alien. And yet, it has never been held that a good title can be acquired through an alien without the aid or sanction of the State, or that the rights of an alien out of possession will be recognized in the courts.

SECOND: Can an alien, who claims by purchase or devise, but who is not in possession, maintain ejectment against a party in possession?

Littleton, § 198, Co. Litt. 128 b, says: If an alien will sue an action, real or personal, the tenant or defendant may say that he was born in a country out of the king's allegiance, and ask judgment if he shall be answered. Lord Coke, in his commentary upon this text, says: "But an alien that is in league shall maintain personal actions; for an alien may trade and traffic, buy and sell, and therefore of necessity he must be of ability to have personal actions, but he cannot maintain either real or mixed actions."

This was the accepted doctrine of the common law in England, and appears still to remain so.

Woodfall on Lan. & Ten. p. 442; 1 Bl. Com. p. 872.

And it seems to have been held the same in this country until the decision of Bradstreet v. The Supervisors of Oneida County, 13 Wen. 546. It was, in that case, conceded by the court, that according to the authorities both of England and of this country, an alien could not sustain ejectment for lands, even when he could found his claim upon purchase or devise, and some of the authorities to that effect are cited; but the court, for certain reasons given, expressed itself as constrained to innovate upon that doctrine and adopt a contrary rule. The reasons which could justify the court to disregard a long established common law rule, in a State where the common law was, by a provision of the constitution of the State, adopted and declared to be and continue in force, except so far as it had been, or might be, changed by statute, should be of a controlling and conclusive character. At least such a decision should be regarded as open to examination.

The reasoning, in the language of the court, was as follows: "It seems strange that any person who, by our laws, may

take real estate and hold it against all the world, except the government, should not be at liberty to prosecute for the recovery of possession. As the law seems to have been understood, an alien may defend, but he cannot prosecute, in an action touching the reality." And again: "If an alien may take and hold real estate against every person, he may do so because he has a right in the property, which the laws guarranty to him. It is his as against other individuals; if they attempt to turn him out or disturb his possession, he may defend himself, by virtue of the estate which he has. But suppose some person, by force or fraud, obtain possession; if the plea of alien friend is a bar, the intruder may enjoy the fruits of his improper conduct with impunity."

The foregoing quotations contain the whole argument of the court to justify the innovation. A single case was cited, McCreery's Lessees v. Allender, 4 Har. & McHen. 409. But in that case, the question here presented was not discussed or examined, either by the counsel or by the court, and cannot, therefore, be regaaded as authority either way. As to the reasons assigned, it cannot require an extended argument to show that they are inadequate to authorize the innovation, because they do not warrant the conclusion, but are utterly fallacious for that purpose. A trespasser upon lands, to which none but the government has title, may hold his possession against all the world except the government. Suppose some person, "by force or fraud," obtains possession, could the first trespasser maintain ejectment against the second? The alien in possession may successfully defend against other individuals, not because he has any estate or title, but because other individuals have none. It is no more necessary to assume an estate for the alien than for the trespasser, to enable him to defend his possession against other individuals. Hence the conclusion is not authorized, that the alien has an estate because he can successfully defend against others who confessedly have none; nor is it legitimate reasoning to hold that he might maintain ejectment against an

intruder, because he might defend against one when in possession.

The foregoing decision has been followed by another in North Carolina.-(Rouche v. Williamson, 3 Iredell's Rep. 141.) The latter is put by the court entirely upon the authority of the former. The same reasoning is repeated, and a single additional reason added. Unless the alien out of possession is allowed to maintain ejectment, it is urged that "it would furnish strong inducements to disturb the repose of society. Men without right, or shadow of right, would be tempted to intrude into possessions quietly held by persons against whom existed the objection of alienage, and those in turn would be stimulated to regain by every trick and artifice the possessions so wrested from them; while the law would stand by, smiling upon the victor in this contest of force and fraud, ready to award to him the profits of the land, as a reward for his superior cunning and prowess."

