ering the opinion of the court in the present case, than to state, in a brief manner, the grounds on which our decision is founded. Thomas Scott, a native of South Carolina, died in 1782, seized of the land in dispute, leaving two daughters surviving him, Sarah, the mother of the defendants in error, and Ann, the mother of the plaintiffs in error. Without question, Sarah took one moiety of the land by descent; and the defendants in error, as her heirs, are entitled to it. The only question is, whether Ann took the other moiety by descent; and if so, whether the plaintiffs in error are capable of taking the same by descent from her.

by any act of their own, without the consent of the government, put off their allegiance and become aliens. If it were otherwise, then a feme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband; which are clearly contrary to law.1

Our conclusion, therefore, is, that neither of these Acts warrant the court in saying that Ann Shanks had ceased to be a citizen of South Carolina at the death of her father. This is not, indeed, controverted in the allegations of the parties.

The question, then, is, whether her subsequent removal with her husband operated as a virtual dissolution of her allegiance, and fixed her future allegiance to the British crown by *the Treaty of Peace of 1783. Our [*247 opinion is that it did. In the first place, she was born under the allegiance of the British crown, and no act of the government of Great Britain ever absolved her from that allegiance. Her becoming a citizen of South Carolina did not, ipso facto, work any dissolution of her original allegiance, at least so far as the rights and claims of the British crown were concerned. During the war, each party claimed the alleclusively to itself. The American States insisted upon the allegiance of all born within the States respectively; and Great Britain asserted an equally exclusive claim. The Treaty of Peace of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American States, were virtually absolved from all allegiance to the British crown. All those who then adhered to the British crown, were deemed and held subjects of that crown. The Treaty of Peace was a treaty operating between The only facts which are brought to support the States on each side, and the inhabitants 246*] the supposition *that she became an thereof; in the language of the seventh article, alien before the death of her father, are, that it was a firm and perpetual peace between his the British captured James Island in February, Britannic majesty and the said States, "and be1780, and Charleston in May, 1780; that she tween the subjects of the one and the citizens was then and afterwards remained under the of the other." Who were, then, subjects or citBritish dominion in virtue of the capture; that izen, was to be decided by the state of facts. in 1781 she married Joseph Shanks, a British If they were originally subjects of Great Britofficer, and upon the evacuation of Charleston ain and then adhered to her, and were claimed in December, 1782, she went with her husband, by her as subjects, the treaty deemed them a British subject, to England, and there re- such. If they were originally British subjects, mained until her death in 1801. Now, in the but then adhering to the States, the treaty first place, the capture and possession by the deemed them citizens. Such, I think, is the British was not an absolute change of the al-natural, and indeed almost necessary meaning legiance of the captured inhabitants. They owed allegiance, indeed, to the conquerors during their occupation; but it was a temporary allegiance, which did not destroy, but only suspended their former allegiance. It did not an nihilate their allegiance to the State of South Carolina, and make them de facto aliens. That could only be by a Treaty of Peace which should cede the territory, and them with it; or by a permanent conquest, not distrubed or controverted by arms, which would lead to a like re

Ann Scott was born in South Carolina, before the American Revolution; and her father adhered to the American cause, and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the Revolution, and afterwards, remained in South Carolina until December, 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina, If she was not of age, then she might well be deemed under the circumstances of this case to hold the citi-giance of the natives of the colonies as due exzenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country. Her citizenship, then, being prima facie established, and, indeed, this is admitted in the pleadings, has it ever been lost; or was it lost before the death of her father, so that the estate in question was upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost, and that she was capable of taking it at the time of the descent cast.

sult.

Neither did the marriage with Shanks produce that effect because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not affect her political rights or privileges. The general doctrine is, that no persons can,

of the treaty; it would otherwise follow that there would continue a double allegiance of many persons, an inconvenience which must have been foreseen, and would cause the most injurious effects to both nations.

