William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

. (page 13 of 108)
Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 13 of 108)
Font size
QR-code for this ebook

35 & 36 Vict. c. 39, aliens can hold and dispose of real and personal property
in the same manner as a natural horn British subject, and title may be acquired
through an alien in like manner.



by Google

^Xt.] of the rights of persons. * 69

^Q 1 ^^t the same principle mighfc not be considered to apply in
^Q^^^d, in respect to the American antenatif and that they
tal^^ on removing within the British dominions, continue to
lat^ ^^d inherit lands in England, as natural born sobjects; bat
It ^^^hend the assumption has been made without just grounds,
dee^^ fsontrary to the doctrine laid down by Professor Wood-
W > in his lectures (a), published as early as 1792; and the
til^,/^^^ in the King's Bench, of Doe t. Acklam (6), seems en-
^ y \o explode it It was decided, that children bom in the
v)\^Wl 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 bom out of the allegiance
of * the crown of England, to be deemed a natural born [ * 59 ]
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 8d day of September, 1788. If the
jbneziean 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-ad-
miralty, at Halifax, in 1810 (c), the learned judge met the ques-
tion directly, and discussed it in a clear and able manner. He
held, that an American bom 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 t«
any of the privileges of a British born subject

The English rule is, to take the date of the treaty of peace lU
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 ap-
plication of that rule, the cases show some difference of opinion.
In New York, it has been held, that where an English subject,
^>om abroad, emigrated to the United States, in 1779, and lived

(«) Vol. i. p. 382.

(W 2 Bamw. A Crem. 779. In Doe ©. Mulcaster, 6 Barnw. A Cfress. 771. it
WB8 held, that the children born in the United States after the peace of 1783,
«f parents who were bom in New York before 1776, but adhered to the British
^01^ ffiemoards, were not aliens, but had inheritable blood under the statute
of4 Geo. II. c 21.
(c) SteiparVa Vtee-Adm, Rep, 166.
(4 loglis V. Trustees of the Sailor's Snug Harbour, 3 Petertt^ U, S, Hep, 99.



by Google


and died here, be was io be deemed an alien, and tbe title to land,
wbicb be afterwards acquired by purcbase, was protected, not be-
cause be was a citizen, but on tbe ground of tbe treaty of 1794 (a).
In Massachusetts, on tbe strengtb of an act passed in 1777, per-
sons born -abroad, and coining into tbat state after 1776, and be-
fore 1783, and remaining tbere voluntarily, were adjudged to be
citizens (b), Tbe supreme court, in Connecticut, bas adopted tbe

same rule, witbout tbe aid of any statute, and it was
[*60] beld (c), tbat a *Britisb soldier, wbocame over witb tbe

Britisb army in 1775, and deserted, and came and settled
in Connecticut in 1778, and remained tbere afterwards, became,
of course, a citizen, and ceased to be an alien; and tbat tbe United
States were enabled to claim as tbeir citizens, all persons who
were here voluntarily, at eitber tbe period of our independence,
or of tbe treaty of peace. Tbe principle of tbe case seemed to be,
tbat tbe Creaty of peace operated by way of release from tbeir al^
legiance of all Britisb subjects wbo were tben domiciled Lere; for
it was admitted, tbat tbe rule would not apply to tbe subjects of
any other nation or kingdom, wbo came to reside here after tbe
'declaration of independence, for tbey would not be witbin tbe
purview of tbe treaty. Tbe same principle seems to bave been
recognized by tbe cbief 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 tbe treaty of
peace, be did not become such by the mere force of that instru-
ment, and by the mere fact of bis being there on the ratification
of the treaty. But if he was born in Massachusetts, and bad re-
turned during the war, though he had withdrawn himself before
the date of independence, he was considered as retaining bis citi-
zenship. That was the amount of tbe 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 wbo were
at the time adhering to the governments respectively; and that

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

(h) Cammington v. Springfield, 2 Pick. Rep, 394.

(c) Hebron p. Colchester, 5 Day's Rep, 169.

(d) 9 Mass. Rep. 460.

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



by Google


these persoDS became aliens in respect to the government

to which they did not * adhere (a). This is the meaning [ * 61 ]

of the treaty of 1783, and it put an end to all conflicting

and doable allegiance growing oat of the revolation.

