confer, as of course, the rights of citizens upon the resident children, being under age. Perhaps it would be sufficient for the father only to be naturalized; for in the supplementary act of the 26th of March, 1804, it was declared that if any alien, who should have complied with the preliminary steps made requisite by the act of 1802, dies before he is actually naturalized, his widow and children shall be considered as citizens. This provision shows, that the naturalization of the father was to have the efficient force of conferring the right on his children; and it is worthy of notice, that this last act speaks of children at large, without any allusion to residence or minority; and yet, as the two acts are intimately connected, and make but one system, the last act is to be construed with reference to the prior one, according to the doctrine of the case of Ex parte Overington. (a) (2.) By a subsequent part of the same 4th section, it is declared, that "the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States; provided that the right of citizenship shall not descend to persons whose fathers have never resided within the United States." This clause is certainly not prospective in its operation, whatever may be the just construction of the one preceding it. It applied only to the children of persons who then were or had been citizens; and conse53 quently the benefit of this provision narrows rapidly by the lapse of time, and the period will soon arrive when there will be no statutory regulation for the benefit of children born abroad, of American parents, and they will be obliged to resort for aid to the dormant and doubtful principles of the English common law. The proviso annexed to this last provision seems to remove the doubt arising from the generality of the preceding sentence, and which was whether the act intended by the words, "children of persons," both the father and mother, in imitation of the statute of 25 Edw. III., or the father only, according to the more liberal declaration of the statute of 4 Geo. II. The provision also differs from the preceding one, in being without any restriction as to the age or residence of the child;

(a) 5 Binney's Rep. 371.

and it appears to have been intended for the case of the children of natural-born citizens, or of citizens who were original actors in our Revolution, and therefore it was more comprehensive and more liberal in their favor. But the whole statute provision is remarkably loose and vague in its terms, and it is lamentably defective, in being confined to the case of children or parents who were citizens in 1802, or had been so previously. The former act of 29th January, 1795, was not so; for it declared generally, that "the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States." And when we consider the universal propensity to travel, the liberal intercourse between nations, the extent of commercial enterprise, and the genius and spirit of our municipal institutions, it is quite surprising that the rights of the children of American citizens born abroad, should, by the existing act of 1802, be left so precarious, and so far inferior in the security which has been given under like circumstances, by the English statutes.1

We proceed next to consider the disabilities, rights, and duties of aliens.

An alien cannot acquire a title to real property by descent, or created by other mere operation of law. The law quæ nihil frustra, never casts the freehold upon an alien heir who cannot keep it. This is a well settled rule of the common 'law. (a) The right to real estate by descent is governed *54 by the municipal law of the individual states. (b) Nor can an alien take as tenant by the curtesy or in dower. (c) It is

(a) Calvin's case, 7 Co. 25, a. 1 Vent. Rep. 417. Jackson v. Lunn, 3 Johns. Cas. 109. Hunt v. Warnicke, Hardin's Kentucky Rep. 61.

(b) Lynch v. Clarke, 1 Sandford's Ch. Rep. 583.

(c) See Infra, vol. iv. pp. 30, 36. By statute of 7 and 8 Victoria, c. 66, foreign women married to British subjects became thereby naturalized.

1 By the act of February 10, 1855, persons heretofore born or hereafter to be born out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of this country, shall be deemed and are declared to be citizens of the United States. But the rights of citizenship shall not descend to persons whose fathers never resided in the United States.

