alien dies before he has taken any steps under the act of naturalization, his personal estate goes according to his will, or if he died intestate, then according to the law of distribution of the place of his domicil,2 at the time of his death. (a) The stationary place of residence of the party at his death determines the rule of distribution, (b) and this is a rule of public right, as well as of natural justice. Mobilia personam sequuntur, immobilia situm. (c) The unjust and inhospitable rule of the most

consent and decree of two successive assemblies of the people, and was granted to none but to men of the highest rank and reputation, or who had performed some signal service to the republic. 1 Potter's Greek Antiquities, 44, 45, 150. In the time of Demetrius Phalereus, there were resident in Attica 10,000 freemen, being foreigners, or of foreign extraction, or freed slaves, who had not the rights of Athenian citizens. 1 Mitf. Hist. 354, 355. And yet it is said that foreigners could not dispose of their goods by will, but that they were appropriated, at their death, for the public use. 2 Potter, 344. In Rome, foreigners could not make a will; and the effects of a foreigner, at his death, went to the public, or to his patron, under the jus applicationis. Cic. de Orat. 1, 39. Dig. 49, 15, 52. Ibid. lib. 35, ad legem Falcidiam, Præ. Dict. du Dig. tit. Etrangers. But in the time of the imperial code, foreigners could dispose by will, and also inherit. Code, 6, 59, 10. The Romans were noted for their peculiar jealousy of the jus civitatis, or rights of a citizen. It was, at first, limited to the Pomaria of Rome, and then gradually extended to the bounds of Latium. In the time of Augustus, as we were informed by Suetonius, De Aug. sec. 40, the same anxiety was discovered to keep the Roman people pure and untainted of foreign blood; and he gave the freedom of the city with a sparing hand. But when Caracalla, for the purpose of a more extended taxation, levelled all distinctions, and communicated the freedom of the city to the whole Roman world, the national spirit was lost among the people, and the pride of the country was no longer felt, nor its honor observed. 1 Gib. Hist. 268.

(a) 1 Binney, 336. 3 Johns. Ch. 210. 1 Mason, 408. By the treaty between the United States and the Republic of Venezuela, in May, 1836, art. 12, and the PeruBolivian confederation in May, 1838, art. 8, and the Republic of Equador, in June, 1839, art. 12, not only personal property of the resident alien goes according to his will, or to his lawful representatives if he dies intestate, but his alien heirs, if they cannot lawfully succeed to his real estate, shall have three years to dispose of it. The treaty with Spain of 1795, art. 11, and with Russia of 1832, art. 10, and with Hanover of 20th of May, 1840, art. 7, and with Portugal of 23d April, 1841, art. 12, allowed a reasonable time to the alien heir or devisee in such cases to dispose of the estate, and abolishes the Droit d'Aubaine. See, also, treaties to the same effect with the kingdom of Saxony, August 12th, 1846, and the grand duchy of Hesse, March 26, 1844, and with the king of Bavaria, the 21st of January, 1845, and with the king of the Two Sicilies, the 1st of December, 1845. This last treaty is distinguished for its liberal spirit, and commercial and mutual rights and privileges are secured to the subjects of the contracting parties. (b) Pipon v. Pipon, Amb. 25. Burn v. Cole, Amb. 415. Hegeman v. Fox, 31 Barb. (N. Y.) 475.

(c) Hub. Prælec. tom. i. p. 278, tom. ii. p. 542. De Conflictu Legum, sec. 15. Vat

The fact of intestacy, and the validity of the execution of a testament relating to personalty, are to be determined by the law of the party's domicil at the time of his death. Moultrie v. Hunt, 23 N. Y. Rep. 394.

polished states of antiquity prevailed in many parts of Europe, down to the middle of the last century; and Vattel expressed his astonishment that there should have remained any vestiges of so barbarous a usage in an age so enlightened. The law which

*

claimed, for the benefit of the state, the effects of deceased foreigners, who left no native heirs, existed in France as late as the commencement of their revolution. (d) This rule of the French law was founded not only on the Roman law, but it was attempted to be justified by the narrow and absurd policy of preventing the wealth of the kingdom from passing into the hands of the subjects of other countries. (e) It was abolished by the constitution of the first constituent assembly, in 1791, and foreigners were admitted upon the most liberal terms, and declared capa*68 ble of acquiring and disposing of property equally with natural-born citizens. The treaty of commerce between the United States and France, in 1788, provided against the evil effects of this law, by declaring that the inhabitants of the United States were to be exempted from the droit d'aubaine, and might dispose, by will, of their property, real and personal, (biens meubles et immeubles,) and if they died intestate, it was to descend to their heirs, whether residing in France or elsewhere, and the like privilege was conferred upon Frenchmen dying in this country. The treaties of France with other powers usually contained the same relaxation of her ancient rule; and though the treaty of 1778 was abolished in 1798, yet, in the renewed treaty of 1801, the same provision was inserted, and under it American citizens in France, and French subjects in the United States, could acquire, hold, and transmit, real as well as personal property, equally as if they were natives, and without the necessity of any act of nat

