Shanks v. Dupont

[Shanks eta]. vs. Dupont et al.] peace was a treaty operating between states and the inhabitants.4hereof.

[247]

The incapacities of fei:6s covert provided by the common law, apply to,their civil rights, and aro for their protection and interest. But they. do not reach their political righfs, nor prevent their acquiring'or losing a national ,character.

These political rightr do not stand upon the mere doctrines of municipal law, applicabld to ordinary transactions, but stand upon the more general principles of the la* of nations.. [248]

THIS was a writ of error from the supreme court of.appeali in law and equity, in and for the state of South Carolina.

The suit arose out of a partition" of a tract of land in the state of South Carolinga the. right of the plaintiffs in-error to a moieity having been denied on the ground of their alienage, and their consequent incapacity .to inherit the same.

The case was argued at January term 1829, by Mr Cru- ger and Mr Wirt for the plaintiffs in error; and by Mr Le- gar6 for the defendants; and Was held under advisemerit to- this term.

The facts of the case are fully stated in the opinion of the court.

The counsel for theo plaintiffs in" error contended

thai- Ann Shanks, tlie mother.of-the .plaintiffs in error, was a Bri- 'tish subject, and thai her title waisI pr .ptectedl by theL treaty of 1'7k94. The decree of the court of the state of- South Caro- lina was therefore erroneous, and should have been in favour of -the plaintiffs, for a moiety of the land of which Thomas Scott.died seised. -

- The dafendant

in eror insisted, that* the decree of the state court ought to be affirmed, because. Mrs Shanks was an Arherican citizen, capable of holding by the laws of South Carolina; so that there was no iiterest or title in her, to which the ninth article of the treaty of 1794, by which the titles of British subjects, holding lands in this country, were saved from the disabilities of alienage,'could in any wise attach.

Mr Justice STORi delivered, the opinion of the Court.

This was a Writ.of error-to the highest court of appeals iii

[Shanks et at. vs: Dupont et aL] law and equity of the state of South Carolina; brought to re- vise the decision of that court, in a bill or petition in equity, in which the present defendants were original plaintiffs, and the. present plaintiffs were original defendants. From the record of the case it appeared that the controversy before. the court respected the right to the moiety of the proceeds of a certain tract of land, which had been sold under a former decree in equity, and the proceeds of which had been brought into the registry of the court. One moiety of the proceeds had been paid over to the original plaintiffs, and the other moiety was now in controversy. The original plaintiffs claim- ed this moiety also .upon the ground that the original defern- dants were aliens and incapable of taking the lands by descent from their mqther, Ann Shanks, (who was admitted to have taken the moiety of the land by descent from her father Thomas Scott,) they being British born subjects.

The facts, as they were agreed by the parties, and as they appeared on the record, were as follows,

Thomas Scott the ancestor, and -first purchaser, was a na- tive of the colony of South Carolina, and died intestate, selsed of the lands in dispute, in 1782. He left surviving him two daughters, Sarah and Ann,"who weie also born in South Carolina, before the declaration.of independence.

Sarah Scott intermarried with Daniel Pepper, a citizen of South Carolina, and resided with him in that stateamntil 1802, when she died leaving children, the present defendants in error, whose right to'her share of the property is conceded.

The British took possession of James Island, on the 11th of February 1780, and Charleston surrendered to them on the lth of May in the same year.

In 1781, Ann Scott was married to Joseph Shanks, a Bri- tish officer, and at the evactiation of Charleston, in Decem- ber 1782, went with, him to -England, where she remained until her death, in 1801. She left five children, the present plaintiffs in error, British subjects, who -claimed in right of their mother, and under the ninth article of the treaty of peace between this country and dreat Britain of the 19th of November 1794, .a r&oiety of their grandfather's eqate in South Carolina.

-The decision of the state court was against this claim, as

[Shanks et al. vs. Dupont et al. not within-the protection of the.treaty, because Mrs Shanks was an American citizen.

The cause .was argued by Cruger and Wirt, for the plain- tiffs in error; and by Mr Legar6, for the defendants in error.

After the'elaborate opinions, expressed in thecase of Ing- lis vs. The Trustees of the Sailor's Snug Harbour, ante p. 99, upon tie question of alienage, growing out of the American Revolution; it is unnecessary to do more in delivering the opinion of the court in the present case, than to state, in a brief manner, 'the grounds on Which our'decision, is founded.

seised of 'the land in dlspute, leaving' two daughters sur- viving him, -Sarah, the mother of thd defendants in error, and Ann, the mother of the plaintiffs in error. Without ques- tion Sarah took one moiety of the land by descent ; and the defendants in error, as'her heirs, are entitled to it. The 'only question is whether Ann took the other moiety by de- scent; and if so, whether the plaintiffs in error are capable of taking the same by descent from her. - Ani Scott was born in South Carolina, before the Ameri- can revolution; and her father adhered to the American cause, and remained and was at his death a citizenof South Carolina. There is.no disput6 that his daughter Ann, at the time of the revolution; and afterwards, 'remained in South Carolina 'until December. 1782. Whether she-was of age If she, was, then her birth during thiis time does not appear. and residence might be deemed to constitute her by elec- If she .was not f age, then tion a citizen of South Parolina.

she.might well be deemdd under the -circumstances of this ,case to hold the citizenship of her father; for children born in a coqqpry continuing while under age in the family of the father, partake of his national character, as a citizen of that country.. Her citizenship, tben, being prima facie 'establish- ed, and indeed this is admitted in the pleadings, has it ever been lost; or was it.lost before the death of her father, so that the estate in, question was, upon the descentlcast, inca- pabie of vesting in her !. Upon the facts stated, it appears to us that it was not lost; and that she was capable of- tak- ing it at the time of the descent cast.

