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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. III. 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, 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 provisions in the statute of Wm. III. is in force in Maryland, as was admitted in the case last referred to, and also in Kentucky; and it was adjudged, in the case of Palmer v. Downer, 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 aw 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 favour of natural born citizens
a McCreery v. Somerville, 9 Wheaton, 354.
b2 Mass. Rep. 179. note.
who were obliged to deduce a title to land from a pure and legitimate source, through an alien ancestor; and Sir Matthew Hale admitted," 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 inheritance descends to the next of kin who is competent to take, in like manner as if no such alen 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 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 posinatus in such a case would be ad fidem utriusque regis.” 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 acknowledg ed in our American tribunals, 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,
a 1 Vent. 427.
b Co. Lil. 3. a. Com. Dig. tit. Alien, c. 1. Orr v. Hodgson, 4 Wheaton, 453. Jackson v. Jackson, 7 Johns. Rep 214.
c 7 Co. 1. p. 27.
d Apthorp v. Backus,
Kirby's Rep. 413. Kinsey, Ch. J. in Den v.
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." This doctrine was very liberally considered in respect to the period of the American war, in the case of Den v. Brown; 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, 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.
a Reed v. Reed cited, 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.
b 2 Halsted, 305.
■ Hunter v. Fairfax's Devisee, 1 Munf. 218. and 7 Cranch, 603. S. C'.
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 Wooddeson, in his lectures, published as early as 1792: and the late case in the King's Bench, of Doe v. Acklam,b 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 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. The English rule is, to take the date of the treaty of peace in 1785, 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. In Massachusetts, on the strength of an
a Vol. i. 382.
b 2 Barnewall & Cresswell, 779.
c Jackson v. Wright, 4 Johns. Rep. 75.
act passed in 1777, persons born abroad, and coming into that state after 1776, and before 1783, and remaining the voluntarily, were adjudged to be citizens. The Supreme Court, in Connecticut has adopted the same rule, without the aid of any statute, and it was held, 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 came 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 recognised by the chief justice of Massachusetts, in Ainslie v. Martin;c 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,d. 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.
a Cummington v. Springfield, 2 Pickering, 394.
b Hebron v. Colchester, 5 Day, 169.
c9 Mass. Rep. 460.
2 Pickering, 394. note.