By the same act, a woman who might be naturalized under the existing laws, and who is or shall be married to a citizen of the United States, shall be deemed a citizen. 10 U. S. Statutes, 604.

understood to be the general rule, that even a natural-born subject cannot take by representation from an alien, because the alien has no inheritable blood through which a title can be deduced. (a) If an alien purchase land, or if land be devised to him, the general rule is, that in these cases he may take and hold, until an inquest of office has been had; but upon his death, the land would instantly and of necessity, (as the freehold cannot be kept in abeyance,) without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent. (b) If an alien, according to a case put by Lord Coke, (c) arrives in England, and hath two sons born there, they are, of course, natural-born subjects; and if one of them purchases land and dies without issue, his brother cannot inherit as his heir, because he must deduce his title by descent, through his father, who had no inheritable blood. But the case, as put by Coke, has been denied to be law by the majority of

(a) If, therefore, a person dies intestate without issue, and leaves a brother who had been naturalized, and a nephew who had been naturalized, but whose father died an alien, the brother succeeds to the whole estate, for the nephew is not permitted by the common-law to trace his descent through his alien father. Levy v. McCartee, 6 Peters's U. S. Rep. 102. Jackson v. Green, 7 Wendell, 333. Jackson v. Fitz Simmons, 10 Ibid. 1. Redpath v. Rich, 3 Sandf. 79.

(b) Page's case, 5 Co. 52. Collingwood v. Pace, 1 Sid. Rep. 193. 1 Lev. Rep. 59, S. C. Co. Litt. 2 b. Plowd. Rep. 229, b. 230, a. Duplessis v. Attorney-General, 5 Bro. P. C. 91. Jackson v. Lunn, supra. Fox v. Southack, 12 Mass. Rep. 143. 8 Ibid. 445. Fairfax v. Hunter, 7 Cranch, 603, 619, 620. Orr v. Hodgson, 4 Wheaton, 453. Governeur v. Robertson, 11 Ibid. 332. Vaux v. Nesbit, 1 M'Cord's S. C. Ch. Rep. 352, 374. 2 Dana's Kentucky Rep. 40. Rouche v. Williamson, 3 Iredell's N. C. Rep. 146. In North Carolina, an alien may take by purchase; but he cannot take by devise any more than he can inherit. 2 Haywood's Rep. 37, 104, 108. By the constitution of North Carolina, alien residents may purchase, hold, and transfer real estate. 3 Iredell, 141. Nor can he take by devise, under the statute law of New York. The statute makes the devise void. New York Revised Statutes, vol. ii. p. 57, sec. 4. In Louisiana, aliens can inherit real estate, and transmit it ab intestato. Duke of Richmond v. Miln, 17 Louis. 312. In England, if a devise be to an alien and citizen, as joint tenants, the state can only seize the moiety of the alien. If he dies before inquest, the other joint tenant takes by survivorship, but the state on office found, would defeat the survivorship by relation. Gouldsb. Rep. 29, pl. 4. Co. Litt. 180, b. Lord Hardwicke, in Knight v. Duplessis, 2 Vesey, 362, considered it to be a doubtful point whether an alien may take real estate by devise, as well as by deed, but he takes a defeasible estate, and cannot hold as against the estate. This is also the English law. Wilbur v. Tobey, 16 Pick. 179. Foss v. Crisp, 20 Ib. 124. The People v. Conklin, 2 Hill's N. Y. R. 67. He may purchase and hold real estate until office found, and bring an action for the recovery of possession. Waugh v. Riley, 8 Metcalf, 295. (c) Co. Litt. 8, a.

the court in Collingwood v. Pace, (a) and it was there held that the sons of an alien could inherit to each other, and de

*

rive title through the alien father. The elaborate opinion *55 of Lord Ch. B. Hale was distinguished by his usual learning, though it was rendered somewhat perplexing and obscure by the subtlety of his distinctions, and the very artificial texture of his argument. It is still admitted, however, that a grandson cannot inherit to his grandfather, though both were natural-born subjects, provided the intermediate son was an alien; for the grandson must, in that case, represent his father, and he had no inheritable blood to be represented; and the reason why the one brother may inherit from the other is, that as to them the descent is immediate, and they do not take by representation from the father. The law, according to Lord Hale, respects only the mediate relation of the brothers as brothers, and not in respect of their father, though it be true that the foundation of consanguinity is in the father; and it does not look upon the father as such a medium or nexus between the brothers, as that his disability should hinder the descent between them. This distinction in the law, which would admit one brother to succeed as heir to the other, though their father be an alien, and yet not admit a son to inherit from his grandfather, because his father was an alien, is very subtle.2 The reason of it is not readily perceived, for the line of succession and the degrees of

(a) 1 Sid. Rep. 193. 1 Vent. Rep. 413. Bannister's Rep. 410.

