Note C, Of the Right of Aliens to Purchase and Hold Lands

BY the common law of England all persons born out of the king’s dominions, or allegiance, were, with very few exceptions,¹ held to be aliens. And this maxim proceeded upon the general principle, that every man owes allegiance where he is born, and can not owe two such allegiances, or serve two masters at once.² The statute Edw. 3. Stat. 2, enacted that all children born abroad, provided both their parents were at the time of their birth in allegiance to the king, and the mother had passed the seas with her husband’s consent, might inherit as if born in England. And by some later statutes, which perhaps were never in force here, all children born out of the king’s ligeance, whose fathers were natural born subjects, were declared to be natural born subjects themselves, to all intents and purposes, without any exception.

According to these principles all persons born within the United States, whilst colonies of Great Britain were the natural born subjects of the crown of Great Britain. This was indeed stipulated on the part of the colonists emigrating to this country, and confirmed to them, expressly by the several charters granted by Queen Elizabeth to Sir Humphrey Gilbert and Sir Walter Raleigh, and the subsequent charters of King James the first; by all which the colonists and their heirs, and every of them were declared to be entitled to all the privileges « of free denizens, or persons native of England…. Thus stood the law at the period of the American revolution. The natives of the colonies, and the natives of the parent state were in consequence thereof of equal capacity to inherit or hold lands in the different parts of the British empire, as if they had been born and their lands situated in the same country. And, in fact many native Americans did hold estates in England, and on the other hand great numbers of the natives of Great Britain, who had never been in America, possessed estates in lands, in the colonies.

By the declaration of independence, the colonies became a separate nation from Great Britain. Yet according to the principles of the laws of England,³ which we still retained, the natives of both countries, born before the separation, attained all the rights of birth; or in other words, American natives were still capable of inheriting lands in England, and the natives of England who remained subjects to the crown of Great Britain, were still capable of inheriting lands in America, or of holding those which they already possessed…. This principle seems to have been laid down by Bracton, and is recognized in Calvin’s case.

In May, 1777, an act⁴ passed to oblige the free male inhabitants of this state above the age of sixteen years to give assurance of allegiance to this state.⁵ This assurance consisted in an oath abjuring all allegiance to the king of Great Britain, his heirs and successors, and of fidelity to the commonwealth of Virginia as an independent state. All recusants were thereby directed to be disarmed, and further, were declared incapable of holding any office in the state; serving on juries, suing for debts; electing or being elected; or buying lands, tenements, or hereditaments. By the act of October, 1777, c. 2. the delinquents were subjected to double taxes. In the same session an act⁶ passed for sequestering British property, and enabling those indebted to British subjects to pay off such debts; the preamble recites, that divers persons subjects of Great Britain had during our connection with that kingdom acquired estates real and personal within this commonwealth; and had also become entitled to debts to a considerable amount, and such estates having been acquired, and debts incurred, under the sanction of the laws, and of the connection then subsisting, and it not being known that their sovereign had as yet set the example of confiscating debts and estates under the like circumstances, the public faith and the law and usages of nations required that they should not be confiscated on our part; but the safety of the United States demanded, and the same law and usages of nations would justify, that we should not strengthen the hands of our enemies during the continuance of the war. Wherefore it was enacted that the lands, slaves, etc. of whatever nature within this commonwealth, the property of any British subject shall be sequestered into the hands of commissioners: and further, that any citizen owing money to a subject of Great Britain might pay the same or any part thereof into the loan-office, taking a certificate for the same in the name of the creditor, with an endorsement under the hand of the commissioner, expressing the name of the payer, who shall deliver such certificate to the governor
and council, whose receipt shall discharge him from so much of the debt. In the succeeding month⁷ the congress of the United States, “Resolved, that it be earnestly recommended to the several states, as soon as may be, to confiscate and make sale of all the real and personal estate herein of such of their inhabitants, and other persons, who have forfeited the same, and the right and protection of their respective states, and to invest the money arising from the sales in continental loan-office certificates, to be appropriated in such manner as the respective states shall thereafter direct.”

