Thomas Scott, a native of South Carolina, died in 1782
intestate, seized of lands on James Island, having two daughters,
Ann and Mary, both born in South Carolina, before the declaration
of independence. Sarah married D. P., a citizen of South Carolina,
and died in 1802, entitled to one-half of the estate. The British
took possession of James Island and Charleston in February and May,
1780, and in 1781 Ann Scott married Joseph Shanks, a British
officer, and at the evacuation of Charleston, in 1782, she went to
England with her husband, where she remained until her death in
1801. She left five children, born in England. They claimed the
other moiety of the real estate of Thomas Scott, in right of their
mother, under the ninth article of the Treaty of Peace between this
country and Great Britain of 19 November, 1794.
Held that
they were entitled to recover and hold the same.
If Ann Scott was of age before December, 1782, as she remained
in South Carolina until that time, her birth and residence must be
deemed to constitute her, by election, a citizen of South Carolina
while she remained in that state. If she was not of age then, under
the circumstances of this case, she might well be deemed to hold
the citizenship of her father, for children born in a country,
continuing while under age in the family of the father, partake of
his natural character as a citizen of that country.
All British born subjects whose allegiance Great Britain has
never renounced ought, upon general principles of interpretation,
to be held within the intent, as they certainly are within the
words, of the Treaty of 1794.
The capture and possession of James Island in February, 1780,
and of Charleston on 11 May in the same year, by the British troops
was not an absolute change of the allegiance of the captured
inhabitants. They owed allegiance to the conquerors during their
occupation; but it was a temporary allegiance, which did not
destroy, but only suspended their former allegiance.
The marriage of Ann Scott with Shanks, a British officer, did
not change or destroy her allegiance to the State of South
Carolina, because marriage with an alien, whether friend or enemy,
produces no dissolution of the native allegiance of the wife.
The general doctrine is that no person can, by any act of their
own, without the consent of the government, put off their
allegiance and become aliens.
The subsequent removal of Ann Shanks to England, with her
husband, operates as a virtual dissolution of her allegiance, and
fixed her future allegiance to the British Crown by the treaty of
peace in 1783.
The Treaty of 1783 acted upon the state of things as it existed
at that period. It took the actual state of things as its basis.
All those, whether natives or otherwise, who then adhered to the
American states were virtually absolved from all allegiance to the
British Crown; all those who then adhered to the British Crown were
deemed and held subjects of that Crown. The treaty of peace was
a
Page 28 U. S. 243
treaty operating between states and the inhabitants thereof.
The incapacities of
femes covert provided by the common
law apply to their civil rights, and are for their protection and
interest. But they do not reach their political rights nor prevent
their acquiring or losing a national character. These political
rights do not stand upon the mere doctrines of municipal law,
applicable to ordinary transactions, but stand upon the more
general principles of the law of nations.
The facts of the case are fully stated in the opinion of the
Court.
MR. JUSTICE STORY delivered the opinion of the Court.
This was a writ of error to the highest court of appeals in
Page 28 U. S. 244
law and equity of the State of South Carolina, brought to revise
the decision of that court in a bill or petition in equity in which
the present defendants were original plaintiffs and the present
plaintiffs were original defendants. From the record of the case it
appeared that the controversy before the court respected the right
to the moiety of the proceeds of a certain tract of land which had
been sold under a former decree in equity, and the proceeds of
which had been brought into the registry of the court. One moiety
of the proceeds had been paid over to the original plaintiffs, and
the other moiety was now in controversy. The original plaintiffs
claimed this moiety also upon the ground that the original
defendants were aliens, and incapable of taking the lands by
descent from their mother, Ann Shanks (who was admitted to have
taken the moiety of the land by descent from her father, Thomas
Scott), they being British born subjects.
The facts, as they were agreed by the parties and as they
appeared on the record, were as follows:
Thomas Scott the ancestor and first purchaser, was a native of
the Colony of South Carolina, and died intestate, seized of the
lands in dispute, in 1782. He left surviving him two daughters,
Sarah and Ann, who were also born in South Carolina before the
declaration of independence.
Sarah Scott intermarried with Daniel Pepper, a citizen of South
Carolina, and resided with him in that state until 1802, when she
died leaving children, the present defendants in error, whose right
to her share of the property is conceded.
The British took possession of James Island on 11 February,
1780, and Charleston surrendered to them on 11 May in the same
year.
In 1781, Ann Scott was married to Joseph Shanks, a British
officer, and at the evacuation of Charleston in December, 1782,
went with him to England, where she remained until her death in
1801. She left five children, the present plaintiffs in error,
British subjects, who claimed in right of their mother, and under
the ninth article of the treaty of peace between this country and
Great Britain of 19 November 1794, a moiety of their grandfather's
estate in South Carolina.
The decision of the state court was against this claim as not
within the protection of the treaty because Mrs. Shanks was an
American citizen.
Page 28 U. S. 245
After the elaborate opinions expressed in the case of
Inglis
v. Trustees of the Sailor's Snug Harbor, ante, p.
28
U. S. 99, upon the question of alienage, growing out of
the American Revolution, it is unnecessary to do more in delivering
the opinion of the Court in the present case than to state in a
brief manner the grounds on which our decision is founded.
Thomas Scott, a native of South Carolina, died in 1782 seized of
the land in dispute, leaving two daughters surviving him, Sarah,
the mother of the defendants in error, and Ann, the mother of the
plaintiffs in error. Without question, Sarah took one moiety of the
land by descent, and the defendants in error, as her heirs, are
entitled to it. The only question is whether Ann took the other
moiety by descent, and if so whether the plaintiffs in error are
capable of taking the same by descent from her.