The only facts which are brought to support the suppo-

- [Shanks et al. vs. Dupont et al.] shion; that she became an alien, before the death of her father, are; that the British captured James Island in Febru-: ary 1780, and Charleston in May 1780; that she was then and afterwards remained under the British dominion in virtue of the capture; that in 1781, she married Joseph Shanks, a British officer, and upon the evicuation of Charleston in.

Decernber 1789, she went with her husband, a British sub- ject, .to England, and there- remained until her death in 1801.. Now, in the first place, the capture and possession by the British was not an absolute change of the allegiance of 'the captured inhabitants. They owed allegiance indeed to the 'conquerors during their occupation; but it was a tem- p'orary allegiance, which did not destroy, but only suspend their. former allegiance. It did'not annihilate their allegianpe to tie state of South Carolina, and make thpm de facto aliens.: That cobld only 'be by a treaty of peace, which shouldcede the territory, and them with it; or by a perma- nent conquest, not disturbed or controverted by arms, which would lead to a like result. Neither did the marriage with Shanks produce that effect; because marriage with an alien, whether a friend .or an enemy, produces no dissolution of -the n4tive .allegiance of the wife.

It may change her civil rights, but it does not effect her political rights or privi- leges . The general doctrine is, that no persons can by any act 6f their own, without the consent of the governmen.t, put- off their allegiance, and become' aliens.

If it were otherwise, then a femme alien would by her marriage be- come, ipso facto, a citizen, and would be dowable of the estate of her husband ; which are clearly contrary to. law(a). . Our conclusion therefoie is, that .neither of these acts warrant the court in saying that Ann Shqnks had ceased to be a citizen of South Carolina, at the death of her father.

This is not, indeed, controverted in the allegations of'the parties.

The question then is, whether her subsequent removal with her husband operated as a virtual dissolution of-ber al- legiance, and fixed her future allegiance to the British crown

(a) See Kelly vs. Harrison, 2 Jobns. Cas. 29. Co. Litt. 31, b. Corn. Dig.

Alien. C. 1. Dowerx A. 2. Bacon's Abridg. Alien.

'Dower, A.

[Shanks et al.-vs. Dupont et-al.] by the treaty of peace of 1783. Pur opinion is that it did.

In the first place, she was born under the allegiance of the British crown, and no act of the government of Great Britain ever absolved her from that allegiance. Her becoming a. citizen of South Carolin4 did, not, ipso facto, work any dig- solution of her original allegiance, atleast so.far as the rights and claims of the BritiAh erdwn were concerned. During the war, each party claimed the allegiance of the natives of the colonies" as due exclusively to itself. The American states insisted upon the allegiance of all born within the states respectively; and Great Britain asserted an equally exclusive claim. The treaty of peace of 1783 acted upon the state of things as it existed at that Period.

It took the actual state of. things as its basis. All those, whether na- tives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British ,crown. All those who then adhered to the. Bjitish crov, were deemed and held subjects of that crown. The treaty' of peace was a treaty operating between'the states, on each side, and the inhabitants thereof; in the language of the se- venth article, it was afirm and perpetual peace between his Britannic majesty and the said states, "and between the sub- jects of'the one and the citizens of the other." Who were then subjects or citizens, was to be decided by the state of facts.

If they were originally subjects of Great Britain and then adhered to her, and were claimed by her as sub- jects, the treaty deemed them such. . If they were originally British subjects, but then adhering to tie states, the treaty deemed them citizens. Such, I think, is the natural, and indeed almost necessary meaning of the treaty; it would otherwise follow, that there would continue a.double, allegi- ance of many persons; an inconvenience which must have. been foreseen, and would cause the-most injurious effects to both nations.

It cannot, we ttrmk, be doubted that Mra Shanks, being then voluntarily und Vr British protection, and adhering to the British side, by her removal with her husband was deem- ed by the British governmeit-to .retain-her allegiance, and to be, to all intents and purposes, a Britisi subject. It may

[Shanks et al. vs. Dupont et al.] be said 'that, being sub potestate viri, she had no right to make an election; nor ought she to be bound by an: act of If-this were a removal under his authority or persuasion. case of a crime alleged against Mrs Shanks, in connexion with her husband, there might be force in the argument.

But it must be considered, that it was at most a mere elec- tion of allegiance between two nations, each of which claim- ed her allegiance. The governments, and not herself, finally settled her national character. They did not- treat her as capable by herself of changing or absolving her- allegiance; but they virtually allowed her the benefit of her choice, by ,ixing her allegiarice finally on the side of that party to whom she then adhered.

It does not appear to us that her situation as a feme covert disabled her from a change of allegiafice.. British femes covert residing here with their husbands at the time of our independence, and adhering tq our side until the close of the war, have been always supposed to have become thereby American citizens, and to have been absolved from their antecedent British allegiance. The. incapacities of. femes covert, provided by the common law, apply to their civil rights, and are for their protection and interesi. But they do not reach their political rights, nor prevent their acquiring or loing a national character. Those.political rights do'not stand upon the mere doctrines of municipal law, applicab)e to ordinary transactions, but stand upon the more general- principles of the law of nations. The case of Martin vs-.

Tile Commonwealth, I Mass. Rep. 347, turned upon. very different considerations. There the question was, whether' a feme covert should be deemed to' have forfeited her es- tate for an offence committed with her husband, by with- drawing from the state, &c. under -the confiscation. act of 1779 ; and it was held that she was not within the purview of the act. The same remark dlposes 4f the case of Sew- all vs. Lee, 9 Mass. Rep. 363, where the court expressly refused to decide whether the wife by her withdrawal with her husband became an alien. But in Kelly vs. Harrison, 2 Johns. Cas. 29f the reasoning of the court proceeds upon the supposition, that the wife might have acquired the saine

tShanks°t al. vs. Dupont et al.l ditizens hip with her husband, by withdrawing with him from the British dominions(a).