It does not appear that any measures were taken in this state, in pursuance of this recommendation, until the May session of 1779, when an act⁸ passed declaring who should be deemed citizens of this commonwealth. Whereby it is declared, “that all white persons born within the territory of this commonwealth, and all who had resided therein two years next before the passing of that act; and all who should thereafter migrate into the same, other than alien enemies, and give assurance of fidelity, etc. to the commonwealth. And all infants wheresoever born, whose father if living, or otherwise whose mother was a citizen at the time of their birth, or who should migrate hither, their father if living, or otherwise, their mother becoming a citizen, or who should migrate hither without father or mother, shall be deemed citizens of this commonwealth…. And all others, not being citizens of any of the United States of America shall be deemed aliens.” In the same session an act⁹ passed, entitled an Act concerning Escheats and Forfeitures from British subjects, the preamble of which declared, that, “Whereas during the connection which subsisted between the now United States of America and the other parts of the British empire, and their subjection to one common prince, the inhabitants of either part had all the rights of natural born subjects in the other, and so might lawfully take and hold real property, and transmit the same by descent to their heirs in fee simple, which could not be done by mere aliens; and the inhabitants on each part had accordingly acquired real property in the other, and in like manner had acquired personal property, which by their common laws might be possessed by any other than an alien enemy, and transmitted to executors and administrators; but when by the tyrannies of that prince, and the open hostilities committed by his armies and subjects inhabitants of the other parts of his dominions, on the good people of the said United States, they were obliged to wage war in defense of their rights, and finally to separate themselves from the rest of the British empire, to renounce all subjection to their common prince, and to become
sovereign and independent states; the said inhabitants of the other parts of the British empire, became aliens and enemies¹⁰ to the said States, and, as such, incapable of holding the property, real or personal, so acquired therein; and so much thereof as was within this commonwealth became by the laws vested in the commonwealth. Nevertheless the general assembly, though provoked by the example of their enemies to a departure from that generosity which so honorably distinguishes the civilized nations of the present age. yet desirous to conduct themselves with moderation and temper, by an act passed at their session, in the year one thousand seven hundred and seventy-seven, took measures for preventing what had been the property of British subjects, within this commonwealth, from waste and destruction, by putting the same into the hands and under the management of commissioners appointed for that purpose, that so it might be in their power if reasonable, at a future day, to restore to the former proprietors the full value thereof.”

“And whereas it is found that the said property is liable to be lost, wasted, and impaired without greater attention in the officers of civil government, than is consistent with the discharge of their public duties; and that from the advanced price at which the same would new sell, it may be most for the benefit of the former owners, if the same should be restored to them hereafter, or to the public if not so restored, that the sale thereof should take place at this time, and the proceeds be lodged in the public treasury, subject to the future direction of the legislature:” it was therefore declared and enacted, “that all the property real and personal within this commonwealth, belonging at that time to any British subject, or which did belong to any British subject at the time such escheat or forfeiture may have taken place, shall be deemed to be vested in the commonwealth, the real estate by way of escheat, and the personal estate by forfeiture.” The sales were directed to be made for ready money, and the escheator’s certificate of the payment thereof entitled the purchaser to a grant for the same freely and fully exonerated from all the right, title, claim and interest legal and equitable of any British subject thereto, and also, from the right, title, claim and interest of every person, under any deed of mortgage the equity of redemption whereof had not been foreclosed, at the time of the sale.

The act of October, 1779, c. 39, for confirming the titles of purchases of escheated and forfeited estates, declares, that in every case where any estate should have been found to belong to a British subject, in which the clerk of the general court has certified or should certify, that no claim has been filed to such estate; or where any claim should have been filed and discussed for the commonwealth, the title of the purchaser or purchasers thereto should be thereby confirmed to him, his heirs and assigns upon due payment of the purchase money, notwithstanding any defect in the inquisition, or, that the requisitions of the act concerning escheats and forfeitures from British subjects may not have been complied with.

These acts taken together evince the intention of the legislature to have been to repeal the common law principle that the antenati of both countries might, notwithstanding the separation, continue to hold and inherit lands in any part of the dominions which were formerly united. For the act declaring who shall be deemed citizens of this commonwealth in express terms declares that all persons not comprehended within the description therein contained shall be deemed aliens. But this could not have been the case at the common law, (according to the rule in Calvin’s case) since they were natural born subjects with respect to the natives of this country, being born under the same allegiance with them; nor could they by any ex post facto circumstance, except an express legislative ordinance be made aliens.¹¹ But the act concerning escheats and forfeitures goes still further and pronounces them not only to be aliens, but enemies. And this circumstance was made the foundation of the law of confiscation and forfeiture.

