Commentaries on American Law

next of kin who is competent to take, in like manner as if no such alien had ever existed. (a)

The distinctions between the antenati and the postnati, in reference to our Revolution, have been frequently the subject of judicial discussion since the establishment of our independence.

It was declared in Calvin's case, (b) that, "albeit the kingdoms of England and Scotland should, by descent, be divided and governed by several kings; yet all those who were born under one natural obedience, while the realms were united, would remain natural-born subjects, and not become aliens by such a matter ex post facto. The postnatus in such a case, would be ad fidem utriusque regis." It was * accordingly held, in *57 that case, that the postnati of Scotland, born after the union of the two crowns, were natural-born subjects, and could inherit lands in England. The community of allegiance, at the time of birth and at the time of descent, both existed. The principle of the common law contained in that case, that the division of an empire worked no forfeiture of previously vested rights of property, has been frequently acknowledged in our American tribunals, (c) and it rests on the solid foundations of justice. The titles of British subjects to lands in the United States, acquired prior to our Revolution, remained, therefore, unimpaired. But persons born in England, or elsewhere out of the United States, before the 4th of July, 1776, and who continued to reside out of the United States after that event, have

(a) Co. Litt. 8, a. Com. Dig tit. Alien, C. 1. Orr v. Hodgson, 4 Wheaton, 453. Jackson v. Lunn, 3 Johns. Cas. 121. Donegani v. Donegani, Stuart's Lower Canada Rep. 460. In Virginia, by statute, the course of descent is not interrupted by the alienage of any lineal or collateral ancestor; and, therefore, if a citizen dies, leaving a brother, who is a citizen, and a sister, who is an alien, and children of that sister, who are citizens, and the brother, sister, and children be all living, the children of the sister take by descent a moiety of the estate, and the brother takes the other moiety. Jacksons v. Sanders, 2 Leigh's Rep. 109. So, in North Carolina, alien heirs do not prevent other relations, being citizens, from inheriting. N. C. Revised Statutes, 1837.

(b) 7 Co. 1, 27. The Lord Chancellor Ellesmere's opinion, delivered in the exchequer chamber, in Calvin's case, was, by the king's command, written out at large, and published by the chancellor in 1609, in a neat style, worthy of the strength and learning of the argument.

(e) Apthorp v. Backus, Kirby's Rep. 413. Kinsey, Ch. J., in Den v. Brown, 2 Halsted, 337. Kelly v. Harrison, 2 Johns. Cas. 29. Jackson v. Lunn, 3 Johns. Cas.

been held to be aliens, and incapable of taking lands subsequently by descent. The right to inherit depends upon the existing state of allegiance at the time of the descent cast; and an English subject, born and always resident abroad, never owed allegiance to a government which did not exist at his birth, and he never became a party to our social compact. The British antenati have, consequently, been held to be incapable of taking, by subsequent descent, lands in these states, which are governed by the common law. (a) This doctrine was very liberally considered in respect to the period of the American war, in the case of Den v. Brown; (b) and it was there held, that the British antenati were not subject to the disabilities of aliens, as to

the acquisition of lands, bona fide acquired, between the ⚫58 date of our independence and that of the treaty of peace,

in 1783, for the contest for our independence was then pending by an appeal to arms, and remained undecided. But the position was not tenable; and in a case elaborately discussed, and greatly litigated on several grounds, in the Court of Appeals in Virginia, and afterwards in the Supreme Court of the United States, (c) it was the acknowledged doctrine that the British antenati could not acquire, either by descent or devise, any other than a defeasible title to lands in Virginia, between the date of our independence and that of the treaty of peace in 1783. The line of distinction between aliens and citizens was considered to be coeval with our existence as an independent nation.

It has been very frequently assumed, on the doctrine in Calvin's case, that the same principle might not be considered to apply in England, in respect to the American antenati, and that they would, on removing within the British dominions, continue to take and inherit lands in England, as natural-born subjects; but I apprehend the assumption has been made without just grounds. It was contrary to the doctrine laid down by Profes

(a) Reed v. Reed, cited 1 Munf. 225, and opinion of Roane, J., Appendix to that volume. Dawson v. Godfrey, 4 Cranch, 321. Jackson v. Burns, 3 Binney, 75. Blight v. Rochester, 7 Wheaton, 535.

(b) 2 Halsted, 305.

sor Wooddeson, in his lectures, (a) published as early as 1792; and the late case in the King's Bench, of Doe v. Acklam, (b) seems entirely to explode it. It was decided, that children born in the United States, since the recognition of our independence by Great Britain, of parents born here before that time, and continuing to reside here afterwards, were aliens, and could not inherit lands in England. To entitle a child born out of

the allegiance of the crown of England to be deemed a 59 natural-born subject, the father must be a subject at the time of the birth of the child; and the people of the United States ceased to be subjects in the view of the English law, after the recognition of our independence, on the third day of September, 1783. If the American antenati ceased to be subjects in 1783, they must, of course, have lost their subsequent capacity to take as subjects. In the case of The Providence, decided in the court of vice-admiralty, at Halifax, in 1810, (c) the learned judge met the question directly, and discussed it in a clear and able manner. He held that an American born in this country before the Revolution, and adhering to the United States during the war, and until after the peace of 1783, was an alien discharged from his allegiance to the king, and was an alien to every purpose, and not entitled to any of the privileges of a British-born subject.