But if Mrs Shanks's -citizenship was not virtually taken away by her adherence to the British at the peace of 1783, still it must be admitted that, in the view of the British go- vernment, she was, at that time, and ever afterwards to the time of her death, and indeed at all antecedent periods, a.

British subject. At most, then, she vas liable to be consi- dered as in that peculiar situation, in which she owed alle- gjance to both governments, ad utriusque fidemregis. Under vich circumstances, the question arises Whether she and her heirs are not within the purview of the ninth article of the treaty with Great Britain of 1794. It appears to us-that they plainly are. The language of that article is, "that British eubject8 who now hold lands in the territories of the United States, and -American citizens who now hold lands in the dominions ofhis majesty, shall continue'to hold them accord- ing to The nature and tenure of their respective estates and titles therein, &c. &c.; and that n'either they, nor their heirs or a~signs shall, so far as respects the said lands, and the legal remedies incident thereto, be regarded as alens.

Now, Mrs Shanks was at the time a British subject, and she then held the lands in controversy; she is therefore within the words of the treaty. Why ought she not also to be held within the spirit and intent . It is said that the treaty meant to protect the right of British subjects, who were not also American citizens; but that is assuming the very point in controversy. If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; iVhy should not the most liberal exposition be adopted . The object of the Bri- tish government must have been to protect all her subjects holding lands in America from the disability of alienage, in respect to de'scents and sales. The class of American loyal- ists could'at least, in her eyes, have been in as much favour as any other; there is nothing in our public policy which is

(a) See also Bac. Abridg. Alien A. Cro. Car. 601, 602. 4 Term Rep. 300.

Brook Abr. Denizen, 21.

Jackson vs. Lunn, 3 Johns. Cas. 109.

VoL. III.-2 G

250

[Shanks et al. vs. Dupgnt et al.] more unfavourable to them than to other British subjects.

After the peace of 1783 we had no right or interest in future confiscation; and the effect of~alienage was the same in re- spect to us, whether the British subject was a-native of Great Britain or of the colonies. This part of the stipulation then being for the'benefit of British subjets who becanie aliens by the events of the war; there is no reason why'all persons should not be embraced in it, who sustained the character of -British subjects, although we might also have treated them as American .citizens. The argument supposes that because we should treat them as citizens, therefore Great Britain hadno right to insist upon their being British sub- jects within the protection of the treaty. Now, if they were in truth and in factupon principles of public and municipal law, British subjects, she has an equal right to require us to recognize them as such.

It cannot be doubted that Mrs Shanks might have nierited any lands in'England, as a British subject, and her heirs might. have taken such lands by descent from. her.

It seems to us, then, that all British born subjects .whose allegiance Great Britain has neve re- nounced, ought, upon-general principles of interpretation; to be held-within the intent, as they certainly are within the words, of the treaty of -1794.

In either view of this case, dnd we think bbth are sustain- ed by-principles of publiJaw, as well as of the~common law, and by tihe soundest tule- of interpretation, applicable to treaties between-independent states, the'objections taken to the right of recovery of the plaintiffs cannot.prevail.

Upon the whole, the judgment of' the court is, that the plaintiffs in error are entitled to the moiety of the land in controversy, which came by descent to their mother, Ann Shanks, and of course to:the proceeds thereof; and-that the 'decree of the state court of appeals.ought to be reversed; and the cause remanded, with directions to enter a decree in favour of the plaintiffs in error.

Mr Justice JOHNSON, dissenting.

This cause comes up from the state court of South Caro- .

lina.

ISbanks et al. vs. Puponit et al.j -The question is whether the plaintiffs can inherit to their mother. The objection to their inheriting is, that they are alieris, not born in allegiance to the state .of South Carolina, in Which'the land Iles. From the general disability of aliens they would-exempt themselves. 1. On the ground that their mother was a citizen born, and in that.right, though born abroad, theycean inherit under the statute -of Edward III.

2. That- if not *protected by that- statute, then that their

mother was a British subject, and that she .and her.heirs are' protected as to this land by the treaties of 1783 and 1794.

The, material facts of their case are, that their mother and her father were natives born of the province (cf South Caro- lina, before the declaration of independence; that'in 1781, while •Charleston and James Island, where the lahid lies and she and her father resided, were in possession of the British, their mother married their father, a British officer. That the descenfwas cast in 1782; and in December of that year, when the town was evacuated, she went to England with her husband, and resided there, until her death in 1801 ; in which .ntervalth.e appellants were born in England.

There is no q uestion about the right of the appellees, if

the right of the appellants canlibt be maintained. - ,.The first of the grounds taken below, to wit, the statute - of Edward III. was not pressfd in argument here, and must be regarded as abandoned. The second requires therefore our sole attention. .Was Mrs Shanks to be regarded as a British subject, with- in the meaning of our trhaties with Great Britain q. If so, then-the land which was acquired in 1782, has the peculiar incident attached to it of being inheritable by aliens; sub- jects of Great Britain.

Until the adoption of the federal constitution, titles to*

land, and the laws of allegiance, wee exclusively subjects of .state cognizance. Up to the time therefore when this discent was cast upon the mother the state of South Caro- -lina was supreme and uncontrollable on the subject now be- .fore us.

.By the adoption of the constitution, the power of the states in this respect was subjected to some modification. But

[Shanks et al. vs. Dupont et al.] although restrained in some measure from determining who cannot inherit, I consider her power still supreme in deter- mining who can inherit. On this subject her own laws and her own courts furnish the only rule for governing this or any other tribunal.

By an act of the state passed in 1712, the common law of Great*Britian was incorporated into the jurisprudence of South Carolina. In the year 1782, when this descent was cast, it was the law of the-land; and.t becomes imperative upon these appellants, after admitting that their pafrent was a na- tive born citizen of South Carolina, daughter of a native born citizen of South Carolina, to show on what ground they can escape, from the operation of these leading maxims of common law. Nemo potest ex'ierepatriaim -- and proles se- quitur sortem paternam.