And here it will be proper to consider these two acts separately, and independently of each other. And first, by the act declaring who shall be deemed citizens of this commonwealth, all persons (other than such as were by that act declared to be citizens) holding lands or tenements within the state were liable to lose the same by escheat; since by the common law, which in this respect was unaltered, no alien can purchase, or hold lands or tenements, but they shall escheat to the commonwealth; and this in the case of an alien friend, as well as of an alien enemy. But here a distinction occurs between alien friends and alien enemies; for if they had been alien friends they might have hired an house for necessary habitation; and their goods and chattels would not have been subject to forfeiture, to which, as alien enemies they, were. They might also have resided here peaceably, and have earned on trade, maintained personal actions, etc…. But in order to vest the property in lands of an alien friend in the commonwealth, an inquest of office, called an office of entitling is absolutely necessary; for until such office found the commonwealth has no right. Nor can the commonwealth take or part with any thing but by matter of record.¹² And the nature of the inquiry in this case is “whether I. S. be an alien, or died without lawful heirs,” etc. There is another inquest of office called an office of instruction; and that was, where the estate of the land was lawfully in the king before, but the particularity of the land does not appear of record, so that it might be put in charge. As if one were attainted of high treason, all his lands by stat, of 33. Hen. 8. were presently in the king; but it does not appear to the court of exchequer of, what lands the person attainted was seized, at the time of his attainder, and this inquest is necessary to instruct the king of the certainty of the land.¹³ And herewith the act concerning escheats and forfeitures from British subjects, seems to agree. For that act declares that “all the property, real and personal within the commonwealth, belonging at that time to any British subject, or which did belong to any British subject at the time such
escheat and forfeiture may have taken place, shall be deemed to be vested in the commonwealth; the lands, slaves and other real estate by way of escheat, and the personal estate by forfeiture.”…. This act could operate only upon estates or property then or before that time vested; the other act might operate as well upon property thereafter acquired, as upon such as was already vested; the proceedings upon the act concerning estates were in the nature of an office of instruction; the commonwealth being already entitled under this legislative declaration, as fully as the king was under the Sta.33. Hen. 8, without office; but yet the office of instruction was necessary in order that the commonwealth might with certainty know the land. But as to lands thereafter acquired by aliens, there the commonwealth would have no title whatsoever until an office of entitling was found. Yet such lands were liable to be escheated; but until office found the alien might hold the lands. And this distinction is clearly shown in Plowden, where it is said that the vova forfeit in the act of attainder of sir F. Lovel did not vest a reversion, whereof he was seized in the king, but is only effectual to vest a right or title in the king, and that it ought to appear by record what land or tenements he had; and therefore that it did not vest the possession, nor could the king enter without office first found.¹⁴ But if the king’s tenant in capite be in like manner attainted of treason, then after the death of the person attainted, the freehold in law shall be in the king until office found, in the nature of a common escheat, and not in the nature of an escheat, for treason.¹⁵ Now here the legislature passed a kind of general bill of attainder against all British subjects holding lands, op other property in this state, thereby confiscating the same to the use of the commonwealth, which is analogous to the word forfeit in sir F. Lovel’s case.¹⁶ Yet until an office of instruction, the commonwealth could not enter or take possession. And the fact, whether a person were a British subject or not, could not be traversed by such person, or by any one
in his behalf, but he was put to his minstrans de droit, by the act of Octo. 1779, c. 18, contrary to the common law practice; whereby a party found an alien by inquest of office might traverse it, and plead that he was indigena, or natural born.¹⁷ The legislature aware of this circumstance, and also aware that ante nati natives of Great Britain were according to the principles of the common law quasi natural born, in Virginia, would not permit the party to contest the fact established by the inquest viz. that the lands were the property of a British subject, and to avail himself of this constructive nativity, but compelled him to show that he was within some of those special provisions contained in the act, in favor of infants, feme covers, and others whose cases were deemed worthy of exceptions in their favor. This legislative confiscation and disfranchisement is not without precedent. In the reign of Philip and Mary, sir Thomas Wyatt was attainted of high treason by act of parliament, which declared that his estate should be vested and adjudged to be in the actual possession of the crown without any other office or inquisition.¹⁸ By the Stat. 5. Geo. I, c. 27, any manufacturer etc. then or afterwards being in any foreign country, who shall not return after warning so to do, shall be deemed an alien … a regular consequence of which is, that their lands should escheat to the crown.

By the definitive treaty of peace concluded between Great Britain and the United States, it was agreed that Congress should earnestly recommend to the Legislatures of the respective States to provide for the restitution of all estates, etc. confiscated, belonging to real British subjects; and that all persons having any interest in confiscated lands, should meet with no lawful impediment in the prosecution of their just rights. That Congress should earnestly recommend to the several States a reconsideration and revision of all acts or laws concerning the premises, and finally that no future confiscations should be made, and that no person should in future suffer any loss, or damage, either in his person, liberty, or property on account of the part which he might have taken during the war.

