own country, for the protection of persons within its lines and general range of dominion."

Bishop, Mar. and Div. 392,393, 399.

See, also, Ruding v. Smith, 2 Hag. Con. R. 371; Rogers' Ec. Law, 652; Kent v. Burgess, 11 Sim. 361; Lord Clancurry's case, Cruise on Dignities, 276; Lloyd v. Petitjean, 2 Curt, Ec. 251; Calvin's case, 7 Co. 1, 17, b.; Campbell v. Hall, Cowp. 204, 209; Rex v. Brampton, 10 East, 282, 288; Fowler v. Smith, 2 Cal. 39; Poynter, Mar. and Div. 289; Woodd. Dig. 238, note; 1 Burge, Col. and For. Laws, 199; 2 Roper, Husb. and Wife, 497; Shelf. Mar. and Div. 78-87.

CHAPTER IX.

ALIENAGE OF THE HUSBAND OR WIFE AS AFFECTING THE RIGHT

1. Introductory.

2, 3. Alienage at common law.

OF DOWER.

4. Naturalization and denization at common law.

5, 6. Alicnage in the United States. 7-50. In the several States.

51. In the District of Columbia.

52. American statutory modifications of the common law considered.

53. Naturalization in the United States. 54-58. Naturalization in the United States prospective only.

59-61. What persons can not become citizens.

1. In pursuing our inquiries upon that branch of the law which relates to the legal capacity of the demandant to take and enjoy the estate of dower, and the personal disabilities which, in some instances, prevent it from attaching, our work would be but imperfectly performed, did we omit to notice the disqualification arising from alienage, which, established at a very early date, continues, though in a somewhat modified form, to exist in England, and in several of the American States.

Alienage at common law.

2. An alien is defined, in general terms, to be one who is born out of the allegiance of the king or commonwealth. By the common law a person laboring under this disability is incapable of acquiring title to real property by descent, nor can he acquire any other right in lands by title created by mere operation of law. If an alien purchase land, or if land be devised to him, the general rule is that he may take and hold the estate until an inquest of office had; but upon his death, it would instantly and of necessity, without any inquest of office, escheat to and vest in the State, because he is incompetent to transmit

1 Com. Dig. tit. Alien, A.: 1 Inst. sec. 198; Wood's Inst. 23; Calvin's case, 7 Co. 16, a.; Ainslie v. Martin, 9 Mass. 454, 459; Martin v. Woods, Ibid. 377; Jackson v. Burns, 3 Binney, 75; Dawson v. Godfrey, 4 Cranch, 321; Lambert's Lessee

Paine, 3 Ibid. 97; Kelly v. Harrison, 2 John. Cas. 29, 32, note; 2 Kent, 50.

by hereditary descent.' The reasons for not admitting aliens to the privileges of citizens are thus stated by Lord Coke: 1. The secrets of the realm might thereby be discovered. 2. The revenues of the realm, (the sinews of war, and ornament of peace,) should be taken and enjoyed by strangers born. 3. It should tend to the destruction of the realm. Which three reasons, he adds, do appear in the statute of 2 H. 5 Cap and 4 H. 5 Cap.

3. As the estate of dower is created by mere operation of law, it follows as a natural sequence to the premises above stated, that an alien can not take as tenant in dower. Accordingly we find it laid down as an established rule in the common law, that "if a man taketh an alien to wife and dieth, she shall not be endowed." So, also, "if the husband be an alien, the wife shall not be endowed." This stern rule of the common law was somewhat relaxed, in the time of Henry V., by an act of Parliament, under which alien women who from thenceforth should be married to Englishmen by license of the king, were enabled to demand their dower after the death of their husbands in the same manner as English women; but the rule in England, in other respects, continued without any material change until a comparatively recent date. By the statute of 7 & 8 Victoria, chapter 66, it is provided that foreign women, married to British subjects, shall thereby become naturalized. And as the effect of naturalization is to remove the disability resulting from alienage, the consequence is that, under this statute, alien women married to British subjects are not debarred, by reason of their alienage, from the enjoyment of the estate of dower. But this act does not appear, by its terms, to