The unyielding severity with which the courts of Great Britain have adhere(. -to the first of these mhaxims in Dr Sto- rie's case, furnished by sir Mathew Hale, and in .Enels M'Donald's case, to be found in Foster, leaves no ground of complaint for its most ordinary application in -the case of descent, and its most liberal application when perpetuating a privilege.

The treaty of peace can afford no ground to the appel- lants, nor the construction. which has extended the provi- sions of that treaty to the case of escheat; for the question here is not between the alien 'and the state, but between aliens and other individual claimants. The words of the sixth. articlc of the' treaty of 1783 are the same as those in the "There shall'be no future con- preliminary. treaty of 1782. fiscations made, or "future piosecutions commenced against any person or persons by reason of the part which he or they Inay have taken in the present war."

Conceding that escheat may be comprised under confisca- tion ; -a decision between individuals claiming under no act of force imputable'to the state, cannot possibly be con- sidered under that term.

Nor will her case be aided by the following words, of that a.ticle: to wit'" nor shall any, person on that account (the part which he or they may have taken: in the-presentwar) suf-

253

[Shanks etal. vs. Dupont et al.] fer'any future loss or damage either in person, liberty, or pro- perty." The decision of the'state court gives the most liberal extension possible to this provision of the treaty, since it de- clares that Mrs Shanks never was precluded by any act of hers from claiming this property. It never entered into the minds of that court, that the very innocent act of niarrying a British officer, was to be tortured into "taking a part in the present war;" nor that following that officer to England and resid- ing there under coverture, was to be imputed to her a.cause .of forfeiture.

I consider it very important to a clear view of this ques-. tion, that its constituents or several members should be viewed separately.

The state court has not-pr.etended to impugn the forceof the treaty'of 1794, or denied the obligatioh to concede every right that can be fairly and legally asserted under'it,; but has only adjudged-that the case of the appellants-is not one which on legal grounds of construction can be brought within its provision.

The words of the -treaty are : "it is agreed that British subjects who now hold-lands in the territories of the United States, and American citizens' who now hold lands ii the. dominions of his majesty," shall' con'tinue to hold and trans- mit to their heirs, & .

The decision of the state court which we are now review-

1. That Mrs Shanks was in the year 178.2,. when the de-

scerit was cast, and continued to'be in 179f; when the treaty was ratified, a citizen of Soutl Carolina.

2. That she-was not a-British subject in the sense of the

treaty.

As to the first of these two propqsitions,'I consider it as altogether set at rest by the decision itself; it is established by paramount authority ; and this court 'can no more say that it is not the law of South Carolina, than they could deny the validit)r of-a statute of the state passed in 1780, declaring that to be her character, and those her privileges.

The only question, therefore, that this'court can-pass upon is, whether, being recognized under that- character, and pos-

254

[Shanks et at. vs. Dupont et al.] sessin'g those rights, she is still a British subject within the provisions of the treaty.

It is no sufficient answer to this question, that it cannot be denied that Mrs. Shanks was a British subject. She was so in common with the whole American people. The argu- ment therefore proves too much, if it.proves any thing; since it'leads to the absurdity of supposing that Great Britain was stipulating for the .protection of her enemies, and imposing on us an obligation in favour of our. own citizens.

It also blends and confounds the national character of those, to separate and distinguish whom was the leading object of thetreaty of 1783.

It cannot be questioned that the treaty of 17.83 must have left Mrs Shanks a British subject, or the treaty of 1794 can- not aid her offslling. And the idea of British subject under the latter treaty,'will be best explained by reference to its meaning in that of 1783. The two treaties are in par ma- teria.

The provisions of the third article show that persons who come within the description of .People of the United States, were distinguished from subjects of. Great Britain. That article stipulates for a right in the. people of the United States to resort to the gulph of St tawrence for fishing; a stipulation wholly nugatory, if not distinguishable from sub- jocts of Great Britain.

The fifth article is more explicit in the distinction.

It first contains a provision in favour of real British subjects, then .one in favour of persons resident in districts ih 'posses- sion of his majesty's arms; and then stipulate§ that persons- of. an.! other description shall have- liberty to goto and re- main twelve months in the United States -to adjust their affairs. These latter must have included tim loyalists who had beep banished or in any way subjected to punishment, who are explicitly distinguished" from" real British subjects; and thus classed, in order to avoid the question towhoni their allegi-ance was due, or rather, because, by the same treaty, the king having .renounced all claim to their allegiance, could no longer distinguish them as British subjects.

Can those any longer be denominated British subjects

.255

[Shanks et al. vs..Dupont et al.] whose allegiance the king of Great Britain has solemnly re- nounced 9

I know of no test more solemn or satisfactory than the liability to the charge of treason ; not by reason of temporary allegiance, for that is gone with change of domicil; were those who could claim the benefit of the king's renunciation. to the colonies, subject to. any other than temporary alle- giance, while commorant in (izeat Britain!. I say they were not. Their right to inherit is not a sufficient test of that liability as to other nations, for that ight results from a dif- ferent principle, the exemption of a British subject from being disfrahchised, while-free from crime.

Was Mrs Shanks an individual to whose allegiance the king had renounced his claim 9

The commencement of the revolution found us all indeed professing allegiance to the British crown, but distributed into separate communities,; altogether independent of each other, and each exercising within its own limits .sovereign powers, legislative, execlitive and judicial. We were de- pendent it is -true upon the crown of Great* Britain, but as It lies to all the world beside, foreign and independent. then at the basis of our.revolution, that when we threw off our allegiance to Great Britain, every member of each body politic stood in the relation of subject to no other po0 r than the community of which he then constituted a rhember.

