*

of trade. According to Lord Coke, (a) none but an alien merchant can lease land at all, and he is restricted to a house, and if he dies before the termination of the lease, the remainder of the term is forfeited to the king, for the law gave him the privilege for habitation only, as necessary to trade, and not for the benefit of his representatives. The force of this rigorous *62 doctrine of the common law is undoubtedly suspended with us, in respect to the subjects of those nations with whom we have commercial treaties; and it is justly doubted (b) whether the common law be really so inhospitable, for it is inconsistent with the established maxims of sound policy, and the social intercourse of nations. Foreigners are admitted to the rights of citizenship with us on liberal terms; and as the law requires five, and only five years residence, to entitle them and their families to the benefits of naturalization, it would seem to imply a right, in the mean time, to the necessary use of real property; and if it were otherwise, the means would be interdicted which are requisite to render the five years residence secure and comfortable.

Aliens are under the like disabilities as to uses and trusts arising out of real estates. An alien can be seised to the use of another, but the use cannot be executed as against the state, and will be defeated on office found. (c) Nor can an alien be a cestui que trust, but under the like disability; and it is said that the sovereign may, in chancery, compel the execution of the trust. (d)

(a) Co. Litt. 2 b.

(b) Harg. Co. Litt. n. 9, b. 1.

(c) Gilbert on Uses, by Sugden, 10, 367, 445. Preston on Conveyancing, vol. ii. p. 247. By the N. Y. Revised Statutes, vol. i. p. 718, all escheated lands, when held by the state or its grantees, are subject to the same trusts and charges to which they would have been subject had they descended.

(d) Attorney-General v. Sands, 3 Ch. Rep. 20. Hardress, 495, S. C. Com. Dig. tit. Alien, C. 3. Gilbert on Uses, by Sugden, 86, 404. Hubbard v. Goodwin, 3 Leigh, 492. It was held, in the last case, that upon a conveyance of land to a citizen upon express trust, to hold for the benefit of an alien in fee, the trust estate is acquired for the state, and a court of equity will compel the trustees to execute the trust for its benefit. The profits do not go to the state when acquired prior to the decree. It is doubted whether equity could raise or imply a resulting trust in order to forfeit it. Equity will never raise a resulting trust in fraud of the rights of the state, or of the law of the land. Leggett v. Dubois, 5 Paige, 114, S. P. On the other hand, a con

Aliens are capable of acquiring, holding, and transmitting movable property, in like manner as our own citizens, and they can bring suits for the recovery and protection of that property. (a) 1 They may even take a mortgage upon real estate by way of security for a debt, and this I apprehend they may do without any statute permission, for it has been the

English law from the early ages. (b) It is also so held 63 in the Supreme Court of the United States, (c) and that the alien creditor is entitled to come into a court of equity to have the mortgage foreclosed, and the lands sold for the payment of his debt. The question whether the alien in such a case could become a valid purchaser of the mortgaged premises sold at auction at his instance, is left untouched; and as such a privilege is not necessary for his security, and would be in contravention of the general policy of common law, the better opinion would seem to be, that he could not, in that way, without special provision by statute, become the permanent and absolute owner of the fee. (d)

Even alien enemies, resident in the country, may sue and be sued as in time of peace; for protection to their persons and property is due, and implied from the permission to them to remain, without being ordered out of the country by the President of the United States. The lawful residence does, pro hac vice, relieve the alien from the character of an enemy, and entitles

veyance of land to a citizen, as a trustee, upon an express trust to sell the same, and pay over the proceeds to a creditor who is an alien, is a valid trust, and the interest of the alien creditor in the proceeds is not subject to forfeiture. The principle of public policy, prohibiting aliens from holding lands in the name of a trustce, does not apply to such a case. Equity holds the proceeds to be personal property, which the alien may take. Craig v. Leslie, 3 Wheaton's Rep. 563. Anstice v. Brown, 6 Paige, 448.

(a) 7 Co. 17. Dyer's Rep. 2, b.

(b) Year Book, 11 Edw. III., cited in the marginal note to 1 Dyer's Rep. 2, b. (c) Hughes v. Edwards, 9 Wheaton, 489.

(d) If an alien be entitled to hold and dispose of real estate, he may take a mortgage for the purchase-money, and may become a re-purchaser on a sale made to enforce payment. New York Revised Statutes, vol. i. p. 721, sec. 19. R. S. of New Jersey, 1847, tit. 1, ch. 2.

1 An alien resident within a state is entitled to the benefit of the insolvent laws. Judd t. Lawrence, 1 Cush. Mass. R. 531. Aliens are entitled to the protection of the laws relative to trade marks. See post, p. [372] note.

his person and property to protection. (a) The effect of war upon the rights of aliens we need not here discuss, as it has been already considered in a former part of this course of lectures, when treating of the law of nations. (b)

During the residence of aliens among us, they owe a local allegiance, and are equally bound with natives to obey all gen

eral laws for the maintenance of peace and the preserva* 64 tion* of order, and which do not relate specially to our own citizens. This is a principle of justice and of public safety universally adopted; and if they are guilty of any illegal act, or involved in disputes with our citizens, or with each other, they are amenable to the ordinary tribunals of the country. (c) In New York, resident aliens are liable to be enrolled in the militia, provided they are lawfully seised of any real estate within the state, and they are, in that case, declared to be subject to duties, assessments, taxes, and burdens, as if they were citizens; but they are not capable of voting at any election, or of being elected or appointed to any office, or of serving on any jury. (d)

If aliens come here with an intention of making this country their permanent residence, they will have many inducements to become citizens, since they are unable, as aliens, to have a stable freehold interest in land, or to hold any civil office, or vote at elections, or take any active share in the administration of the government. There is a convenient and easy mode provided, by which the disabilities of alienism may be removed, and the qualifications of natural-born citizens obtained. The terms upon which any alien, being a free white person, can be naturalized, are prescribed by the acts of congress of the 14th of April, 1802, ch. 28; the 3d of March, 1813, ch. 184; the 22d of March, 1816, ch. 32; the 26th of May, 1824, ch. 186, and the 24th of

(a) Wells v. Williams, 1 Lord Raym. 282. 462. Clarke v. Morey, 10 Johns. Rep. 69.