It cannot escape observation that this reasoning of the Georgia court is subject to the same criticism as the reasoning of the New York court. It would apply equally to give ejectment to one trespasser as against another, because the repose of society would be equally endangered by the denial of the right.

5. There have been several statutes in New York regulating the right of aliens to hold and transfer real estate, not hereinbefore referred to, that have long since been repealed. But as many claims of title still exist, which were acquired under their provisions, they yet retain something of interest and importance to the lawyer.

The first of these statutes, in the order of time, was the act of April 2d, 1798, which provided "that all and every conveyance or conveyances hereafter to be made or executed to any alien or aliens, not being the subject or subjects of some sovereign State or power, which is or shall be at the time of such conveyance at war with the United States of America, shall be deemed valid to vest the estate thereby granted in

such alien or aliens; and it shall and may be lawful to and for such alien or aliens to have and to hold the same to his, her or their heirs and assigns forever, any plea of alienism to the contrary notwithstanding; provided always, that it shall not be lawful for any such alien, or the heirs or assigns of any such alien, being aliens, to reserve any rent or service whatever, upon any grant, lease, demise or conveyance whatsoever to be made of such lands or tenements."

Lands held by an alien by virtue of the provisions of that act, were leased by parol from year to year, for an annual rent; and after the rent had become due, a promissory note was taken for the amount. In an action upon the note, it was held to be void, because the act under which the alien held made it unlawful for him to lease.

Troup v. Mullender, 9 John. 303.

In the case of an alien enemy, resident in the enemy's country, and claiming title to lands in this State, under the act of 1798, it was held that he could not maintain ejectment during the existence of the war.

Jackson v. Decker, 11 John. 418.

It has also been decided that lands conveyed to an alien under the provisions of the act of 1798, may continue to be held by alien heirs and alien devisees until by grant, devise or inheritance, the title comes to a citizen.

Duke of Cumberland v. Graves, 7 N. Y. 305.

In that case, one Charles Williamson held an estate in fee from 1798 to 1801, embracing a large tract of land in the State of New York. He then conveyed his fee to Sir William Pultney. By several descents and devises it came to the plaintiff, who brought ejectment. Both Pultney and the plaintiff, as well as all the intermediate holders, were aliens, resident of Great Britain. The chief point was, whether the act of 1798 removed the disability of the alien heirs to take by descent. The court held that the express language of the statute so far affected the contract of conveyance of Williamson to Pultney, as to secure the right of inheritance to alien heirs, until the estate again came back to a citizen.

It should be observed, that the conveyance, which in this case transferred the estate to the alien in the first instance, was an assignment and not a lease. It was not the instrument which created the estate. Williamson held the fee of the State, and of course held by a grant or contract from the State. When the grant was made, the estate could not descend to alien heirs, nor be transferred by one alien to another. Those were features of the grant of the State, fixed by the laws of the State when the grant was made. But when Williamson assigned the contract to an alien, the laws of the State had been changed, and, so changed, they at once operated, not on the assignment, but on the grant of the State, changing the effect of that grant so that aliens could be parties to such contracts of the State, with all the privileges of transfer and descent to aliens, which, before the statute, belonged only to citizens. The State being the party to the contract, under which the lands were held, was under no constitutional restriction from so changing the character of the contract, upon its transfer to an alien. Had Williamson held his lands under the grant or lease of an individual, instead of the State, the decision must have been different. An individual, who had leased a large tract of land to different tenants, under a condition of the laws which did not permit aliens to hold, might object to the power of the State to so legislate as to authorize his tenants to transfer their tenancies to non-resident aliens, with the possibility that the estates might continue to be held abroad until their termination, or until the alien tenants should transfer to citizens. Such legislation would impair the obligations of his contracts; and the State would clearly have no right to make such a change in their legal operation. The principle of the very decision last referred to, would be conclusive against the validity of such legislation. If a statute authorizing aliens to hold, so qualifies a contract that it cannot be changed in that respect by subsequent legislation, while the estate remains in alien hands, certainly laws which disable aliens from holding, should be held to affect a grant made under