Page:The American Cyclopædia (1879) Volume I.djvu/337

ALIEN 313 they were deemed the especial and distinctive privilege of Roman citizens. In Germany and France, in the later periods, foreigners were not only denied civil rights, but were forced to invoke the protection of the native barons or seigneurs, who imposed the heaviest exactions as the price of their protection. In France, in some districts, the alien was forbidden, after a certain term of residence, to leave the lord's domain; and if he died within it, leaving no heirs there, the lord claimed the right of suc- cession to his property. This prerogative of the seigneurs, later assumed by the sovereign himself, was what in modern times was known as the droit dlaubaine. It has existed down to a very recent period in Europe, at least in the milder form of the droit de detraction, and practically exists now, or did only a few years ago, as Mr. Attorney General Gushing sug- gested, in many of our own states; and it is the subject of clauses in some of our latest treaties with European powers. This droit d 'aubaine, as it was asserted by the king of France, consisted sometimes in a right to levy a tax on strangers on certain occasions, and some- times in the claim of inheriting to strangers who left no heirs within the kingdom. It was abol- ished in France in 1790, restored by the Code Napoleon on the plea of reciprocity, and abol- ished finally in 1819, when the right of succes- sion was conceded to foreigners to the same extent as it was enjoyed by native-born French- men. The French legislation has had the effect to break down this exaction in other European states ; but Great Britain and the United States have not been so liberal. A very recent treaty with Prussia, which will illustrate the present international practice on this point, contained provisions intended to relieve the subjects of Prussia from their disabilities in respect to real and personal property here, and declared that on the death of such an alien in possession of property, his heirs should have reasonable time to sell it and withdraw the proceeds, " exempt from all droits of detraction on the part of the government of the United States." Soon after the conclusion of this treaty, the Prussian min- ister complained that his countrymen did not enjoy in all our states the benefit of the treaty stipulation, and the question arose whether the federal government could make a treaty whose provisions of this character could bind the states ; for though the federal government has supreme and exclusive cognizance of questions of citizenship and alienage merely, yet each state is at liberty to make its own laws in relation to the enjoyment and devolution of property within its own limits. The opinion of the at- torney general was very clear and explicit to the effect that the treaty-making power of the general government must bind the states as to the provisions in question. But, so far as ap- pears, no decision on the subject has ever been made by the courts. As to real property, sub- ject to the right of forfeiture in the state or sovereign, aliens under the common law may take by act of the party, as the phrase is, though they may not take by act of the law. In other words, an alien may take real estate by purchase, or even by devise, these being acts of parties ; but he cannot take by inherit- ance, for that is a mere operation of the law. When the alien takes, as in the two former cases, the estate vests in him, and he may hold it against every one but the state ; nor can the state enforce its right of forfeiture without proceedings for that purpose, or, in legal phra- seology, Without an inquest of office found. Until this is done, the alien may exercise com- plete legal domain over the property, just as a citizen may do. But though he may sell it, his grantee takes no better title than the alien had, and he is therefore as liable to forfeit the lands as the alien was. At common law, as just im- plied, the alien has no inheritable blood, that is to say, he can neither take nor transmit real property by descent. Thus it was formerly held that a grandson could not inherit to his grandfather, though both were native-born subjects, if the intervening son, the grandson's father, were an alien. But a statute was pass- ed in the reign of William III. which cured this disability, by providing that native-born citizens might inherit to their ancestors, not- withstanding the alienage of any intervening ancestor. This statute was reenacted in 1830 in New York, and in many other states before that time. The disabilities of aliens in respect to real property have been materially lessened in most of our states ; and in some they are entirely removed, as in Massachusetts, Mary- land, Florida, Ohio, Illinois, Iowa, Wiscon- sin, Nebraska, Dakota, and Nevada. In New York, South Carolina, Texas, and many others, the alien may take, hold, and devise lands after declaring his intention to become a citizen in conformity with the naturalization laws. In Connecticut and California the alien, if a resi- dent in the state, may purchase, hold, inherit, and transmit lands in the same manner as a citizen. The right of forfeiture, it should be observed, is very rarely exercised by the states ; on the contrary, the legislatures are very liberal in making laws to cure defects of titles arising out of the alienage of former holders, and in releasing in favor of the natural heirs the right of escheat which may have accrued to the state by the death of an alien ancestor in pos- session of lands. In respect to personal prop- erty, aliens may at common law take, hold, and dispose of it, and make and enforce contracts in respect to it, just as native citizens may do. An alien in New York may take a purchase- money mortgage on land sold by him, and on a foreclosure may buy and hold the land. But it is doubtful whether he could make such a purchase on foreclosure of his mortgage on lands in which he never had any other title than the mortgage. The revisers in 1830 pro- posed a section to confer the power, but it was not adopted. An alien enemy, that is to say, the subject of a state actually at war with us,