1 Com. Dig. tit. Alien, C. 5; Wells v. Williams, 1 Salk. 46; Boulton v. Dobree, 2 Camp. 163; Chitty on Prerog. 48, 49.
"We now come to the American cases cited for the defendant. The earliest is that of Hannay v. Eve, 3 Cranch, 242, which merely decided that a contract made in fraud of the laws of the United States could not be enforced in the courts of the United States. In the later case of Kennett v. Chambers, 14 How. 38, the same principle was applied, and it was held that a contract made in the United States, after Texas had declared itself independent of Mexico, but before its independence had been acknowledged by the United States, to convey lands in Texas, in consideration of money advanced in the United States to enable Texas to carry on war against Mexico, was in contravention of the public policy and treaties of the United States, when it was made, and could not therefore be enforced in their
United States and an alien enemy, unless by permission of the government.1 But a contract made by a neutral with a citizen courts, after Texas had been admitted into the Union. To say that the present case falls within the same principle is to beg the whole question in controversy.
"In Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, the only point discussed or adjudged was that produce of territory in the occupation of the enemy must be condemned by a prize court as enemy's property, so long as it belonged to the owner of the soil, whatever his national character or personal domicil. A like rule was held to apply in the recent civil war, in the Prize Cases, 2 Black, 635.
"In the cases of The Rapid, 1 Gall. 304; The Julia, ib. 601-604; and The Emulous, ib. 571; Mr. Justice Story indeed spoke of the unlawfulness of communications with the enemy as extending to all contracts and every kind of intercourse. But all such statements were obiter dicta; for neither of those cases involved so broad an application. In The Julia, he admitted, in the Circuit Court, that ' the proposition is usually laid down in more restricted terms by elementary writers, and is confined to commercial intercourse;' and in delivering the judgment of affirmance in the Supreme Court, he defined the point decided to be 'that the sailing on a voyage under the license and passport of protection of the enemy, in furtherance of his views and interests, constitutes such an act of illegality as subjects the ship and cargo to confiscation as prize of war.' 1 Gall. 601; 8 Cranch, 190. In The Emulous, the only question in issue was of the confiscation of enemies' property; and his decree was reversed by the Supreme Court. Brown v. United States, 8 Cranch, 110. His decree in The Rapid was affirmed. 8 Cranch, 155. But in that case, as well as in The Joseph, 1 Gall. 545, and 8 Cranch, 451, the decision was simply that the sending of a vessel by an American to or from an enemy's port after a declaration of war was a trading with the enemy, which would warrant a condemnation in a prize court.
"In delivering the judgment of the Supreme Court in the case of The Rapid, Mr. Justice Johnson said: ' In the state of war, nation is known to nation only by their armed exterior; each threatening the other with conquest or annihilation. The individuals who compose the belligerent States exist, as to each other, in a state of utter occlusion. If they meet it is only in combat.' ' On the subject which particularly affects this case, there has been no general relaxation. The universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse. The whole nation are embarked in one common in an enemy's country is valid, and a suit thereon may be main tained in the courts both of England and of the United States.1 bottom, and must be reconciled to submit to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy, because the enemy of his country.' And in speaking of the rule of prize law, which condemns property engaged in hostile trade, 'the object, policy, and spirit of the rule is to cut off all communication or actual locomotive intercourse between individuals of the belligerent States. Negotiation or contract has therefore no necessary condition
1 Com. Dig. tit. Alien, C. 5; Griswold v. Waddington, 15 Johns. 57; 16 Johns. 438; Musson v. Fales, 16 Mass. 334; The Francis and Cargo, 1 Gall. 448; The Rapid, 8 Cranch, 155; The Alexander, 8 Cranch, 169; The Julia, 8 Cranch, 181.
1 Houriet v. Morris, 3 Camp. 303. An alien cannot take lands by the act of the law, but only by the act of the party. He cannot, therefore, take lands by descent, curtesy, dower, or guardianship, but he may by purchase, whether it be by grant or by devise. The theory of the common law is, that he does not take lands for his own benefit, but for the benefit of the State, and therefore he cannot hold them against the State. But, as he is trustee for the State, no one can disturb him in his title and possession, except the sovereign power. Co. Litt. 2 b; 129 6; 14 Hen. IV. 20; Dyer, 2 b. Until inquest or office found, therefore, he occupies the same position as every other person holding land, and may defend his title in a real action against all persons but the sovereign, during his life. Upon his death, however, the sovereign becomes seised without office found, because his freehold.cannot be inherited by his blood, and it therefore would be in abeyance. During his life, he has complete dominion over it, and may convey the same to a purchaser; but the purchaser, in such case, would take it subject to seizure by the sovereign, after office found. Fox v. Southack, 12 Mass. 143; Sheaffe v. O'Neil, 1 Mass. 256; Knight v. Duplessis, 2 Ves. 360; Powell on Devises, 316; Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603; Jackson v. Clarke, 3 Wheat. 1; Craig v. Radford, 3 Wheat. 594; Orr v. Hodgson, 4 Wheat. 453; Doe d. Governeur's Heirs v. Robertson, 11 Wheat. 332; Fish v. Klein, 2 Mer. 431. But in Kentucky an alien, who has resided in the State two years, may take lands by purchase or descent. Louisville v. Gray, 1 Litt. 149. In Massachusetts an alien might formerly take real estate by devise or deed, but it was defeasible by the State, and if he died intestate and seised of real estate, it immediately vested in the Commonwealth, without office found. Waugh v. Riley, 8 Met. 295; Slater v. Nason, 15 Pick. 345. But this is now changed by statute, and an alien, whether resident or non-resident, may now hold, transmit, and convey real estate, changing the law as laid down in Foss v. Crisp, 20 Pick. 124; Gen. Sts. ch. 90, § 38; Lumb v. Jenkins, 100 Mass. 527 (1868). In North Carolina an alien may take land by purchase, but not by devise, nor by inheritance. 3 Ired. 141; 2 Hayw. 37; ib. 104; ib. 108. In New York a devise to an alien is void by statute. 2 N. Y. Rev. Stat. 57, § 4. In Louisiana aliens may inherit and transmit real estate. Duke of Richmond v. Milne, 17 La. 312.