Those who owed allegiance to- the king, as of his province of South Carolina, thenceforward owed allegiance to South Cgrolina. The courts of this country all consider this trans- fer of allegiance as resulting from the declaration of inde-, pendence ; the British from its recognition by'the-treaty of peace. But as to its effect, the British courts concur in our view of it. For, in the case of Thomas vs. Acklam, 2 B. &

C. 229, the language of the British court- is.this: "a decla-

ration that a stat e.shall be free, sovereigwvand independent, is a declaration that the pople composing that state shall no longer be considered as the subjects of that sovereign by whom the declaration is made."

From the previous relations of the colonies -and-mother couniry, it is obviotis that.the declaration of independence

2563

SlPkEME .COURT.

tShanks et a. vs. Dupont et a.1j must 'have fouhd many persons resident in the, country be- sides those whose allegiince was marked by the unequivocal cirdumstanae of birth;' many native born British subjects voluntarily adhered to the Americans, -and many foreigners had by settlement, pursuits tr principles, devoted themselves to her cause. . .Whatever questions may have. arisen, as to the national character or allegiance of these; as to the case under review, which is that of a native born citizen of South Carolina, there would be no doubt. And the courts of that state have put it. beyond a doubt, that -the. revolution transferrbd her

ll6giancie ,to that state. -Whoever will weigh the words "real British subjects," used in the fifth article,-and consider-the context, can come to. but bne conclusion : to wit, that it niust mean British sub- jerts to whose allegiance the states make no -claim. "Es-. tates that have been confiscated belonging to real .British' subjects" are the words. 'Now it is notorious, thatlthoug, generally speaking, the . objects- of. those confiscations were those to whose allegiance the states laid claim, yet in many. instances the'estates of British subjects resident in England or this country, or elsewhere, were confiscated, because they "were- British subjects, on the .charge of adhering to.the.ene- - my. But if the- right bf election had ever been- contem- plated, why should the tdrm real have been inserted. The loyalists were British subjec.ts, and had given the most signal proofs of their election to *remain such. -What possible meaning can be attached- to the term real, unless it raised adistin'tion to their prejudice I And historically, we know that Great' Britain acknowledged their merits by making large provisions for their indemnification'; 'because for, them there was -no provision madd for restoring their prbperty.

It has beenargued that theBritishcourts, in construing the treaty of peace, hhye recognised this right of election, ,and the case of Thomas vs. Acklain, -before cited, is supposed to'establish it. ..But a very little attention to that case-will proie the contrary. It is in fact the converse of the present ease. Mrs 'Thomas was the daughter of Mr Ludlow, an' American citizen born before the revolution, dnd was born

257

[Shanks et al. vs. Dupont at al.] in America long after the separation. So that her alien character was unquestionable, unless protected by the sta- tute of Geo. II. explaining those of Anre and Edward. The decision of the court of king's bench is, that to bring her- ,'self within the provisions of the statute, her father must be shown "at her birth to have been both a native born and a subject of Great Britain ; that by fhe treaty of peace, the .ling had renounced all claim to his allegiance, and his sub- sequent residence in America proved his acceptance of ihat, renunciation.

But when did South Carolina renounce the allegianceof.

'MrsShanks '. We have the evidence of the states having acquired it ;..when did she relinquish it!. Or. if it be placed on the footing of an ordinary contract, when did South Carolina agree to the dissolutioh of this contract '. Or when did she withdraw her protectiop, and thus dissolve the right to claim obddience or subjection '

-It.js true,'the treaty of 1794 drops the word real, and sti- pulates generally for British subjects and American citizens; construing the two treaties as 'instruments in pari materia.

This circumstance is of little consequence; and however we construe it, the argument holds equally good, that the treaty could. have been only meant to aid those who needed its aid, not those who were entitled under our own laws to every right which the treaty meant to secure; that is, those whose alien character'prevented their holdinglands,, unless aided by some-treaty or statute., Mrs Shanks wds not of this character or description ; her right at all times to inherit has b.een recognized by,.paramount authority.. But it is con- tended, that it was at her election whether to avail herself of her birthright as a citizen of the state, or her birthright as a subject of Great Britain.

To'this there may be several answers given. And first, the admission of this right would make her caie no.better.under the construction* of the tretaty ; for, having no 'eed of its protection, as-has been authentically recognized by the state decision, it cannot be supposed that she was an object con- templated by the 'treaty; she' was not a British subject in

.258

-[Shanks,et al. vs. Dupont et al.] the sense of those treaties, especially if the two treaties be construed on the principle of instruments in pari materia.

Secondly, if she had the right of election, at what time did she exercise itO for.she cannbt claim under her election, and against her election.

If. she exercised it' prior to her father's 'death, then- was she 'an alien at. his death, and could not take even a right of entry by descent, as has been distinctly recognized in Hunter vs. Fairfax, 7 Cranch," 619, and I think in. some other cases. She then had noth- ing for' the treaty to at upon.'

But if. her election was not complete ,until subsequent to her father's'death, then it is clearly'settled; that taking the ,oath of allegiance to. a foreign sovereign prodthces no for- feiture, and she. still had no need'of a treaty to secure *her' rights'to land previously descended to her.': If'the facts be resorted to, and the court is 6alled.upon to 'fix the period.of' her transit, it would- be obliged to confine itself to the act of her marrying against her allegiance. 'It is the only free -act o .,her life stated upon the 'record,' for. from thence she -continued sub potestate viri; and if she or her descendants. -ywere now interested in maintaining"'her original allegiance, we shauld'hear it con'itended, and be compelled to -admit,' that lib subsequent act.of lir, life could bd imputed to ler .b6cause of ber coverture; and even her marriage was proba- bly during ier infancy..

fBt lastlyjI deny this right. of election altoietheri as exist- ing in South Carol'ina, more especially at that time..