It cannot, we think, be doubted that Mrs. Shanks, being then voluntarily under British protection, and adhering to the British side, by her removal with her husband was deemed by the British government to retain her allegiance, and to be, to all intents and purposes, a British subject. It may be said that, being sub [*248 potestate viri, she had no right to make an election; nor ought she to be bound by an act or removal under his authority or persuasion.

Co. Litt. 31, b.; Com. Dig. Allen, C. 1; Dower A. 1-See Kelly v. Harrison, 2 Johns. Cas. 29; 2; Bacon's Abridg. Alien.; Dower, A.

If this were a case of a crime alleged against therein, etc., etc.; and that neither they, nor Mrs. Shanks, in connection with her husband, their heirs or assigns shall, so far as respects there might be force in the argument. But it the said lands, and the legal remedies incident must be considered, that it was at most a mere thereto, be regarded as aliens." election of allegiance between two nations, each of which claimed her allegiance. The governments, and not herself, finally settled her national character. They did not treat her as capable by herself of changing or absolving her allegiance; but they virtually allowed her the benefit of her choice, by fixing her allegiance finally on the side of that party to whom she then adhered.

Now, Mrs. Shanks was at the time a British subject, and she then held the lands in controversy; she is therefore within the words of the treaty. Why ought she not also to be held within the spirit and intent? It is said that the treaty meant to protect the rights of British subjects, who were not also American citizens; but that is assuming the very point in controversy. If the treaty admits of two interIt does not appear to us that her situation as | pretations, and one is limited, and the other liba feme covert disabled her from a change of eral; one which will further, and the other exallegiance. British femes covert residing here clude, private rights; why should not the most with their husbands at the time of our inde- liberal exposition be adopted? The object of pendence, and adhering to our side until the the British government must have been to proclose of the war, have been always supposed to tect all her subjects holding lands in America have become thereby American citizens, and to from the disability of alienage, in respect to have been absolved from their antecedent Brit- descents and sales. The class of American loyish allegiance. The incapacities of femes covert, alists could at least, in her eyes, have been in provided by the common law, apply to their as much favor as any other; there is nothing in civil rights, and are for their protection and our public policy which is *more un- [*250 interest. But they do not reach their political favorable to them than to other British subrights, nor prevent their acquiring or losing a jects. After the peace of 1783 we had no right national character. Those political rights do or interest in future confiscation; and the efnot stand upon the mere doctrines of municipal fect of alienage was the same in respect to us, law applicable to ordinary transactions, but whether the British subject was a native of stand upon the more general principles of the Great Britain or of the colonies. This part of law of nations. The case of Martin v. The the stipulation, then, being for the benefit of Commonwealth, 1 Mass. Rep. 347, turned upon British subjects who became aliens by the very different considerations. There the ques- events of the war, there is no reason why all tion was, whether a feme covert should be persons should not be embraced in it who susdeemed to have forfeited her estate for an of- tained the character of British subjects, alfense committed with her husband, by with- though we might also have treated them as drawing from the State, etc., under the Confis- American citizens. The argument supposes cation Act of 1779; and it was held that she that because we should treat them as citizens, was not within the purview of the act. The thereforè Great Britain had no right to insist same remark disposes of the case of Sewell v. upon their being British subjects within the Lee, 9 Mass. Rep. 363, where the court express- protection of the treaty. Now, if they were in ly refused to decide whether the wife, by her truth and in fact, upon principles of public and withdrawal with her husband, became an alien. municipal law, British subjects, she has an But in Kelly v. Harrison, 2 Johns. Cas. 29, the equal right to require us to recognize them as reasoning of the court proceeds upon the sup- such. It cannot be doubted that Mrs. Shanks position that the wife might have acquired the might have inherited any lands in England, as 249*] same *citizenship with her husband, by a British subject, and her heirs might have takwithdrawing with him from the British domin- en such lands by descent from her. It seems to us, then, that all British-born subjects whose But if Mrs. Shanks' citizenship was not vir- allegiance Great Britain has never renounced, tually taken away by her adherence to the ought, upon general principles of interpretation, British at the peace of 1783, still it must be to be held within the intent, as they certainadmitted that, in the view of the British gov-ly are within the words, of the Treaty of 1794. ernment, she was, at that time, and ever afterwards to the time of her death, and indeed at all antecedent periods, a British subject. At most, then, she was liable to be considered as in that peculiar situation in which she owed allegiance to both governments, ad utriusque fidem regis. Under such circumstances, the question arises whether she and her heirs are not within the purview of the ninth article of the Treaty with Great Britain of 1794. It appears to us that they plainly are. The language of that article is, that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles

