Thomas Jefferson Papers

Notes on British and American Alienage, [1783]

Notes on British and American Alienage


Qu. 1.
  • Can an American citizen, adult, now inherit lands in England?
  • Natural subjects can inherit. Aliens cannot.
  • There is no middle character. Every man must be the one or the other of these.
  • A Natural subject is one born within the king’s allegiance and still owing allegiance. No instance can be produced in the English law, nor can it admit the idea of a person’s being a natural subject and yet not owing allegiance.
  • An alien is the subject or citizen of a foreign power.
  • The treaty of peace acknowleges we are no longer to owe allegiance to the king of G.B. It acknowleges us no longer as Natural subjects then.
  • It makes us citizens of independent states; it makes us aliens then.
  • A treaty with a foreign nation where the king’s powers are competent to it as in this which is a case of peace and war, supersedes all law.
  • If the king’s powers were not competent before, the act of parliament of 1782 has made them so. An American citizen adult cannot inherit then.
Qu. 2.
  • The father a British subject; the son in America, adult, and within the description of an American citizen, according to their laws. Can the son inherit?
  • He owes no allegiance to Great B. The treaty acknowleges he does not. But allegiance is the test of a natural subject. Were he to do an act here which would be treason in a British subject he could not be punished should he happen to go there.
  • He owes allegiance to the states. He is an alien then and cannot inherit.
  • [Obj.1 The state of the father draws to it that of the son.
  • Ans. In Villenage it does, but in no other case at the Common law. Thus a Natural subject having a son born in a foreign state; the son was an alien at the Common law. The stat. 25.E.3. st.2. first naturalized him if both parents were, at the time of his birth, natural subjects; and 7.Ann.c.5. and 4.G.2.c.21. where the father alone was. So an Alien in England having a child born there, that child is a natural subject. A denizen purchases land. His children born before denization can-not inherit, but those born after may. The state of the father then does not draw to it that of the child, at the Common law.
  • But does it by the statutes? No, for here are statutes first making the son born abroad a natural subject, owing allegiance. Then comes a treaty of peace wherein the king absolves him from his allegiance and declares him an Alien. This then supersedes the authority of the statute. It is said 2.P.W.124. 1.B1.357. that natural allegiance cannot be cancelled but by act of parliament. But surely national treaties supersede acts of parliament. The oath of allegiance took it’s origin from the feudal oath of fealty. But as the fealty of the vassal could be relinquished by the lord, so can the allegiance of the subject by the king. If he withdraws his protection allegiance is gone: but he can withdraw his protection without consulting parliament.
  • Qu. Were the king’s subjects in France aliens?
    • If they were not, did they not become so when given up?
    • Must they not of course become so when taken from him by a superior power?]
  • Qu. 3. The father a British subject. The son as in Qu. 2. but an infant. Can he inherit?
  • 1st. by the Common law.
    • We have seen before that the state of the father does not draw to it as an accessory that of the son where he is an adult.
    • But by the common law
  • Denization may be 1. by parliament 2. by letters patent.
  • 3. by Conquest. As if the king and his subjects conquer a kingdom, they become denizens of kingdom conquered. Calvin’s ca. 6.a.
  • If an alien have issue born within the king’s obedience, the issue is a natural only: ib. This excludes enemies possessing a town &c. ib.
  • Abjuratur still owes allegiance because he may be restored. 9.b. So an outlaw. ib. 14.a.
  • The law of nature is part of the law of Engld. 12.b.
  • If a noble of another country come to Engld., he sues by his proper name, not by that of his nobility, because on a plea in abatement that he is not noble, it is not tried by jury but by the record of parliament. 15.a.
  • Ambassadors having children born in foreign nation, they are natural subjects by the common law. 18.a.
  • While the kings of Engld. had possessions in France, those born during such possession were natural subjects of Engld. 19.a. So is it now of Ireland, Jersey, Guernsey, Man, Alderney, &c.
  • If a woman alien marrieth a subject she shall not be endowed. 25.a. An alien cannot be ten[ant] by the courtesy. ib.
  • If Engld. and Scotld. should by descent be divided and governed by several kings, those born under one sovereign while the realms were united would remain natural subjects and not aliens. 27.b.
  • He cannot be a subject born of one kingdom that was born under the ligiance of a king of another kingdom. 18.a.

MS (DLC); endorsed by TJ: “Alien. British & American.” In all likelihood these notes were set down in Dec. 1783. The treaty then about to be ratified is mentioned; the expression “the states” for the United States, current at just this time in TJ’s reports as a member of Congress, is used; and TJ had a particular interest in the question of alienage at this moment because Mrs. Trist had consulted him about the status of her son Browse, whose father was a British officer (see TJ to Mrs. Trist, 22 Dec. 1783).

Tenant by the courtesy: Under the curtesy of England the husband who survived a wife possessed of lands and having issue able to inherit enjoyed a life tenure in the lands.

1The passage in brackets (supplied) was written at the bottom of the first and top of the second page and was marked by a vertical line along the margin to indicate that it was to be inserted at the point following the preceding sentence (“He is an alien then and cannot inherit”), where TJ, after making this amplification, inserted the words to which this passage was keyed: “Obj. the state &c.”

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