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Commentaries on American Law (1826-30)
Chancellor James Kent
Of Aliens and Natives
WE are next to consider the rights and duties of citizens in their domestic relations, as distinguished from the absolute rights of individuals, of which we have already treated. Most of these relations are derived from the law of nature, and they are familiar to the institutions of every country, and consist of husband and wife, parent and child, guardian and ward, and master and servant. To these may be added, an examination of certain artificial persons created by law, under the well known name of corporations. There is a still more general division of the inhabitants of every country, under the comprehensive title of aliens and natives, and to the consideration of them our attention will be directed in the present lecture.
(1.) Natives are all persons born within the jurisdiction of the United States. If they were resident citizens at the tune of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation. If a person was born here before our independence, and before that period voluntarily withdrew into other parts of the British dominions, and never returned; yet, it has been held, that his allegiance accrued to the state in which he was born, as the lawful successor of the king; and that he was to be considered a subject by birth.1 It was admitted, that this claim of the state to the allegiance of all persons born within its territories prior to our revolution, might subject those persons who adhere to their former sovereign, to great inconveniences in time of war, when two opposing sovereigns might claim their allegiance; and, under the peculiar circumstances of the case, it was, undoubtedly, a very strong application of the common law doctrine of natural and perpetual allegiance by birth. The inference to be drawn from the discussions in the case of McIlvaine v. Coxe,2 would seem to be in favor of the more reasonable doctrine, that no antenatus ever owed any allegiance to the United States, or to any individual state, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king’s allegiance in another part of his dominions, and never afterwards, prior to the treaty of peace, returned and settled here. The United States did not exist as an independent government until 1776; and it may well be doubted whether the doctrine of allegiance by birth be applicable to the case of persons who did not reside here when the revolution took place, and did not, therefore, either by election or tacit assent, become members of the newly created state. The ground of the decision in the latter case was, that the party in question was not only born in New Jersey, but remained there as an inhabitant until the 4th of October, 1776, when the legislature of that state asserted the right of sovereignty, and the claim of allegiance over all persons then abiding within its jurisdiction. By remaining there after the declaration of independence, and after that statute, the party had determined his right of election to withdraw, and had, by his presumed consent, become a member of the new government, and was, consequently, entitled to protection, and bound to allegiance. The doctrine in the case of Respublica v. Chapman,3 goes also to deny the claim of allegiance, in the case of a person who, though born here, were not here, and assenting to our new governments, when they were first instituted. The language of that case was, that allegiance could only attach upon those persons who were then inhabitants. When an old government is dissolved, and a new one formed, “all the writers agree,” said Ch. J. McKean, “that none are subjects of the adopted government who have not freely assented to it.” The same principle was declared by the Supreme Court of this state, to Jackson v. White,4 and it was held, that though a British subject resided here as a freeholder on the 4th of July, 1776, and on the 16th of July, 1776, when the convention of this state asserted the right of sovereignty, and the claim of allegiance over all persons, was abiding here; yet that, under the circumstances, the person in question being a British officer, and a few weeks thereafter placed on his parole, and in December, 1776, joining the British forces, was to be deemed an alien, and as having never changed his allegiance, or elected to become a party to our new government. The doctrine in the case of Ainslie v. Martin, was contrary also to what had been held by the same court in the cases of Gardner v. Ward, and Kilham v. Ward,5 where it was decided, that persons born in Massachusetts before the revolution, who had withdrawn to a British province before our independence, and returned during the war, retained their citizenship; while the same persons, had they remained in the British province until after the treaty of peace, would have been British subjects, because they had chosen to continue their former allegiance, and there was but one allegiance before the revolution. This principle was asserted by the same court in the case of Phipps,6 and I consider it to be the true and sound law on the subject.