I had this question submitted 'to rpe 6h my. circuit some years since, and I. then leaned.in favour' of this right of elec- tion. But more mature reflection has satisfied me, that I thengave too' much weight to natural, law and the sugges- tions of-reasdn'and justice; ina case which ought to be dis-' posed of upon the principles of political and positive liw, and the la~w of nations.

That a government cannot be too liberal, in extending to individuals th& right.of using their talents and seeking their fortunes wherever their'judgments may lead tiem, I readily" agree. There:ig no limit short of it.s own security, to which

[Shanks et W!. vs. Dupont et al.) a wise and beneficent government would restrict, its liber-. ality on this subject. But the. questiori now to be decided is of a very different feature ; it. is not one of expediency, but of right. ' It is, -to what extent may the powers of govern- ment be lawfully exercised in restraining individual voliti6d on the subjectof allegiance; and what are th6 rights of the individual when unaffected by positive legislation,

As the common law of Great Britain is the law -of South Carolina, it would here perhaps be tufficicnt to statethat the common law altogether denies" the right of putting off allegiance. -British subjects are per-mitted, when not-pro- hibited bY statute (as is the case with regard. to her citizens), to seek their fortunes where theyplease, but -alays subject to their natural -allegiance.. And although it is fot regarded "as-a criine to'swear allegiance, to a foreign state, yet theii- government stands uncommitted in the subject of the embir- rassments in which a state of 'war betwben the governments of their-'iatural and that of .their "adopted.allegiaiee.may' involve the individual. On this-subjectthe British govern- ment, acts as circumstances mnay dictate to her policy. - That policy is generally liberal ; and as war is the calling-of many of her subjects, she has not been rigorous in punishing them even when found with arms in their handi, where *there has been no desertion, and no proclamation ofrecall. The right however to withdraw from their natural allegiance is uni- versally denied by;the -common law.'

.It is true that, without any act of her own, Mrs 'Shanks found-herself equally amenable to both governments Under the application of this Common. law, principle. But from this only one consequence followed, which is, that.so far as related to'rights to be claimed, or acquired, or duties to be imposed under the laws of either government, she was liable - to become the'victim of the .will or injustice of either.

If we were called upon to settle the - claims of -the two governments to her allegiance, upon the general principlesr applicable to allegiance even as recognized by the contend- ing. governments, we should be obliged- to decide that the superior claim was in South -Carolina.- For, although before "-the. revolution a subordinate state, yet it possessed every

260

rShanks et al. vs. Dupont et al.] attribute of a distinct state; and upon principles of national law, the members of a state or political entity continue members of the state notwithstanding a change of govern- ment. The relations between the body politic and its mem- bers continue the same. The individual member aid the national fdmily remain the same, and every member which made up the body, continues in the eye of other nations in his originaj relation to that body. Thus we gee that the American government is at this day claiming indemnity of France for the acts of those who had expelled the reigning family from the throne, and occupied their place.

But it is obvious, that although the common law be the law of South Carolina, and its prineiplcs are hostile to the right of putting off our national allegiance; the constitution and legislative acts of South Carolina, when amerting her independence, must be looked into to determine whether she may not then have modified the rigour of the common law, and substituted principles of greater liberality.

South Carolina became. virtually independent on the 4th of June 1775. The association adopted 'by her provincial congress on that day, constituted her in effect an indepen- dent body politic; and if in.international affairs, the fact of exercising power be the evidence of legally possessing it, there was no want of facts to support the inferenice there;' for officers were deposed, and at one time the most influ- ential men in the state -were banished under the powers It required assumed and exercised under that association. the indiscriminate subscription- and acquiescence of all the inhabitants of the province, under pain of banishment.

Neither of the constitutions adopted in 1776 or 1778 cori- tains any-definition of allegiance, or designation of the indi- viduals-who wereoheld bound in allegiance to the- state; but the legislative acts passed under those constitutions,.will sufficiently shdw the received opinion on which the govern- ment acted in its legislation upon this subject.

Neither the ordinance for establishing an oath of abjura- tion and allegiance, passed February 13,'1777, nor the act of March 28, 1778, entitled "an act to oblige every tree male inhabitant of this state, above a certain age, to give

(Shanks et al. vs. DupoUt et al.] assurance of fidelity and'allegiance to the same,".hoId& out any idea of the right of election. The first requires the oath to be taken by any obe to whom it is tendered, and the last requires it to be taken by every male inhabitant above sixteep,'under pain of perpetual.bariishment.

The preamble to the' latter~act indeed admits that protec- tion and allegiance are reciprocal; but the whole course of

right of, election to belong to the state alone, and an election to withdraw allegiance from the state, as a crime in the in- dividual. The eleventh, or penal clause, is very explicit on. this subject.

It runs thus': "that if anypersdn:refusingor 'neglecting-to take the oath prescribed by this act, and with- drawing from this. satei shall return to the same, then he shall be adjudged guilty of treason against thi" state, and shall, upon conviction thereof, suffer death as a traitor."

Now, therefore, where there is no allegiance, there can be no treason.

Since, then, the common law of England was the law of allegiance- and of descents in South Carolina, when this de- scent was cast-upon the mother, and since remained unal- terid by any positive act of legislation of; the only'power then possessing the right to legislate on.the subje.ct; it fol- lows that the representatives of Mrs Shanks can derive no benefit from, her election; unless the right to, elect is inhe- rent and unalienable in its nature, and remains above the legislative control of 'society, notwithstanding the social compact.

