But the court held, that the act ought not to avail against Kilham, because it was not proved at the trial, that he was, at any time, prosecuted and convicted, upon the said act, for any crime or offence by him committed against the

same.

Neither does our law deem any native inhabitant of this state an alien, who, after the commencement of the revolutionary war, left this country, and resided in the territories of the enemy; provided, he returned to the United States, and took up a permanent residence therein, antecedent to the treaty of peace.

Gardner's Case,

2 Mass. T. R. 244:

Per Sewall, J.

treaty of peace with

For the definitive treaty established, in a legal sense, the distinct sovereignty of the United States, and their separa- Same Case, tion from the other dominions of the king of Great-Britain. His Britannic majesty thereby acknowledged the United Construction of the States, formerly the British colonies, to be free, sovereign, G. B. and independent; and relinquished all claims to the gov ernment, and proprietory and territorial rights of the same; and the peace, thereby established, was declared to be between the citizens of the one, and the subjects of the other. This relinquishment, on the part of Great-Britain, and the acceptance of it, on the part of the people of the United States, determined their respective claims of allegiance and citizenship. By this compact and event, those natives of the British dominions, who were then settled within, and under the protection of the United States, not being excluded or disqualified, nominally or judicially, by the effect of any special statute or regulation, within any state, became citizens of the United States, and aliens to their former sovereign; while those who continued settled within the territories of their former sovereign, and under his protection, adhering to their former allegiance, are, by the same compact, aliens from the new sovereignty recognized by the treaty.

Therefore, where a native of Massachusetts left this country, after the commencement of hostilities with Great- Palmer & Ux. v. Downer, Britain, in 1775, and continued with the British until after 2 Mass. T. R. 179. the treaty of peace, it was decided, that such person was an alien.

I Bl, Com. 372.

I Bac. Abr. 80.

I Mass. T. R. 256.

I Bac. Abr. 81.

Sheaffe v. O’Neil,

I Mass. T. R. 256.

III. Of the incapacities of aliens.

An alien cannot derive a title to real estate, either by inheritance or purchase; because it would be the wildest impolicy, in any country, to suffer strangers to hold, within its territory, a property more permanent than the allegiance which they owe to it. Allegiance and protection are correlatives: Inasmuch, therefore, as an alien owes only a local and temporary allegiance here, the law gives both his person and property a protection, only commensurate with that allegiance.

Notwithstanding, however, this general principle, an alien may purchase lands, even in fee simple, but he cannot hold them after office found, for that moment they become vested in the commonwealth : But before office found, he may hold them against all, except the commonwealth.*

Therefore, where one O'Neil, an alien, conveyed a certain tract of land to one Sheaffe, in fee and in mortgage,

* The Compiler was favoured with the following valuable note, by a gentleman of professional eminence, in the county of Worcester.

In the action Moore & al. v. Patch, tried at the supreme judicial court, Worcester, April term, 1808; Judge Sedgwick declared the opinion of the whole court, on a question, which had been submitted at a previous term. The cause had heen argued at Boston, on a statement of facts, which was afterwards discharged, on account of the omission of a material fact, and it was now decided by a jury. The court had, however, made up their opinion, on the principal question of law, involved in the case, and it was accordingly pronounced by Judge Sedgwick on the trial.

The demandants had brought an action to recover seizin and possession of a tract of land in Worcester, declaring on the seizin of David Moore, their ancestor, and a disseizin by the defendant. David Moore had entered upon the land, under a deed from James Putnam, esquire, an absentee, who had left the country during the war, and ever afterwards resided within the British dominions, and was therefore an alien. After the treaty of peace, he had commenced an action against Patch, the defendant, as executor of the last will of one Nathaniel Adams, to recover a debt which had been contracted, by Adams, before the war. Judgment was rendered, by default, in favour of Putnam, against the goods and estate of Adams, in the hands and possession of Patch, his executor; and execution was extended upon the land in dispute. Patch ne

Sheaffe brought an action for the recovery of the land, and the defendant pleaded alienage of O'Neil in bar of the action: To this plea there was a general demurrer, upon which the court were unanimously of opinion, that the plea in bar was bad.t

But though an alien cannot hold real estate, yet, if he be an alien friend, he may hold personal estate. Such one

glected to redeem; afterwards accepted a parol lease from the attorney of Putnam, and agreed to pay rent. At the expiration of the term, he refused to quit the premises, and having obtained a quit-claim from the heirs of Adams, had ever since remained in possession. During the continuance of the lease, Putnam conveyed, by quit-claim, to David Moore, the ancestor of the demandants, who now brought their action for the recovery of the land.