12 Kent, 53, 54; Calvin's case, 7 Co. 25, a.; 1 Ventr. Rep. 417; Page's case, 5 Co. 52, a.; Collingwood v. Pace, 1 Sid. Rep. 193; s. c. 1 Lev. Rep. 59; Plowd. Rep. 229, b. 230, a.; Co. Litt. 2, b.; Fox v. Southack, 12 Mass. 143; Fairfax v. Hunter, 7 Cranch, 603, 619, 620; Orr v. Hodgson, 4 Wheat. 453; Governeur v. Robertson, 11 Ibid. 332; University v. Miller, 3 Dev. 192, 196; Montgomery v. Darion, 7 N. H. 475; People v. Folsom, 5 Cal. 373.

2 Calvin's case, 7 Co. 18, b.

3 Co. Litt. 31, b.; 32, a.; Jenk. Cent. 1, Ca. 2; 2 Saund. 46, n. 5; 2 Bl. Com. 131; 1 Bac. Ab. 135, tit. Aliens; 9 Viner's Ab. 211, tit. Dower, pl. 12; Park on Dower, 228, 229; 1 Greenl. Cruise, 173, 29, 30; 2 Kent's Com. 54; 4 Ibid. 36; Lambert on Dower, 15; Calvin's case, 7 Co. 25, a. and b.; 1 Ventr. 417; Molloy, 364; Lord Fairfax's case, 7 Cranch, 629.

4 Co. Litt. by Harg. & Butler, 31, b., n. 9; 1 Thomas' Coke, 572, n. 15; 2 Dany. 652, pl. 3; 9 Viner's Ab. 210, 211, tit. Dower, pl. 3, 4 ; Park on Dower, 228; 1 Bæc. Ab. 136, tit. Alien, note.

extend to cases where the husband is an alien and the wife a subject to the British crown, and as to this class of cases, therefore, the rule as stated by Lord Coke remains in substance unchanged.1

Effect of naturalization and denization at comman law.

4. To the general rule that an alien was incapable of becoming a tenant in dower, the common law annexed the important qualification that naturalization by act of Parliament, or denization by letters, patent from the king, should remove the disability, and permit the estate to attach. According to the principles of the English law, if an alien be naturalized by act of Parliament he is put in exactly the same condition, except as to eligibility to office, as if he had been born in the dominions of the king, and in all respects inherits like a natural-born subject.3 And, under the theory of the English constitution, which confers upon Parliament powers almost omnipotent in their character, the retrospective energy of an act of naturalization is such that it relates back to the period of the birth of the party, and consequently where an alien wife is naturalized she is thereby rendered dowable of all lands of which her husband was seised during the coverture, including those conveyed by him before her incapacity was removed. But with denization the effect is different. A denizen occupies a kind of middle state between an alien and a natural-born subject, and partakes of the characteristics of both. And although by denization the disability to take as tenant in dower is removed, nevertheless the right operates prospectively only, and is confined to such lands as were held by the husband at the time the wife became a denizen,

[1 This disability is now removed by Stat. 33 Vict. c. 14, 2, which provides that real and personal property of every description may be taken, acquired, held and disposed of by an alien, in the same manner in all respects as by a natural-born British subject, and that a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject. The act is not retrospective. Sharp v. St. Sauveur, L. R., 7 ch. 343.]

2 Co. Litt. 33, a.; Menvil's case, 13 Co. 23; Jenk. Cent. 1, case 2; 8 Petersd. Abr. 478; 9 Vin. Ab. 212, pl. 19; Park, Dow. 228.

3 Co. Litt. 129, a.; 1 Bac. Ab. tit. Alien, b.; 2 Bl. Com. 250; 1 Ibid. 134.

4 Co. Litt. 33, a.; 9 Vin. Abr. 212, pl. 19; 1 Bl. Com. 374, note 21; Park, Dow.

228; 1 Greenl. Cruise, 174, 30.

51 Bl. Com. 374; 11 Co. 67.