If an estate be vested by deed in a husband and wife jointly (tenancy by the entirety) and one be a citizen and the other an alien, if the citizen die first the alien takes the whole estate, not by any descent, but as an incident to the original conveyance (viz., survivorship), and the alien would hold the whole estate, subject, however, to an inquest of office on the part of the State.1 This principle would also seem to apply to cases of joint tenancy, since the survivor takes the whole estate.

II. Special Questions concerning Alienage.-There are several questions of a special nature concerning alienage which may be conveniently considered at this point.

One of these is the effect of a marriage between a female citizen and an alien. Assuming the correctness of the common-law rules of citizenship, such a marriage cannot affect the status of the wife. She cannot be released from her existing allegiance except by the act of the State of which she is a citizen. Under the laws of Congress her children, if born abroad, will be aliens unless their father has become a citizen or has at some time resided within the United States. It may be urged in opposition to this view that she may lawfully "expatriate" herself. This point will be considered hereafter under the topic of "expatriation." (a)

The effect of existing treaties between the United States and other countries upon alienage should also be mentioned. Under the treaty-making power, the President and Senate of the United States may negotiate treaties which will give aliens belonging to the nation with whom the treaties are made, the right to hold land in the States and Territories of the Union, in a manner differing from that prescribed by the general rules governing aliens. The treaties become the supreme law of the land, and are binding upon the States in this as well as other respects.

Various treaties have been made with European and South American states, giving special privileges to their citizens as to holding and disposing of land in this country. It is not the policy of these treaties to stand in direct opposition to the policy of a State of the Union as to the disabilities of alienage, but for the most part to permit the heirs who are disqualified by alienage from holding land to sell the land, and withdraw the proceeds. This capacity is limited as to time. The periods vary. In some cases two or three years are named; in others, a reasonable time; in others still, the "longest period allowed by law." It is provided in a large number of treaties that succession

I Wright v. Saddler, 20 N. Y. 320.

(a) See post, p. 139.

duties or taxes are not to be larger than those imposed upon natives.1

There are certain special rules as to aliens in the various States of the Union. The rule is well settled that in general the capacity to hold land, or to convey or to devise it, as well as the capacity of the grantee or devisee or relative to take or inherit it, depends on the law of the State where the land is situated. This proposition must, as has been stated, be qualified by a recognition of the power of Congress to give the capacity by naturalization or by treaty. The States may accordingly adhere to the common law, or by statute or constitutional provision give more or less full capacity to aliens to take and hold land. Any privileges of this kind will be local and territorial in their character, having no effect in any other State.

The legislation of the States has been very diverse upon this subject. In a few States the common law still prevails without any legislation. In a large majority of the States the disability of alienage has been partly, but in general not wholly, removed. In some of the States the disability is removed or modified as to resident aliens, but continued as to non-residents. The details are so various that they cannot be conveniently brought within the compass of a note, but should be sought in the statutes themselves.3 In several of the States the disability of alienage is entirely removed, so that an alien can take and hold land as freely as a citizen.4

1 Reference may be conveniently made for details to the "Analytical Index" of "Treaties and Conventions between the United States and other Powers" (1889), p. 1422.

2 Notably Vermont.

8 See in New Hampshire, Laws of 1853, ch. 135, § 1; Stat. 1867, p. 253. In Connecticut, R. S. of 1866, p. 537 (a). In New York there has been a series of statutes. A principal feature of them is, that a resident may file with the Secretary of State a deposition prescribed by law, of his intention to become a citizen, and stating that he has taken the preliminary

(a) See New Hampshire Public Statutes, ch. 137, §§ 16, 17, Connecticut Gen eral Statutes, §§ 15, 16.

(b) This requirement is now necessary only in the case of males of full age. See Laws of 1875, ch. 38, amending ch. 115, Laws of 1845, Rev. St. (8th ed.) pp. 2425, 2426. As against every claimant except

steps (b). If he dies before naturalization, his heirs, if aliens, may succeed to his interest by filing a similar deposition. There is also ameliorating legislation in Delaware, Maryland, Indiana, Nevada, Kentucky, Oregon, California, Michigan, Missouri, Virginia, West Virginia, Texas, South Carolina, Arkansas, Tennessee, Pennsylvania, Iowa, and Mississippi.

4 The States referred to are Massachusetts, Rhode Island, Maine, New Jersey, Ohio, Illinois, Minnesota, Nebraska, Wisconsin, Kansas, Georgia, Colorado, Florida, and Louisiana.

the State the title of an alien heir is good without making the deposition. Stamm v. Bostwick, 122 N. Y. 48. Foreign-born children, and their descendants, of a woman born in the United States but married to an alien and residing abroad, may take and hold real estate in the same manner as citizens of the United States,

There is observable a reactionary tendency, particularly in some of the western States, owing in part to the fact that, by their liberal policy, very large properties have been acquired by aliens, who are suspected of not being disposed to make use of them in the manner most useful to the community where the lands are situated. This feeling found expression in Congress in a law passed in 1887,1 making it unlawful for aliens, unless they have declared their intention to become citizens, to take or hold real estate in the Territories or the District of Columbia, except so far as it has been acquired by inheritance or in the ordinary course of justice in the collection of debts created before the passage of the act. This law is not to interfere with existing treaties. Restrictions are also imposed upon the power of foreign corporations to acquire land, as well as upon all corporations more than twenty per cent. of whose stock is owned by persons not citizens of the United States. There are other restrictions upon the corporate power of acquisition of land not necessary to be stated in this connection. This legislation is prospective in its character, having no disturbing effect upon existing titles. Violation of the statute leads to forfeiture, to be enforced by the attorney-general of the United States.

