§ 22, where it was first inserted. (Civil Code of the State of New York, 1865, pp. 55 and 192.)

The decision of the case, argued before the twelve judges of England, of Collingwood v. Pace (Ventris's Reports, vol. I, p. 413), which, contrary to the doctrine of Coke in his Commentaries on Littleton (Coke on Littleton, 8 a), declares the descent between brothers immediate as from father to son, and therefore not impeded by the alienage of the father, has not only been recognized as the common law of New York, but it has been decided that the rule holds equally as between one brother and the representative of another and between the representatives of both of them. (McGregor v. Comstock, New York Reports, vol. VIII, (Comstock, vol. III) p. 409.)

But the statute, 11 and 12 Wm. III., ch. vi, which enabled parties to inherit, notwithstanding their ancestors through whom they derive title were aliens, was not adopted in New York. Thus in a case which arose before the Revised Statutes, though decided afterwards, it was held, when a person seized of real estate died intestate without issue, leaving a brother who had been naturalized and a nephew who had also been naturalized, but whose father had died an alien, that the brother was entitled to the whole estate. (Jackson v. Fitzsimmons, Wendell's Reports, vol. X, p. 11; see, also, Jackson v. Green, Ib., vol. VII, p. 339.)

The section inserted by the revisors, they say, was intended to change a very harsh rule of the existing

law by which a person, not an alien himself, may sometimes be debarred from inheriting. (Revisors' Reports and Notes, New York Statutes at Large, vol. V, p. 343, ed. 1863.) But, as it does not authorize the deduction of title through an alien ancestor still living, it does not always meet the evil intended to be remedied and may create a greater one.

The case, indeed, referred to by the Commissioners of the Code in this connection (McCarthy v. Marsh, New York Reports, vol. V (Selden, vol. I), p. 266), strongly illustrates this position. In that case, the only relatives of the decedent who died in 1835, who appear to have been citizens of the United States, except the plaintiff, were children of his niece. They had been naturalized; but the mother was an alien still living, though residing, as were her children, in the city of New York. In 1836, an act was passed, in conformity with the presumed wishes of the decedent, releasing to the widow, for the benefit of herself and of the niece, all interest acquired in his real estate by the State by escheat. In 1843, a suit was brought by the plaintiff, who was naturalized in 1834, and who claimed to be the heir-at-law. He was a great-grandson of the brother of the grandfather of the decedent; all the ancestors of the decedent, as well as those of the claimant, died aliens. It was held that he was entitled to the estate. Had it not been for the Revised Statutes, the release by the State of the title, by escheat, would have allowed the property to pass as the decedent intended.

The disability of alienage was not removed by the new law from the niece, and her being alive at the time of the decedent's death, excluded from the inheritance her children, though naturalized citizens, and who, had she been dead, would have been the heirs of the decedent. Thus, in consequence of a provision professedly intended to remove a harsh rule of the common law, the estate passed from those in whom the decedent had a direct interest to a remote relative, whose very exist ence was probably unknown to the person whose heir the law proclaimed him to be.

In another case decided in the Court of Appeals, in 1856, it was held that the Statute (1 Revised Statutes, p. 754, § 22), does not enable a person to take an estate by inheritance who deduces title by descent through a liv ing alien relative of the deceased, who would himself inherit the estate were he a citizen. Accordingly, where the decedent left surviving him a sister and a niece, her daughter, the former an alien and the latter a citizen, the niece did not take the real estate by inheritance. (McLean and wife v. Swanton, New York Reports, vol. XIII (Kernan, vol. III), p. 535.)*

* No better answer could be given than is afforded by the case of McCarthy vs. Marsh, to the suggestion that a repeal of the alien disabilities might tend to create confusion in titles. Many foreigners, it is said, especially from Ireland, where there are not, as on the continent of Europe, official registries of births and marriages, whose genealogy is obscure, emigrate to the State of New York, and there acquire real estate. On their death, it was added, claimants might appear from abroad and enter on the estate and convey it, and their titles, to the prejudice of their

It is scarcely necessary to observe, that, allowing foreigners to hold land, in nowise affects the rule of descent, which is always that of the country where the real estate is situated. Thus, if an American purchases real estate in England, it will, while the law remains as it is, pass, in case of intestacy, to his eldest son. On the other hand, if an Englishman buys land in the United States, it will descend, according to the law of descent in the State in which it lies, which now everywhere gives it, in case of intestacy, equally among all the children. In France, the law which disposes, by a fixed rule, of the succession to real, as well as personal, property, leaving only a portion of it subject to the testament of the decedent (code Civil, Arts. 913, 919), is as applicable to the real estate of a foreigner in France as to that of a French citizen.

It is proper here to guard against the misapprehension under which the Senate of the State seem, at their last session, to have acted, as to the motive for the proposed law. Neither in pleading the cause of natural affection, nor in suggesting the necessity of conformity of the law of real estate to treaties, has there been

grantees, might be subsequently divested by the appearance of nearer relatives.

We cannot attach much force to this specious objection, as opposed to the weighty reasons for the abrogation of all the incidents of the droit d'aubaine. But whatever importance might otherwise be given to it, the case in question shows that under the law, as it now exists, not only is there equal embarrassment in ascertaining the genealogy of a naturalized citizen as of an alien, but there is superadded the further difficulty of determining whether the alien ancestors of the former were living or dead at the time of the decedent's death.

any intention to enter into a discussion of the general policy, independently of the naturalization conventions, of allowing foreigners to acquire and transmit land, however clear our own conviction may be of the truth of the great doctrines of economical science on this subject, now nowhere questioned, save in some of the States of the American Union. Nor shall we attempt to determine, from the conflicting opinions cited in our letter, the constitutional question, how far it is competent for the federal power to interfere by treaty, where foreigners are concerned, with the tenure of land in a State. The object has been merely to point out the unjust discrimination between the descendants of male and female citizens, and the anomalies, caused by the legislation of Congress, and by the conventions with foreign powers, in the existing law of New York; and to show that they can best be removed by adopting substantially the recent English statute, that is to say, by an abrogation of all alien disabilities.

State laws have no control over the political status of its inhabitants, and the Expatriation Act of Congress and the naturalization conventions, while repudiating the doctrine of double allegiance, permit a person to change his nationality as often as he pleases. As a consequence of these measures, it is almost impossible to determine, at any given time, whether a party is an alien or a citizen, and therefore, as long as alien disabilities continue, all titles to real estate must be exposed to infinite confusion. Moreover,