The principal question, arising in the trial, was, whether a British subject could take land within the commonwealth, by execution, in satisfaction of a debt, contracted before the treaty of peace; and, being so seized, could convey, by deed, an absolute title to a citizen of the commonwealth. This question was decided in the affirmative, as was understood, by the unanimous opinion of the court. The fourth article of the definitive treaty of peace having provided, "that creditors, on either side, should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts, heretofore contracted," it was determined, that, to give complete effect to this provision, it was necessary, a British creditor should be put on the same footing (as respects the means of recovering judgment and payment of his debts) with the citizens of the commonwealth; and might, therefore, extend his execution on the land of his debtor, in satisfaction of a judgment for a bona fide debt, contracted before the peace. Under this direction of the court, a verdict was given in favour of the demandants.

† By 9th art. of the treaty of Amity, Commerce, and Navigation, with Great-Britain, it is agreed, that British subjects, who now hold lands in 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.

I Bac. Abr. 83.

1806, act 1, sect, 4.

Mass. Stat. Mar. 12, may also bring and defend personal actions; and may come in under our statute of distributions, and take his dividend of the intestate's personal estate.

Palmer & Ux. v.

Downer,

2 Mass. T. R. 179.

1 Bac. Abr. 81.

Co. Lit. 129. b. 1

I Bac. Abr. 84.

Ld. Raym. 282.

1 Bac, Abr, 84.

Art. 1, sect. 8.

So also, though an alien cannot inherit real estate, yet a natural born citizen may make his title, by descent, through an alien ancestor; and this by virtue of an English statute, 11 & 12 W. III. cap. 6, which has been adopted in this state. This statute provides, that all persons, being natural born subjects of the king, may inherit and make their titles by descent, from any of their ancestors, lineal or collateral, although their father, mother, or other ancestor, by, from, through, or under whom they derive their pedigrees, were born out of the king's allegiance, as fully as if such father, mother, or other ancestor, had been naturalized, or natural born subjects.

An alien enemy cannot generally bring even a personal action. This rule, however, must be understood restrictively; for if an alien enemy comes hither under safe conduct, he may maintain a personal action.

So also, if an alien friend comes hither in time of peace, and lives here, under protection, and a war, afterwards happens between the two nations, he may maintain an action; for suing is but a consequential right of protection.

IV. Of naturalization.

It is provided by the constitution of the United States, that congress shall have power to establish an uniform rule of naturalization throughout the United States.*

In pursuance of this authority, congress have enacted See Appendix, No, 1. two statutes on this subject, both of which are in force. One of these statutes was passed April 14, 1802, and repeals all former laws on that subject; the other is a supplementary act, and was passed March 26, 1804. Both of these statutes may be seen at large, by referring to the appendix.

See Tucker's Blackstone, vol. i. part 2, page 374. Note 12. Ibid. Append. Note L. page 98.

TITLE X.

APPEAL.

AN appeal is the removal of a cause from an inferior, to a superior court.

1st. In what cases an appeal does, and in what cases it does not, lie.

2d. The previous conditions necessary to be performed by the appellant, in order to entitle him to an appeal.

I. In what cases an appeal does, and in what cases it does not, lie.

Cun. Dic.

Mass. Stat. Mar. 12,

1. An appeal lies from a decree of the judge of probate to the supreme judicial court, which is the supreme court 1784, at 4, sect. 4. of probate. By statute it is declared, that any person, aggrieved at any order, sentence, decree, or denial of any judge of probate, in any county within this commonwealth, may appeal therefrom to the supreme court of probate.

1784, act 3, sect. 6.

Mass. Stat. July 3,

2. Generally, an appeal lies from the judgment of a Mass. Stat. Mar. 11, justice of the peace, to the common pleas; and from a judgment of the common pleas, to the supreme court. 1782, a&t 5, sect. 2. But, to this rule, there are exceptions: Thus,

1. An appeal from a justice of the peace does not lie, Mass. Stat. Mar. 4, 1800, act 5, sect. 16. for either party, in a prosecution on the militia acts.

2.

Neither does an appeal lie from the justices, in the Mass, Stat. June 30, 1784, act 1, sect. 3. process of forcible entry and detainer.

3. No appeal lies from the common pleas, for either Mass. Stat. Mar. 15, party, in a prosecution on the act "for the maintenance of 1786, sec. 2.

bastard children."

4. No appeal lies from a judgment of the common Mass. Stat. Mar. 3, pleas, rendered on the report of referees, where it is 1792, act 3. agreed, that the report shall be final.