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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 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. III. ch. 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, notwithstanding 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 a

The provision in the statute of Wm. JII. is in *56 force in *several of the United States, as, for in

stance, in Maryland, Kentucky, Ohio, Missouri, Delaware, New-Jersey, New-York, and Massachusetts.b

· M'Creery v. Somerville, 9 Wheaton, 354. The New York Statute, (N. Y. R. S. vol. i. 751, sec. 22.) go no further on this point than the English Statute. The People v. Irvin, 21 Wendell, 128. The New-York statute declares that no person capable of inheriting under the statute law of descent, shall be precluded from the inheritance by reason of the alienism of the ancestor of such pe The statute of New-Jersey is to the same effect. R. S. N. J. 1847, p. 341.

b 9 Wheaton, 354. 2 Mass. Rep. 179, note. N. Y. Revised Statutes, vol. i. p. 754, sec. 22. Statute Laws of Ohio, 1831. Elmer's N. J. Dig. 131.

But in those states where there are no statute regulations on the subject, the rule of the 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. Pace, 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 favour 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,a 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 be an alien who cannot take, the alien cannot interrupt the descent to others, and the inheritance descends to the next of kin who is competent to take, in like manner, as if no such alien had ever existed.b

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, that," albeit, the king

R. S. of Missouri, 1835. In New York, the rule of the common law prevailed until January 1st, 1830, and the provision in the statute of 11 and 12 Wm. III. had not been previously adopted.

a 1 Vent. Rep. 427.

Co. Litt. 8 a. Com. Dig. tit. Alien, ch. 1. Orr v. Hodgson, 4 Whea. ton, 453. Jackson v. Lunn, 3 Johns. Cas. 121. Jackson v. Jackson, 7 Johns. Rep. 214. Donegani v. Donegani, Stuart 8 Lower Canada Rep. 460. In Virginia, by statute, the course of descent is not interrupted by the alienage of any lineal or collateral ancestor; and, therefore, if a citizen dies, leaving a brother, who is a citizen, and a sister, who is an alien, and children of that sister, who are citizens, and the brother, sister, and children be all living, the children of the sister take by descent a mojety of the estate, and the brother takes the other moiety. Jackson v. Sanders, 2 Leigh's Rep. 109. So in North Carolina, alien heirs do not prevent other relations, being citizens, from inheriting. N. C. Revised Statutes, 1837. ei Co. 1, 27. The Lord Chancellor Ellesmere's opinion, delivered in VOL. II.


doms of England and Scotland should, by descent, be divided and governed by several kings; yet all those who were born under one natural obedience, while the realms were united, would 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 *57 utriusque regis." It was *accordingly held, in

that case, that the postnati of Scotland, born after the union of the two crowns, were natural born subjects, and could inherit lands in England. The community of allegiance, at the time of birth, and at the time of descent, both existed. The principle of the common law contained in that case, that the division of an empire worked no forfeiture of previously vested rights of property, has been frequently acknowledged in our American tribunals, a and it rests on the 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 have, consequently, been held to be incapable of taking, by subsequent descent, lands in these states, which are governed by the common law.b

the exchequer chamber in Calvin's case, was by the king's command written out at large, and published by the chancellor in 1609, in a neat style, worthy of the strength and learning of the argument.

Apthorp v. Backus, Kirby's Rep. 413. Kinsey, Ch. J., in Den v. Brown, 2 Halsted, 337. Kelley v. Harrison, 2 Johns. Cas. 29. Jackson v. Lunn, 3 Johns. Cas. 109. Story J., 9 Cranch, 40.

• Reed v. Reed, cited 1 Munf. 225, and opinion of Roane, J., Appendix

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This doctrine was very liberally considered in respect to the period of the American war, in the case of Den v. Brown ;a 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 *58 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, b 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 might 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 Wouddeson, in his lectures, published as early as 1792; and the late case in the King's Bench, of Doe v. Acklam, a

to that volume. Dawson v. Godfrey, 4 Cranch, 321. Jackson v. Burns, 3 Binney, 75. Blight v. Rochester, 7 Wheaton, 535. a 2 Halsted, 305.

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

< Vol. i. p. 382.

a 2 Barnw. f. Cress. 779. In Doe v. Mulcaster, 5 Barnio. f Cress. 771. it was held, that the children born in the United States after the peace of 1783, of parents who were born in New-York before 1776, but adhered to

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 *59 *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 3d 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. In the case of the Providence, decided in the court of vice-admiralty, at Halifax, in 1810,- the learned judge met the question directly, and discussed it in a clear and able manner. He held, that an American born in this country before the revolution, and adhering to the United States during the war, and until after the peace of 1783, was an alien discharged from his allegiance to the king, and was an alien to every purpose, and not entitled to any of the privileges of a British born subject.

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 New York, 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

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the British power afterwards, were not aliens, but had inheritable blood un-
der the statute of 4 Geo. II. c. 21.

a Stewart's Vice-Adm. Rep. 186.
• Inglis v. Trustees of the Sailor's Snug Harbour, 3 Peters' U. S. Rep. 99.

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