ions.1

1. See also Bac. Abridg. Alien A: Cro. Car. 601, 602; 4 Term Rep. 300; Brook. Abr. Denizen, 21: Jackson v. Lunn, 3 Johns. Cas. 109.

In either view of this case, and we think both are sustained by principles of public law, as well as of the common law, and by the soundest rules of interpretation applicable to treaties between independent States, the objections taken to the right of recovery of the plaintiffs cannot prevail.

Upon the whole, the judgment of the court is, that the plaintiffs in error are entitled to the moiety of the land in controversy, which came by descent to their mother, Ann Shanks, and of course to the proceeds thereof; and that the decree of the State Court of Appeals ought to be reversed, and the cause remanded, with directions to enter a decree in favor of the plaintiffs in error.

Mr. Justice Johnson, dissenting.

This cause comes up from the State Court of South Carolina.

251*] *The question is whether the plain- | by Sir Mathew Hale, and in Æneas M’Donald's tiffs can inherit to their mother. The objection to their inheriting is, that they are aliens, not born in allegiance to the State of South Carolina, in which the land lies. From the general disability of aliens they would exempt themselves, 1. On the ground that their mother was a citizen born, and in that right, though born abroad, they can inherit under the statute of Edward III.; 2. That if not protected by that statute, then their mother was a British subject, and that she and her heirs are protected as to this land by the Treaties of 1783 and

By the adoption of the Constitution, the power of the States in this respect was subject252] ed to some modification. But although The words of the treaty are: "It is agreed restrained in some measure from determining that British subjects who now hold lands in who cannot inherit, I consider her power still the territories of the United States, and Amersupreme in determining who can inherit. On ican citizens who now hold lands in the dominthis subject her own laws and her own courts ions of his majesty," shall continue to hold and furnish the only rule for governing this or any transmit to their heirs, etc. other tribunal.

pass upon is, whether, being recognized der that character, and possessing those 254*] *rights, she is still a British subject within the provisions of the treaty.

It is no sufficient answer to this question that it cannot be denied that Mrs. Shanks was a British subject. She was so in common with the whole American people. The argument, therefore, proves too much, if it proves any-munity of which he then constituted a member. thing; since it leads to the absurdity of supposing that Great Britain was stipulating for the protection of her enemies, and imposing on us an obligation in favor of our own citizens.

It also blends and confounds the national character of those, to separate and distinguish whom was the leading object of the Treaty of 1783.

ereign powers, legislative, executive and judicial. We were dependent, it is true, upon the crown of Great Britain, but as to all the world beside, foreign and independent. It lies, then, at the basis of our Revolution, that when we threw off our allegiance to Great Britain, every member of each body politic stood in the relation of subject to no other power than the comThose who owed allegiance to the king, as of his Province of South Carolina, thenceforward owed allegiance to South Carolina. The courts of this country all consider this transfer of allegiance as resulting from the Declaration of Independence; the British from its recognition of the Treaty of Peace. But as to its effect, the British courts concur in our view of it. For, in the case of Thomas v. Acklam, 2 B. & C. 229, the language of the British court is this: "A

It cannot be questioned that the Treaty of 1783 must have left Mrs. Shanks a British subject, or the Treaty of 1794 cannot aid her off-declaration that a State shall be free, sovereign spring. And the idea of British subject under the latter treaty, will be best explained by reference to its meaning in that of 1783. The two treaties are in pari materia.