1 Banks v. Walker, 3 Barb. Ch. R. 438. It is also held in this case, that if the deceased had two sons, the elder an alien, and the younger a citizen, the alienage of the elder son would not prevent the estate descending to the younger as heir, the father having inheritable blood. This is by common law.

In the construction of the Revised Statutes of New York, (vol. i. p. 754, sec. 22,) providing "no person capable of inheriting shall be precluded by the alienism of any ancestor,” it is held, that this statute does not remove the disability of a person claiming as collateral heir, who must trace his pedigree through an alien, father of the person dying seised, and who was not an ancestor of the claimant. Nor does the statute enable a person to inherit, deducing a title through a living alien ancestor, who would himself take if he were a citizen. McLean v. Swanton, 3 Kern. 535.

In McCarthy v. Marsh, 1 Selden, 263, it was held that the section above referred to protected the inheritance, whether the claimant derived title through lineal or collateral ancestors, or through both. The word "ancestor" embraced both lineals and collaterals.

2 It was affirmed, however, in McGregor v. Comstock, 3 Comst. R. 408. The rule holds between one of the brothers and the representatives of the other, and also between the representatives of both of them.

consanguinity must equally, in both cases, be traced through the father. The statute of 11 and 12 Wm. III. ch. 6, was made on purpose to cure the disability and brush away these distinctions, by "enabling natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father, or mother, or other ancestor, by, from, through, or under whom they might make or derive their title, were aliens." This statute, however, did not go so far as to enable a person to deduce title, as heir, from a remote ancestor, through an alien ancestor still living. (a)

The provision in the statute of Wm. III. is in force in *56 several of the United States, as, for instance, in Maryland, Kentucky, Ohio, Missouri, Delaware, New Jersey, New York, and Massachusetts. (b) But in those states where there are no statute regulations on the subject, the rule of the law will depend upon the authority of Lord Coke, or the justice and accuracy of the distinctions taken in the greatly contested case of Collingwood v. Pace, and which, according to Sir William Blackstone, was, upon the whole, reasonably decided. The enlarged policy of the present day would naturally incline us to a benignant interpretation of the law of descents, in favor of natural-born citizens who were obliged to deduce a title to land from a pure and legitimate source through an alien ancestor; and Sir Matthew Hale admitted (c) that the law was very gentle in the construction of the disability of alienism, and rather contracted than extended its severity. If a citizen dies, and his next heir be an alien who cannot take, the alien cannot interrupt the descent to others, and the inheritance descends to the

(a) M'Creery v. Somerville, 9 Wheaton, 354. The New York Statute (N. Y. R. S. vol. i. 754, sec. 22) goes no further on this point than the English statute. The People v. Irvin, 21 Wendell, 128. The New York statute declares, that no person capable of inheriting under the statute law of descent, shall be precluded from the inheritance by reason of the alienism of the ancestor of such person. The statute of New Jersey is to the same effect. R. S. N. J. 1847, p. 341.

(b) 9 Wheaton, 354. 2 Mass. Rep. 179, note. N. Y. Revised Statutes, vol. i. p. 754, sec. 22. Statute Laws of Ohio, 1831. Elmer's N. J. Dig. 131. R. S. of Missouri, 1835. In New York, the rule of the common-law prevailed until January 1st, 1830, and the provision in the statute of 11 and 12 Wm. III. had not been previously adopted.

(c) 1 Vent. Rep. 427.