It is the doctrine of the English law, that natural born subjects owe an allegiance, which is intrinsic and perpetual, and which cannot be divested by any act of their own.7 In the case of Macdonald, who was tried for high treason, in 1746 before Lord Ch. J. Lee, and who, though born in England, had been educated in France, and spent his riper years there, his counsel spoke against the doctrine of natural allegiance as slavish, and repugnant to the principles of their revolution. The Court, however, said, it had never been doubted, that a subject born, taking a commission from a foreign prince, and committing high treason, was liable to be punished as a subject for that treason. They held, that it was not in the power of any private subject to shake off his allegiance, and transfer it to a foreign prince; nor was it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown.8 Entering into foreign service, without the consent of the sovereign, or refusing to leave such service when required by proclamation, is held to be a misdemeanor at common law.9
It bas been a question, frequently and gravely argued, both by theoretical writers, and in forensic discussions, whether the English doctrine of perpetual allegiance applies in its full extent to this country. The writers on public law have spoken rather loosely, but generally in favor of the right of a subject to emigrate, and abandon his native country, unless there be some positive restraint by law, or he is at the time in possession of a public trust, or unless his country be in distress, or in war, and stands in need of his assistance.10 is Cicero regarded it as one of the firmest foundations of Roman liberty, that the Roman citizen had the privilege to stay or renounce his residence in the state, at pleasure.11 The principle which has been declared in some of our state constitutions, that the citizens have a natural and inherent right to emigrate, goes far towards a renunciation of the doctrine of the English common law, as being repugnant to the natural liberty of mankind, provided we are to consider emigration and expatriation, as words intended in those cases to be of synonymous import. But the allegiance of our citizens is due, not only to the local government under which they reside, but primarily to the government of the United States; and the doctrine of final and absolute expatriation requires to be defined with precision, and to be subjected to certain established limitations, before it can be admitted into our jurisprudence, as a safe and practicable principle, or laid down broadly as a wise and salutary rule of national policy. The question has been frequently discussed in the courts of the United States, but it remains still to be definitively settled by judicial decision.
A review of those discussions cannot be uninstructive.
In the case of Talbot v. Janson,12 the subject was brought before the Supreme Court of the United States, in 1795. It was contended on one side, that the abstract right of individuals to withdraw from the society of which they were members, was antecedent and superior to the law of society, and recognized by the best writers on public law, and by the usage of nations: that the law of allegiance was derived from the feudal system, by which men were chained to the soil on which they were born, and converted from free citizens, to be the vassals of a lord or superior; that this country was colonized and settled upon the doctrine of the right of emigration; that the right was incontestible, if exercised in due conformity with the moral and social obligations; that the power assumed by the government of the United States of naturalizing aliens, by an oath of allegiance to this country, after a temporary residence, spiritually implies that our citizens may become subjects of a foreign power by the same means.
The counsel on the other side conceded, that birth gave no property in the man, and that upon the principles of the American government, he might leave his country when he pleased, provided it was done bona fide, and with good cause, and under the regulations prescribed by law; and that he actually took up his residence in another country, under an open and avowed declaration of his intention to settle there. This was required by the most authoritative writers on the law of nations; and Heineccius, in particular, required that the emigrant should depart with the design to expatriate, and actually join himself to another state; that though all this be done, it only proved that a roan might be entitled to the right of citizenship in two countries, and proving that he had been received by one country, did not prove that his own country had surrendered him; that the locomotive right finally depended upon the consent of the government; and the power of regulating emigration, was an incident to the power of regulating naturalization, and was vested exclusively in Congress; and until they had prescribed the mode and terms, the character and the allegiance of the citizen continued.
The judges of the Supreme Court felt and discovered much embarrassment in the consideration of this delicate and difficult question, and they gave no definitive opinion upon it. One of them13 observed, that admitting the intention of expatriation had been legally declared, it was necessary that it should have been carried into effect, and that the party should have actually become a subject of the foreign government; that the cause of removal must be lawful, otherwise the emigrant acts contrary to his duty; that though the legislature of a particular state should, by law, specify the lawful causes of expatriation, and prescribe the manner in which it might be effected, the emigration could only affect the local allegiance of the party, and not draw after it a renunciation of the higher allegiance due to the United States; and that an act of Congress was requisite to remove doubts, and furnish a rule off civil conduct on this very interesting subject of expatriation. Another of the judges14 admitted the right of individual emigration, to be recognized by most of the nations of the world, and that it was a right to be exercised in subordination to the public interest and safety, and ought to be under the regulation of law; that it ought not to be exercised according to a man’s will and pleasure, without any restraint; that every man is entitled to claim rights and protection in society, and he is, in his turn, under a solemn obligation to discharge his duty; and no man ought to be permitted to abandon society, and leave his-social and political obligations unperformed. Though a person may become naturalized abroad, yet if he has not been legally discharged of his allegiance at home, it will remain, notwithstanding the party may have placed himself in difficulty, by double and conflicting claims of allegiance.
The majority of the Supreme Court gave no opinion upon the question; but the inference, from the discussion, would seem to be, that a citizen could not divest himself of his allegiance, except under the sanction of a law of the United States; and that until some legislative regulations on the subject were prescribed, the rule of the common law must prevail.
