An alien, by the definition of the common law, is a person born out of the jurisdiction and allegiance of this country, excepting only the children of public ministers abroad, whose wives are American women. But the statute of 29th January, 1795, declared that, "the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States." The statute of the 14th April, 1802, is more obscure on this subject, and is regarded by high authoriity (a) as leaving this question in some doubt. We do not believe that the courts of this country would apply to this question those principles of the common law of England which oppose the provision of the statute of 1795. This cannot, however, be regarded as certain, until it is settled by competent adjudication or statutory provision.
It is said that a foreign born child of a citizen of the United States is subject to a double allegiance; but on reaching maturity he has the right to elect one and repudiate the other, and such election is conclusive upon him. (aa) And it has been held that a child of aliens born in this country, is prima facie a citizen thereof, although his mother was here only for the purpose of being confined. (ab)
(a) Chancellor Kent says, 2 Com. 52: " It [this statute] applied only to the children of persons who then were or had been citizens; and consequently the benefit of this provision narrows rapidly by the lapse of time; and the period will soon arrive when there will be no statutory regulation for the benefit of children born abroad, of American parents, and they will be obliged to resort for aid to the dormant and doubtful principles of the English common law. . . . But the whole statute provision is remarkably loose and vague in its terms, and it is lamentably defective, in being confined to the case of children of parents who were citizens in 1802, or had been so previously. The former act of January 29th, 1795, was not so; for it declared generally 'that the children of citizen3 of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.' And when we consider the universal propensity to travel, the liberal intercourse between nations, the extent of commercial enterprise, and the genius and spirit of our municipal institutions, it is quite surprising that the rights of the children of American citizens, born abroad, should, by the existing act of 1802, be left so precarious, and so far inferior in the security which had been given in like circumstances by the English statutes."
(aa) Ludlam v. Ludlam, 26 N. Y. 356.
(ab) Munro v. Merchant, 28 N. Y. 9.
At common law an alien cannot acquire title to real property by descent, nor by grant, nor by operation of law. Nor can he give good title by grant; nor can he transmit good title *to his heir. (b) If an alien take land by purchase, he may hold it until office found, and may bring an action for the recovery of possession; (c) but if he die, the land passes at once to the State, without any inquest of office. (d) His title cannot be called in question in a collateral proceeding between individuals; (dd) for an alien may take and hold by deed or devise as against all but the sovereign; (de) and the rule that an alien may take land by purchase is valid in equity as well as law. (df) But the severity of these rules has been very much mitigated in this country, somewhat by adjudication, but more by the various statutes of the States, in many of which, and in the constitutions of some, there are provisions modifying the principles of the common law relative to aliens. (e) l
In respect to personal property, and the various contracts in relation to it, and the obligations which these contracts impose upon him, and the remedies to which he may resort for breach of them, the alien stands very much upon the same footing as the citizen. An alien resident within a State was entitled to the benefit of the insolvent laws. (/) The bankrupt law recently in force by section 19th permitted any person to become a bankrupt "residing within the jurisdiction of the United States, and owing debts provable under this Act. " And he [might] be made a bankrupt under the provisions respecting involuntary bankruptcy.
(b) Calvin's case, 7 Rep. 25 a; Col-lingwood v. Pace, 1 Vent. 417; Jackson v. Lunn, 3 Johns. Cas. 109; Levy v. Mc-cartee, 6 Pet. 102; Jackson v. Green, 7 Wend. 333; Jackson v. Fitzsimmons, 10 Wend. 1; Cross v. De Valle, 1 Wallace, 5; King v. Ware, 53 Ia. 97.
(c) Waugh v. Riley, 8 Met. 295 - Savage, C. J., in Bradstreet v. Supervisors of Oneida County, 13 Wend. 548, decided that notwithstanding the ancient rigor of the common law, such an action might be maintained. "If it is the property of the alien against everybody but the government, he has the right to use it; and if necessary to prosecute for it, surely the right to prosecute is necessarily consequent upon his right to its enjoyment." - In Texas an alien cannot hold property except in particular cases. Merle v. Andrews, 4 Tex. 200. It was held in Ramires v. Kent, 2 Cal. 558, that an alien could not be deprived of land or of any rights incident to its ownership, by proof of alienage in any proceeding but in an inquest of office. See Ferguson v. Neville, 61 Cal. 356; Halstead v. Commis-sioners, 56 Ind. 363; Marx v. McGlynn, 88 N. Y. 357.