Ann Scott was born in South Carolina before the American
revolution, and her father adhered to the American cause and
remained and was at his death a citizen of South Carolina. There is
no dispute that his daughter Ann, at the time of the Revolution and
afterwards, remained in South Carolina until December, 1782.
Whether she was of age during this time does not appear. If she
was, then her birth and residence might be deemed to constitute her
by election a citizen of South Carolina. If she was not of age,
then she might well be deemed under the circumstances of this case
to hold the citizenship of her father, for children born in a
country, continuing while under age in the family of the father,
partake of his national character as a citizen of that country. Her
citizenship, then, being
prima facie established, and
indeed this is admitted in the pleadings, has it ever been lost, or
was it lost before the death of her father, so that the estate in
question was, upon the descent cast, incapable of vesting in her?
Upon the facts stated, it appears to us that it was not lost and
that she was capable of taking it at the time of the descent
cast.
The only facts which are brought to support the
Page 28 U. S. 246
supposition that she became an alien before the death of her
father are that the British captured James Island in February,
1780, and Charleston in May, 1780; that she was then and afterwards
remained under the British dominion in virtue of the capture; that
in 1781, she married Joseph Shanks, a British officer, and upon the
evacuation of Charleston in December, 1782, she went with her
husband, a British subject, to England and there remained until her
death in 1801. Now in the first place the capture and possession by
the British was not an absolute change of the allegiance of the
captured inhabitants. They owed allegiance indeed to the conquerors
during their occupation, but it was a temporary allegiance which
did not destroy but only suspend their former allegiance. It did
not annihilate their allegiance to the State of South Carolina and
make them
de facto aliens. That could only be by a treaty
of peace which should cede the territory, and them with it, or by a
permanent conquest, not disturbed or controverted by arms, which
would lead to a like result. Neither did the marriage with Shanks
produce that effect, because marriage with an alien, whether a
friend or an enemy, produces no dissolution of the native
allegiance of the wife. It may change her civil rights, but it does
not effect her political rights or privileges. The general doctrine
is that no persons can by any act of their own, without the consent
of the government, put off their allegiance and become aliens. If
it were otherwise, then a
femme alien would by her
marriage become,
ipso facto, a citizen, and would be
dowable of the estate of her husband, which are clearly contrary to
law. [
Footnote 1]
Our conclusion therefore is that neither of these acts warrants
the Court in saying that Ann Shands had ceased to be a citizen of
South Carolina at the death of her father. This is not, indeed,
controverted in the allegations of the parties.
The question, then, is whether her subsequent removal with her
husband operated as a virtual dissolution of her allegiance and
fixed her future allegiance to the British Crown
Page 28 U. S. 247
by the Treaty of Peace of 1783. Our opinion is that it did. In
the first place, she was born under the allegiance of the British
Crown, and no act of the government of Great Britain ever absolved
her from that allegiance. Her becoming a citizen of South Carolina
did not,
ipso facto, work any dissolution of her original
allegiance, at least so far as the rights and claims of the British
Crown were concerned. During the war, each party claimed the
allegiance of the natives of the colonies as due exclusively to
itself. The American states insisted upon the allegiance of all
born within the states respectively, and Great Britain asserted an
equally exclusive claim. The Treaty of Peace of 1783 acted upon the
state of things as it existed at that period. It took the actual
state of things as its basis. All those, whether natives or
otherwise, who then adhered to the American states were virtually
absolved from all allegiance to the British Crown. All those who
then adhered to the British Crown were deemed and held subjects of
that Crown. The treaty of peace was a treaty operating between the
states on each side, and the inhabitants thereof; in the language
of the seventh article, it was a firm and perpetual peace between
his Britannic majesty and the said states, "and between the
subjects of the one and the citizens of the other." Who were then
subjects or citizens, was to be decided by the state of facts. If
they were originally subjects of Great Britain and then adhered to
her, and were claimed by her as subjects, the treaty deemed them
such. If they were originally British subjects, but then adhering
to the states, the treaty deemed them citizens. Such, I think, is
the natural and indeed almost necessary meaning of the treaty; it
would otherwise follow that there would continue a double
allegiance of many persons -- an inconvenience which must have been
foreseen and would cause the most injurious effects to both
nations.
It cannot, we think, be doubted that Mrs. Shanks, being then
voluntarily under British protection and adhering to the British
side, by her removal with her husband was deemed by the British
government to retain her allegiance and to be to all intents and
purposes a British subject. It may
Page 28 U. S. 248
be said that, being
sub potestate viri, she had no
right to make an election; nor ought she to be bound by an act of
removal under his authority or persuasion. If this were a case of a
crime alleged against Mrs. Shanks in connection with her husband,
there might be force in the argument. But it must be considered
that it was, at most, a mere election of allegiance between two
nations, each of which claimed her allegiance. The governments, and
not herself, finally settled her national character. They did not
treat her as capable by herself of changing or absolving her
allegiance, but they virtually allowed her the benefit of her
choice by fixing her allegiance finally on the side of that party
to whom she then adhered.
It does not appear to us that her situation as a
feme
covert disabled her from a change of allegiance. British
femes covert residing here with their husbands at the time
of our independence and adhering to our side until the close of the
war have been always supposed to have become thereby American
citizens and to have been absolved from their antecedent British
allegiance. The incapacities of
femes covert provided by
the common law apply to their civil rights and are for their
protection and interest. But they do not reach their political
rights nor prevent their acquiring or losing a national character.