241.

(b) See vol. i.

(c) Vattel, b. 2, ch. 8, sec. 101, 102, 108.

Daubigny v. Davallon, 2 Anst. Rep. Russell v. Skipwith, 6 Binney's Rep.

(d) New York Revised Statutes, vol. i. p. 721, sec. 20. In the province of New Brunswick, aliens, resident for two months in the province, are liable, by a colonial statute, to pay annually an exemption tax of 30s. as a substitute for militia service. Watson v. Haley, Kerr's Rep. 124.

May, 1828, ch. 116. It is required that he declare, on oath, before a state court, being a court of record with a seal and a clerk,1 and having common-law jurisdiction, or before a circuit or district court of the United States, or before a clerk of either of the said courts, two years at least before his admission, his intention to become a citizen, and to renounce his allegiance to his own sovereign.2 This declaration need not be previously made, if the alien resided here before the 18th June, 1812, *and has since continued to reside here; provided such *65 residence be proved to the satisfaction of the court, and provided it be proved by the oath or affirmation of two witnesses, citizens of the United States, that he has resided, for at least five years immediately preceding the time of such application, within the limits and under the jurisdiction of the United States. The names of the witnesses, and the place or places where the applicant has resided for at least the five years, to be set forth in the record of the court. (a) And if the applicant shall have been a minor, under twenty-one years of age, and shall have resided in the United States three years next preceding his arrival to majority, he may also be admitted a citizen without such previous declaration; provided he has arrived at the age of twenty-one years, and shall have resided five years within the United States, including the three years of his minority, and shall make the declaration aforesaid at the time of his admission, and shall declare on oath, and prove, to the satisfaction of the court, that for three years next preceding it had been his bona fide intention to become a citizen, and shall in all other respects comply with the laws in regard to naturalization. (b) In all other cases the previous declaration is requisite,

(a) Act of congress, May 24, 1828, ch. 116.
(b) Act of congress, May 26, 1824, ch. 186.

1 The requisitions of the act must be precisely observed. Ex parte Michael Cregg, 2 Curtis, C. C. 98. A court which, though a court of record, has no recording officer distinct from the judge, is not competent within the act to receive an alien's declaration of his intention to become a citizen.

2 The reception of this oath is a ministerial and not a judicial duty, and the clerk of the court is therefore competent to perform it. Butterworth's case, 1 Wood. & M. R. 323.

Some of the states have, by recent acts, forbidden their courts to perform any duties connected with the administration of the naturalization laws. See Laws of Connecticut, 1855, c. 22. Laws of Massachusetts, 1855, c. 28. Stephens, petitioner, 4 Gray, 559. Beavins's Petition, 33 N. H. 89.

and at the time of his admission the alien's country must be at peace with the United States; and he must, before one of the courts above mentioned, take an oath to support the constitution of the United States, and likewise, on oath, renounce and abjure his native allegiance. He must, at the time of his admission, satisfy the court, by other proof than his own oath, that is by the oath or affirmation of at least two citizens of the United States, that he has resided five years, at least, within the United States, and one year at least, within the state where the court is held; and if he shall have arrived after the peace of 1815, his residence must have been continued for five years next preceding his admission, without being at any time, during the five years, out of the territory of the United States. (a) He must satisfy the court, that during that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same. He must, at the same time, renounce any title or order of nobility, if any he hath. The law provides (b) that children of persons duly naturalized, being minors at that time, shall, if dwelling in the United States, be deemed citizens. It is further provided, (c) that if any alien

(a) This rigorous provision is in the act of March 3d, 1813, sec. 12, for the regulation of seamen; and Judge Conkling, in his Treatise, 2d ed. p. 499, makes some useful suggestions as to the practical construction of this enactment. In the matter of an alien before the District Court of the United States for the southern district of New York, in 1845, it was held that the act of 1813, was still a part of the naturalization laws of the United States, applicable as well to others as to seafaring men who have emigrated since 1813; and that the applicant in that case being engaged in sea voyages as a sailor in American vessels, and having no home or residence in the United States, other than by such employment, and having no fixed residence prior to the act of 1813, was not entitled to naturalization. 4 N. Y. Legal Observer for March, 1846. In the case Ex parte Paul, the Superior Court of New York construed the act of congress of March 3d, 1813, with the strictest severity, and held that where the alien had been out of the United States, though a few minutes only, and without any intention of changing his residence, he was not entitled to be naturalized. The act says he must not at any time during the five years have been out of the territory of the United States. 7 Hill's N. Y. R. 56.1

(b) Act of congress, April 14, 1802, ch. 28, sec. 4.

(c) Act of congress, March 26, 1804, ch. 47.

1 By act of congress, passed June 26, 1848, the words "without being at any time, during the said five years, out of the territory of the United States," are repealed.