tel, b. ii. ch. 8, sec. 110, 111. See, also, infra, p. 429. For greater security, this right of succession, in case of intestacy, and of disposal by will, gift, or otherwise, of personal property belonging to aliens, is usually inserted as a formula in treaties of navigation and commerce; as, see art. 11 of the treaty between the United States and Spain of 1795; art. 6 of the treaty with Sweden, made in 1683; art. 11 of the treaty with Austria, made in 1829; art. 3 of the treaty with Mexico, made in 1831; art. 10 of the treaty of navigation and commerce between the United States and Russia, made in December, 1832; art. 9 of the treaty between the United States and the Republic of Chili, made in May, 1832; and art. 7 of the treaty between the United States and Hanover in 1840, and art. 3 of the treaty between the United States and Saxony in 1846, and with Wurtemburg in 1844, and Brunswick and Luneburg in 1854.

(d) 1 Domat, 26, sec. 11.

(e) 1 Domat, 555, sec. 13.

uralization or special permission. This last treaty expired in 1809, and the rights of Frenchmen arising thereafter, were left, like those of other aliens, to be governed by the general law of the land.1

The Napoleon code did not pursue the liberal policy of the French constituent assembly of 1791, and it seems to have revived the harsh doctrine of the droit d'aubaine, under the single exception that aliens should be entitled to enjoy in France the same civil rights secured to Frenchmen, by treaty, in the country to which the alien belongs. (a) It is not sufficient to create the exemption in favor of the alien, that civil rights are granted to Frenchmen by the local laws of the foreign country, unless that concession be founded upon treaty. (b) The law in France, until within a recent period, was, that a stranger could *69 not, except by special favor, dispose of his property by will; and when he died the sovereign succeeded, by right of inheritance, to his estate. (a) But the droit d'aubaine, under the articles of Nos. 726 and 912 of the code civil, was abolished in France, by a law of the 14th of July, 1819, and aliens can now acquire, enjoy, and transmit by will, and by descent, real and personal property, in the same manner as the other inhabitants of the kingdom. In case of succession among co-heirs, partly French and partly aliens, the French take of the property in France, a portion equal to the value of the property situated in a foreign country, and from which they would be excluded under the foreign law or custom.

British subjects, under the treaty of 1794, between the United States and Great Britain, were confirmed in the titles which they then held to lands in this country, so far as the question of alienism existed; and they were declared competent to sell, devise, and transmit the same, in like manner as if they were natives; and that neither they, nor their heirs or assigns, should, as to

(a) Code Napoleon, Nos. 11, 726, 912.

(b) M. Toullier, in his Droit Civil Français, tom, i. n. 265, cites for this rule a decree of the Court of Cassation in 1806; and he says that this article in the Napoleon code was taken from one in the new Prussian code.

(a) Répertoire de Jurispr. par. Merlin, tit. Aubaine, and tit. Etranger, ch. 1, No. 6.

1 See the provisions of article seventh of the consular convention concluded with France, Feb. 23, 1853. 10 U. S. Statutes, 992; and the treaty with Brunswick and Luneburg, Aug. 21, 1854.

those lands, be regarded as aliens. The treaty applied to the title, whatever it might be, but it referred only to titles existing at the time of the treaty, and not to titles subsequently acquired. (b) It was, therefore, a provision of a temporary character, and by the lapse of time is rapidly becoming unimportant and obsolete.

The legislature of New York, and probably of many other states, are in the practice of granting to particular aliens, by name, the privilege of holding real property; and, by a permanent provision in New York, aliens are enabled to take and hold lands

in fee, and to sell, mortgage, and devise, but not demise or * 70 lease the same, equally as if they were native * citizens: pro

vided the party previously take an oath that he is a resident in the state, and intends always to reside in the United States, and to become a citizen thereof as soon as he can be naturalized, and that he has taken the incipient measures required by law for that purpose. The power to sell, assign, mortgage, and devise real estate, is to continue for six years from the time of taking the oath; but the alien is not capable of taking or holding any lands, descended, devised, or conveyed to him previously to his becoming such resident and taking the oath above-mentioned; and if he dies within the six years, his heirs, being inhabitants of the United States, take by descent, equally as if he had been a citizen. (a) There are statute provisions of the same import in favor of aliens in Maryland, South Carolina, Delaware, and Missouri; and in Louisiana, Pennsylvania, Kentucky, Virginia, Michigan, New Jersey, Illinois, Indiana, and Ohio, the disability of aliens to take, hold, and transmit real property, seems to be essentially removed. (b) In North Carolina and Vermont, there is

(b) 1 Wheaton, 300. 4 Ibid. 463. 7 Ibid. 535. 9 Ibid. 496. 12 Mass. 143.