Those political rights do not stand upon the mere doctrines of
municipal law applicable to ordinary transactions, but stand upon
the more general principles of the law of nations. The case of
Martin v. Commonwealth, 1 Mass. 347, turned upon very
different considerations. There the question was whether a
feme
covert should be deemed to have forfeited her estate for an
offense committed with her husband by withdrawing from the state,
&c., under the Confiscation Act of 1779, and it was held that
she was not within the purview of the act. The same remark disposes
of the case of
Sewall v. Lee, 9 Mass. 363, where the court
expressly refused to decide whether the wife by her withdrawal with
her husband became an alien. But in
Kelly v. Harrison, 2
Johns. 29, the reasoning of the court proceeds upon the supposition
that the wife might have acquired the same
Page 28 U. S. 249
citizenship with her husband by withdrawing with him from the
British dominions. [
Footnote
2]
But if Mrs. Shanks' citizenship was not virtually taken away by
her adherence to the British at the peace of 1783, still it must be
admitted that, in the view of the British government, she was at
that time and ever afterwards to the time of her death, and indeed
at all antecedent periods, a British subject. At most, then, she
was liable to be considered as in that peculiar situation in which
she owed allegiance to both governments
ad utriusque fidem
regis. Under such circumstances, the question arose whether
she and her heirs are not within the purview of the ninth article
of the treaty with Great Britain of 1794. It appears to us that
they plainly are. The language of that article is
"That British subjects who now hold lands in the territories of
the United States and American citizens who now hold lands in the
dominions of His Majesty shall continue to hold them according to
the nature and tenure of their respective estates and titles
therein,"
&c., and that neither they nor their heirs or assigns shall,
so far as respects the said lands, and the legal remedies incident
thereto, be regarded as aliens.
Now Mrs. Shanks was at the time a British subject, and she then
held the lands in controversy; she is therefore within the words of
the treaty. Why ought she not also to be held within the spirit and
intent? It is said that the treaty meant to protect the rights of
British subjects who were not also American citizens, but that is
assuming the very point in controversy. If the treaty admits of two
interpretations and one is limited and the other liberal, one which
will further, and the other exclude private rights, why should not
the most liberal exposition be adopted? The object of the British
government must have been to protect all her subjects holding lands
in America from the disability of alienage in respect to descents
and sales. The class of American loyalists could at least, in her
eyes, have been in as much favor as any other; there is nothing in
our public policy which is
Page 28 U. S. 250
more unfavorable to them than to other British subjects. After
the peace of 1783, we had no right or interest in future
confiscation, and the effect of alienage was the same in respect to
us whether the British subject was a native of Great Britain or of
the colonies. This part of the stipulation then being for the
benefit of British subjects who became aliens by the events of the
war, there is no reason why all persons should not be embraced in
it who sustained the character of British subjects, although we
might also have treated them as American citizens. The argument
supposes that because we should treat them as citizens, therefore
Great Britain had no right to insist upon their being British
subjects within the protection of the treaty. Now if they were in
truth and in fact, upon principles of public and municipal law,
British subjects, she has an equal right to require us to recognize
them as such. It cannot be doubted that Mrs. Shanks might have
inherited any lands in England as a British subject, and her heirs
might have taken such lands by descent from her. It seems to us,
then, that all British born subjects whose allegiance Great Britain
has never renounced ought, upon general principles of
interpretation, to be held within the intent, as they certainly are
within the words, of the Treaty of 1794.
In either view of this case, and we think both are sustained by
principles of public law as well as of the common law, and by the
soundest rules of interpretation applicable to treaties between
independent states, the objections taken to the right of recovery
of the plaintiffs cannot prevail.
Upon the whole, the judgment of the Court is that the plaintiffs
in error are entitled to the moiety of the land in controversy,
which came by descent to their mother, Ann Shanks, and of course to
the proceeds thereof, and that the decree of the state court of
appeals ought to be
Reversed and the cause remanded with directions to enter a
decree in favor of the plaintiffs in error.
MR. JUSTICE JOHNSON, dissenting.
This cause comes up from the state court of South Carolina.
Page 28 U. S. 251
The question is whether the plaintiffs can inherit to their
mother. The objection to their inheriting is that they are aliens,
not born in allegiance to the State of South Carolina, in which the
land lies. From the general disability of aliens they would exempt
themselves 1. on the ground that their mother was a citizen born,
and in that right, though born abroad, they can inherit under the
statute of Edward III; 2. that if not protected by that statute,
then that their mother was a British subject, and that she and her
heirs are protected as to this land by the treaties of 1783 and
1794.
The material facts of their case are that their mother and her
father were natives born of the province of South Carolina before
the declaration of independence; that in 1781, while Charleston and
James Island, where the land lies and she and her father resided,
were in possession of the British, their mother married their
father, a British officer. That the descent was cast in 1782, and
in December of that year, when the town was evacuated, she went to
England with her husband and resided there until her death in 1801,
in which interval the appellants were born in England.
There is no question about the right of the appellees if the
right of the appellants cannot be maintained.
The first of the grounds taken below, to-wit the statute of
Edward III, was not pressed in argument here and must be regarded
as abandoned. The second requires, therefore, our sole
attention.
Was Mrs. Shanks to be regarded as a British subject within the
meaning of our treaties with Great Britain? If so, then the land
which was acquired in 1782 has the peculiar incident attached to it
of being inheritable by aliens, subjects of Great Britain.
Until the adoption of the federal Constitution, titles to land
and the laws of allegiance were exclusively subjects of state
cognizance. Up to the time, therefore, when this descent was cast
upon the mother, the State of South Carolina was supreme and
uncontrollable on the subject now before us.
By the adoption of the Constitution, the power of the states in
this respect was subjected to some modification.
