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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 Anne, ch. 5, was to the same general effect; but the statute of 4 Geo. II. ch. 21, 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, a 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: (1.) 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 natu- *52 ralized, as to those who had previously been naturalized.b It applies to all the children of “persons duly
Doe v. Jones, 4 Term Rep. 300. b The provision has been since adjudged to be prospective. West v. 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 parents were duly naturalized, or whether it would be sufficient for one of them only to be naturalized, in order to confer, as of course, the rights of citizens upon the resident children, being under age. Perhaps it would be sufficient for the father only to be naturalized; for in the supplementary act of the 26th of March, 1804, it was declared, that if any alien, who should have complied with the preliminary steps made requisite by the act of 1802, dies before he is actually naturalized, his 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 Ex parte Overington.a (2.) By a subsequent part of the same 4th section, it is declared, that the children of persons who now are, or have been, citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States; provided 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, what
West, 8 Paige's Rep. 433. It was also adjudged, in Peck v. Young, 26 Wendell's Rep 613, that an infant child of a person who became a citizen of the United States in 1776, and always remained such, was a citizen, though born abroad, and continued abroad, and an infant until after the peace of 1783, and married abroad aster 1783, and under coverture until 1825; and though he never came to this country until 1830.
a 5 Binney's Rep. 371.
ever 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 *53 time, and the period will soon arrive, when there will be no statutory 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. The proviso annexed to this last provision seems to remove the doubt arising from the generality of the preceding sentence, and which was whether che act intended by the words, “children of persons," both the father and mother, in imitation of the statute of 25 Edw. III., or the father only, according to the more liberal declaration of the statute of 4 Geo. II. The provision also 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 favour. But the whole statue 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 quæ nihil frustra, never casts the freehold upon an
alien heir who cannot keep it. This is a well set*54 tled rule of the common *law.a The right to
real estate by descent is governed by the municipal law of the individual states.b (Lynch v. Clark, 1 Sanford's, ch. 7, R. 583.) Nor can an alien take as tenant by the curtsey or in dower.c 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.d If an alien purchase land, or if land be devised to him, the general rule is, that in these cases, he may take and hold, until an inquest of office has been had; but upon his death, the land would instantly, and of necessity, (as the freehold cannot be kept in abeyance,) without any inquest of office, escheat and vest in the state, because he is incompetent to transmit by hereditary descent.e If an alien according to a case put by
a Calvin's case, 7 Co. 25 a. 1 Vent. Rep. 417. Jackson v. Lunn, 3 Johns. Cas. 109. Hunt v. Warnicke, Hardin's Kentucky Rep. 61.
b Lynch v. Clarke, 1 Sandford's Ch. Rep. 583.
c See Infra, vol. 4, pp 30, 36. By stat. of 7 & 8 Victoria, ch. 66, foreign women married to British subjects became thereby naturalized.
a IT, therefore, a person dies intestate without issue, and leaves a brother who had been naturalized, and a nephew who had been naturalized, but whose father died an alien, the brother succeeds to the whole estate, for the nephew is not permitted by the common law to trace his descent through his alien father. Levi v. M-Cartee, 6 Peters' U. S. Rep. 102. Jackson v. Green, 7 Wendell, 333. Jackson v. Fitsimmons, 10 Ibid. 1.
Page's case, 5 Co. 52. Collingwood v. Pace, 1 Sid. Rep. 193. i Leo. Rep. 59, S. C. Co. Litt. 2 b. Plowd. Rep. 229 b. 230 a. Duplesis v. Attorney General, 5 Bro. P. C. 91. Jackson v. Lunn, supra. Fox v. Southack, 12 Mass. Rep. 143. 8 Ibid. 445. Fairsax v. Hunter, 7 Cranch, 603, 619, 620. Orr v. Hodgson, 4 Wheaton, 453. Governeur v. Robertson, 11 Ibid. 332. Vaux v. Nesbit, 1 M Cord's S. C. Ch. Rep. 352, 374. 2 Dana's Kentucky Rep. 40. Rouche v. Williainson, 3 Iredell's N. C. Rep. 196. In
Lord Coke, a arrives in England, and hath two sons born there, they are, of course, natural born subjects; and if one of them purchases land and dies without issue, his brother cannot inherit as his heir, because he must deduce his title by descent, through his father, who had no inheritable blood. But the case as put by Coke has been denied to be law by the majority of the court in Collingwood v. Pace,b 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 *55 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
North Carolina, an alien may take by purchase, but he cannot take by devise, any more than he can inherit. 2 Haywood's Rep. 37, 104, 108. By the constitution of North Carolina, alien residents may purchase, hold, and transfer real estate. 3 Iredell, 141. Nor can he take by devise under the statute law of New York. The statute makes the devise void. New York Rerised Statutes, vol. ii. p. 57, sec. 4. In Louisiana aliens can inherit real estate and transmit it ab intestato. Duke of Richmond v. Milne, 17 Louià. 312. In England, if a devise be to an alien and citizen as joint tenants, the state can only seize the moiety of the alien. If he dies before inquest, the other joint tenant takes by survivorship, but the state, on office found, would defeat the survivorship by relation. Gould's Rep. 29, pl. 4. Co Litt. 180, b. Lord Hardwicke, in Knight v. Duplessis, 2 Vesey, 362, considered it to be a doubtful point, whether an alien could take by devise, and he gives no opinion. In Massachusetts, an alien may take real --state by devise as well as by deed, but he takes a defeasible estate and cannot hold as against the state. This is also the English law. Wilbar v. Tobey, 16 Pick. 179. Foss v. Crisp, 20 Ib. 124. The People v. Conklin, 2 Hill's N. Y. R. 67. He may purchase and hold real estate until office found, and bring an action for the recovery of possession. Waugh v. Riley, 8 Metcalf, 295.
Co Litt. 8, a. 61 Sid. Rep. 193. i Vent. Rep. 413. Bannister's Rep. 410.