In 1797, the same question was brought before the Circuit Court of the United States for the district of Connecticut, in the case of Isaac Williams,15 and Ch. J. Elsworth ruled, that the common law of t his country remained as it was before the revolution. The compact between the community and its members was, that the community should protect its members, and that the members should at all times be obedient to the laws of the community, and faithful to its defense. No member could dissolve the compact without the consent or default of the community, and there had been no consent or default on the part of the United States. No visionary writer carried the principle to the extent, that a citizen might, at any, and at all times, renounce his own, and join himself to a foreign country; and no inference of consent could be drawn from the act of the government in the naturalization of foreigners, as we did not inquire into the previous relations of the party, and if’ he embarrassed himself by contracting contradictory obligations, it was his own folly, or his fault.
The same subject was again brought before the Supreme Court in the case of Murray v. The Charming Betsey, in the year 1804.16 It was insisted, upon the argument, that the right of expatriation did exist, and was admitted by all the writers upon general law, but that its exercise must be accompanied by three circumstances, viz. fitness in point of time, fairness of intent, and publicity of the act. The court, however, in giving their opinion, avoided any decision of this great and litigated point, by observing, that “whether a person born within the United States, or becoming a citizen according to the established laws of the, entry, can divest himself absolutely of that character, otherwise than in such manner as may be prescribed by law, is a question which it was not necessary to decide.” Afterwards, in the Circuit Court of the United States, at Philadelphia,17 Judge Washington observed, that he did not then mean to moot the question, of expatriation, founded on the self-will of a citizen, because it was beside the case before the court; but that he could not admit, that a citizen of the United States could throw off his allegiance to his country without some law authorizing him to do so. This was the doctrine declared also by the Chief Justice of Massachusetts.18 The question arose again before the Supreme Court of the United States, so late as February, 1822, in the case of The Santissima Trinidada,19 and it was suffered to remain in the same state of uncertainty. The counsel on the one side insisted, that the party had ceased to be a citizen of the United States, and had expatriated himself, and become a citizen of Buenos Aires, by the only means in his power, an actual residence in that 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 order to better their condition, but it must be done for good cause, and without any fraudulent intent; and that the slavish principle of perpetual allegiance growing out of the feudal system, and the fanciful idea that a man was authorized to change his country and his allegiance at his own will and pleasure, were equally removed from the truth. Mr. 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 could not be bone without a bona fide change of domicile, under circumstances of good faith; and that it would be sufficient to ascertain the precise nature and limits of this doctrine of expatriation, when it should become a leading point for the judgment of the court.
From this historical review of the principal discussions in the federal courts on this interesting subject in American jurisprudence, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United 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.
There is, however, some relaxation of the old and stern rule of the common law, required and admitted under the liberal influence of commerce. 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 domicile determines the character of a party as to trade.20 Thus, in the case of Scott v. Schwartz,21 it was decided, in the Exchequer, the 13 Geo. I1., that a residence in Russia gave the mariners of a Russian ship the character of Russian mariners, within the meaning of the British navigation act. And in the case of Wilson v. Marryat,22 it was decided by the Court of K. B., that a natural born British subject might acquire the character, and be entitled to the privileges of an American citizen for commercial purposes. So, an American citizen may obtain a foreign domicile, which will impress upon him a national character for commercial purposes, in like manner as if he were a subject of the government under which he resided; and yet without losing on that account his original character, or ceasing to be bound by the allegiance due to the country of his birth.23 The subject who emigrates bona fide, and procures a foreign naturalization, may entangle himself in difficulties, and in a conflict of duties, as Lord Hale observed;24 but it is only in very few cases that the municipal laws would affect 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 government, 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, as well since as before their revolution,25 will not allow a natural born subject of France to bear arms, in time of war, in the service of a foreign power, against France; and yet, subject to that limitation, every Frenchman is free to abdicate his country.
(2.) An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power.26 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 the character of an Englishman, and with the approbation of the sovereign.27 The statute of 25 Edw. III. 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 children of mothers who should pass the sea without leave of their husbands. The statute of 7 Ann, c. 5. was to the same general effect; but the statute of 4 Geo. II. c. 31. required only that the father should be a natural born subject at the birth of the child, and it applied to all children then born, or thereafter to be born. Under these statutes it has been held,28 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 an alien, the child cannot inherit to the mother, though she was born under the king’s allegiance.
