« ForrigeFortsett »
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 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.b The law, in *69 France, until within a recent period, was, *that a
stranger could not, except by special favour, dispose of his property by will; and when he died, the sovereign succeeded by right of inheritance to his estate. But the droit d'aubaine, under the articles of No. 726 and 912, of the code civil, was abolished in France, by a law of the 14th of July, 1819, and aliens can now acquire, enjoy, and transmit by will, and by descent, real and personal property, in the same manner as the other inhabitants of the kingdom. In case of succession among co-heirs, partly French and partly aliens, the French take of the property in France a portion equal to the value of the property situated in a foreign country, and from which they would be excluded under the foreign law or custom.
British subjects, under 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 if they 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 exist
a Code Napoleon, No 11. 726. 912.
• M. Toullier, in his Droit Civil Francais, tom. i. n. 265, cites for this 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.
c Repertoire de Juris. par Merlin, tit. Aubaine, and tit. Etranger, ch. 1,
ing at the time of the treaty, and not to titles subsequently acquired.a It was, therefore, a provision of a temporary character, and by the lapse of time is rapidly becoming unimportant and obsolete.
The legislature of New York, and probably of many other states, are in the practice of granting to particular aliens, by name, the privilege of holding real property; and by a permanent provision in New York, aliens are enabled 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
*70 the party previously take an oath that he is a resident in the state, and intends always to reside in the United States, and to become a citizen thereof as soon as he can be naturalized, and that he has taken the incipient measures required by law for that purpose. The power to sell, assign, mortgage and devise real eslate, is to continue for six years from the time of taking the oath; but the alien is not capable of taking or holding any lands, descended, devised, or conveyed to him previously to his becoming such resident, and taking the oath above mentioned ; and if he dies within the six years, his heirs, being inhabitants of the United States, take by descent, equally as if he had been a citizen.b There are statute provisions of the same import in favour of aliens in Maryland, South Carolina, Delaware, and Missouri; and in Louisiana, Pennsylvania, Kentucky, Virginia, Michigan, New Jersey, Illinois, Indiana, and Ohio, the disability of aliens to take, hold, and transmit real
property, seems to be essentially removed. In North Car
1 Wheaton, 300. 4 Ibid. 463. 7 Ibid. 535. 9 Ibid. 496. 12 Mass Rep. 143.
N. Y. Revised Statutes, vol. i. p. 720, sec. 15—20. This privilege in New-York was further enlarged in 1843, as see below note c.
e Griffith's Law Register, passim. i Const. Rep. S. C. 412. Christy's Dig. tit. Alien. A. Q. Review, No. 25. p. 115. Chase's Statutes of Ohio, vol. i. p. 404. Philips v. Rogers, 5 Martin's L. Rep. 700. Act of South Carolina, of 1799, prescribing the terms of denization. Purdon's Pent. Vol. II.
olina and Vermont, there is even a provision inserted in their constitutions, that every person of good character,
Dig. p. 56, 57. Elmer's Dig. 5. R. S. of New Jersey, of 1847, tit. 1. cl. 1. Territorial act of Michigan, of March 31st, 1827. Revised Laws of Illinois, edit. 1833, p. 626. Statute of Indiana, of January 14th, 1818. By the charter of William Penn, as proprietary of Pennsylvania, to the inhabitants, in 1683, it was declared, that in the case of aliens purchasing lands in the province, and dying therein without being naturalized, their estates should descend as if they were naturalized. Proud's Pennsylvania, vol. ij. App. 27. In Pennsylvania by the act of March 220, 1814, aliens who, on the 18th of June, 1812, resided in the state, and continued to reside therein, upon filing a declaration of an intention of becoming citizens, might take, hold and convey lands not exceeding 200 acres, nor in value $20,000, as fully as citizens might do, and by the act of 24th March, 1818, aliens not subjects of any state at war with the United States at the time of the purchase, might purchase and hold lands, not exceeding 5000 acres, equally as native citizens. This last act contained no condition with regard to residency. And by the act of March 21, 1837, purchases from aliens, and the titles of the heirs and devisees of aliens, were confirmed, subject to the vested rights of others. Under the construction given to the above act of 1818, (Reese v. Waters, 4 Watts & Serg. 145,) an alien husband acquires no title in his wife's estate of inheritance, as tenant by the curtesy initiate. In New-York, (Laws of N. Y. sess. 56. ch. 300, and sess. 57. ch. 37,) the prerogative right of escheat, in the case of aliens dying seised of lands, is much restricted, and the alien heirs, and the persons, obliged