and such as he may thereafter acquire. As to all lands aliened by the husband prior to the denization of the wife, no right of dower attaches; "for," says Lord Coke, "she was absolutely disabled by the law, and by her birth not capable of dower, but her capacity and ability began only by her denization." In the United States the general doctrine is, that naturalization under the laws of Congress has an effect similar to that created in England by denization. It does not possess, in the estimation of our courts, the retroactive power attributed to the acts of the Parliament of Great Britain.2 Alienage as a ground of disability in the United States. 5. At one period in the history of our country, many interesting questions respecting rights of citizenship and of property, growing out of the anomalous condition of things produced by the war of the Revolution and the recognition of American independence by the British government, were presented to our courts for judicial determination. Thus, in Ainslie v. Martin,3 a person born in the colonies voluntarily withdrew into other parts of the British dominions before our independence was established, and never returned. The question afterwards arose whether he was to be considered a subject to the State in which he was born, and it was determined in the affirmative, upon the ground that his allegiance accrued to the State as the lawful successor of the king. A contrary doctrine had been held by the same court in the cases of Gardner v. Wood and Kilham v. Ward, and was afterwards asserted in the case of Phipps. The view of these earlier cases is also fairly deducible from the discussion in McIlvaine v. Coxe, and Chancellor Kent considers it the more reasonable doctrine that no antenatus ever owed allegiance to the United States, nor to any individual State, provided he withdrew himself from this country before the establishment of our independent government, and settled under the king's allegiance in another part of his dominions, and never after 1 Menvil's case, 13 Co. 23; Co. Litt. 33 a.; Jenk. Cent. 1, Ca. 2; 8 Petersd. Ab. 478; 9 Viner's Ab. 212, pl. 19: 1 Bl. Com. 374, n. 19; 1 Greenl. Cruise, 174, § 30; Park on Dower, 228. 2 See post, 54 et seq. s Ainslie v. Martin, 9 Mass. 454. 4 Gardner v. Wood, 2 Mass. 244, note; Kilham v. Ward, 2 Mass. 236. 5 Case of Phipps, 2 Pick. 394, note. McIlvaine v. Coxe, 2 Cranch, 280; 4 Ibid. 209. wards, prior to the treaty of peace, returned and settled here.' Where a native of Great Britain, a soldier in the British army, deserted from that army during the war of the Revolution, and was domiciled in Connecticut at the period of the treaty with Great Britain by which the independence of the United States was acknowledged, it was held that he hereby became a citizen of the United States. These, and questions of a kindred character, though invested with much interest at the period when they arose, have, in the progress of time, become of but little practical importance. The rights of property, as affected by discordant claims springing from questions of allegiance to the old government or to the new, have been, in a great measure, adjusted. It is very rarely, though it sometimes occurs, that a case arises involving the consideration of these questions, or any necessity for their determination. The provision of the treaty of 1794 between the United States and Great Britain, by which British subjects were confirmed in the titles which they then held to lands in this country, and as to those lands were not to be regarded as aliens, was also temporary in its character, inasmuch as it applied only to titles existing at the time the treaty was made. At this day it is regarded in a measure as obsolete.3 6. In the United States an alien is defined to be a person born out of the jurisdiction and allegiance of the Federal government. But by act of Congress of February 10th, 1855, any person born out of the limits and jurisdiction of the United States, whose father, at the time of the birth of such person, was a citizen of this country, shall be deemed and is declared a citizen of the United States. It is provided, however, that the rights of citizenship shall not extend to any person whose father never resided in the United States. Congress, by legislation, has provided the mode and directed the manner in which aliens may become naturalized, and thereby admitted to the 5 12 Com. 40; Respublica v. Chapman, 1 Dallas, 53; Jackson v. White, 20 John. 313; Calais v. Marshfield, 30 Maine R. 511; see, also, Inglis v. The Trustees of the Sailor's Snug Harbor, 3 Peters' U. S. Rep. 99, 122, 123. 2 Hebron v. Colchester, 5 Day, 169. See, upon this subject, 2 Kent's Com. 39-50, and note to Kelly v. Harrison, 2 John. Cas. 29, 31. 3 2 Kent, 69. 4 Ibid. 50; see Ainslie v. Martin, 9 Mass. 454; Martin v. Woods, Ibid. 377.` 5 10 Stat. 604, 21; Brightly's Dig. 132. [Rev. Stat. U. S. 351.] rights of citizenship.' It has also, to some extent, abrogated the senseless rule of the common law affecting the legal status and marital rights of alien women who are married to citizens of the United States. But, as a general rule, the rights and privileges of aliens within the several States, while they continue to hold that relation, particularly with reference to interests in real estate, are made the subject of statutory regulations in those States respectively. It is to these regulations, as well as to some portions of the acts of Congress above referred to, and some of the adjudicated cases bearing thereon, that it is now proposed to invite the attention of the reader. 7. Arkansas. By the act of 1837, in force in Arkansas, all aliens residing in that State who have made declaration according to law of their intention to become citizens of the United States, are made capable of taking by deed or will any estate in lands, and of holding, aliening, or devising the same; and upon the decease of any alien having title to lands according to that act, his estate shall pass and descend in the same manner as if he were a citizen of the United States; and it shall be no objection to the husband, widow, or kindred of such alien, or of any citizen deceased, taking lands by virtue of the law regulating the distribution of intestates' estates, that they are aliens, if at the time of the death of the intestate they reside within the limits of the United States.2 The act regulating dower provides that "the widow of an alien shall be entitled to dower of the estate of her husband, in the same manner as if such alien had been a native-born citizen of this State." 