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 stat^, upon an inquest of office
fonnd. 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. If
the alien shoold 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 (6). In Vir-
ginia, 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
timited degree, in New York, by an act in 1826 (d). An alien
may take a lease for years of a house, for the benefit of trade;
According to Lord Coke (e), 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 repre-
sentatives. The force of this rigorous doctrine ^ of the [ * 62 ]

(a) Kilham r. Ward, 2 ifown. Bep. 236. Gardner v. Ward, ibid, 244, note.
Doe V. Aeklam, 2 Bamw, A Cr€8». T79. Inglis v. The Trustees of the Sailor's
SnagHarbonr, 3 Peters' U. S, Rep. 99, 164. Shanks ». Dupont, J hid. 242.

In Shanks v. Duponty it was held, that though a woman was bom 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 Charles-
ton 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 to be deemed an alien by the operation of the treaty of peace <jf 1783, inas-
much as she was bom 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 ot*
thinn as they then existed.

(6) 4 Leon 84. Sheppard's Touchstone, by IVeston, 66, 232. 7 Wheaton, 545.
Coke's Reading on Fines, lee. 22.

{e) Griffith's Law Register, tit Virginia.

{d) Laws of New York, sess. 49, ch. 297, sec. 3. Hie exemption from es-
cheat of lands derived from or through an alien, is confined to lands actually
possessed by a citizen prior to the 22d AjMil, 1825. N. Y, Reoised Statutes,
▼ol. i. p. 719, sec 9.

(f ) Cb. Litt, 2, b.



by Google


common iaw is rmdonbiedly snapended with xia, ir respect
to the subjects of those nations with whom we have commer-
cial treaties; and it is justly doubted (a), whether the common
law be really so inhospitable ; for it is inconsistent with the estab-
lished maxims of sound policy, and the social intercourse of na-
tions. 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 oi real property; and if it were other-
wise, the means would be interdicted which are requisite to ren-
der the five years' residence secure and comfortable.

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

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

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

(6) Gilbert on Usts^ 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.

(c) Attorney-General v. Sands, 3 Ch. Rep 20. Hardress, 495, S. C. Com.
Dig. tit. Alien, c. 3. Gilbert on Dses, by Sugden, 86, 404. Hubbard v, Good-
win, 3 Leighy 492. It was held, in this 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 Uie
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, 6. P. On the other hand a conveyance of
laud to a citizen as a trustee upon an express trust to sell the same, and pay
over the pitx;eeds to a creditor who is an alien, is a valid trust, and the in-
terest 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 trustee, 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 B,
503. Anstice tj. Brown, 6 Paige, 448.

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



by Google


liflb law from the early ages (a). It is also so held in the
Sapreme Ck>art of the United States (6), and that the alien
creditor is entitled to come into a conrt of equity to have the
mortgage foreclosed, and the lands sold for the payment of his
debt The question whether the alien in snch a case could be-
oome a valid purchaser of the mortgaged premises sold at auction
at his instance, is left untouched; and as such a privilege is not
necesfiary for his security, and would be in contravention of the
general policy of the common law, the better opinion would seem
to be, that he could not, in that way, wiiiiout special provision by
statute, become the permanent and absolute owner of the fee (c).
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 re-
main, without being ordered out of the country by the President
of the United States. The lawful residence does, pro hoc vice^
relieve the alien from the character of an enemy, and entitles his
person and property to protection (d). The effect of war upon
the rights of aliens we need not here discuss, as it has been al-
ready considered in a former part of this course of lectures, when
treating of the law of nations (e).

During the residence of aliens amongst us, they owe a local al-
legiance, and are equally bound with natives to obey all general
laws for the maintenance of peace, and the preservation
* of order, and which do not relate specially to our [ * 64 ]
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 (g).
In New York, resident aliens are liable to be enrolled in the
militia, provided they are lawfully seised of any real estate within

(o) Tear Book, 11 Edw. III., cited in the marginal note to 1 Dyer^a Rep.

(^) Hughes V. Edwards, 9 Wheaitm, 489.

(f) If an alien be entitled to hold and dispose of real estate in New York,
^^^ ^ke a mortgage for the purchase money, and may become a re-par-
«»Kron a sale made to enforce payment. New York Revised Statutes, vol. i.
P- 721, 8ec. 19.