to deduce title through an alien, are entitled, upon certain moderate condi. tions, to a release of the interest of the state acquired by the escheat. In New-York, it is considered to be a settled rule of construction of statutes permitting aliens to purchase and hold lands within the state, to them and their heirs and assigns, that the alien heirs, devisees and purchasers of and from the alien so allowed to purchase, can take and hold in that capa. city, without prejudice to their title from alienism. See the act of April 22, 1798, ch. 72, and the proviso thereto ; and the acts of March 26th, 1802, ch. 49, and of April 8th, 1808, ch. 175, and the decision in Jackson V. Adams, 7 Wendell, 367, thereon. See also the cases of Goodell v. Jackson, 20 Johnson, 692 ; of Jackson v. Etz, 5 Cowen, 314, and of the Commonwealth v. Heirs of André, 3 Pick. Rep. 224, to the same point. Whether the heirs and purchasers of and from the heirs and purchasers of the first alien taker, can so take, may be a question, as the privilege is to the first grantee, his heirs and assigns, and does not necessarily extend to the heirs of the heir, or to the purchaser from the purchaser. The decision in the case of Aldrich v. Manion, 13 Wendell, 458, seems to limit the privilege to the immediate heirs and purchaser from the first privileged alien. The legislature of New York by various provisions have very great
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. In Connecticut, the superior court is invested with power at large, upon petition, to grant to resident aliens the right to take, hold, convey, and transmit real estate, in like manner as native citizens. 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
ly enlarged the capacity of aliens to take and hold real estate. (1.) Any alien who takes and files in the secretary of state's office, a deposition of being a resident, and of the intention of his permanent residence, and to become a citizen as soon as the naturalization laws permit, may take and hold real estate in fee, and for six years thereafter may sell, devise and dispose of the same, except that he shall not lease or demise the same until naturalized. (2.) Such alien shall not, however, take or hold real estate descended, devised or conveyed to him previously to such residence and deposition, but if he dies within the six years, his heirs being inhabitants, may take by descent as if he had been a citizen. (3.) If any alien sell lands so entitled by him to be held and sold, he may take in seo mortgages as a se. carity for the purchase money and re-purchase on the mortgage sales. (4.) All such aliens so holding real estates are subject to assessments, taxes and barthens as if they were citizens. (5.) All titles to lands by conveyance, descent or devise before the alien was qualified to take and hold, are confirmed on his naturalization, or if not naturalized, if he shall within one year from acquiring the title file his deposition, he may in that case hold and convey for the term of five years real estate. N. Y. Revised Statutes, vol. ii. 3d edit. p. 3—6. The Revised Statutes from p. 3 to p. 5 were doubtless intended to give a clear and condensed view of all the various statute provisions in favor of the rights and capacities of aliens in respect to real property, but such a view has not been answered, and the successive enactments are so tacked together as to lead to repetition and perplexity.
• Statutes of Connecticut, 1838, p. 287.
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, a 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. The privileges thus conferred are local and necessarily territorial in their nature. 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. It was declared in Corfield v. Coryell, that the privileges
and immunities conceded by the constitution of *72 the United States to citizens in the several states
were to be confined to those which were, in their nature, fundamental, and belonged of right to the citizens of all free governments. Such are the rights of protec
« Art. 4. sec, 2.
b 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 portentuous innovation. Mitford's History, vol. v. p. 9. The Athenians occasionally granted the right of intermarriage, and even the freedom of the . city to the inhabitants of foreign states. Schomann's Dissertations on the Assemblies of the Athenians, ed. Cambridge, 1838, p. 319. So, the Byzan. tines, to evince their deep gratitude to the Athenians for their assistance in the war against Philip of Macedon, broke in upon their ordinary policy, and granted, by law, to the Athenians, the right of intermarriage with their citizens, and the power of purchasing and holding lands in the Byzantine and Perinthian territories. Demost. Orat. De Corona, where the original decree is set forth at large. So also the inhabitants and colonists of the Latin cities in Latium, in the 6th century of Rome, were so much regarded as foreigners, that they could not buy or inherit land from Roman citizens, nor had they generally the right of intermarriage with Romans. Arnold's Hist. vol. iii. p. 14.
c 4 Wash. Cir. Rep. 371.