Page 28 U. S. 252
But although restrained in some measure from determining who
cannot inherit, I consider her power still supreme in determining
who can inherit. On this subject, her own laws and her own courts
furnish the only rule for governing this or any other tribunal.
By an act of the state passed in 1712, the common law of Great
Britain was incorporated into the jurisprudence of South Carolina.
In the year 1782, when this descent was cast, it was the law of the
land, and it becomes imperative upon these appellants after
admitting that their parent was a native born citizen of South
Carolina, daughter of a native born citizen of South Carolina, to
show on what ground they can escape from the operation of these
leading maxims of common law.
Nemo potest exuere patriam
-- and
proles sequitur sortem paternam.
The unyielding severity with which the courts of Great Britain
have adhered to the first of these maxims in
Dr. Storie's
Case furnished by Sir Mathew Hale, and in
AEneas
McDonald's Case, to be found in Foster, leaves no ground of
complaint for its most ordinary application in the case of descent,
and its most liberal application when perpetuating a privilege.
The treaty of peace can afford no ground to the appellants, nor
the construction which has extended the provisions of that treaty
to the case of escheat, for the question here is not between the
alien and the state, but between aliens and other individual
claimants. The words of the sixth article of the Treaty of 1783 are
the same as those in the preliminary treaty of 1782.
"There shall be no future confiscations made or future
prosecutions commenced against any person or persons by reason of
the part which he or they may have taken in the present war."
Conceding that escheat may be comprised under confiscation, a
decision between individuals claiming under no act of force
imputable to the state cannot possibly be considered under that
term.
Nor will her case be aided by the following words of that
article, to-wit,
"nor shall any person on that account [the part which he or they
may have taken in the present war]
Page 28 U. S. 253
suffer any future loss or damage either in person, liberty, or
property."
The decision of the state court gives the most liberal extension
possible to this provision of the treaty, since it declares that
Mrs. Shanks never was precluded by any act of hers from claiming
this property. It never entered into the minds of that court that
the very innocent act of marrying a British officer was to be
tortured into "taking a part in the present war," nor that
following that officer to England and residing there under
coverture was to be imputed to her a cause of forfeiture.
I consider it very important to a clear view of this question
that its constituents or several members should be viewed
separately.
The state court has not pretended to impugn the force of the
Treaty of 1794 or denied the obligation to concede every right that
can be fairly and legally asserted under it, but has only adjudged
that the case of the appellants is not one which on legal grounds
of construction can be brought within its provision.
The words of the treaty are:
"It is agreed that British subjects who now hold lands in the
territories of the United States and American citizens who now hold
lands in the dominions of his majesty,"
shall continue to hold and transmit to their heirs, &c.
The decision of the state court which we are now reviewing,
presents two propositions:
1. That Mrs. Shanks was, in the year 1782, when the descent was
cast, and continued to be in 1794, when the treaty was ratified, a
citizen of South Carolina.
2. That she was not a British subject in the sense of the
treaty.
As to the first of these two propositions, I consider it as
altogether set at rest by the decision itself; it is established by
paramount authority, and this Court can no more say that it is not
the law of South Carolina than it could deny the validity of a
statute of the state passed in 1780 declaring that to be her
character and those her privileges.
The only question, therefore, that this Court can pass upon is
whether, being recognized under that character and
Page 28 U. S. 254
possessing those rights, she is still a British subject within
the provisions of the treaty.
It is no sufficient answer to this question that it cannot be
denied that Mrs. Shanks was a British subject. She was so in common
with the whole American people. The argument therefore proves too
much, if it proves anything, since it leads to the absurdity of
supposing that Great Britain was stipulating for the protection of
her enemies and imposing on us an obligation in favor of our own
citizens.
It also blends and confounds the national character of those to
separate and distinguish whom was the leading object of the Treaty
of 1783.
It cannot be questioned that the Treaty of 1783 must have left
Mrs. Shanks a British subject, or the Treaty of 1794 cannot aid her
offspring. And the idea of British subject under the latter treaty
will be best explained by reference to its meaning in that of 1783.
The two treaties are
in pari materia.
The provisions of the third article show that persons who come
within the description of "People of the United States" were
distinguished from subjects of Great Britain. That article
stipulates for a right in the people of the United States to resort
to the Gulf of St. Lawrence for fishing -- a stipulation wholly
nugatory if not distinguishable from subjects of Great Britain.
The fifth article is more explicit in the distinction. It first
contains a provision in favor of real British subjects, then one in
favor of persons resident in districts in possession of his
majesty's arms, and then stipulates that persons of any other
description shall have liberty to go to and remain twelve months in
the United States to adjust their affairs. These latter must have
included the loyalists who had been banished or in any way
subjected to punishment, who are explicitly distinguished from real
British subjects, and thus classed in order to avoid the question
to whom their allegiance was due, or rather because by the same
treaty, the King, having renounced all claim to their allegiance,
could no longer distinguish them as British subjects.
Can those any longer be denominated British subjects
Page 28 U. S. 255
whose allegiance the king of Great Britain has solemnly
renounced?
I know of no test more solemn or satisfactory than the liability
to the charge of treason; not by reason of temporary allegiance,
for that is gone with change of domicile; were those who could
claim the benefit of the King's renunciation to the colonies,
subject to any other than temporary allegiance, while commorant in
Great Britain? I say they were not. Their right to inherit is not a
sufficient test of that liability as to other nations, for that
right results from a different principle -- the exemption of a
British subject from being disfranchised while free from crime.
Was Mrs. Shanks an individual to whose allegiance the King had
renounced his claim?