In the month of October following¹⁹ the legislature of this state passed an act for the admission of Emigrants, and declaring the rights of citizenship, by which it was declared that all free persons born within the commonwealth; all persons not being natives who have obtained the rights of citizenship, under the act declaring who shall be deemed citizens;²⁰ all children wheresoever born, whose fathers or mothers are, or were citizens at the time of the birth of such children, shall be deemed citizens; and that all persons other than alien enemies, who shall migrate into the state, and give satisfactory proof before some court of record that they intend to reside therein, and take the oath of fidelity to the commonwealth, shall be entitled to all the rights of citizenship, except electing or being elected to any office, until an actual residence for two years, after taking such oath; and further until they shall have evinced a permanent attachment to the sate by intermarrying with a citizen of the commonwealth, or of the United States, or shall have purchased lands to the value of one hundred pounds therein. By this act, the former act²¹ declaring who shall be deemed citizens, by which it was declared that all others should be deemed aliens, is expressly repealed: at the same session, another act²² prohibiting the migration of certain persons into this commonwealth, was also passed, whereby such as had borne a commission under the United States, or any of them; or being natives, or residents in the United States on the 19th of April 1775, had voluntarily borne arms against the United States, within their territories, or on their coasts, or were owners of privateers, or members of the refugee board of commissioners in New York, or had acted under their authority, were prohibited from migrating to, or becoming citizens of this State. The succeeding year an act²³ was passed declaring that no future confiscations should be made; provided however that the act should not
extend to any suit depending in any court, prior to the ratification of the treaty of peace. No steps were taken pursuant to the recommendations stipulated in the fifth article of the treaty. By the adoption of the constitution of the United States that treaty became a part of the supreme law of the land, and as such paramount to the acts of the state legislature. The operation of it remains to be considered. To do this, let us take a short review of the subject.

1. By the common law, upon the separation between America and Great Britain taking place, the natives of Great Britain were constructively natural born in America, and notwithstanding that separation, might hold lands here, as if they had been residents in America.

2. By the act of May 1779, c. 55. declaring who shall be deemed citizens, they were expressly declared to be alien, a consequence of which I presume was, that their lands were liable to be escheated to the commonwealth, upon the common law principle that an alien, whether friend or enemy, is incapable of purchasing or holding lands: the proceedings in this case, as we have shown, were by an inquest of office to entitle the commonwealth to the lands so held.

3. By the act of the same session concerning Escheats and Forfeitures, they were further declared to be enemies, as well as aliens: and it was further declared that all their property, whether real or personal belonging to them then, or at any lime before, when such escheat or forfeiture may have taken place, should be deemed to be vested in the commonwealth, the real estate by way of escheat, and the personal estate by way of forfeiture. This act appears to have vested a title in the state to all such estates, etc. but an office of instruction was necessary to show the lands, etc. with certainty, and to put the commonwealth in possession.

4. The operation of the treaty of peace upon the property declared to be escheated and forfeited by the last mentioned act might have been doubtful, had not the act of 1784, c. 55, authorized us to pronounce that the legislature thereby released the right of the commonwealth in all cases, where no inquest of office had been found, and a suit thereon depending, at the time of the ratification of the treaty: and it would seem that the treaty was an effectual bar to the subsequent confiscation or escheating of any property belonging to a British subject, which became vested at any time after the act of 1779, concerning escheats and forfeitures took effect. For that act, as we have already observed, could operate only on property then, or before vested, and not on any which might thereafter be acquired by British subjects.

5. By the treaty of peace the common law principle that the ante nati of both countries were natural born to both, and as such capable of holding or inheriting in both, seems to have been revived; in consequence of which they are now capable of holding, purchasing, or inheriting in the same manner as if they were citizens. And this, although they may be prohibited from migrating to, or becoming citizens of the state. For treaties are to receive a liberal construction, and most beneficial for those for whom any stipulation is made; and it was evidently the intention of the framers to restore all individuals to the same condition they were in before the war, as far as existing circumstances would permit, notwithstanding any part which they may have taken, either actually or constructively, in the war. And this construction is further aided by the omission of the words, all others shall be deemed aliens, in the act of Oct. 1783, c. 16, declaring the rights of citizenship, etc. at which time the preliminary articles of peace were generally known; and it was also probably known that the definitive treaty was precisely the same with them.

