William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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country, with a declaration of his intention to that effect The
counsel on the other side admitted, that men may remove from
their own country in ovder to better their condition, but it mnet
be done for good cause, and without any fraudulent intent; and
that the slayish fNrinciple of perpetual allegiance growing out of
the feudal system, and the fanciful idea that a man was author-
ized to change his country and his allegiance at his own will and
pleasure, were equally removed from the truth. BIr. Justice
Story, in delivering the opinion of the court, waived the decision
of the question, by observing that the court gave no opinion
whether a citizen, independent of any legislative act to that effect,
could throw off his own allegiance to his native country; that it
was perfectly clear it conld not be done without a bona fide change
of domit:il, under circumstances of good faith ; and that it would
be sufficient to ascertain the precise nature and limits of this doc-
trine of expatriation, when it should become a leading point for

the judgment of the court.
[ * 49 ] * From this historical review of the principal discuR-

sions in the federal ootirts on this interesting subject in
American jurisprudence, the better opinion would seem to be,
that a citizen cannot renounce his allegiance to the Unitcnl States
without the permission of government, to be declared by law; and
that, as there is no existing legislative regulation on the case, the
rule of the English common law remains unaltered (a).

There is, however, some relaxation of the old and stem rule of
the common law, required and admitted under the liberal influ-
ence of commerca Though a natural born subject cannot throw
off his allegiance, and is always amenable for criminal acts against
his native country, yet for commercial purposes he may acquire
the rights of a citizen of another country, and the place of domicil

(a) This rule was admitted in Inglis v. the Trustees of the Sailor's Snng
Harbour, 3 Peters' U. S. Rep, 99, and ex ^^ressly declared in Shanks r. Dupont,
Ibid. 242, where it was held, by the Supreme Court of the United States,
that the marriaijce of a feme sole with an alien, produced no dissolution of
her native allegiance; and that it was the general doctrine, that n.» persons
could, by any act of their own, without the consent of the government, put
off their allegiance and become aliens. But the naturalization laws of the
United States are inconsistent with this general doctrine, for they" require
the alien who is to be naturalized to abjure his former allegiance, without
requiring any evidence that his native sovereign has released it.



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determines the character of a party as to trade (a). Thns, in the
ease of Scott t. Schawartz (6), it was decided, in the exchequer,
the 13 Geo. IL, that a residence in Rassia gave the English
mariners of a Bassian ship the character of liussian marines,
within the meaning of the British navigation act And in the
case of WiUon t. MarrycU (c), it was decided by the court of K.
R, that a natural born British subject might acquire the char-
acter, and be entitled to the privileges of an American citizen,
for commercial purposes. So, an American citizen may obtain a
foreign domicil, which will impress upon him a national
oharactar *for commercial purposes, in like manner as if [ * 50 ]
he were a subject of the government under which he re-
sided; and yet without losing on that account his original char-
acter, or ceasing to be bound by the allegiance due to the country
of his birth (d). The subject who emigrates bona fide^ and pro-
cures a foreign naturalization, may entangle himself in difficul-
ties, 'and in a conflict of duties, as Lord Hale observed («); but
it is only in very few cases that the municipal laws would afiPect
him. If there should be war between his parent state and the
one to which he has attached himself, he must not arm himself
against the parent state; and if he be recalled by his native gov-
emmeDt, he must return, or incur the pain and penalties of a
contempt Under these disabilities, all the civilized nations of
Europe adopt (each according to its own laws) the natural born
subjects of other countries.

The French law will not allow a natural born subject of France
to bear arms, in time of war, in the service of a foreign pfbwer,
against France; and yet, subject to that limitation, every French-
man is free to abdicate his country {g),

(a) See vol. i. p. 74—76.
• (ft) Omyii's Rep. 677.

(c) 8 Term Rep. 31. 1 Bo8. & Pull 430, 8. C.

id) United States v. Gillies, 1 Peters' C, C. Rep. 159. Murray v. The
Schooner Charming Betsey, 2 Oranch, 64. By the original Magna Charta^
granted by king John, art. 33, it was declared, Ul liceat unicuique exire de regno
etredire, mlvaflde Domini regis. Vide supra, p. 33.

(e) 1 Hale's P. C. 68.