The provisions of the third article show that persons who come within the description of "people of the United States," were distinguished from subjects of Great Britain. That article stipulates for a right in the people of the United States to resort to the Gulf of St. Lawrence for fishing; a stipulation wholly nugatory, if not distinguishable from subjects of Great Britain.

and independent, is a declaration that the people composing that State shall no longer be considered as the subjects of that sovereign by whom the declaration is made."

From the previous relations of the colonies and mother country, it is obvious that the Declaration of Independence *must have [*256 found many persons resident in the country besides those whose allegiance was marked by the unequivocal circumstances of birth; many native-born British subjects voluntarily adhered to the Americans, and many foreigners had by settlement, pursuits or principles, devoted themselves to her cause.

would be no doubt. And the courts of that
State have put it beyond a doubt, that the
Revolution transferred her allegiance to that
State.

The fifth article is more explicit in the distinction. It first contains a provision in favor Whatever questions may have arisen as to of real British subjects, then one in favor of the national character or allegiance of these as persons resident in districts in possession of his to the case under review, which is that of a majesty's arms; and then stipulates that per-native-born citizen of South Carolina, there sons of any other description shall have liberty to go to and remain twelve months in the United States to adjust their affairs. These latter must have included the loyalists who had been banished or in any way subjected to punishment, who are explicitly distinguished from real British subjects, and thus classed, in order to avoid the question to whom their allegiance was due, or rather, because, by the same treaty, the king having renounced all claim to their allegiance, could no longer distinguish them as British subjects.

Can those any longer be denominated British 255] subjects *whose allegiance the King of Great Britain has solemnly renounced?

I know of no test more solemn or satisfactory than the liability to the charge of treason; not by reason of temporary allegiance, for that is gone with change of domicile; were those who could claim the benefit of the king's renunciation to the colonies, subject to any other than temporary allegiance, while commorant in Great Britain? I say they were not. Their right to inherit is not a sufficient test of that liability as to other nations, for that right results from a different principle, the exemption of a British subject from being disfranchised, while

free from crime.

Whoever will weigh the words "real British subjects," used in the fifth article, and consider the context, can come to but one conclusion, to wit, that it must mean British subjects to whose allegiance the States make no claim. "Estates that have been confiscated belonging to real British subjects" are the words. Now, it is notorious that, although, generally speaking, the objects of those confiscations were those to whose allegiance the States laid claim, yet in many instances the estates of British subjects resident in England or this country, or elsewhere, were confiscated, because they were British subjects, on the charge of adhering to the enemy. But if the right of election had ever been contemplated, why should the term real have been inserted? The loyalists were British subjects, and had given the most signal proofs of their election to remain such. What possible meaning can be attached to the term real, unless it raised a distinction to their prejudice? And, historically, we know that Great Britain acknowledged their merits by making large provisions for their indemnification; because for them there was no provision made for restoring their property.

Was Mrs. Shanks an individual to whose allegiance the King had renounced his claim? The commencement of the Revolution found It has been argued that the British courts, in us all, indeed, professing allegiance to the Brit- construing the Treaty of Peace, have recogish crown, but distributed into separate com- nized this right of election, and the case of munities, altogether independent of each other, Thomas v. Acklam, before cited, is supposed to and each exercising within its own limits sov-establish it. But a very little attention to that

case will prove the contrary. It is in fact the | upon to fix the period of her transit, it would converse of the present case. Mrs. Thomas was be obliged to confine itself to the act of her the daughter of Mr. Ludlow, an American citi- marrying against her allegiance. It is the zen born before the Revolution, and was born only free act of her life stated upon the record, 257*] *in America long after the separation; for from thence she continued sub potestate so that her alien character was unquestionable, viri; and if she or her descendants were now unless protected by the statute of George II. interested in maintaining her original allegexplaining those of Ann and Edward. The de- iance, we should hear it contended, and be comcision of the Court of King's Bench is, that to pelled to admit, that no subsequent act of her bring herself within the provisions of the stat- life could be imputed to her because of her ute, her father must be shown at her birth to coverture; and even her marriage was probably have been both a native born and a subject of during her infancy. Great Britain; that by the Treaty of Peace the king had renounced all claim to his allegiance, and his subsequent residence in America proved his acceptance of that renunciation.

