1777; and it is continued in the Revised Constitution of 1846 ; and the singularly argumentative Preamble and Statute of the assembly of Virginia in 1786, carried the doctrine of religious freedom to the same extent. In other instances religious toleration was granted, which meant the allowance of religious opinions and modes of worship, differing from those established by law. The prevalent doctrine at the present day is in favor of religious liberty and equality without the existence of any power of control, or distinction by law, or establishment. The Revised Constitution of New York in 1846, seems to have set at liberty even the consciences of witnesses, for it declares that “ No person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief.”
OF ALIENS AND NATIVES.
We are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.
(1.) Natives are all persons born within the jurisdiction and allegiance of the United states.a If they were resi
a This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. Calvin's Case, 7 Co. Lynch v. Clarke, 1 Sandford's Ch. R.584, 639. In this last case the doctrine relative to the distinction between aliens and citizens in the jurisprudence of the United States was extensively and learnedly discussed, and it was adjudged that the subject of alienage, under our national compact, was a national subject, and that the law on this subject which prevailed in all the United States, became the common law of the United States when the union of the states
dent citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation. If a person was born here before our independence, and before that period voluntarily withdrew into other parts of the British dominions, and never returned; yet, it has been held, that his allegiance accrued to the state in which he was born, as the lawful successor of the king; and that he
was to be considered a subject by birth.a It was *40 admitted, that this *claim of the state to the alle
giance of all persons born within its territories prior to our revolution, might subject those persons who adhered to their former sovereign, to great inconveniences in time of war, when two opposing sovereigns claimed their allegiance; and under the peculiar circumstances of the case, it was, undoubtedly, a very strong application
was consummated; and the general rule above stated is, consequently, the governing principle or common law of the United States, and not of the individual states separately considered. The right of citizenship, as distinguished from alienage, is a national right, character or condition, and does not pertain to the individual states separately considered. The question is of national, and not individual sovereignty, and is governed by the principles of the common law which prevail in the United States, and became, under the constitution, to a limited extent, a system of national jurisprudence. It was accordingly held in that case, that the complainant, who was born in New York of alien parents, during their temporary sojourn there, and returned while an infant, being the first year of her birth, with her parents to their native country, and always resided there afterwards, was a citizen of the United States by birth. This was the principle of the English common law in respect to all persons born within the king's allegiance, and was the law of the colonies, and became the law of each and all of the states when the Declaration of Independence was made, and continued so until the establishment of the constitution of the United States, when the whole exclusive jurisdiction of this subject of citizenship passed to the United States, and the same pri ple has there remained.
a Ainslie v. Martin, 9 Mass. Rep. 454.
of the common law doctrine of natural and perpetual allegiance by birth. The inference to be drawn from the discussion in the case of M'Ilvaine v. Coxe,a would seem to be in favor of the more reasonable doctrine, that no antenatus ever owed any allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king's allegiance in another part of his dominions, and never afterwards, prior to the treaty of peace, returned and settled here. The United States did not exist as an independent government until 1776; and it may well be doubted whether the doctrine of allegiance by birth be applicable to the case of persons who did not reside here when the revolution took place, and did not, therefore, either by election or tacit assent, become members of the newly created state. The ground of the decision in the latter case was, that the party in question was not only born in New Jersey, but remained there as an inhabitant until the 4th of October, 1776, when the legislature of that state asserted the right of sovereignty, and the claim of allegiance over all persons then abiding within its jurisdiction. By remaining there after the declaration of independence, and after that statute, the party had determined his right of election to withdraw, and had, by his presumed consent, become a member of the new government, and was consequently, entitled to protection, and bound to allegiance. The doctrine in the case of Respublica v. Chapman, goes *also to deny the *41 claim of allegiance, in the case of a person who, though born here, was not here, and assenting to our new governments, when they were first instituted. The language of that case was, that allegiance could only
2 2 Cranch, 280. 4 Ibid. 209. b1 Dallas, 53.
attach upon those persons who were then inhabitants. When an old government is dissolved, and a new one formed, “all the writers agree,” said Ch. J. M'Kean," that none are subjects of the adopted government who have not freely assented to it.” The same principle was declared by the supreme court of New York, in Jackson v. White, a
a and it was held, that though a British subject resided here as a freeholder on the 4th of July, 1776, and was abiding here on the 16th of July, 1776, when the convention of the state asserted the right of sovereignty, and the claim of allegiance over all such persons; yet, that, under the circumstances, the person in question being a British officer, and a few weeks thereafter placed on his parole, and in December, 1776, joining the British forces, was to be deemed an alien, and as having never changed his allegiance, or elected to become a party to our new government. The doctrine in the case of Ainslie v. Martin was contrary, also, to what had been held by the same court in the cases of Gardner v. Ward, and Kilham v. Ward,b where it was decided, that persons born in Massachusetts before the revolution, who had withdrawn to a British province before our independence, and returned during the war, retained their citizenship, while the same persons, had they remained in the British province until after the treaty of peace, would have been British subjects, because they had chosen to continue their former allegiance, and there was but one allegiance before the revolution. This principle was asserted by the same court in the case of Phipps, and I consider it to be the true and sound law on the subject.
a 20 Johns. Rep. 313.
c 2 Pick. Rep. 394, note. See, also, Dupont v. Pepper, State Reports, S. C. p. 5, S. P. In Inglis v. The Trustees of the Sailors' Snug Harbor, 3 Peters' U. S. Rep. 99, 122, 123, it was adjudged that the rights of election between the new and old government did exist at the revolution in