The commencement of the Revolution found us all indeed
professing allegiance to the British Crown, but distributed into
separate communities, altogether independent of each other and each
exercising within its own limits sovereign powers, legislative,
executive and judicial. We were dependent, it is true, upon the
Crown of Great Britain, but as to all the world beside, foreign and
independent. It lies then at the basis of our Revolution that when
we threw off our allegiance to Great Britain, every member of each
body politic stood in the relation of subject to no other power
than the community of which he then constituted a member. Those who
owed allegiance to the King, as of his province of South Carolina,
thenceforward owed allegiance to South Carolina. The courts of this
country all consider this transfer of allegiance as resulting from
the declaration of independence, the British from its recognition
by the treaty of peace. But as to its effect, the British courts
concur in our view of it. For in the case of
Thomas v.
Acklam, 2 B. & C. 229, the language of the British court
is this:
"A declaration that a state shall be free, sovereign, and
independent is a declaration that the people composing that state
shall no longer be considered as the subjects of that sovereign by
whom the declaration is made."
From the previous relations of the colonies and mother country,
it is obvious that the declaration of independence
Page 28 U. S. 256
must have found many persons resident in the country besides
those whose allegiance was marked by the unequivocal circumstance
of birth; many native born British subjects voluntarily adhered to
the Americans, and many foreigners had by settlement, pursuits, or
principles, devoted themselves to her cause.
Whatever questions may have arisen as to the national character
or allegiance of these, as to the case under review, which is that
of a native born citizen of South Carolina, there would be no
doubt. And the courts of that state have put it beyond a doubt that
the Revolution transferred her allegiance to that state.
Whoever will weigh the words "real British subjects," used in
the fifth article, and consider the context can come to but one
conclusion, to-wit that it must mean British subjects to whose
allegiance the states make no claim. "Estates that have been
confiscated belonging to real British subjects" are the words. Now
it is notorious that although, generally speaking, the objects of
those confiscations were those to whose allegiance the states laid
claim, yet in many instances the estates of British subjects
resident in England or this country or elsewhere were confiscated,
because they were British subjects, on the charge of adhering to
the enemy. But if the right of election had ever been contemplated,
why should the term "real" have been inserted? The loyalists were
British subjects, and had given the most signal proofs of their
election to remain such. What possible meaning can be attached to
the term "real" unless it raised a distinction to their prejudice?
And historically we know that Great Britain acknowledged their
merits by making large provisions for their indemnification,
because for them there was no provision made for restoring their
property.
It has been argued that the British courts, in construing the
treaty of peace, have recognized this right of election, and the
case of
Thomas v. Acklam, before cited, is supposed to
establish it. But a very little attention to that case will prove
the contrary. It is in fact the converse of the present case. Mrs.
Thomas was the daughter of Mr. Ludlow, an American citizen born
before the Revolution, and was born
Page 28 U. S. 257
in America long after the separation. So that her alien
character was unquestionable unless protected by the statute of
Geo. II, explaining those of Anne and Edward. The decision of the
Court of King's Bench is that to bring herself within the
provisions of the statute, her father must be shown at her birth to
have been both a native born and a subject of Great Britain; that
by the treaty of peace, the King had renounced all claim to his
allegiance, and his subsequent residence in America proved his
acceptance of that renunciation.
But when did South Carolina renounce the allegiance of Mrs.
Shanks? We have the evidence of the states having acquired it; when
did she relinquish it? Or if it be placed on the footing of an
ordinary contract, when did South Carolina agree to the dissolution
of this contract? Or when did she withdraw her protection, and thus
dissolve the right to claim obedience or subjection?
It is true the Treaty of 1794 drops the word "real" and
stipulates generally for British subjects and American citizens,
construing the two treaties as instruments
in pari
materia. This circumstance is of little consequence, and
however we construe it, the argument holds equally good that the
treaty could have been only meant to aid those who needed its aid,
not those who were entitled under our own laws to every right which
the treaty meant to secure -- that is, those whose alien character
prevented their holding lands unless aided by some treaty or
statute. Mrs. Shanks was not of this character or description; her
right at all times to inherit has been recognized by paramount
authority. But it is contended that it was at her election whether
to avail herself of her birthright as a citizen of the state or her
birthright as a subject of Great Britain.
To this there may be several answers given. And first, the
admission of this right would make her case no better under the
construction of the treaty, for, having no need of its protection,
as has been authentically recognized by the state decision, it
cannot be supposed that she was an object contemplated by the
treaty; she was not a British subject in
Page 28 U. S. 258
the sense of those treaties, especially if the two treaties be
construed on the principle of instruments
in pari
materia.
Secondly, if she had the right of election, at what time did she
exercise it, for she cannot claim under her election, and against
her election. If she exercised it prior to her father's death, then
was she an alien at his death, and could not take even a right of
entry by descent, as has been distinctly recognized in
Hunter v.
Fairfax, 7 Cranch 619, and I think in some other
cases. She then had nothing for the treaty to act upon.
But if her election was not complete until subsequent to her
father's death, then it is clearly settled that taking the oath of
allegiance to a foreign sovereign produces no forfeiture, and she
still had no need of a treaty to secure her rights to land
previously descended to her. If the facts be resorted to and the
court is called upon to fix the period of her transit, it would be
obliged to confine itself to the act of her marrying against her
allegiance. It is the only free act of her life stated upon the
record, for from thence she continued
sub potestate viri,
and if she or her descendants were now interested in maintaining
her original allegiance, we should hear it contended, and be
compelled to admit, that no subsequent act of her life could be
imputed to her because of her coverture, and even her marriage was
probably during her infancy.
But lastly, I deny this right of election altogether as existing
in South Carolina, more especially at that time.