J^J Wells V. Williams, 1 Lord Raytn. 282. Danbigny r. Davallon, 2 AnsU
tSsR ^^^^ ^' Mopey, 10 Johns, Rep, 69. Kussel v. Skipwith, 6 Bin-

, W Vquo, b. iL ch. 8, sec. 101, 102, 108.



by Google


>te, and thej are, in that case, declared to be snbject to
aseeesments, taxes, and bnrthens, as if tbej were citizens;
»▼ are not capable of voting at any election, or of bein^
or appointed to any office, or of serving on any jury (a),
liens come here, with an intention to make this country
ermanent residence, they will have many inducements to
» citizens, since they are unable, as aliens, to have a stable
d interest in land, or to hold any civil office, or vote at
18, or take any active share in the administration of the
ment. There is a convenient and easy mode provided, by
bhe disabilities of alienism may be removed, and the quali-
is of natural bom citizens obtained. The terms upon
any alien, being a free white person, can be naturalized,
»cribed by the acts of Ck>ngress of the 14th of April, 1802,
the 3d of March, 1813, ch. 184; the 22d of March, 1816,
; the 26th of May, 1824, ch. 186; and the 24th of May,
;h. 106. It is required, that he declare, on oath, before a
sourt, being a court of record with a seal and clerk, and
' common law jurisdiction, or before a circuit or district
»f the United States, or before a clerk of either of the said
tv70 years, at least, before his admission, his intention to
i a citizeo, and to renounce his allegiance to his own sov-
ereign. This declaration need not be previously made, if
I the alien resided here before the 18th June, 1812, * and
has since continued to reside here; provided such resi-
be proved to the satisfaction of th^ court, and provided it
ved by the oath or affirmation of two witnesses, citizens of
lited States, that he has resided, for at least £ve years im-
^ly preceding the time of such application, within the limits
ider the jurisdiction of the United States. The names of
tnesses, and the place or places where the applicant has re-
for at least the five years, to be set forth in the record of
•urt (6). And if the applicant shall have been a minor,
twenty-one years of age and shall have resided in the
1 States three years, next preceding his arrival to majority,
y also be admitted' a citizen without a such previous deola-
; provided he has arrived at the age of twenty-one years,
lall have resided five years within the United States, in-

7€W York Revised SiaiuteSy vol. i. p. 721, sec. 20.
LCt of Congrtss, May 24, 1828, ch. 106.



by Google


dading the three years of his minority, and shall make the dec-
laration aforesaid at the time of his admission, and shall declare
on oath and proire to the satisfaction of the court, that for three
years next preceding, it had been his bona fide intention to be-
come a citizen, and shall in all other respects comply with the
laws in regard to naturalization (a). In all other cases the pre-
Tions declaration is requisite, and at the time of his admission
the alien^s country most be at peace wifch the United States, and
he most, before odc of the courts above mentioned, take an oath
to support the Constitution of the United States, aod likewise, on
oath, renounce and abjure his native allegiauce. He must, at
the time of his admission, satisfy the court, by other proof than
his own oath, 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
fiye years out of the territory of the United States. He must sat-
isfy the court, that during that time he has .behaved as a man of
good moral character, attached to the principles of the Constitu-
tion 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 pro-
vides (6), 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 shall die
after his declaration, and before actual admission as a citizen,
his widow and children shall be deemed citizens.

A person thus duly naturalized, belK)mes entitled to all
the ^privileges and immunities of natural bom subjects, [ *'66 ]
except that a residence of seven years is requisite to en-
able him to hold a seat in Congress, and no person except a
natural born citizen, is eligible to' the office of governor in some
of the states, or President of the United States.

The laws of Congress on the subject of naturalization, have
been subject to great variations. In 1790, only two years' previ-
ous residence was required. In 1795, the period was enlarged to

(«) Act of CongreBS, May 26, 1824, ch. 186.

(h) Ad of Congress, April 14th, 1802, ch. 28, sec. 4.

(e) Act of OmgresM^ March 26th, 1804, ch. 47.

