protected, not because he was a citizen, but on the ground of the treaty of 1794. In Massachusetts, on the strength of an act passed in 1777, persons born abroad, and coming into that state after 1776, and before 1783, and remaining there voluntarily, were adjudged to be citizens.b 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 *60 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 recognized by the chief justice of Massachusetts, in Ainslie v. Martin, though in the case of Phipps, a pauper,e it was declared 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. But if he was born in Massachusetts, and had returned during the war, though he had withdrawn himself before the date of independence, he was considered as retaining his citizenship.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 re ■ Jackson v. Wright, 4 Johns. Rep. 75. › Cummington v. Springfield, 2 Pick. Rep. 394. e Hebron v. Colchester, 5 Day's Rep. 169. 4 9 Mass. Rep. 460. 2 Pick. Rep. 394, note. ferred; and the sound and prevailing doctrine now is, that by the treaty of peace of 1783, Great Britain and the United States became respectively entitled, as against each other, to the allegiance of all persons who were at the time adhering to the governments respectively; and that those persons became aliens in respect to the government to which they did not *adhere. This is the meaning of the treaty of 1783, and it put an end to all conflicting and double allegiance growing out of the revolution. *61 Though an alien may purchase land, or take it by devise, yet he is exposed to the danger of being divested of the fee, and of having his lands forfeited to the state, upon an inquest of office found. His title will be good against every person but the state, and if he dies before any such proceeding be had, we have seen that the inheritance. cannot descend, but escheats of course. If the alien should undertake to sell to a citizen, yet the prerogative right of forfeiture is not barred by the alienation, and it must be taken to be subject to the right of the government to seize the land. His conveyance is good as against himself, and he may, by a fine, bar persons in re a Kilham v. Ward, 2 Mass. Rep. 236. Gardner v. Ward, ibid, 244, note. Doe v. Acklam, 2 Barnw. & Cress. 779. Inglis v. The Trustees of the Sailor's Snug Harbour, 3 Peters' U. S. Rep. 99, 164. Shanks v. Dupont, Ibid. 242. In Shanks v. Dupont, it was held, that though a woman was born in South Carolina, before the declaration of independence, and continued there until 1782, and became a citizen, yet as she was involved in the capture of Charleston in 1780, and married a British officer in 1781, and went with him to England in 1782, and remained and died there, after the peace of 1783, she was to be deemed an alien by the operation of the treaty of peace of 1783, inasmuch as she was born a British subject, and was at the time of the treaty of peace adhering to the British crown, and the treaty acted on the state of things as they then existed. So in Orser v. Hoag, 3 Hill, 79, it was held, that a person born in this country who left New-York in July, 1783, prior to the treaty of peace, with his family, with intent to reside in the British dominions and never return, was an alien, together with his children who went with him and resided in the British province. They were held incapable of taking from him lands in this state by descent. version and remainder, but the title is still voidable by the sovereign upon office found.a In Virginia, this prerogative right of seizing lands bona fide, sold by an alien to a citizen, is abolished by statute;b and so it was, to a limited degree in New-York, by an act in 1826.c An alien may take a lease for years of a house for the benefit of trade. According to Lord Coke,d none but an alien merchant can lease land at all, and he is restricted to a house, and if he dies before the termination of the lease, the remainder of the term is forfeited to the king, for the law gave him the privilege for habitation only, as necessary to trade, and not for the benefit of his representatives. The force of this rigorous doctrine of the common law is undoubtedly suspended with us, in respect to the subjects of those nations with whom we have commercial treaties; and it is justly doubted,e whether the common law be really so inhospitable; for it is inconsistent with the established maxims of sound policy, and the social intercourse of nations. Foreigners are admitted to the rights of citizenship with us on liberal terms, and as the law requires five, and only five years residence, to entitle them and their families to the benefits of naturalization, it would seem to imply a right, in the mean time, to the necessary use of real property; and if it were otherwise, the means would be interdicted which are requisite to render the five years residence secure and comfortable. *62 a 4 Leon, 84. Sheppard's Touchstone, by Preston, 56, 232. 