The act of Congress of the 14th of April, 1802, establishing a uniform rule of naturalization, affects the issue of two classes of persons: (I.) By the 4th section, it was declared, that “the children 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 become 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 citizenship, shall, if dwelling in the United States, be considered as citizens of the United States.” This provision appears to apply only to the children of persons naturalized, or specially admitted to citizenship; and there is color 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 naturalized, as to those who had previously been naturalized. It applies to all the children of “persons duly naturalized,” 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 the 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 right 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, 1504, 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 Le parte Overington.29 (2.) By a subsequent part of the same 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 consequently the benefit of this provision narrows rapidly by the lapse of time, and the period will soon arrive, when there will be no statute 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. This provision leaves us likewise in doubt, whether the act intended by the words, “children of persons,” both the father and mother, in imitation of the statute of 23 Edw. III.; or the father only, according to the more liberal declaration of the statute of 4 Geo. II. This clause differs from the preceding one, in being without any restriction as to the age or residence of the child; 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 of 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.
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 quae nihil frustra, never casts the freehold upon an alien heir who cannot keep it. This is a well settled rule of the common law.30 It is 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. If an alien purchases 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.31 If an alien, according to a case put by Lord Coke,32 arrives in England, and has 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 the law by the majority of the court in Collingwood v. Pace;33 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 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 their 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. The reason of it is not readily perceived, for the line of succession, and the degrees of consanguinity, must equally, in both cases, be traced through the father. The statute of 11 and 12 Wm. 111. c. 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, not withstanding 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.34
The provision in the statute of Wm. III. is in force in Maryland, as was admitted in the case last refereed to, and also in Kentucky; and it was adjudged, in the case of Palmer v. Downer,35 to have. been adopted, and to be in force in Massachusetts. But it has not been adopted in this state; and, therefore, with us, as well as in those other states where there are no statute regulations on the subject, the rule of law will depend upon the authority of Lord Coke, or the justness and accuracy of the distinctions taken in the greatly contested case of Collingwood v. Page, 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,36 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 bean alien who cannot take, the inheritance descends to the next of kin who is competent to take, in like manner as if no such alien had ever existed.37
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,38 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 that case, that the postnati of Scotland, born after the union of the two crowns, 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,39 and it rests on 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 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 were, consequently, held to be incapable of taking, by subsequent descent, lands in these states, which are governed by the common law.40 This doctrine was very liberally considered in respect to the period of the American war, in the case of Den v. Brown;41 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 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,42 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 alight 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 Professor Wooddeson, in his lectures,43 published as early as 1792: and the late case in the King’s Bench, of Doe v. Acklam,44 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 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 31 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. 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. In the application of that rule, the cases show some difference of opinion. In this state, 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 the treaty of 1794.45 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.46 The Supreme Court, in Connecticut has adopted the same rule, without the aid of any statute, and it was held,47 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 carne 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;48 but it may be considered as very much disturbed by the opinion of the judges of the Supreme. Court of Massachusetts, in the case of Phipps, a pauper,49 in which they declare, 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. 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 this is the final exposition which has been given to the law on the subject.
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; 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 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.50 In Virginia, this prerogative right of seizing lands bona fide sold by an alien to a citizen, is abolished by statute;51 and so it was, to a limited degree, in this state, by an act in 1826.52 An alien may take a lease for years of a house, for the benefit of trade. According to Lord Coke,53 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 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 now justly doubted,54 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. Au alien can be seized to the use of another, but the use cannot be executed as against the state, and will be defeated on office found.55 Nor can an alien be a cestui que trust but under the like disability, and the sovereign may, in chancery, compel the execution of the trust.56
Aliens are capable of acquiring, holding, and transmitting moveable property, in like manner, as our own citizens, and they can bring suits for the recovery and protection of that property.57 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.58 It was so held lately in the Supreme Court of the United States,59 and that the alien creditor was 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 the 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.
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 his person and property to protection.60 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.61
During the residence of aliens amongst us, they owe a local allegiance, 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 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.62 They and their sons are liable to be enrolled in the militia of this state, provided they are seized of any real estate within this state.63 This is a reasonable duty required of them in consideration of the special benefit which is conferred. It is in the nature of a charge upon their property, and the personal service can be omitted under the penalty of a moderate pecuniary assessment.