\g) Poihier's Traits du Droit de PropriHS, No. 94. Code Napoleon, No. 17,
21. TimUierj Droit civil Francois, torn. i. No. 266. By a decree of the Em-
peror of Aostria, of March 24 tb, 1832, Austrian subjects, leaving the Austrian
dominions without permission of the magistrate and release of Austrian cit-
izenship, and with an intention never to return, become unlawful emigrants,
and lose all their civil and political rights at home. Accepting foreign cit-
izenship, or entering into foreign service mthout leave, are decisive proofs

7 vol.. II. KENT. 97


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(2.) An alien is a person born out of the jurisdiction of the
United States. There are some exceptions, however, to this role,
by the ancient English law, as in the case of the children of pab-
lic ministers abroad (provided their wives be English women),
for they owe not even a local allegiance to any foreign power {a\
So, also, it is said, that in every case, the children born abroad,
of English parents, were capable, at common law, of inheriting
as natives, if the father went and continued abroad in
[ * 51 ] the character of an Englishman, and *with the approba-
tion of the sovereign (6). The statute pf 25 Edw. IH.
stat. 2, appears to have been made to remove doubts as to the
certainty of the common law on this subject, and it declared, that
children thereafter born without the ligeance of the king, whose
father and mother, at the time of their birth, were natives, should
be entitled to the privileges of native subjects, except the chil-
dren of mothers who should pass the sea without leave of their
husbands. The statute of 7 Anne, ch. 5, was to the same general
effect; but the statute of 4 Geo. IL ch 21, required only that the
father should be a natural bom subject at th'e birth of the child,
and it applied to all children then born, or thereafter to be bom.
Under these statutes it has l^en held (c), that to entitle a child
born abroad to the rights of an English natural born subject,
the father must be an English subject; and if the father be au
alien, the child cannot inherit to the mother, though she was
bom under the king's allegiance.

The act of Congress pf the 14th of April, 1802, establishing^ a
uniform rule of naturalization, affects the issue of two classes of
person: (1.) By the 4th section, it was declared, that ''the cbil-
dren of persons duly naturalized under any of the laws of the
United States, or who, previous to the passing of any law on that
subject by the government of the United States, may have be>
come citizens of any one of the states, under the laws thereof,
being under the age of twenty-one years, at the time of their
parents being so naturalized, or admitted to the rights of citizen-
ship, shall, if dwelling in the United States, be considered as

of such intention. Encyclo, Amer,^ tit. Emigration. This is understood to be
the oonseqaence attached by law in France to Frenchmen entering foreign
service without leave. They lose their nationality, or civil and political
rights as Frenchmen.

(a) Calvin's case, 7 Co. 18, a.

lb) Hyde v. Hill, Oro. Eliz, 3. Bro. tit Descent, pi. 47, tit Denizen, pi. 14.

(c) Doe V. Jones, 4 Term Rep. 900.



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cifizens of the United States.*' This proTiaion appears to apply
only to the children of persons naturalized, or specially admitted
to citizenship; and there is colour for the construction, that it
may have been intended to be prospective, and to apply
as well to the case of * persons thereafter to be natn- [ * 52 ]
raJized, as to those who had preyiously been natural-
ized. It applies to all the children of ''persons duly natural-
ized," under the restriction of residence and minority, at the time
of the naturalization of the parent. The act applies to the
children of persons duly naturalized, but does not explicitly state, '
whether it was intended to apply only to the case where both
parents were duly naturalized, or whether it would be sufficient
for one of them only to be naturalized, in order to confer, as of
course, the rights of citizens upon the resident children, being
ander 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 tvidow and
ehildren shall be considered as citizens.' This provisions 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
alluBion to residence or minority; and yet, as the two acts are inti-
mately connected, and make but one system, the last act is to be
constmed with reference to the prior one, according to the doc-
trine of the case 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

(a) 5Binii£^8Rep.2ni.

* In Kelly r. Owen, 7 Wallace, 496, it was held that a married woman ac-
quires her citizenship fW>m the fact of marriage to a citizen without regard
' to the fact whether he acquired his rights before, or, since marriage. Cases
not within the act aie decided under the Common Law. See 2 Am. Law
BeK. 193; Lndlam v. Lndlam, 3 Am, Law Reg. U. S. 505; 26 N. Y. Rep. 356.
The power is now vested exclusively in Congress. See Chirac r. Chirac, 2
^eat. 259; Ogden t>. Saunders, 12 Wheat. 277. But the states have power
tolegjislate upon the rights and duties of aliens, thus they can prohibit an
dien holding land, or voting at a state or national election, as these powers
are not incident to citisenship as such. See Pomeroy on Constitutional
Iav, i^ 248-252.