All this doctrine I deny. .I have "already observed that ,governments cannot b4e too liberal in extending-the right.to individuals; butas to iti being unalienable, or unaffected by the social compa6t, I consider it to be no more so than the "right to hold, devise, or inherit the lands or acquisitions of an individual. The right to enjoy, transmit, and inherit the. -fruits of our own labour, or of that of our ancestorg, stands on- the same footing with the right to employ our industry wherever-'it can' be best employed; and the obligation to .obey the laws of the community. on the subject of-the right -to emigrate,'is as clearly to be inferred from the reason and

"[Shanks et al. vs. Dupont et al.] nature of things, as the obligation to use or exercise any other of our rights, powers, or faculties, in subordination to the public good. There is not a writer who treats upon the subject, who does not, qualify the exercise of the right to emigrate, much more that of putting off or changing our al-, legiance, with so many exceptions as to time and circum- stances, as plainly to show that it cannot be considered as an unalienable or even perfect right. A state of war, want of inhabitants, indispensable- talents, trafilsfer of knowledge and wealth to a rival, and various other grounds, are assigned by writers on public law, upon which'a nation may .lawfully and reasonably limit and restrict the exercise of individual voli- tion in emigrating or putting off our allegiance. All this * shows, that whenever an individual proposes to remove, a question of right or .bligation arises between himself-and the community, which must be decided on in some mode.

.And what other inode is there but a reference to the positive legislation or received principles of the society itself'.

It is therefore a subject for municipal regulaion ; and the security of the individual lies in exerting his influence to obtain -laws which will neither expose the commdnhity unz.c sonably on the one hand, nor restrain on. indlvidual. unjustly bn thbi -other.

Nor have we any thing to complain of in this view of the It is a popular and flattering theory, that the only ' subject. legitimate origin of government is in compact, and the ex- ercise of individual will. That this is not practically true, is obvious fiom history; for, excepting the state of Massachu- setts, and the United States, there is.not perhaps on record, an instance .of a government puroly originating in compact.

And even here, probably,. not more than one third of those subjected t6 the government had a voice in the contract.

Women, and children under an age arbitrarily assumed, are necessarily excluded from the right of assent, and yet arbi- trarily subjected. If the moral government of our maker and our parents is to be deduced from gratuit6us benefits bestowed on-us, why may not the government that-has shield- ed our infancy claim -from us a debt of gratitude to be re- paid after manhood 1' 4n the course of nature, man his need

[Shanks et al. vs. Dupont et al.l of protection and improvement long before he is able to re- ciprocate these benefits. These are purchased by the, sub- mission and services of our parents; why thei. should not those to whom we must be indebted for adiantages so. indis- pensable to the development of our powers, be.permitted, to a certain extent, to birfd us apprentice to the community from which they have been and are to be procured 1.

If it be answered that this power ought not to.be extend- ed unreasonably, or -beyond the period when we are capable of acting for ourselves; the answer is obvious,-by what rule is the limit to be prescribed, unless by positive.municipal regulation '.

It is of importance here, that it should be held in view that we are considering political, -not moral obligations. The latter are universal and immutable, but the former must fre- It is the quently vary according to political circumstances. doctrine of the American court, that the issue of the revo- lutionary war.settled the p-oint, that the American states were free and independent on the 4th of July 1776. On that day, Mrs Shanks was found under allegiance to the state of South Carolina, as a natural born citizen to a community, one of whose fundamental principles was that natural allegiance was unalienable; and this principle was at no time relaxed by that state, by any express provision, while it retained the undivided control over the rigl'ts and liabilities of its citi- zens.

But ii is argued that this lady died- long after the right of passing laws*of naturalization was ceded to the Uniited States, and the United States have'in a series of laws admit- ted foreigners to the right of citizenship, and imposed an oath-which contains an express renunciation of natural and every other kind of allegiance. And so of South Carolina; she had previously passed laws to the same effect.. In 1704'she passed a law "for making aliens free of this prd- vince," which remained in force until 1784, when it was siupeiseded by the act of the 26th of -March, "to confer the right of citizenship on aliens.;" 'to which succeeded that of the 22d of March 1786,.entitled "an act to confer certain

9.64.

[Shanks et al. vs. Dupont et al.] rights and privileges on aliens, and-for repealing the act therein mentioned."

In both the latter acts the uath 6f allegiance is required tobe taken ; and that oath, as prescribed by the act of the.

28th of March 1778, contains an abjuration of allegiance to any other power,'and particularly, to the king of Great Bri- tian.

These legislative acts, it cannot be denied, do see to hold out the doctrine of the right to change our allegiance, and, do'ftirnish ground for insisting, that it is absurd in agovern-" ment to deny to -its own citizens, the right of doing. that which "it encourages to be done by -the citizens of other states.

Most certainly it is to be regretted that congress has not long since passed some law upon the. subject, containinp a liberal extension of this right to individuals, and prescribing the form and circumstances under whi6h it is to be exer- cised, and by which the act of expatriation shall be authen- ticated. A want of liberality in legislating 'on this subject might involve the government in inconsistency; but'the ques- tion here is whether, in absence of such declaration of the public will or opinion,, courts of justice are at liberty to fasten upon the government, by inference, a doctrine nega- tived by the common law, and which is in its nature subject to so many modifications.

I. think not. Great 'Britain exercises the same power either

by the king's patent.or by legislative eactment; and per- manent laws exist in that country which extend the rights of naturalization to men by classes, or by'geneial' description.:' Yet this implication has never been fast~ned upon.her; nor is the doctrine of her common law. less sternly adhered 'to; or less frequently applied, even to the utmost extent of the punishing power of her courts of justice.

In practice she moderates its severities; but .in'this it is will and policythat gaides her, not any relaxation of the restriction upon indi- vidual rights.

There is indeed one prominent, difficulty hanging over this argument which it is impossible to remove. If it proves

[Shanks et al. vs. Dupont et al.] any thing, it proves too much; since the infe-rence, if result- ing at all, must extend to put off one's allegiance, as well to adopted citizens as to natural born citizens ; and to all times and all circumstances. What then is that obligation, that allegiance worth, which may be changed an hundred times a day '. or by passing over from one army to another, perhaps in the day of battle '. The truth is, it leave7 but a shadow of a tie to society, and converts that which is considered as one of the most sacred and solemn obligations that can be entered into, although confirmed by the sanctity of an oath, into nothing but an illusory ground of confidence between individuals and their governments.