If aliens come here, with an intention to make 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.; and 22d of March, 1816, ch. 32. It is required, that he declare, on oath, before a state court, being a court of record with a seal and clerk, and having common law jurisdiction, or before a circuit or district court of the United States, three years, at least, before his admission, his intention to become a citizen, and to renounce his allegiance to his own sovereign. At the time of his admission, his country must be at peace with the United States, and he must before one of these courts, 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, 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. The evidence of the time of his arrival within the United States, is to consist of the registry of his arrival made upon his report, or the report of his parent or guardian, before a court of the United States; and the certificate of that report and registry, and of his declared intention to become a citizen, must be produced to the court admitting him; and he must satisfy the court, that during that time, he has behaved as a wan 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 has. The act further provides, that the children of persons duly naturalized, being minors at that time, shall, if dwelling in the United States, be deemed citizens. It is further provided,64 that if any alien shall die after his report and declaration, and before actual admission as a citizen, his widow and children shall be deemed citizens.
A person thus duly naturalized, becomes entitled to all the privileges and immunities of natural born subjects, except that a residence of seven years is requisite to enable him to hold a seat in congress, and no person, except a natural born citizen, is eligible to the office of governor of this state, 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’ previous residence was required. In 1795, the period was enlarged to five years; and in 1798, to 14 years; and in 1802, it was reduced back to five years, where it still remains. This period of probation has probably been deemed as liberal as was consistent with a due regard to our peace and safety. A moderate previous residence becomes material, to enable aliens to acquire the knowledge and habits proper to make wholesome citizens, who can combine the spirit of freedom with a love of the laws. Strangers, on their first arrival, and before they have had time to acquire property, and form connections and attachments, are not to be presumed to be acquainted with our political institutions, or to feel pride or zeal in their stability and success.65
If an alien dies before he has taken any steps under the act of naturalization, his personal estate goes according, to his will, or if he died intestate, then according to the law of distribution of the place of his domicile, at the time of his death.66 The stationary place of residence of the party at his death, determines the rule of distribution,67 and this is a rule of public right, as well as of natural justice. Mobilia personam sequuntur, immobilia situm.68 The unjust and inhospitable rule of the most polished states of antiquity, prevailed in many parts of Europe, down to the middle of the last century; and Vattel expressed his astonishment that there should have remained any vestiges of so barbarous a usage in an age so enlightened. 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.69 This rule of ‘the French law, was founded not only on the Roman 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 countries.70 It was abolished by the constitution of the first constituent assembly, in 1791, and foreigners were admitted upon the most liberal terms, and declared capable of acquiring and disposing of property equally with natural born 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 d’aubaine, and might dispose by will of their property, real and personal, (biens meubles et immeubles,) and if they died intestate, it was to descend to their heirs, whether residing in France, or elsewhere, and the like privilege was conferred upon Frenchmen dying in this country. The treaties of France with other powers, usually contained the same relaxation of her ancient rule; and though the treaty of 1778 was abolished in 1798, yet, in the renewed treaty of 1801, the same provision was inserted, and under it American citizens in France, and French subjects in the United States, could acquire, hold, and transmit, real as well as personal property, equally as if they were natives, and without the necessity of an act of naturalization, or special permission. This last treaty expired in 1809, and the rights of Frenchmen arising thereafter, were left, like those of other aliens, to be governed by the general law of the land.
The Napoleon code did not pursue the liberal policy of the French constituent assembly of 1791, and it seems to have revived the harsh doctrine of the Droit D’Aubaine, under the single exception, that aliens should be entitled to enjoy in France the same civil rights secured to Frenchmen by treaty in the country to which the alien belongs.71
It is not sufficient to create the exemption in favor of the alien, that civil rights are granted to Frenchmen by the local laws of the foreign country, unless that concession be founded upon treaty.72 The law at present in France is, that a stranger cannot, except by special favor, dispose of his property by will; and when he dies, the sovereign succeeds by right of inheritance to his estate.73
British subjects, under the treaty of 1794, between the United States and Great Britain, were confirmed in the titles which they then held to lands in this country, so far as the question of alienism existed; and they were declared competent to sell, devise, and transmit the same, in like manner as if they were natives; and that neither they, nor their heirs or assigns, should, as to those lands, be regarded as aliens. The treaty applied to the title, whatever it might be; but it referred only to titles existing at the time of the treaty, and not to titles subsequently acquired.74 It was, therefore, a provision of a temporary character, and by the lapse of time it is rapidly becoming unimportant and obsolete.