(a) N. Y. Revised Statutes, vol. i. p. 720, sec. 15-20. This privilege in New York was further enlarged in 1843, as see below, note b.

(b) Griffith's Law Register, passim. 1 Const. Rep. (S. C.) 61, 111. Christy's Dig. tit. Alien. A. Q. Review, No. 25, p. 115. Chase's Statutes of Ohio, vol. i. p. 404. Phillips v. Rogers, 5 Martin (Louis.) 700. Act of South Carolina of 1799, prescribing the

1 An alien residing in a foreign country, cannot take land in Missouri, by descent. Wecker v. Wecker, 26 Miss. (5 Jones) 426. In South Carolina, it has been held that if there be no other heir capable of inheriting, the alien widow, resident in the state, of a citizen who died intestate, shall take the whole of the decedent's real property. Ford v. Husman, 7 Rich. 165. But she shall have none of it, if the citizen decedent have left a brother, who has become a citizen by naturalization: he shall be the sole heir. Keenan v. Keenan, 7 Rich. 345.

even a provision inserted in their constitutions, that every person of good character, who comes into the state and settles, and takes

terms of denization. Purdon's Penn. Dig. pp. 56, 57. Elmer's Dig. 5. R. S. of New Jersey, of 1847, tit. 1, ch. 1.2 Territorial Act of Michigan, of March 31st, 1827. Revised Laws of Illinois, edit. 1833, p. 626. Statute of Indiana, of January 14, 1818. Ind. R. S. 1843, p. 414. By the charter of William Penn, as proprietary of Pennsylvania, to the inhabitants, in 1683, it was declared, that in the case of aliens purchasing lands in the province, and dying therein without being naturalized, their estates should descend as if they were naturalized. Proud's Pennsylvania, vol. ii. App. 27. In Pennsylvania, by the Act of March 22d, 1814, aliens who, on the 18th of June, 1812, resided in the state, and continued to reside therein, upon filing a declaration of an intention of becoming citizens, might take, hold, and convey lands not exceeding 200 acres, nor in value $20,000, as fully as citizens might do; and by the Act of 24th March, 1818, ch. 4610, aliens, not subjects of any state at war with the United States at the time of the purchase, might purchase and hold lands not exceeding 5,000 acres, equally as native citizens. This last Act contained no condition with regard to residency. And by the Act of March 21, 1837, purchasers from aliens, and the titles of the heirs and devisees of aliens, were confirmed, subject to the vested rights of others. See Dunlop's Laws, p. 908. Under the construction given to the above Act of 1818, (Recse v. Waters, 4 Watts & Serg. 145,) an alien husband acquires no title in his wife's estate of inheritance, as tenant by the curtesy initiate. In New York, (Laws of N. Y. sess. 56, (1833,) ch. 300, and sess. 57, (1834,) ch. 37,) the prerogative right of escheat, in the case of aliens dying seised of lands, is much restricted, and the alien heirs, and the persons obliged to deduce title through an alien, are entitled, upon certain moderate conditions, to a release of the interest of the state acquired by the escheat. In New York, it is considered to be a settled rule of construction of statutes permitting aliens to purchase and hold lands within the state, to them and their heirs and assigns, that the alien heirs, devisees, and purchasers of and from the alien so allowed to purchase, can take and hold in that capacity, without prejudice to their title from alienism. See the Act of April 2d, 1798, ch. 72, and the proviso thereto and the Acts of March 26th, 1802, ch. 49; and of April 8th, 1808, ch. 175, and the decision in Jackson v. Adams, 7 Wendell, 367, thereon. See, also, the cases of Goodell v. Jackson, 20 Johns, 693; of Jackson v. Etz, 5 Cowen, 314, and of the Commonwealth v. Heirs of André, 3 Pick. 224, to the same point. Whether the heirs and purchasers of and from the heirs and purchasers of the first alien taker, can so take, may be a question, as the privilege is to the first grantee, his heirs and assigns, and does not necessarily extend to the heirs of the heir, or to the purchaser from the purchaser. The decision in the case of Aldrich v. Manton, 13 Wendell, 458, seems to limit the privilege to the immediate heirs and purchaser from the first privileged alien. The legislature of New York, by various provisions, have very greatly enlarged the capacity of

? It is held in New Jersey, that an Act which permits aliens "to have and to hold lands to them and their heirs and assigns forever, as fully, to all intents and purposes, as any natural-born citizen of the United States may or can do," does not remove the disability of alienism from those, who, but for that disability, would have been heirs. Colgan v. McKeon, 4 Zabr. 566.

* In Cumberland v. Graves, 8 Seld. (N. Y.) 305, it was held in construction of the Act of 1798, that it was the intention of the Act to remove the disability of alienism from the heirs and assigns of the first alien grantee indefinitely; and a devise by the remote alien heir of an alien grantee to alien trustees, vested in them a legal estate. S. C. 9 Barb. (N. Y.) 595.