But when did South Carolina renounce the allegiance of Mrs. Shanks? We have the evidence of the States having acquired it; when did she relinquish it? Or, if it be placed on the footing of an ordinary contract, when did South Carolina agree to the dissolution of this contract, or when did she withdraw her protection, and thus dissolve the right to claim obedience or subjection?

But, lastly, I deny this right of election altogether, as existing in South Carolina, more especially at that time.

I had this question submitted to me on my circuit some years since, and I then learned in favor of this right of election. But more mature reflection has satisfied me that I then gave too much weight to natural law and the suggestions of reason and justice in a case which ought to be disposed of upon the principles of political and positive law, and the law of nations.

That a government cannot be too liberal in extending to individuals the right of using their talents and seeking their fortunes wherever their judgments may lead them, I readily agree. There is no limit short of its own security, to which a wise and beneficent govern. [*259 ment would restrict its liberality on this subject. But the question now to be decided is of a very different feature; it is not one of expediency, but of right. It is, to what extent may the powers of government be lawfully exercised in restraining individual volition on the subject of allegiance; and what are the rights of the individual when unaffected by positive legis. lation?

It is true, the Treaty of 1794 drops the word real, and stipulates generally for British subjects and American citizens; construing the two treaties as instruments in pari materia. This circumstance is of little consequence; and however we construe it, the argument holds equally good, that the treaty could have been only meant to aid those who needed its aid, not those who were entitled under our own laws to every right which the treaty meant to secure; that is, those whose alien character prevented their holding lands, unless aided by some treaty or statute. Mrs. Shanks was not of this character or description; her right at all times to inherit has been recognized by paramount authority. But it is contended that it was at her election whether to avail herself of her birthright as a citizen of the State, or her birth-gether denies the right of putting off allegiance. right as a subject of Great Britain.

To this there may be several answers given. And first, the admission of this right would make her case no better under the construction of the treaty; for, having no need of its protection, as has been authentically recognized by the State decision, it cannot be supposed that she was an object contemplated by the treaty; 258*] she was not a British subject in *the sense of those treaties, especially if the two treaties be construed on the principle of instruments in pari materia.

Second, if she had the right of election, at what time did she exercise it? for she cannot claim under her election and against her election. If she exercised it prior to her father's death, then she was an alien at his death, and could not take even a right of entry by descent, as has been distinctly recognized in Hunter v. Fairfax, 7 Cranch, 619, and I think in some other cases. She then had nothing for the treaty to act upon.

But if her election was not complete until subsequent to her father's death, then it is clearly settled, that taking the oath of allegiance to a foreign sovereign produces no forfeiture, and she still had no need of a treaty to secure her rights to land previously descended to her. If the facts be resorted to, and the court is called

As the common law of Great Britain is the law of South Carolina, it would here, perhaps, be sufficient to state that the common law alto

British subjects are permitted, when not prohibited by statute (as is the case with regard to her citizens), to seek their fortunes where they please, but always subject to their natural allegiance. And although it is not regarded as a crime to swear allegiance to a foreign state, yet their government stands uncommitted in the subjects of the embarrassments in which a state of war between the governments of their natural, and that of their adopted allegiance, may involve the individual. On this subject the British government acts as circumstances may dictate to her policy. That policy is generally liberal; and as war is the calling of many of her subjects, she has not been rigorous in pur ishing them even when found with arms in thei hands, where there has been no desertion, and no proclamation of recall. The right, however, to withdraw from their natural allegiance, is universally denied by the common law.

It is true that, without any act of her own, Mrs. Shanks found herself equally amenable to both governments under the application of this common law principle. But from this only one consequence followed, which is, that so far as related to rights to be claimed or acquired. or duties to be imposed under the laws of either government, she was liable to become the victim of the will or injustice of either.