The legislature of this state, and probably of many other states, are in the practice of annually granting to particular aliens, by name, the privilege of holding real property. In 1825,75 they passed a general and permanent statute, enabling aliens to take and hold lands in fee, and to sell, mortgage, and devise, but not demise or lease the same, equally, as if they were native citizens, provided the party had previously taken an oath that he was a resident in the United States, and intended always to reside therein, and to become a citizen thereof as soon as he could be naturalized, and that he had taken the incipient measures required by law for that purpose. There are similar statute provisions in favor of aliens in South Carolina, Indiana, Illinois and Missouri; and in Louisiana, Pennsylvania and Ohio, the disability of aliens to take, hold, and transmit real property, seems to be entirely removed.76 In North Carolina and Vermont, there is even a provision inserted in their constitutions, that every person of good character, who comes into the state, and settles, and takes an oath of allegiance to the same, may thereupon purchase, and by other just means, acquire, hold, and transfer land, and after one year’s residence, become entitled to most of the privileges of a natural born subject. These civil privileges, conferred upon aliens, by state authority, are dictated by a just and liberal policy; but they must be taken to be strictly local; and until a foreigner is duly naturalized, according to the act of Congress, he is not entitled in any other state to any other privileges than those which the laws of that state allow to aliens. No other state is hound to admit, nor would the United States admit, any alien to any privileges, to which he is not entitled by treaty, or the laws of nations, or the laws of the United States, or of the state in which he dwells. The article in the constitution of the United States,77 declaring that citizens of each state were entitled to all the privileges and immunities of citizens in the several states, applies only to natural born or duly naturalized citizens, and if they remove from one state to another, they are entitled to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other. If, therefore, for instance, free persons of color are not entitled to vote in Carolina; free persons of color emigrating there from a northern state, would not be entitled to vote. The laws of each state ought, and must, govern within its jurisdiction; and the laws and usages of one state cannot be permitted to prescribe qualifications for citizens, to be claimed and exercised in other states, in contravention to their local policy.78
The act of Congress confines the description of aliens capable of naturalization to” free white persons.” I presume that this excludes the inhabitants of Africa, and their descendants; and it may become a question, to what extent persons of mixed blood, as mulattoes, are excluded, and what shades and degrees of mixture of color disqualify an alien from application for the benefits of the act of naturalization. Perhaps there might be difficulties also as to the copper-colored natives of America, or the yellow or tawny races of Asiatics, though I should doubt whether any of them were “white persons” within the purview of the law. It is the declared law of this state,79 that Indians are not citizens, but distinct tribes, living under the protection of the government, and, consequently, they never can be made citizens under the act of Congress.
Before the adoption of the present constitution of the United States, the power of naturalization resided in the several states; and the constitution of this state, as it was originally passed,80 required all persons born out of the United States, and naturalized by our legislature, to take an oath abjuring all foreign allegiance and subjection, in all matters, ecclesiastical as well as civil. This was intended, and so it operated, to exclude from the benefits of naturalization Roman Catholics who acknowledged the spiritual supremacy of the pope, and it was the result of former fears and prejudices (still alive and active at the commencement of our revolution) respecting the religion of the Romish church, which European history had taught us to believe was incompatible with perfect national independence, or the freedom and good order of civil society. So extremely strong, and so astonishingly fierce and unrelenting, was public prejudice on this subject, in the early part of our colonial history, that we find it declared by law in the beginning of the last century,81 that every Jesuit and popish priest who should continue in the colony after a given day, should be condemned to perpetual imprisonment; and if he broke prison and escaped, and was retaken, he should be put to death. That law, said Mr. Smith, the historian of the colony as late as the year 1756,82 was worthy of perpetual duration!
1. Ainslie v. Martin, 9 Mass, Rep. 454.
2. 2 Cranch, 280. 4 Ibid. 209.
3. 1 Dallas, 53.
4. 20 Johns. Rep. 313.
5. 2 Mass. Rep. 236, 244,. note
6. 2 Pickering, 394, note.
7. 1 Hale’s P. C. 68. Foster’s Crown Law, 7. 59. 183.
8. Foster, ibid. 59.
9. 1 East’s P. C. 81. 1 Hawk. P. C. b. i. ch. 22, sect. 3. On the 16th, of October, 1807, the king of England declared, by proclamation, that the kingdom was menaced, and endangered, and he recalled from foreign service all seamen and seafaring men, who were natural born subjects, and ordered them to withdraw themselves, and return home, on pain of being proceeded against for a contempt. It was further declared, that no foreign letters of naturalization could, in any manner, divest his natural born subjects of their allegiance, or alter their duty to their lawful sovereign.
