Obrázky stránek

and public laws, similar privileges on citizens of the United States. (Shankland, p. 104.)

In Mississippi, an alien residing in the State may acquire real estate, but he cannot transmit it without being naturalized. If he dies before naturalization, his real estate will escheat to the State, but the proceeds will be paid to the heirs, if applied for within six years. (Revised Code, 1857, chap. 36, sec. 9, art. 65, pp. 320-1.)

The law of Colorado was in the same words as that of Illinois as to the tenure and transmission of lands by and to aliens, except that it contained words restricting it to aliens “residing in this territory." (Revised Statutes of Colorado, 1868, vol. I, p. 46.) By an act passed 10th Feb., 1870, these words are stricken out, and all aliens may acquire and transmit lands there. (General Laws of Colorado, 1870, p. 43.)

By a law of Maryland, adopted as the law of the District of Columbia, by act of Congress passed 27th February, 1801, any foreigner may, by deed or will, take and hold lands within that

part of the territory of Columbia, which was in that State, and the same land may be conveyed by him, and transmitted to, and be inherited by, his heirs or relatives, as if he or they were citizens of that State. (Thompson's Digest of the Laws of District of Columbia, p. 75.)






GREAT BRITAIN. Neither the provisional articles of November 30, 1782, nor the definitive treaty of September 30, 1783, acknowledging the independence of the United States by Great Britain, makes any stipulations as to the titles of real estate held by the subjects or citizens of the respective parties in the dominions of the other, further than that the fifth article of the two acts, which are identical, declares that Congress shall earnestly recommend to the legislatures of the respective States to provide for the restitution of all estates, rights, and property which have been confiscated, belonging to real British subjects, and also of the estates, &c., of persons resident in districts in the possession of His Majesty's arms, and who have not borne arms against the United States. And that persons of any other description shall have free liberty to go to any part of the thirteen United States and therein to remain twelve months, unmolested in their endeavors to obtain restitution of such of their estates, &c., as may have been confiscated, and that Congress shall also earnestly recommend to the several States a reconsideration and revision of all acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent not only with jus. tice and equity, but with that spirit of conciliation which, on the return of the blessings of peace, should universally prevail; and that Congress should also recommend to the several States that the estates, &c., of last mentioned persons shall be restored to them, they refunding to any persons in possession the bona fide price (where any has been given) which such persons may have paid on purchasing any of the said lands, rights, and properties, since the confiscation; and it is agreed, that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights. By article VI, likewise the same in both treaties, there shall be no further confiscations nor any prosecution be commenced against any person by reason of the part he may have taken in the war, and that no person shall on that account suffer any future loss or damage either in his person, liberty, or property. (United States Statutes at Large, vol. VIII, pp. 56 and 82.)

[The following stipulation applying to the titles as they existed before American independence, is in accordance with the rule of the laws of nations, that a dismemberment of the empire works no forfeiture of previously vested rights of property.]

The treaty of November 17, 1794, provides : Art. IX. “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 them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens.” (United States Statutes at Large, vol. VIII, p. 122.)

[This article was one of those declared by the treaty to be permanent, but the question was raised in both countries as to the effect of the war of 1812 upon it.

The English Court of Chancery held that American citizens who held land in Great Britain, at the time of the conclusion of the treaty, are at all times, and notwithstanding the intervention of war, to be considered as regards those lands, not as aliens, but as native subjects of the crown of Great Britain. (Russell and Milne’s Reports, vol. I,

663, Sutton v. Sutton.)

The same principle was maintained by the Supreme Court of the United States (Wheaton's Reports, vol. VIII, p. 464; The Society for the Propagation of the Gospel in Foreign Parts v. The Town of New Haven.]