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[Part IV

that the right of citizenship shall not descend io persons, who8<
fathers have never resided within the United States." This cluus(
is certainly not prospective in its operation, whatever may be th(
jdst c«)nskruction of the one preceding it It applied only t<
the children of persons who then were^ or had been citizens; anc
consequently the benefit of this provision narrows rapidly by th<
lapse of time, and the period will soon arrive, when there will 1:x
no statute regulation for the benefit of children born abroad, oi
American parents, and they will be obliged to resort for aid tc
the dormant and doubtful principles of the English common law
The proviso annexed to this last provision seems to remove th<
doubt arising from the generality of the preceding sentence, anc
which was whether the act intended by the words, "children o;
persons," both the father and mother, in imitation of the statnt<
of 25 Edw. III., or the father only, according to the more libera
declaration of the statute of 4 Geo. II. The provision also dif
fers from the preceding one, in being without any restriction ai
to the age or residence of the child; and it appears to have beei
intended for the case of the children of natural bom citizens, oi
of citizens who were original actors in our revolution, and there
fore it was more comprehensive and more liberal in their favour
But the whole statute provision is remarkably loose and vague ii
its terms, and it is lamentably defective in being confined to the
case of children of parents who were citizens in 1802, or hat
been so previously. The former act of 29th January, 1795, waf
not so; for it declared generally, that "the children'of citizens oi
the United States, born out of the limits and jurisdiction of th(
United States, shall be considered as citizens of the United States.'
And when we consider the universal propensity to travel, the libera!
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 pre
carious, and so far inferior in the security which has been giveo
under like circumstances, by the English statutes.

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

An alien cannot acquire a title to real property by descent, or ere
ated by other mere operation of law. The law qiuB nihil fruatra
never casts the freehold upon an alien heir who cannot keep it


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This is a well settled role of the oommon *law (a). It is [ * 54 ]
nQclerstood to be the general rale, that even a natural bora
sabject cannot take by representation from an alien, becaase the
alien has no inheritable blood through which a title can be
deduced (6). 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 Test
in the state; because he is incompetent to transmit by hereditary
descent (c). If an plien, according to a case put by Lord Coke (d),
arriyes 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 hi^
father, who had no inheritable blood But the case as put by
Coke has been denied to be law by the majority of the court in
ColUngux)od v. Pace (e), and it was there held, that the sons of
an alien could inherit to each other, and derive title
^ through the alien father. The elaborate opinion of [ * 55 ]
Lord Gh. B. Hale was distinguished by his usual learning,
though it was rende)red somewhat perplexing and obscure by the
subtlety of his distinctions, and the very artificial texture of his

(a) Calvin's case, 7 Co. 25, a. 1 Veni. Rep. 417. Jackson v. Lunn, 3 Johns.
Coi. 109. Hont V. Wamicke, HardWs Kentucky Rep, 61.

ih) If, therefore, a person dies intestate withont issne, and leaves a brother
^ho had heen natnrolized, and a nephew who had been naturalized, bnt
vhoee 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. Levi v. M»Cartee, 6 Peten* U. 8. Rep. 102. Jackson v.
Green. 7 Wendell, 333. Jackson r. Fitzsimmons, 10 Ibid, 1.

(c) Collingwood v. Pace, 1 Sid, Rep. 193. 1 Lev. Rep. 59, S. C. Co. LitK
% b. Ptowd. Rep. 229, b. 230 a. Duplessis v. Attorney General, 5 Bro. F.
C. 91. Jackson v, Lunn, supra. Fox r. Southack, 12 Mass. Rep. 143. 8
Ibid. 445. Fairfax v. Hunter, 7 Craneh, 603, 619, 620. Orr v. Hodgson, 4
Wheaton, 453. Governeur v. Robertson, 11 Ihid. 332. Vaux v. Nesbit, 1
M'Cwd'i 8. C. Ch. Rep. 352, 374. 2 Dana's Kentucky Rep. 40. 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. Nor can he take
by devise under the statute law of New York. New York Revised Statutes,
vol. ii. p. 57^ sec 4. 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 be-
fore inquest, the other joint tenant takes by sur^'ivorship, but the state, on
office found, would defeat the survivorship by relation. Gould's R^, 29, pi.
4. Co. Liu. 190, h.

(d) Co. lAU, 8, a.

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



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It is still admitted, however, that a grandson cannot
i his grandfather, though both were natural born sub-
nded the intermediate son was an alien ; for the grand-
, in that case, represent his father, and he had no in-
blood to be represented; and the reason why the one
lay inherit from the other, is, that as to them the de-
mmediate, and they do not take by representation from
r. The law, according to Lord Hale, respects only the
'elation of the brothers as brothers, and not in respect
ither, though it be true that the foundation of the oon-
y is in the father; and it does not look upon the father
medium or nexus between the brothers, as that his disa-
ald hinder the descent between them. This distinction
V, which would admit one brother to succeed as heir to
, though their father be an alien, and yet not admit a
herit from his grandfather because his father was an
rery subtle. The reason of it is not readily perceiyed,
le of succession, and the degrees of consanguinity, must
1 both cases, be traced through the father. The statute
[ 12 Wm. III. ch. 6, was made on purpose to cure the
, and brush away these distinctions, by *^ enabling natural
)cts to inherit the 'estate of their ancestors, either lineal
ral, notwithstanding their father, or mother, or other
by, from, through or under whom they might make or
dr title, were aliens." This statute, however, did not
as to enable a perspn to deduce title, as heir, from a re-
tstor, though an alien ancestor still living (a).

