A person born in England before the year 1775, and who always
resided there, and never was in the United States, is an alien; and
could not in the year 1793 take lands in Maryland by descent from a
citizen of the United States.
Russel Lee, a citizen of the United States, in the year 1793
died seized in fee of a tract of land called Argyle, Cowall, and
Lorn, situated in that part of the District of Columbia which was
ceded to the United States by the State of Maryland. Mrs. Dawson,
the lessor of the plaintiff, would be entitled to the land by
descent unless prevented by the application of the principle of
alienage. She was born in England before the year 1775, always
remained a British subject, and was never in the United States.
The court below instructed the jury that she was an alien, and
could not take the land by descent from Russel Lee in the year
1793.
The question having been fully argued, but not decided, in the
cases of
Lambert's Lessee v.
Paine, 7 U. S. 97,
Page 8 U. S. 322
and
McIlvaine v. Coxe's
Lessee, 6 U. S. 280, the
counsel agreed to submit it to the court without further
argument.
JOHNSON, J. delivered the opinion of the Court as follows:
This case rests upon the single question -- whether a subject of
Great Britain, born before the Declaration of Independence, can now
inherit lands in this country. The general doctrine is admitted
that in the State of Maryland, in which the land lies, an alien
cannot take by descent, but it is contended upon the doctrine laid
down in
Calvin's Case that the rights of the
antenati of Great Britain formed an exception from the
general rule. The point decided in the case of
Calvin was
that a Scotsman, born after the union, could inherit lands in
England. It is evident that this case is not directly in point, for
the only objection here to the right of recovery did not exist in
Calvin's Case, as whether in England or in Scotland, he
was equally bound in allegiance to the King of Great Britain. It
would be a contradiction in terms to contend that Dawson or his
wife ever owed allegiance to a government which did not exist at
their birth. It is upon a supposed analogy, therefore, and the
reasoning of the judges in Calvin's case, that the argument for the
plaintiffs is founded. In the two cases of
Coxe and
McIlvaine and
Lambert and
Payne in this
Court, this doctrine was very amply discussed, and this case is
submitted upon those arguments. The counsel there contended that
the relation of the
postnati of Scotland (after the union)
to the subjects of Great Britain, was identically the same with the
antenati of Great Britain (before our revolution) to the
citizens of this country, and that the community of allegiance at
the time of birth, and not the existing state of it when the
descent is cast, is the principle upon which the right to inherit
depends.
The latter proposition presents the weak point of their
argument, for the community of allegiance at the time of
Page 8 U. S. 323
birth and at the time of descent both existed in
Calvin's
Case. And if the court in its argument expressed opinions
which appear to go the length contended for by the counsel, they
must be considered as mere
obiter opinions, since the
decision of the cause did not depend upon them. We have no doubt
that the correct doctrine of the English law is that the right to
inherit depends upon the existing state of allegiance at the time
of the descent cast. And that the idea that it depends upon
community of allegiance at the time of birth is a consequence that
follows from the doctrines that a man can never put off his
allegiance or be deprived of the benefits of it but for a crime.
Community of allegiance once existing must, upon these principles,
exist ever after. Hence it is that the
antenati of America
may continue to inherit in Great Britain because we once owed
allegiance to that Crown. But the same reason does not extend to
the
antenati of Great Britain, because they never owed
allegiance to our government. This idea will be best elucidated in
the following manner:
If an action be commenced in England by an
antenatus of
America for the recovery of land, the plea of alien born could not
be maintained, because inconsistent with the fact; nor would a plea
of the severance of these states avail the defendant, because the
act of his government, independent of any crime of his own, does
not deprive the plaintiff of his civil rights, although it may
release him from the obligation of allegiance. But if a suit of the
same kind be instituted here by an
antenatus of Great
Britain, the plea of alien born could be maintained, for the
plaintiff never owed allegiance to our government. To avoid it, he
would be put to a special replication, by which he must of
necessity acknowledge the truth of the plea, and set forth
circumstances which would amount to a recognition of his never
having been a party in our social compact. Much of the difficulty
in satisfying the mind on this subject vanishes upon a just view of
the nature of the right of inheritance. Gentlemen have argued upon
it as if it were a natural and perfect right, whereas it has its
origin in and is modified to infinity by the laws of society in
exercise of the right of territorial jurisdiction. To be entitled
to inherit in the State of Maryland, a right should be made out
under the laws of that state. As the common law, which is the law
of Maryland on this subject,
Page 8 U. S. 324
deprives an alien generally of the right of inheriting, it is
incumbent upon the plaintiff to establish some exception in favor
of his case. But I know of no exception at common law which gives
the right to inherit distinctly from the obligation of allegiance
existing either in fact or in supposition of law.
Judgment affirmed.