I had this question submitted to me on my circuit some years
since, and I then leaned in favor of this right of election. But
more mature reflection has satisfied me that I then gave too much
weight to natural law and the suggestions of reason and justice in
a case which ought to be disposed of upon the principles of
political and positive law and the law of nations.
That a government cannot be too liberal in extending to
individuals the right of using their talents and seeking their
fortunes wherever their judgments may lead them I readily agree.
There is no limit, short of its own security, to which
Page 28 U. S. 259
a wise and beneficent government would restrict its liberality
on this subject. But the question now to be decided is of a very
different feature -- it is not one of expediency, but of right. It
is to what extent may the powers of government be lawfully
exercised in restraining individual volition on the subject of
allegiance, and what are the rights of the individual when
unaffected by positive legislation?
As the common law of Great Britain is the law of South Carolina,
it would here perhaps be sufficient to state that the common law
altogether denies the right of putting off allegiance. British
subjects are permitted, when not prohibited by statute (as is the
case with regard to her citizens), to seek their fortunes where
they please, but always subject to their natural allegiance. And
although it is not regarded as a crime to swear allegiance to a
foreign state, yet their government stands uncommitted in the
subject of the embarrassments in which a state of war between the
governments of their natural and that of their adopted allegiance
may involve the individual. On this subject, the British government
acts as circumstances may dictate to her policy. That policy is
generally liberal, and as war is the calling of many of her
subjects, she has not been rigorous in punishing them even when
found with arms in their hands, where there has been no desertion
and no proclamation of recall. The right, however, to withdraw from
their natural allegiance is universally denied by the common
law.
It is true that without any act of her own, Mrs. Shanks found
herself equally amenable to both governments under the application
of this common law principle. But from this only one consequence
followed, which is that so far as related to rights to be claimed
or acquired or duties to be imposed under the laws of either
government, she was liable to become the victim of the will or
injustice of either.
If we were called upon to settle the claims of the two
governments to her allegiance upon the general principles
applicable to allegiance even as recognized by the contending
governments, we should be obliged to decide that the superior claim
was in South Carolina. For although before the Revolution a
subordinate state, yet it possessed
Page 28 U. S. 260
every attribute of a distinct state, and upon principles of
national law, the members of a state or political entity continue
members of the state notwithstanding a change of government. The
relations between the body politic and its members continue the
same. The individual member and the national family remain the
same, and every member which made up the body continues in the eye
of other nations in his original relation to that body. Thus we see
that the American government is at this day claiming indemnity of
France for the acts of those who had expelled the reigning family
from the throne and occupied their place.
But it is obvious that although the common law be the law of
South Carolina and its principles are hostile to the right of
putting off our national allegiance, the Constitution and
legislative acts of South Carolina, when asserting her
independence, must be looked into to determine whether she may not
then have modified the rigor of the common law and substituted
principles of greater liberality.
South Carolina became virtually independent on 4 June, 1775. The
association adopted by her provincial congress on that day
constituted her in effect an independent body politic, and if in
international affairs the fact of exercising power be the evidence
of legally possessing it, there was no want of facts to support the
inference there, for officers were deposed, and at one time the
most influential men in the state were banished under the powers
assumed and exercised under that association. It required the
indiscriminate subscription and acquiescence of all the inhabitants
of the province, under pain of banishment.
Neither of the constitutions adopted in 1776 or 1778 contains
any definition of allegiance or designation of the individuals who
were held bound in allegiance to the state, but the legislative
acts passed under those constitutions will sufficiently show the
received opinion on which the government acted in its legislation
upon this subject.
Neither the ordinance for establishing an oath of abjuration and
allegiance, passed February 13, 1777, nor the Act of March 28,
1778, entitled "An act to oblige every free male inhabitant of this
state, above a certain age, to give
Page 28 U. S. 261
assurance of fidelity and allegiance to the same," holds out any
idea of the right of election. The first requires the oath to be
taken by any one to whom it is tendered, and the last requires it
to be taken by every male inhabitant above sixteen, under pain of
perpetual banishment.
The preamble to the latter act indeed admits that protection and
allegiance are reciprocal, but the whole course of its legislation
shows that the legislature understands the right of election to
belong to the state alone, and an election to withdraw allegiance
from the state as a crime in the individual. The eleventh or penal
clause is very explicit on this subject. It runs thus:
"That if any person refusing or neglecting to take the oath
prescribed by this act, and withdrawing from this state, shall
return to the same, then he shall be adjudged guilty of treason
against this state, and shall, upon conviction thereof, suffer
death as a traitor."
Now, therefore, where there is no allegiance, there can be no
treason.
Since, then, the common law of England was the law of allegiance
and of descents in South Carolina, when this descent was cast upon
the mother, and since remained unaltered by any positive act of
legislation of the only power then possessing the right to
legislate on the subject, it follows that the representatives of
Mrs. Shanks can derive no benefit from her election unless the
right to elect is inherent and unalienable in its nature and
remains above the legislative control of society notwithstanding
the social compact.