7 Wheaton, 545. Coke's Reading on Fines, lec. 22. But by statute in New-York the escheat does not divest the right of a bona-fide purchaser. See Infra, vol. iv. p. 425. b Griffith's Law Register, tit. Virginia. Laws of New-York, sess. 49, ch. 297, sec. 3. The exemption from escheat of lands derived from or through an alien, is confined to lands actually possessed by a citizen prior to the 22d of April, 1825. N. Y. Revised Statutes, vol. i. p. 719, sec. 9. d Co. Litt. 2, b. • Harg. Co. Litt. n. 9, b. 1. Aliens are under the like disabilities as to uses and trusts arising out of real estates. An alien can be seized to the use of another, but the use cannot be executed as against the state, and will be defeated on office found." Nor can an alien be a cestui que trust but under the like disability, and it is said, that the sovereign may, in chancery, compel the execution of the trust.b Aliens are capable of acquiring, holding and transmitting moveable property, in like manner as our own citizens, and they can bring suits for the recovery and protection of that property. They may even take a mortgage upon real estate by way of security for a debt, and this I apprehend they may do without any statute permission, for it has been the *English law from the early ages. It is also so held in the supreme court of the United States, and that the alien *63 a Gilbert on Uses, by Sugden, 10, 367, 445. Preston on Conveyancing, vol. ii. p. 247. By the N. Y. Revised Statutes, vol. i. p. 718, all escheated lands, when held by the state or its grantees, are subject to the same trusts and charges to which they would have been subject, had they descended. b Attorney-General v. Sands, 3 Ch. Rep. 20. Hardress, 495, S. C. Com. Dig. tit. Alien, c. 3. Gilbert on Uses, by Sugden, 86, 404. Hubbard v. Goodwin, 3 Leigh, 492. It was held, in the last case, that upon a conveyance of land to a citizen upon express trust, to hold for the benefit of an alien in fee, the trust estate is acquired for the state, and a court of equity will compel the trustees to execute the trust for its benefit. The profits do not go to the state when acquired prior to the decree. It is doubted whether equity could raise or imply a resulting trust in order to forfeit it. Equity will never raise a resulting trust in fraud of the rights of the state, or of the law of the land. Leggett v. Dubois, 5 Paige, 114, S. P. On the other hand a conveyanee of land to a citizen as a trustee upon an express trust to sell the same, and pay over the proceeds to a creditor who is an alien, is a valid trust, and the interest of the alien creditor in the proceeds is not subject to forfeiture. The principle of public policy, prohibiting aliens from holding lands in the name of a trustee, does not apply to such a case. Equity holds the proceeds to be personal property which the alien may take. Craig v. Leslie, 3 Wheaton's Rep. 503. Anstice v. Brown, 6 Paige, 448. c7 Co. 17. Dyer's Rep. 2. b. d Year Book, 11 Edw. III., cited in the marginal note to 1 Dyer's Rep. 2, b. creditor is entitled to come into a court of equity to have the mortgage foreclosed, and the lands sold for the payment of his debt. The question whether the alien in such a case could become a valid purchaser of the mortgaged premises sold at auction at his instance, is left untouched; and as such a privilege is not necessary for his security, and would be in contravention of the general policy of common law, the better opinion would seem to be, that he could not, in that way, without special provision by statute, become the permanent and absolute owner of the fee.a Even alien enemies, resident in the country, may sue and be sued as in time of peace; for protection to their persons and property is due, and implied from the permission to them to remain, without being ordered out of the country by the President of the United States. The lawful residence does, pro hac vice, relieve the alien from the character of an enemy, and entitles his person and property to protection. The effect of war upon the rights of aliens we need not here discuss, as it has been already considered in a former part of this course of lectures, when treating of the law of nations.c *64 During the residence of aliens amongst us, they owe a local allegiance, and are equally bound with natives to obey all general laws for the maintenance of peace, and the preservation *of order, and which do not relate specially to our own citizens. This is a principle of justice and of public safety universally adopted; and if they are guilty of any illegal act, or involved in disputes with our citizens, or with each other, they are If an alien be entitled to hold and dispose of real estate, he may take a mortgage for the purchase money, and may become a re-purchaser on a sale made to enforce payment. New-York Revised Statutes, vol. i. p. 721, sec. 19. R. S. of New-Jersey, 1847, tit. 1, ch. 2. b Wells v. Williams, 1 Lord Raym. 282. Daubigny v. Davallon, 2 Anst. Rep. 462. Clark v. Morey, 10 Johns. Rep. 69. Russell v. Skipwith, 6 Binney's Rep. 241. • See vol. i. |