10. Grotius, b. 2. c. 5 s. 24. Puf . Droit des Gens, liv. 8. ch. 11. s. 2. 3. Vattel, b. 1. ch. 19. s. 218. 223, 224, 225. 1 Wyckefort L’Embass. 117, 1119.
11. Ne quis invitus civitate mulctur, neve in civitate maneat invitus. Haec sunt enim fundamenta firmissima nostrae libertatis, sui quemque juris et retinendi et dimittendi esse dominum. Orat. pro. L. C. Balbo, ch. 13.
12. 8 Dallas, 133.
13. Paterson, J.
14. Iredell, J.
15. Cited in 2 Cranch, 82, note.
16. 2 Cranch, 64.
17. United States v. Gillies, 1 Peters’ C. C. Rep. 159.
18. 9 Mass. Rep. 401.
19. 7 Wheaton, 283.
20. See vol. 1. p. 71.
21. Comyn’s Rep. 677.
22. 8 Term Rep. 31. 1 Bos. & Pull. 430. S. C.
23. United States v. Gillies, 1 Peters’ C. C. Rep, 159. Murray v. The Schooner Charming Betsey, 2 Cranch, 64.
24. 1 Hale’s P. C. 68.
25. Pothier’s Traite du droit de Propriété, No. 94. Code Napoleon, No. 17. 2l. Toullier, Droit civil Francais, tom. 1. No.266.
26. 7 Co. Calvin’s case, 18. a.
27. Hyde v. Hill, Cro. E. 3 Bro. tit. Descent, pl. 47. tit. Denizen, pl. 14.
28. Doe v. Jones, 4 Term Rep. 300.
29. 5 Binney, 371.
30. Calvin’s case, 7 Co. 25. a. 1 Vent. 417. Jackson v. Lunn, 3 John. Cas. 109. Hunt v. Warnicke, Hardin’s Rep. 61.
31. Collingwood v. Pace, 1 Sid. 193. 1 Lev. 59. S. C. Co. Litt. 2. b. Plowd. 229. b. 230. a. Jackson v. Lunn, supra. Fox v. Southack, 12 Mass. Rep. 143. 8 ib. 445. Fairfax v. Hunter, 7 Cranch, 603, 619, 620. Orr v. Hodgson, 4 Wheaton, 453. Governeur v. Robertson, 11 Wheaton, 332. In North Carolina, an alien may take by purchase, but he cannot take by devise, any more than he can inherit. 2 Haywood. 37. 104. 108.
32. Co. Litt. 8. a.
33. 1 Sid. 193. 1 Vent. 413.
34. McCreery v. Somerville, 9 Wheaton, 354.
35. 2 Mass Rep. 179. note.
36. 1 Vent. 427.
37. Co. Lit. 8. a. Com. Dig. tit. Alien, c. 1. Orr v. Hodgson, 4 Wheaton, 453. Jackson v. Jackson, 7 Johns. Rep 214.
38. 7 Co. 1. p. 27.
39. Apthorp v. Backus, Kirby’s Rep. 413. Kinsey, Ch. J. in Den v. Brown, 2 Halstead, 337. Kelly v. Harrison, 2 Johns. Cas. 29. Jackson v. Lunn, 3 Johns. Cas. 109. Story, J., 9 Church, 59.
40. Reed v. Reed cited in 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.
41. 2 Halsted, 305.
42. Hunter v. Fairfax’s Devisee, 1 Munf. 218, and 7 Cranch, 603. S. C.
43. Vol. i. 382.
44. 2 Barnewall & Cresswell, 779.
45. Jackson v. Wright, 4 Johns. Rep. 75.
46. Cummington v. Springfield, 2 Pickering, 394.
47. Hebron v. Colchester, 5 Day, 169.
48. 9 Mass. Rep. 460.
49. 2 Pickering, 394, note.
50. 4 Leon. 84. Sheppard’s Touchstone, by Preston, 56. 232. 7 Wheaton, 545.