The English rule is, to take the date of the treaty of peace in 1783, as the era at which we ceased to be subjects; but our rule is, to refer back to the date of our independence.(d) In the application of that rule, the cases show some difference of opinion. In New York, it has been held, that where an English subject, born abroad, emigrated to the United States in 1779, and lived and died here, he was to be deemed an alien, and the title to land, which he afterwards acquired by purchase, was protected, not because he was a citizen, but on the ground of

(a) Vol. i. p. 382.

(b) 2 Barnew. & Cress. 779. In Doe v. Mulcaster, 5 Barnew. & Cress. 771, it was held, that the children born in the United States after the peace of 1783, of parents who were born in New York before 1776, but adhered to the British power afterwards, were not aliens, but had inheritable blood under the statute of 4 Geo. II. c. 21.

(d) Inglis v. Trustees of the Sailors' Snug Harbor, 3 Peters's U. S. Rep. 99.

the treaty of 1794. (a) In Massachusetts, on the strength of an act passed in 1777, persons born abroad, and coming into that state after 1776, and before 1783, and remaining there voluntarily, were adjudged to be citizens. (b) The Supreme Court,

in Connecticut, has adopted the same rule, without the *60 aid of any statute, and it was held (c) that a *British

soldier, who came over with the British army in 1775, and deserted, and came and settled in Connecticut in 1778, and remained there afterwards, became, of course, a citizen, and ceased to be an alien; and that the United States were enabled to claim as their citizens all persons who were here voluntarily, at either the period of our independence or of the treaty of peace. The principle of the case seemed to be, that the treaty of peace operated by way of release from their allegiance of all British subjects who were then domiciled here; for it was admitted that the rule would not apply to the subjects of any other nation or kingdom who came to reside here after the declaration of independence, for they would not be within the purview of the treaty. The same principle seems to have been recognized by the chief justice of Massachusetts, in Ainslie v. Martin,(d) though in the case of Phipps, a pauper,(e) it was declared, that if a person was not a citizen before the treaty of peace, he did not become such by the mere force of that instrument, and by the mere fact of his being there on the ratification of the treaty. But if he was born in Massachusetts, and had returned during the war, though he had withdrawn himself before the date of independence, he was considered as retaining his citizenship. That was the amount of the cases of Gardner v. Ward and Kilham v. Ward, to which the judges referred; and the sound and prevailing doctrine now is, that by the treaty of peace of 1783, Great Britain and the United States became respectively entitled, as against each other, to the allegiance of all persons who were at the time adhering to the governments respectively; and that those persons became aliens in respect to the

(a) Jackson v. Wright, 4 Johns. Rep. 75.

(b) Cummington v. Springfield, 2 Pick. Rep. 394.
(c) Hebron v. Colchester, 5 Day's Rep. 169.

(d) 9 Mass. Rep. 460.

(e) 2 Pick. Rep. 394, note.

government to which they did not adhere. (a) This is 61 the meaning of the treaty of 1783, and it put an end to all conflicting and double allegiance growing out of the Revolution.

Though an alien may purchase land, or take it by devise, yet he is exposed to the danger of being divested of the fee, and of having his lands forfeited to the state, upon an inquest of office found. His title will be good against every person but the state, and if he dies before any such proceeding be had, we have seen that the inheritance cannot descend, but escheats of course. the alien should undertake to sell to a citizen, yet the prerogative right of forfeiture is not barred by the alienation, and it must be taken to be subject to the right of the government to seize the land. His conveyance is good as against himself, and he may, by a fine, bar persons in reversion and remainder, but the title is still voidable by the sovereign upon office found. (b) In Virginia, this prerogative right of seizing lands, bona fide sold by an alien to a citizen, is abolished by statute; (c) and so it was, to a limited degree, in New York, by an act in 1826. (d) An alien may take a lease for years of a house for the benefit

(a) Kilham v. Ward, 2 Mass. Rep. 236. Gardner v. Ward, Ibid. 244, note. Doe v. Acklam, 2 Barnew. & Cressw. 779. Inglis v. The Trustees of the Sailors' Snug Harbor, 3 Peters's U. S. Rep. 99, 164. Shanks v. Dupont, Ibid. 242. In Shanks v. Dupont, it was held, that though a woman was born in South Carolina, before the declaration of independence, and continued there until 1782, and became a citizen, yet, as she was involved in the capture of Charleston in 1780, and married a British officer in 1781, and went with him to England in 1782, and remained and died there, after the peace of 1783, she was deemed to be an alien by the operation of the treaty of peace of 1783, inasmuch as she was born a British subject, and was, at the time of the treaty of peace, adhering to the British crown, and the treaty acted on the state of things as they then existed. So, in Orser v. Hoag, 3 Hill, 79, it was held, that a person born in this country, who left New York in July, 1783, prior to the treaty of peace, with his family, with intent to reside in the British dominions, and never return, was an alien, together with his children who went with him and resided in the British province. They were held incapable of taking from him lands in this state by descent.

(b) 4 Leon, 84. Sheppard's Touchstone, by Preston, 56, 232. 7 Wheaton, 545. Coke's Reading on Fines, lec. 22. But by statute in New York, the escheat does not divest the right of a bona fide purchaser. See infra, vol. iv. p. 425.

(d) Laws of New York, sess. 49, ch. 297, sec. 3. The exemption from escheat of lands derived from or through an alien, is confined to lands actually possessed by a citizen prior to the 22d of April, 1825. N. Y. Revised Statutes, vol. i. p. 719,

sec. 9.

« iepriekšējā Turpināt »

Grāmatas

Commentaries on American Law, 1-4. sējumi