(d) Co. Lit. 2 b; Willion v. Berkley, Plowd. 229 b, 230 a; Fox v. Southack, 12 Mass. 143; Fairfax v. Hunter, 7 Cranch, 619; Orr v. Hodgson, 4 Wheat. 453. See also Wilbur v. Tobey, 16 Pick. 179; Foss v. Crisp, 20 id. 124"; People v. Conklin, 2 Hill (N. Y.), 67; Banks v. Walker, 3 Barb. Ch. 438.
(eta) Harley v. State, 40 Ala. 689.
(de) Osterman v. Baldwin, 6 Wallace, 116.
(df) Cross v. DeValle, 1 Clifford, 282.
(e) This subject is very fully considered, and presented with great clearness, and an abundant illustration, in 2 Kent, Com. lect. xxv.
1 A sale of lands in Texas, before her separation from Mexico, by a citizen to a nonresident alien, passed the title to the latter, who thereby acquired a defeasible estate in them, which he could hold until deprived thereof by the supreme authority, upon the official ascertainment of the fact of his non-residence and alienage, or upon the denouncement of a private citizen. Phillips v. Moore, 100 U. S. 208. See also Hauen-stein v.. Lynham, 100 U. S. 483. - K.
The recent statute concerning trade-marks, as will be seen in our chapter on that subject, admits aliens to its advantages. And before the statute, in some interesting cases respecting trademarks, it was determined that he was entitled to the same protection as our citizens. (g) The right * to confiscate the debts and property of alien enemies is declared to exist in Congress, by the highest judicial authority; (h) but the exercise of this right, it may well be hoped, will never be attempted. (i) But even alien enemies residing in this country may sue and be sued as in time of peace, on the ground that their residence is lawful until they are ordered away by competent authority, and this residence gives them a right to protection. (j) During this residence, the alien is equally bound with the citizen to obey all the laws of the country, which do not apply specifically and exclusively to citizens.1
(f) Judd v. Lawrence, 1 Cush. 531.
" The insolvent laws extend in terms to all insolvent debtors residing within this Commonwealth; and this language unquestionably embraces aliens as well as native or naturalized citizens, unless it can be shown that such was not the intention of the legislature. It has been argued that this appears by the authority given to the commissioner to assign all the debtor's estate, real and personal, whereas an alien cannot hold or effectually assign real estate. But if this were so, there seems to be no reason why the personal estate of an alien insolvent debtor should not be distributed among his creditors under the insolvent laws as well as the personal estate of native citizens who have no real estate. But it is not true that aliens cannot hold and assign real estate. It is true an alien cannot take by descent, but he may take by purchase or devise, and can hold against all except the Commonwealth, and can be divested only by office found, and until office found, can convey. And whatever title the insolvent debtor could convey by deed may be assigned by statute."
(g) Coats v. Holbrook, 2 Sandf. Ch. 586; Taylor v. Carpenter, id. 603; 3 Story, 458; 11 Paige, 292; 2 Woodb. & M. 1. Woodbury, J., in a long opinion reviewing the authorities both English and American, sustains the doctrine of the text, and reprehends in the strongest terms any attempt to place aliens in our courts upon a footing different from our citizens, contending that the want of reciprocity of rights to our citizens in foreign courts might be a good reason for legislation by Congress, but would not be for this court to deny to aliens rights guaranteed to them by the Constitution, and which a court could not deny without an exercise of judicial legislation. " The cannibal of the Fejees may sue here in a personal action, though having no courts at home for us to resort to." "An alien is not now regarded as 'the outside barbarian' he is considered in China." " In the courts of the United States, they are entitled, being alien friends, to the same protection of their rights as citizens." Story, J., 3 Story, 434. - Barry's case, 2 How. 65; 5 id. 103. An alien was allowed, as to regaining the custody of his child from his wife and her connections, the same remedies and principles as are granted to the citizens.
(h) Brown v. United States, 8 Cranch, 110; The Adventure, id. 228, 229; Ware v. Hylton, 3 Dallas, 199.
(i) A very powerful argument against the right itself was made by Alexander Hamilton, in his letters signed Camillus, published in 1795.
(j) Wells v. Williams, 1 Ld. Raym. 282; Daubigny v. Davallon, 2 Anst. 462; Clarke v. Morey, 10 Johns. 69; Russell v. Skipwith, 6 Binn. 241.
1 An alien woman who marries a citizen thereby becomes a citizen, and may take lands by purchase or descent. Luhrs v. Eimer, 80 N. Y. 171. So if her husband becomes a citizen after the marriage she thereby becomes a citizen though she is not living with him, and has never come within the United States. Headman v. Rose, 63 Ga. 458.