The idea brings man back to a state. of nature; at liberty to herd with whom he pleases, and connected with society only by the caprice of the moment.

Upon.the whole Iam of opinion, that Mrs Shanks con- tinued, as she was born, a citizen of South Carolina; and of course unprotected by the British treaty.

I have taken a general view of -the subject, although it does not appear precisely whether or not Mrs Shanks had attained an age sufficiently mature to make an election be-' fore marriage, or was ever discovert during her life, so as-to be able to elect after marriage. I have reasoned on the hypo- thesis most favourable to her, admitting that she had made an election in authentic form. -Nor have I confined myself to authority; since I wished, as far as I was instrumental, to have this question settled on principle. But it does appear to me, that in the case of Coxe vs. M'Ilvaine, this court has decided against the right of election most expressly; for -if ever the exercise of will or choice might be inferred from evidence, it is hardly possible for a stronger case to be made out than that which is presented by the facts in that case.

With regard to state decisions upon this question, I would remark, that it is one so exclusively of state cognizance, that the courts of the respective states must be held to be best acquainted with their own law upon it. Though every other state in the union, therefore, should have decided differently from the state of South Carolina, their decisions could only determine their own respective law.upon this subject, .and

[Shanks et al. vs. Dupont et al.] could not weaken that of 9outh Carolina witl regard to her own law of allegiance and descents; It does appear singu- lar, that we are here called upon to overrulea decision of the courts of South Carolina, on a point on which they ought to be best informed, and to decide an individual tobe a British subject, to whose allegiance ihe British couirts.have solemnly decided the king has no claim. On this point the case of Ludlow, in Thomas vs. Acklam, is the case of Mrs Shanks; it is impossible to distinguish them. The state of South Carolina acknowledges her right to all the-benefits of alle-. giance; the king of Great Britain disavows all claim to her allegiance; and yet we are called upon to declare her a Bri- tish subject.

I have not had opportunity for examining the decisions of all the states upon this subject, but I doubt not they will gene- rally be found to concur in principle with the court of South Carolina, except so far as they depend dpon local law. This is certainly the case in Massachusetts. The decision in the case of Palmer vs. Downer, does, it is true, admit the right of the election ; but besides that that case is very imper- fectly, and I may add unauthentically repbrted, it is most certainly.overruled in the subsequent case of Martin vs.

Woods.

Before I quit the cause it may be proper to notice a passage in a book recently pobiished in this country, and which has been purchased and distributed under an act of congress ; I .mean Gordon's Digest. There is no knowing what degree of authority it may be pupposed to acquire by this act of patronage; but if there is any weight in the argument in favour of expatriation drawn from the acts of congress on that subject, I presume the argument will at some future time be applied to the doctrines contained in this book.

If so, it was rather an unhappy measure to patronise it; since we find "in it a multitude of nisi prius decisions, obiter dicta, and certainly sime striking, misapp-ehensions, ranged on the same shelf with acts of congress. On the particular subject now under consideration, art. 1649, we find the fol-

"Citizens of the United States have a right to expatriate themselves in time of .war as well as in

267

[Shanks et a!. vs. Dupont et a.] time of peace, until'restrained by congress;"' and for this doctrine the author quotes Talbot vs.. Jansen,; S Dall. and the case of the Santissima Trinidada, 7 Wheat. 348; in both which cases the author has obviously mistaken the argument of counsel for the opinioh of the courit; for the court in both- cases expressly wave expressi.g an opinion; as not called for by the case, since if conceded, the facts were not sufficient Lo sustain the'defence.

The author also quotes a case from I Peters's C. R. which directly negatives the doctrine, and a case from 4 Hall's Law Journal, 462, which must have been quoted to'sustain the 'opposite doctrine. -It is the case of the United States vs.

Williams, in which the chief justice of the United States pre- sided, and in.which the right of.election is expressly nega-. .tived,, and the individual-who pleaded expatriation is con- victed and punished.

This cause came on .to.be heard on the transcrirt of the. record from the supreme'couirt'of. appeals'in'law and equity, in and for the state of' South Cirolina, and was argued by. counsel; on consideration whereof, it. is considered and de- clared by this court that Afin Shanks, the mother of thd ori, ginal defendants, was at the time of her death a British subject, within the true intent and meaning of the ninth article of the treaty of amity, commerce and navigation made between his Britannic majesty and the United States of America on the 19th of November 1794i and. that the said original defendants, as her heirs and British subjects, are capable to take, and did take by descent from her the moiety of the land 'in the p-roceedings 'menitioned, and are entitled to the proceeds of the. sale thereof, now in the regis- try of thq circuit court of equity, as in the said proceedings mentioned.

It is therefore considered and adjudged by this court that there is error in the decree of the said court of appeals inequity, of the state of South Carolina, in affirming the deree of the. circuit court, in said proceedings mention- 'ed, whereby it was 'ordered and decreed, that-.the money arising from the sale, of the land. in .question, theretofore. re-

268

[Shanks et al. vs. Dupont et al.] served subject to the order of the court, be paid over to the petitioners, as the only heirs who are capable of takingthe same. And it is further ordered and adjudged by this court, that for this cause the decree of the circuit court aforesaid, and of thu court of appeals aforesaid be, and each of them is hereby reversed. And it is further ordered and adjudged by this court, that the cause be remanded to the said court of appeals, witlh directions that a decree be entered therein, that the said moiety of the said lroceeds of the said sale be paid over to the original defendants (the present plaintiffs in error)' as their right, and that such further proceedings be had therein as to justice and equity may in the ptemises appertain.