. Ill


by Google


years; and in 1798, to fourteen years; and in 1802 it was re-
d back to five years, where it still remains. This period of pro-
3n has probably been deemed as liberal as was consistent with
le regard to onr peace and safety. A moderate previoas reei-
ie becomes material to enable aliens to acquire the knowledge
habits proper to make wholesome citizens, who can combine the
it of freedom with a love of the laws. Strangers on their
arrival, aad before they have had time to acquire property,
form connections and attachments, are not to be presumed to
oquainted with our political institutions, or to feel pride or

zeal in their stability and success (a).
17 ] * If an alien dies before he has taken any steps under

the act of naturalization, his personal estate goes accord-
to his will, or if he died intestate, then according to the law
iistribution of the place of his domicil, at the time of his
h (6). The stationary place of residence of the party at

Daring the elevation and splendour of the Athenian power, the resi-
i of foreigners, and especially of merchants, was encouraged, but the
lege of a citizen of Athens was deemed a very distinguished iavour.
did only be obtained by the consent and decree ot two successive as-
hes of the people, and was granted to none but to men of the highest
and reputation, or who had perforpied some signal service to the re-
ic. 1 PoUer^B Greek AnliquitieSy 44, 46, 150. In the time of Demetrius
ereus, there were resident in Attica 10,000 freemen, being foreigners, or of
pi extraction, or freed slaves, who had not tl|e rights of Athenian dtis-

1 Mitf, Hist, 354, 1355. And yet it is said, that foreigners could not
se of their goods by will, but that they were appropriated, at their

1, for the public use. 2 Potter^ 344. In Rome, foreigners could not
i a will; and the effects of a foreigner, at his death, went to the public,
his patron, under the jus applicationia. Cic. de Oral, 1, 39. Dig. 49,

2. Ibid, lib. 35, ad legem faUidUim, Prse. Diet, du Dig. tit. Etrangers.
n the time of the imperial code, foreigners could dispose by will and
nherit. Code 6, 59. 10. The Romans were noted for their peculiar
usy of the jus civitatisy or rights of a citizen. It was, at first, limited
le Ponusria of Rome, and then gradually extended to the bounds of
',m. In the time of Augustus, as we are infoimeil by Suetonius, De

sec. 40, the same anxiety was discovered to keep the Roman people
and untainted of foreign blood; and he gave the freedom of the city
a sparing hand. But when Caracalla, for the purpose of a more ex-
^d taxation, levelled all distinctions, and communicated the freedom of
ity to the whole Roman world, the national spirit was lost among the
ie, and the pride of their country was no longer felt, nor its honour ob-
d. 1 Oibh. Hist. 268.

1 Binney's Rep. 336. 3 Johns. Ch. Rep. 210. 1 Mason's Rep. 408. By
treaty between the United States, and the republic of Venezuela, in
1836, art. 12, and the Peru-Bolivian Confederation in May, 1838, art^
t only personal property of the resident alien goes according to his will*
his lawful representatives if he dies intestate, but his alien heirs, if
cannot lawfully succeed to his real estate, shall have three yeais to dis.
>f it. The treaty with Spain, of 1795, art 11, and with Russia, of 1832



by Google


his death, determines the rule of distributioD (a), and this is a
rnle of public right, as well as of natural justice. Mobilia per-
sonam sequuntur, immohilia aitum (b). The unjust and inhos-
pitable rule of the most polished states of antiquity, prevailed
in manj parts of Europe, down to the middle of the last century;
and Yattel expressed his astonishment that there should have re-
mained any vestiges of so barbarous a usage, in an age so en-
lightened. The law, which claimed, for the benefit of the state.
the effects of deceased foreigners, who left no heirs who were
natives, existed in France as late as the commencement of their
revolution (c). This rule of the French law, was founded not
only on the Boman 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 subjects of other coui^-
tries (d). It was abolished by the Constitution of the first con-
stituent assembly, in 1791, and foreigners were admitted
upon the most liberal terms, and de'Jared capable *of [ *68 ]
acquiring and disposing of property equally with natural
bom citizens. The treaty of commerce between the United
States and France, in 1778, provided against the evil effects of
this law, by declaring that the inhabitants of the United States
were to be exempted from the droit Waubaine^ and might dis-
pose by will of their property, real and personal {hiena meubles
et immeublesj) and if they died intestate, it was to descend to their
heirs, whether residing in France, or elsewhere, and the like pri-
vilege was conferred upon Frenchmen dying in this country. The
treaties of France vnth other powers, usually contained the same
relaxation of her ancient rule; and though the treaty of 1778

art 10, nllowed vk reasonable time to th^ alien heir in such cases to dispose

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 13 of 108)