(1) The Treaty of Commerce with France, concluded February 6, 1778, and consequently before the adoption of the Constitution, provides that “the subjects and inhabitants of the United States, or any of them, shall not be reputed aubains in France, and consequently shall be exempted from the droit d'aubaine or other similar duty. They may by testament, donation, or otherwise, dispose of their goods, movable and immovable, in favor of such persons as to them shall seem good, and their heirs, subjects of the United States, whether residing in France or elsewhere, may succeed them ab intestato, without being obliged to obtain letters of naturalization, and without having the effect of this concession contested or impeded under pretext of any rights or prerogatives of provinces, cities or private persons; and the said heirs, whether such by particular title or ab intestato, shall be exempt from all duty called droit de detraction, or other duty of the same kind, saving, nevertheless, the local rights or duties as such, and as long as similar ones are not established by the United States, or any of them. The subjects of the Most Christian King shall enjoy, on their part, in all the dominions of the said States, an entire and perfect reciprocity relating to the stipulations contained in the present article. This article was not to affect laws against emigration.

This treaty was repealed by act of Congress, or declared so to be, February 6, 1778. (United States Statutes at Large, vol. VIII, p. (2.) The Convention with the French Republic, Sept. 30, 1800, provides :


6 The citizens and inhabitants of the United States shall be at liberty to dispose by testament, donation, or otherwise, of their goods movable and immovable, holden in the territory of the French Republic in Europe, and the citizens of the French Republic shall have the same liberty with regard to goods, movable and immovable, holden in the territory of the United States, in favor of such persons as they shall think proper. The citizens and inhabitants of either of the two countries, who shall be heirs of goods, movable or immovable, in the other, shall be able to succeed ab intestato, without being obliged to obtain letters of naturalization, and without having the effect of this provision contested or impeded, under any pretext whatever; and the said heirs, whether such by particular title, or ab intestato, shall be exempt from any duty whatever in both countries. It is agreed that this article shall in no manner derogate from the laws which either State may now have in force, or hereafter may enact, to prevent emigration; and also that in case the laws of either of the two States should restrain strangers from the exercise of the rights of property with respect to real estate, such real estate may be sold, or otherwise disposed of, to citizens or inhabitants of the country where it may be, and the other nation shall be at liberty to enact similar laws.” (United States Statutes at Large, vol. VIII, p. 182.)

[This treaty was limited to eight years from the exchange of ratification, July 31, 1801, and has consequently expired, but it has been held by the Supreme Court of the United States, that the provision in relation to the descent of lands in the treaty was not affected by this limitation; that a right once vested does not require, for its preservation, the continued existence of the power by which it was acquired. If a treaty, or any other law, has performed its office by giving a right, the expiration of the treaty or the law cannot extinguish the right. (Wheaton's Reports, vol. II, p. 277, Chirac v. Chirac.]

(3) By the treaty of Feb. 23d, 1853, with the Emperor of the French, Article VII, it is stipulated :

“In all the States of the Union, whose existing laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously, or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subject to taxes on transfer, inheritance, or any others different from those paid by the latter, or to taxes which shall not be equally imposed.

“ As to the States of the Union, by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring this right.

“ In like manner, but with the reservation of the ulterior right of establishing reciprocity in regard to possession and inheritance, the government of France accords to the citizens of the United States the same rights within its territory in respect to real and personal property, and to inheritance, as are enjoyed there by its own citizens.” (United States Statutes at Large, vol. X, p. 996.)



The treaty of Oct. 8, 1782, with the United Netherlands, Art. VI, authorizing the subjects of the contracting parties to dispose of their effects by testament, donation, or otherwise, contains terms as “heirs,” which might technically apply to real estate, but it was not, it is believed, ever so understood. (United States Statutes at Large, vol. VIII, p. 36.)

The same remark holds as to the Treaty of April 3, 1783, with Sweden, Art. VI, concluded for fifteen years, and which provision has been twice renewed since the adoption of the Constitution, by Treaty of Sept. 4, 1816, Art. XII, and by Art. XVII, Treaty of July 4, 1827. The last treaty is still in force, it having been concluded for ten years, and to remain in force till after notice of twelve months. (Ib. vol. VIII, pp. 64, 240, 354.)



(1) The treaty with Prussia, July, August, and September, 1785, Art. X, after providing for the personal property, contains the following stipulation : “And where, on the death of any person holding real

« PředchozíPokračovat »