8. Alabama.-It has been held in Alabama that the wife of an alien, though herself an American citizen, is not dowable of his lands. The following provisions are contained in the Code of 1852: 1 See 2 Kent, 51-53, where most of these acts are referred to, and their various requirements pointed out and discussed. 2 Rev. Stat. ch. 7, 8 1; Dig. of Stat. (1848,) 149; Dig. of Stat. (1858,) p. 145. [Rev. Stat. 1874, p, 185.] 3 Rev. Stat. 1837, ch. 52, § 2; Dig. of Stat. (1848,) p. 444; Dig. of Stat. (1858,) p. 451. [Rev. Stat. 1874, p. 455, sec. 2211.] 4 Congregational Church v. Morris, 8 Ala. 182. See, also, Jinkins v. Noel, 3 Stew. 60; Smith v. Zaner, 4 Ala. 99; State v. Primrose, 3 Ala. 546; Etheridge v. Malempre, 18 Ala. 565. 1580. When the next of kin of the intestate are incapable of inheriting, from alienage, the estate descends to the nearest of kin of the intestate, who is a citizen of the United States. 1591. Any estate, or interest in real property, devised to a person or corporation incapable of taking, descends to the nearest of kin capable of taking, or if he have no heirs competent to take, to the residuary devisee, if any be named in the will capable of holding such estate or interest; otherwise to the husband or wife; otherwise to the State.1 9. Connecticut.-The Compiled Statutes of 1854 contain the following provisions: 6. Any alien who is a resident of this State or of any of the United States, may purchase, hold, inherit or transmit real estate in this State, in as full and ample a manner as native born citizens; and the wife of any alien capable of holding land in this State, may take and hold land in this State by devise or inheritance, and shall be entitled to dower in the land of her deceased husband; and the children and other lineal descendants of any person capable of holding lands in this State, may take and hold such land as heirs at law of such ancestor. 7. All conveyances and transfers of real estate, or of any interest therein, by deeds, devise or otherwise, heretofore made to any foreigner not authorized by law to hold real estate, and all conveyances and transfers of the same by such foreigner, are confirmed to such foreigner, his heirs or assigns, and made effectual to all intents and purposes, as though such foreigner had been a native born citizen.2 10. California.-By the constitution of California, foreigners who are bona fide residents of the State may enjoy the same rights in respect to their possession, enjoyment, and inheritance of property as native-born citizens. By the act of April 19, 1856, aliens are permitted to inherit and hold by descent in as full a manner as though they were native-born citizens of the State or of the United States; provided, that no non-resident foreigner shall take and enjoy any real estate within the limits. [In Alabama an alien resident or non-resident may now take and hold property, real and personal, either by purchase, descent or devise, and may dispose of and transmit the same by sale, descent or devise as a native citizen, and an alien devisee or next of kin of any person dying in the State possessed of real or personal property may take or inherit such property to the exclusion of the State, and of more remote, native or naturalized heirs of the decedent; Code of Ala. 1876, 2860, 2862. rester v. Forrester, 39 Ala. 320.] See For For for- 2 Comp. Stat. Conn. 1854, p. 630. [See General Statutes, 1875, p. 4.] mer laws see Stat. Conn. 1838, p. 287; Rev. Stat. 1849, tit. 29, ch. 1, ¿ 6. tare r. Sistare, 2 Root, 468, decided in 1796, dower was refused to the alien widow of a naturalized foreigner who had died intestate; but the decision was placed upon the ground that she was wilfully absent from him without his consent, she having remained in a foreign country. See, also, Whiting v. Stevens, 4 Conn. 44. 3 Art. 1, 17. of the State after five years from the time he shall inherit the same; but in case he do not appear or claim the estate within that period, then it shall be sold, and the proceeds held for the benefit of the non-resident or his legal representatives, to be paid within five years thereafter upon demand, and the production of satisfactory evidence of his or their right thereto. In the event that no proper claim to the fund is made within the extended term of five years, it becomes the property of the State.1 11 Delaware. By the Revised Code of 1852, aliens are permitted to purchase and hold real estate after having made a declaration of their intention to become citizens. So, also, they may take by descent, provided they are residents of the United States at the death of the intestate; and an alien widow residing in the United States at the death of her husband is entitled to dower.2 The foregoing provisions are made retrospective to January 22, 1811.3 12. Florida.-Aliens of any country or nation whatever may purchase, hold, sell, convey, or devise any lands and tenements in this State, to the same extent and with the same right as citizens of the United States. In making title by descent, it shall be no bar to a party that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien.' 13. Georgia.-Any adult male alien resident of the State, who has given notice of his intention to become a citizen of the United States according to the acts of Congress, is authorized to receive, purchase, and hold real estate as fully and completely as if he were a citizen of the United States, and after he shall have become a citizen by taking the oath ef allegiance in the manner prescribed by the acts of Congress, he is authorized to convey, devise, or mortgage his real estate, or any part thereof.5 Adult female aliens and minor aliens becoming residents of the State, are authorized to receive, purchase and hold real estate; and the former may convey, devise, or mortgage the same with 1 Wood's Cal. Dig. 427, Art. 2366. [See Civil Code, sec. 1404.] See Ramires v. Kent, 2 Cal. 558; People v. Folsom, 5 Cal. 373; Siemmessen v. Bofer, 6 Cal. 250; Farrell v. Enright, 12 Cal. 450; State v. Rogers, 13 Col. 159. 2 Rev. Code 1852, ch. 81, 1. [Rev. Code 1874, p. 493.] 3 Ibid. 2. [Rev. Code 1874, p. 493.] 4 Acts of Nov. 17, 1829, and February 17, 1833; Thompson's Dig. p. 190. [McClellan's Dig. 1881, p. 470.] Act of Dec. 21, 1849, 1; Cobb's New Dig. 367. |