III. Alien Enemies. Thus far it has been assumed that an alien, whether under or free from disability, is a friend. In time of war with the country of which he is a subject or a citizen, new questions will arise.

One

Two distinct cases of disability may exist in time of war. is, where a citizen of this country is domiciled in the country with which the United States are at war. Such a person, though not strictly an enemy, is to be deemed so with reference to the seizure of so much of his property concerned in the trade of the enemy as is connected with his foreign residence. This character, gained by foreign residence, may be shaken off as soon as he puts himself in motion to leave the foreign country with no intention of returning there.2 Leaving this special case out of view, an alien enemy is subject to the following disabilities.

(1) He has no standing in our courts. He cannot prosecute any suit in the courts of this country. He cannot sustain claim in a prize court.3 There is an exception to this rule where the

1 Ch. 340, Laws of 1887.

2 The Venus, 8 Cranch, 253. provided the title is derived through such woman or an ancestor who was a citizen of the United States. Laws of 1889, ch. 42. By a still later statute any person may inherit or take real property in New York,

8 The Emulous, 1 Gall. 563; Johnson v. Thirteen Bales, &c. 2 Paine, 639. He

notwithstanding the fact that he is a nonresident alien, if the title is derived from a citizen of the United States. Laws of 1893, ch. 207.

cause of action arises out of a trade licensed by the United States, since the right to sue is an incident to the right to trade and to contract. Such a license may sometimes be presumed, as, for example, where a merchant resided here before the war, and continued to do so until the time of the commencement of the action.2 An alien domiciled here before the war, and continuing here, owes allegiance, and, if he gives "aid and comfort" to the enemy, is liable to prosecution for treason.3

(2) His contracts as to the matter of legality. Two general cases must be considered: first, contracts between citizens of the foreign State, not in aid of the war, and afterwards sought to be enforced in our courts. Such a contract is valid and enforceable here. This rule was applied to contracts made in the Confederate States during the late Civil War. If such a contract had been made in aid of the rebellion it would have been treated as void by our courts. The second class includes contracts between citizens of two countries at war with each other. Such a contract is contrary to public policy and void. It will be invalid even after peace is established, because it is void in its inception."

If a valid contract were made in time of peace, a subsequent war would not make it void in its inception. The right of action will be suspended during the war, but will in general revive after peace is declared. There may be special cases in which the contract is dissolved. An instance may be that of a policy of life insurance, with payments of premiums to be made at recurring intervals during the war. While the war continues, the payments must be suspended. A difference of opinion prevails as to the point whether this state of things dissolves the contract, or whether it revives in time of peace. The Supreme Court of the United States has decided that the entire contract in this particular case is dissolved, owing to the peculiar nature of the contract of life insurance when based upon periodical payments by the insured. The time of payment is material and of the essence of the contract. So an agent, having authority before

may sue in an admiralty as distinguished from a prize court. United States v. Shares of Stock, 5 Blatch. 231.

1 Crawford v. The Wm. Penn, Pet. C. Ct. 106; Usparicha v. Noble, 13 East, 332.

6 Desmare v. United States, 93 U. S. 605.

6 Hart v. United States, 15 Ct. of Claims, 414; Craft v. United States, 12 Ct. of Claims, 178; Griswold v. Waddington, 16 Johns. 438; Willison v. Patteson,

2 Otteridge v. Thompson, 2 Cranch, C. 7 Taunt. 439; Matthews v. McStea, 91 Ct. 108.

147.

Carlisle v. United States, 16 Wall.

• Wilmington R. R. Co. v. King, 91 U. S. 3; Lockhart v. Horn, 1 Woods, 628.

U. S. 7; Ins. Co. v. Davis, 95 U. S. 425.

7 New York Life Ins. Co. v. Statham, 93 U. S. 24; Ins. Co. v. Davis, 95 U. S. 425.

8 New York Life Ins. Co. v. Statham, Ins. Co. v. Davis, supra.

the war to collect debts in the enemy's country, may with the consent of the creditor continue to do so after the war, so that the payment will be a discharge to the debtor; but without such consent the agency is absolutely terminated. In the case cited in the note it was said, "that war suspends all commercial intercourse between the citizens of two belligerent countries or States, except so far as may be allowed by the sovereign authority, has been so often asserted and explained in this court within the last fifteen years that any further discussion of that proposition would be out of place." 2 A different view of the rule governing life insurance in such a case has been taken by the New York Court of Appeals, where it was decided that the payments were only suspended during the war, and that the right to make them, with interest added, revived in time of peace.3

It seems that the lawfulness of commercial intercourse in such cases may depend on the place of one's domicile. Thus, one who fled from the Confederate States when the war broke out might, by an agent appointed before the war, carry on ordinary commercial intercourse within the lines of the enemy, while this would not be true of one who, being domiciled in one of the loyal States, was at the time living within the States of the Confederacy.

IV. The Right of Expatriation. The right to expatriate one's self, and thus become an alien, has been largely discussed. If the common-law doctrine of allegiance is to be sustained there can be no absolute right of this kind, nor can any such right be conceded by a nation consistently with the power of a society of men to continue its national existence. A nation with the absolute right of expatriation once established, would not be a coherent and single body, but a mere aggregation of individuals without any tie binding them together. In time of war it could not resort to a compulsory draft, nor could there be any adequate security for the fulfilment of treaties or other public engagements. The state, on its part, might with equal propriety claim the right to repudiate a citizen at pleasure. Jurists and judicial tribunals have refused to recognize any absolute right of expatriation, and have declared that the assent of the nation is in some form necessary. Legislative bodies have made declarations upon this subject of a different character. By the Revised Statutes of the United States, it is recited that" whereas the right of expatriation is a natural and