The provision in the statute of Wm. IIL is in force in
•^several of the United States, as, for instance, in Mary-
land, Kentucky, Ohio, Missouri, Delaware, New Jersey,
ly and Massachusetts (6). But in those states where
no statute regulations on the subject, the rule of the
epend upon the authority of Lord Coke, or the justness
acy of the distinctions taken in the greatly contested

5617 V. Somerville, 9 Wheat-on, 354. Nor does the New York
Y. R. 8. vol. i. 754, sect. 2*2), go Airther on this point than the
tute. The People v. Irvin, 21 Wendell, 128.
utoHy 3iy4. 2 Ma88. Rep. 179, note. N. Y. Revised Statutes, vol. i.
22. Statute Laws of Ohio, 1831. Elmer's N. J. Dig. 131. R. S. of
35. In New York, the rale of the common law prevailed nntil
b, 1830, and the provision in the statute of 11 and 12 Wm. III.
n previously adopted. •



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ease of CoUinguxxxi t. Pace, and which, aooording to Sir William
Blackstone, was, upon the whole, reasonably decided The en-
larged policy of the present day would natorally incline ns to a
benignant interpretation of the law of descents, in favor of natural
bom 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 (a), that the law was very gentle in the
construction of the disability of alienism, and rather contracted
than extended its seyerity. 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 next of kin who is
competent to take, in like manner as if no such alien had ever
eosted (&).

The distinctions between the antenati and the poatnati, in re-
ference to our revolution, have been frequently the subject of
judicial discussion since the establishment of our independence.

It was declared in Calmri'a case (c), that, " albeit the king-
doms 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 re-
main natural bom subjects, and not become aliens by such a
matter ex post facto* The postnatus in such a case would
headfidem utriusgue regis.^^ It was *accordingly held, [ * 57 ]
in that case, that the postnati of Scotland, born after
the union of the two crowns, were natural bom 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 (d), and it rests on solid foundations of jus-

(fl) 1 Venf. J?«p.427.

(h) Co, LiU. 8, a. Own. Dig. tit. Alien, ch. 1. Orr v. Hodgson, 4 Wheatim,
453. Jackson v, Lnnn, 3 Johnit, Cos. 121. Jackson v. Jackson, 7 Johns. Rep.
214. Donegani v. Donegani, StuarVa 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. Jackson v. Sanders, 2 Leigh's Rep. 109.

(c) 7 Co. 1, 27.

(d) Aptborp V. Backos, Kirby^a Rep. 413. Kinsey, Ch. J., in Den v. Brown,



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tice.' 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 been held to be
aliens, and incapable of taking lands subsequently by descent.
The right to inherit depends upon the existing state of alle^ance
at the time of the descent cast; and an English subject, bom 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 were, consequently,
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 (&) ; 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
[ * 58 ] between the dat^e of our independence and that of *the

treaty of peace in 1783, for the contest for our independ-
ence was then pending by an appeal to arms, and remained tin>
decided. But the position was not tenable; and in a case elab-
orately 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, be-
tween the date of our independence and that of the treaty of
peace in 1783. The line of distinction between aliens and citi-
zens was considered to be coeval with our existence as an inde-
pendent nation.

It has been very frequenty assumed, on the doctrine in Calvin* s

2 Halnted, 337. Kelly v. Harriaon, 2 Johns. Cos. 29. Jackson v. Lnnn, 3
Johns. Cos. 109. Story, J., 9 Cranch, 50.

(a) Reed v. Reed, cited 1 Munf. 225, and opinion of Roane, J., appendix
to that Tolume. Dawson v. Godfrey, 4 Cranch, 321. Jackson v. Bums, 3
Binney^ 75. Blight v. Rochester, 7 WheaUm, 535.

(6) '2 HalsUd, 305.

(c) Hunter v. Fairfax's Devisee, 1 Munf? 218, and 7 Cranch, 603, S. C.
Commonwealth v. Bristow, 6 Call, 60, S. P.

» Under the EnKlish naturalization acts 33 Vict, c 14; 33 <& 34 Vict. c. 102;

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 12 of 108)