6. British subjects, born since the separation, are aliens; but such of them as were born before the definitive treaty took place, seem to be entitled to the benefits thereof, so far as they had, or might be presumed to have, any interest in lands in the United States: all others appear to be aliens in the strictest sense,²⁴ except as their cases have been remedied by the late Treaty of Amity, Navigation, and commerce, with Great Britain, of which it now remains to say a few words.

7. By the treaty of London, 19th Nov. 1794, Art. 2, it is stipulated, “That all settlers or traders within the precincts or jurisdiction of the British posts within the boundary lines of the United States, shall continue to enjoy unmolested all their property of every kind and shall be protected therein. They shall be at full liberty to remain there, or to remove with all, or any part of their effects; and it shall also be free to them to sell their lands, houses, or effects, or to retain the property thereof at their discretion. Such of them as shall continue to reside within the said boundary lines, shall not be compelled to become citizens of the United States, or to take any oath of allegiance to the government thereof; but they shall be at full liberty to do so if they think proper, and they shall make and declare their election within one year after such evacuation. And all persons who shall continue there, after the expiration of the said year, without having declared their intention to remain British subjects, shall be considered as having made their election to become citizens of the United States.” … By the ninth article, it is further agreed,

“That British subjects who now²⁵ hold lands in the territories of the United States, and American citizens who now hold lands in the British dominions, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives, and that neither they nor their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens.” Under the operation of this treaty it would seem, that British subjects within the precincts or jurisdictions of the western posts, who held land there at the time of their evacuation, and shall elect to remain such within one year thereafter, cannot be regarded as aliens in respect to those lands, and that all British subjects, who actually held lands in any part of the United States, on the 17th day of Nov. 1794,²⁶ their heirs and assigns forever, although in all other respects aliens, shall not be considered as aliens in respect to such lands, and the legal remedies incident thereto. How far the words of this clause may revive the entails of such as were held by that tenure, or may authorize the transmission of them in that mode to latest posterity, malgre the acts of the state legislatures on the subject, may perhaps become an important subject of inquiry hereafter … at present it would be altogether premature.

Thus much for the rights of British subjects, whether ante nati, or strictly aliens, according to the common law. The following legislative interpretation of the treaty of 1794, by the British parliament, may aid us in the construction which ought to be given to that treaty as it relates to British subjects in the United States.

The statute 37 Geo. 3, c. 97. Sec. 24 and 25, after reciting “that by the ninth article of the said treaty, it was agreed that British subjects who then held lands in the territories of the said United States, and American citizens who then held lands in the dominions of his majesty, should continue to hold them according to the nature and tenure of their respective states and titles therein, and might grant, sell, or devise the same to whom they should please, in like manner as if they were natives, and that neither they nor their assigns should, so far as might respect the said lands and the legal remedies incident thereto, be regarded as aliens;” declares that “all lands, tenements, and hereditaments, in the kingdom of Great Britain, or the territories and dependencies thereto belonging, which on the said twenty-eighth day of Oct. 1795, (being the day of the exchange of the ratifications of the said treaty between his majesty and the said United States) were held by American citizens, shall be held and enjoyed, granted, sold, and devised, according to the stipulations and agreements contained in the said article; any law, custom, or usage, to the contrary notwithstanding…. Provided always, that nothing therein contained shall extend, or be construed to extend, to give any right, title or privilege, to any person,”not being a natural born subject of that realm, which such person would not have been entitled to, if that act had not been made, other than and except such rights, titles and privileges, as shall be necessary for the true and faithful performance of the stipulations in the said article contained, according to the true intent and meaning thereof, or to give to any person, not being either a natural born subject of that realm or a citizen of the said United States, any right, title, or privilege, to which such person would not have been entitled if that act had not been made.” Upon this we may shortly remark,

1. That lands purchased by a British subject, within the United States after the 28th of October, 1795, are not within the provisions of the treaty.

2. That lands owned by British subjects on or before the said 28th day of October, 1705, can not be transferred, under the treaty to any person, other than a British subject, or a citizen of the United States.

3. That no right of suffrage, or other civil privilege whatsoever, is annexed to the possessor of such lands, being a British subject, in virtue of the said treaty … from hence we may infer,

That no such right of suffrage, can be enjoyed by any lessee, or tenant of any British subject, in virtue of his estate in such lands, although the estate of such lessee or tenant, should in quantity of interest be such, as if derived from a citizen of the United States would be a sufficient qualification to vest the right of suffrage; and that, upon this principle, non det qui nan habet.