51. Griffith’s Law Register, tit. Virginia.
52. Laws of N.Y. sess. 49. ch. 297. sec. 3.
53. Co. Litt. 2. b.
54. Harg. Co. Litt. n. 9. to b. 1.
55. Gilbert on Uses, by Sugden, 10. 367. 445. Preston on Conveyancing, vol. ii. p. 247.
56. Attorney General v. Sands, 3 Ch. Rep. 20. Com. Dig. tit. Alien, c. 3 . Gilbert on Uses, by Sugden, 86. 404.
57. 7 Co. 7. Dy. 2, b.
58. Year Book, 11 Edw. 111. cited in the marginal note to 1 Dy. 2. b.
59. Hughes v. Edwards, 9 Wheaton, 489.
60. Wells v. Williams, 1 Lord Raym. 282. Daubigny v. Davillon, 2 Anst. 462. Clark v. Morey, 10 Johns. Rep. 69. Russel v. Skipwith, 6 Binney, 241.
61. See vol. i. p. 53. to 62. 153.
62. Vattel, b. 2. c. S. s. 101, 102. 108.
63. Militia Act, Laws of N.Y. sess. 46, ch. 244, sec. 8.
64. Act of Congress, March 26th, 1804, ch. 47.
65. During the elevation and splendor of the Athenian power, the privilege of a citizen of Athens was deemed a very distinguished favor. It could only be obtained by the consent and decree of two successive assemblies of the people, and was granted to none but to men of the highest rank and reputation, or who had performed some signal service to the republic. 1 Potter’s Greek Antiquities, 44, 45. 150. In the time of Demetrius Phalereus, there were resident in Attica, 10,000 freemen, being foreigners, or of foreign extraction, or freed slaves, who bad not the rights of Athenian citizens, 1 Mitf. Hist. 354, 355. And yet it is said, that foreigners could not dispose of their goods by will, but they were appropriated, at their death, for the public use. 2 Potter, 344. In Rome, foreigners could not make a will, and the effects of a foreigner, at his death, went to the public or to his patron, under the jus applicationis. Cic. de Orat. 139. Dig. 49. 15. 52. Ibid. lib. 35, ad legem falcidiam, Prae. Dict. du Dig. tit. Etrangers. The Romans were noted for their peculiar jealousy of the jus civitatis, or rights of a Roman citizen. It was, at first, limited to the Pomoeria of Rome, and then gradually extended to the bounds of Latium. In the time of Augustus, as we are informed by Suetonius, De Aug. sect. 40 the same anxiety was discovered to keep the Roman people pure and untainted of foreign blood; and he gave the freedom of the city with a sparing hand. But when Caracalla, for the purpose of a more extended taxation, levelled all distinctions, and communicated the freedom of the city to the whole Roman world, the national spirit was lost among the people, and the pride of their country was no longer felt, nor its honor observed. 1 Gibb. Hist. 268.
66. 1 Binney, 336. 3 Johns. Ch. Rep. 210. 1 Mason’s Rep. 408.
67. Pipon v. Pipon, Amb. 25. Burn v. Cole, Amb. 415.
68. Hub. Proelec. tom. i. 278. tom. ii. 542. De conflictu legum, sect. 15 Vattel, b. 2. c. 8, sect. 110, 111.
69. 1 Domat, 26. sect. 11.
70. Ibid. 555. sect. 13.
71. Code Napoleon, No. 11. 726. 912.
72. M. Toullier, in his Droit Civil Francais, tom. 1. n. 265. cites for that rule a decree of the Court of Cassation in 1806; and he says, that this article in the Napoleon code was taken from one in the new Prussian code.
73. Repertoire de Juris. par Merlin, tit. Aubaine, and tit. Etranger, ch. 1. No. 6.
74. 1 Wheaton, 300. 4 Ibid. 463. 7 Ibid. 535. 9 Ibid. 496. 12 Mass. Rep. 143.
75. Laws of N.Y. sess. 48. ch. 307.
76. Griffith’s Law Reg. passim. 1 Const. Rep. S. C. 412. Christy’s Dig. tit. alien.
77. Art. 4. sect. 2.
78. It is a curious fact in ancient Grecian history, that the Greek states indulged such a narrow and excessive jealousy of each other, that intermarriage was forbidden, and none were allowed to possess lands within the territory of another state. When the Olynthian republic introduced a more liberal and beneficial policy in this respect, it was considered as a portentous innovation. Mitford’s Hist. vol. v. p. 9.
79. Goodwell v. Jackson, 20 Johns. Rep. 693.
80. Art. 42.
81. Colony Laws, vol. i. p. 38. Livingston & Smith’s ed.
82. Smith’s History of N.Y. p. 111.