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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 domicil, at the time of his death. The stationary place of residence of the party at his death, determines the rule of distribution, and this is a rule of public right, as well as of natural justice. Mobilia personam sequuntur, immobilia situm. 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
foreigners, or of foreign extraction, or freed slaves, who had got 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 Potler, 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, Prœ. 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 Pomaria 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 honour observed. 1 Gibb. Hist. 268.
a 1 Binney, 336. 3 Johns. Ch. Rep. 210. 1 Mason's Rep. 408. b Piron v. Pipon. Amb. 25. Burn v. Cole, Amb. 415.
c Hub. Prælec. tom. i. 278. tom. ii. 542. De conficiu legum, sect. 15. Fattel, b. 2. c. 8. sect. 110, 111.
as the commencement of their revolution. 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. 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, aud might dispose by will of their property, real and personal, (lions 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.
a 1 Domat, 26. sect. 11.
b Ibid. 555. sect. 13.
c Code Napoleon, No. 11. 726. 9!2.
It is not sufficient to create the exemption in favour 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. The law at present in France is, that a stranger cannot, except by special favour, dispose of his property by will; and when he dies, the sovereign succeeds by right of inheritance to his estate.
British subjects, ander 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 ifthey 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. 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,d 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
a 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.
b Repertoire de Juris. par Merlin, tit. Aubaine, and tit. Etranger, ch. 1. No. 6.
c 1 Wheaton, 300. 4 Ibid. 463. 7 Ibid. 535. 9 Ibid. 496. 12 Mass. Rep.
d Laws of N. Y. sess. 48. ch. 307.
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 favour 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." 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 bound 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, 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 colour are not entitled to vote in Carolina; free persons of colour emigrating there from a north
a Griffith's Law Reg. passim. 1 Const. Rep. S. C. 412. Christy's Dig.
b Art. 4. sect. 2.
ern 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.a
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 colour disqualify an alien from application for the benefits of the act of naturalization. Perhaps there might be difficulties also as to the copper-coloured 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,b 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, 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 naturali
a 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. Milford's Hist. vol. v. p. 9.
b Goodwell v. Jackson, 20 Johns. Rep. 693.
c Art. 42.