All this doctrine I deny. I have already observed that
governments cannot be too liberal in extending the right to
individuals, but as to its being unalienable, or unaffected by the
social compact, I consider it to be no more so than the right to
hold, devise, or inherit the lands or acquisitions of an
individual. The right to enjoy, transmit, and inherit the fruits of
our own labor or of that of our ancestors stands on the same
footing with the right to employ our industry wherever it can be
best employed, and the obligation to obey the laws of the community
on the subject of the right to emigrate is as clearly to be
inferred from the reason and
Page 28 U. S. 262
nature of things as the obligation to use or exercise any other
of our rights, powers, or faculties in subordination to the public
good. There is not a writer who treats upon the subject who does
not qualify the exercise of the right to emigrate, much more that
of putting off or changing our allegiance, with so many exceptions
as to time and circumstances as plainly to show that it cannot be
considered as an unalienable or even perfect right. A state of war,
want of inhabitants, indispensable talents, transfer of knowledge
and wealth to a rival, and various other grounds are assigned by
writers on public law upon which a nation may lawfully and
reasonably limit and restrict the exercise of individual volition
in emigrating or putting off our allegiance. All this shows that
whenever an individual proposes to remove, a question of right or
obligation arises between himself and the community which must be
decided on in some mode. And what other mode is there but a
reference to the positive legislation or received principles of the
society itself? It is therefore a subject for municipal regulation,
and the security of the individual lies in exerting his influence
to obtain laws which will neither expose the community unreasonably
on the one hand nor restrain one individual unjustly on the
other.
Nor have we anything to complain of in this view of the subject.
It is a popular and flattering theory that the only legitimate
origin of government is in compact and the exercise of individual
will. That this is not practically true is obvious from history,
for, excepting the State of Massachusetts and the United States,
there is not perhaps on record an instance of a government purely
originating in compact. And even here probably not more than one
third of those subjected to the government had a voice in the
contract. Women, and children under an age arbitrarily assumed are
necessarily excluded from the right of assent and yet arbitrarily
subjected. If the moral government of our maker and our parents is
to be deduced from gratuitous benefits bestowed on us, why may not
the government that has shielded our infancy claim from us a debt
of gratitude to be repaid after manhood? In the course of nature,
man has need
Page 28 U. S. 263
of protection and improvement long before he is able to
reciprocate these benefits. These are purchased by the submission
and services of our parents; why then should not those to whom we
must be indebted for advantages so indispensable to the development
of our powers, be permitted, to a certain extent, to bind us
apprentice to the community from which they have been and are to be
procured?
If it be answered that this power ought not to be extended
unreasonably or beyond the period when we are capable of acting for
ourselves, the answer is obvious -- by what rule is the limit to be
prescribed unless by positive municipal regulation?
It is of importance here that it should be held in view that we
are considering political, not moral, obligations. The latter are
universal and immutable, but the former must frequently vary
according to political circumstances. It is the doctrine of the
American court that the issue of the Revolutionary War settled the
point, that the American states were free and independent on 4
July, 1776. On that day, Mrs. Shanks was found under allegiance to
the State of South Carolina as a natural born citizen to a
community, one of whose fundamental principles was that natural
allegiance was unalienable, and this principle was at no time
relaxed by that state by any express provision, while it retained
the undivided control over the rights and liabilities of its
citizens.
But it is argued that this lady died long after the right of
passing laws of naturalization was ceded to the United States, and
the United States has in a series of laws admitted foreigners to
the right of citizenship and imposed an oath which contains an
express renunciation of natural and every other kind of allegiance.
And so of South Carolina; she had previously passed laws to the
same effect. In 1704, she passed a law "for making aliens free of
this province," which remained in force until 1784, when it was
superseded by the act of 26 March, "to confer the right of
citizenship on aliens," to which succeeded that of 22 March, 1786,
entitled "An act to confer certain
Page 28 U. S. 264
rights and privileges on aliens, and for repealing the act
therein mentioned."
In both the latter acts, the oath of allegiance is required to
be taken; and that oath, as prescribed by the Act of 28 March,
1778, contains an abjuration of allegiance to any other power, and
particularly to the King of Great Britain.
These legislative acts, it cannot be denied, do seem to hold out
the doctrine of the right to change our allegiance, and do furnish
ground for insisting that it is absurd in a government to deny to
its own citizens the right of doing that which it encourages to be
done by the citizens of other states.
Most certainly it is to be regretted that Congress has not long
since passed some law upon the subject containing a liberal
extension of this right to individuals and prescribing the form and
circumstances under which it is to be exercised, and by which the
act of expatriation shall be authenticated. A want of liberality in
legislating on this subject might involve the government in
inconsistency; but the question here is whether, in absence of such
declaration of the public will or opinion, courts of justice are at
liberty to fasten upon the government, by inference, a doctrine
negatived by the common law, and which is in its nature subject to
so many modifications.
I think not. Great Britain exercises the same power either by
the King's patent or by legislative enactment, and permanent laws
exist in that country which extend the rights of naturalization to
men by classes, or by general description. Yet this implication has
never been fastened upon her; nor is the doctrine of her common law
less sternly adhered to, or less frequently applied, even to the
utmost extent of the punishing power of her courts of justice. In
practice she moderates its severities, but in this it is will and
policy that guides her, not any relaxation of the restriction upon
individual rights.
There is indeed one prominent difficulty hanging over this
argument which it is impossible to remove. If it proves
Page 28 U. S. 265
any thing, it proves too much, since the inference, if resulting
at all, must extend to put off one's allegiance, as well to adopted
citizens as to natural born citizens, and to all times and all
circumstances. What, then, is that obligation, that allegiance
worth which may be changed an hundred times a day? or by passing
over from one army to another, perhaps in the day of battle? The
truth is, it leaves but a shadow of a tie to society, and converts
that which is considered as one of the most sacred and solemn
obligations that can be entered into, although confirmed by the
sanctity of an oath, into nothing but an illusory ground of
confidence between individuals and their governments.
The idea brings man back to a state of nature; at liberty to
herd with whom he pleases, and connected with society only by the
caprice of the moment.
Upon the whole I am of opinion that Mrs. Shanks continued, as
she was born, a citizen of South Carolina, and of course
unprotected by the British treaty.
I have taken a general view of the subject, although it does not
appear precisely whether or not Mrs. Shanks had attained an age
sufficiently mature to make an election before marriage, or was
ever discovert during her life so as to be able to elect after
marriage. I have reasoned on the hypothesis most favorable to her,
admitting that she had made an election in authentic form. Nor have
I confined myself to authority, since I wished, as far as I was
instrumental, to have this question settled on principle. But it
does appear to me, that in the case of
Coxe v. McIlvaine,
this Court has decided against the right of election most
expressly; for if ever the exercise of will or choice might be
inferred from evidence, it is hardly possible for a stronger case
to be made out than that which is presented by the facts in that
case.
With regard to state decisions upon this question, I would
remark that it is one so exclusively of state cognizance that the
courts of the respective states must be held to be best acquainted
with their own law upon it. Though every other state in the union,
therefore, should have decided differently from the State of South
Carolina, their decisions could only determine their own respective
law upon this subject, and
Page 28 U. S. 266
could not weaken that of South Carolina with regard to her own
law of allegiance and descents. It does appear singular that we are
here called upon to overrule a decision of the courts of South
Carolina, on a point on which they ought to be best informed, and
to decide an individual to be a British subject, to whose
allegiance the British courts have solemnly decided the King has no
claim. On this point the case of Ludlow, in
Thomas v.
Acklam, is the case of Mrs. Shanks; it is impossible to
distinguish them. The State of South Carolina acknowledges her
right to all the benefits of allegiance; the King of Great Britain
disavows all claim to her allegiance, and yet we are called upon to
declare her a British subject.
I have not had opportunity for examining the decisions of all
the states upon this subject, but I doubt not they will generally
be found to concur in principle with the court of South Carolina
except so far as they depend upon local law. This is certainly the
case in Massachusetts. The decision in the case of
Palmer v.
Downer, does, it is true, admit the right of the election; but
besides that, that case is very imperfectly, and I may add
unauthentically reported, it is most certainly overruled in the
subsequent case of
Martin v. Woods.
Before I quit the cause, it may be proper to notice a passage in
a book recently published in this country, and which has been
purchased and distributed under an act of congress; I mean Gordon's
Digest. There is no knowing what degree of authority it may be
supposed to acquire by this act of patronage, but if there is any
weight in the argument in favor of expatriation drawn from the acts
of congress on that subject, I presume the argument will at some
future time be applied to the doctrines contained in this book. If
so, it was rather an unhappy measure to patronize it, since we find
in it a multitude of
nisi prius decisions,
obiter
dicta, and certainly some striking misapprehensions, ranged on
the same shelf with acts of congress. On the particular subject now
under consideration, art. 1649, we find the following sentence:
"Citizens of the United States have a right to expatriate
themselves in time of war as well as in
Page 28 U. S. 267
time of peace, until restrained by congress," and for this
doctrine the author quotes
Talbot v.
Jansen, 3 Dall. 133, and the case of
The Santissima
Trinidad, 7 Wheat. 348, in both which cases the
author has obviously mistaken the argument of counsel for the
opinion of the Court, for the Court in both cases expressly wave
expressing an opinion, as not called for by the case, since if
conceded, the facts were not sufficient to sustain the defense.
The author also quotes a case from 1 Peters' C. R. which
directly negatives the doctrine, and a case from 4 Hall's Law
Journal 462, which must have been quoted to sustain the opposite
doctrine. It is the case of the
United States v. Williams
in which the Chief Justice of the United States presided, and in
which the right of election is expressly negatived, and the
individual who pleaded expatriation is convicted and punished.
This cause came on to be heard on the transcript of the record
from the Supreme Court of Appeals in Law and Equity in and for the
State of South Carolina, and was argued by counsel, on
consideration whereof it is considered and declared by this Court
that Ann Shanks, the mother of the original defendants, was at the
time of her death a British subject within the true intent and
meaning of the ninth article of the treaty of amity, commerce and
navigation made between His Britannic Majesty and the United States
of America on 19 November, 1794, and that the said original
defendants, as her heirs and British subjects, are capable to take,
and did take by descent from her the moiety of the land in the
proceedings mentioned, and are entitled to the proceeds of the sale
thereof, now in the registry of the circuit court of equity, as in
the said proceedings mentioned. It is therefore considered and
adjudged by this Court that there is error in the decree of the
said court of appeals in equity of the State of South Carolina in
affirming the decree of the circuit court, in said proceedings
mentioned, whereby it was ordered and decreed, that the money
arising from the sale of the land in question, theretofore
Page 28 U. S. 268
reserved subject to the order of the court, be paid over to the
petitioners, as the only heirs who are capable of taking the same.
And it is further ordered and adjudged by this Court that for this
cause, the decree of the circuit court aforesaid and of the court
of appeals aforesaid be and each of them is hereby reversed. And it
is further ordered and adjudged by this Court that the cause be
remanded to the said court of appeals with directions that a decree
be entered therein that the said moiety of the said proceeds of the
said sale be paid over to the original defendants (the present
plaintiffs in error) as their right, and that such further
proceedings be had therein as to justice and equity may in the
premises appertain.
[
Footnote 1]
See Kelly v. Harrison, 2 Johns. 29; Co.Litt. 31b.;
Com.Dig. Alien. C. 1; Dower, A. 2; Bacon's Abridg. Alien. Dower,
A.
[
Footnote 2]
See also Bac.Abridg. Alien A; Cro.Car. 601, 602; 4 Term
300; Brook Abr. Denizen 21;
Jackson v. Lunn, 3 Johns.
109.