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ANN SHANKS, MARGARETTA SHANKS, SARAH P. SHANKS, GRACE F. SHANKS, AND ELIZA SHANKS, (APPELLANTS BELOW) PLAINTIFFS IN ERROR v. ABRAHAM DUPONT AND JANE HIS WIFE

January 1, 1830

ANN SHANKS, MARGARETTA SHANKS, SARAH P. SHANKS, GRACE F. SHANKS, AND ELIZA SHANKS, (APPELLANTS BELOW) PLAINTIFFS IN ERROR
v.
ABRAHAM DUPONT AND JANE HIS WIFE, DANIEL PEPPER AND ANN PEPPER, DEFENDANTS IN ERROR.



THIS was a writ of error from the supreme court of appeals 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 Carolina; the right of the plaintiffs in error to a moiety 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 Cruger and Mr Wirt for the plaintiffs in error; and by Mr Legar e for the defendants; and was held under advisement to this term. The facts of the case are fully stated in the opinion of the court. The counsel for the plaintiffs in error contended, that Ann Shanks, the mother of the plaintiffs in error, was a British subject, and that her title was protected by the treaty of 1794. The decree of the court of the state of South Carolina 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 defendants in error insisted, that the decree of the state court ought to be affirmed, because Mrs Shanks was an American citizen, capable of holding by the laws of South Carolina; so that there was no interest 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.

The opinion of the court was delivered by: Mr Justice Story delivered the opinion of the Court.

This was a writ of error to the highest court of appeals in law and equity of the state of South Carolina; brought to revise 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 claimed this moiety also upon the ground that the original defendants were aliens and incapable of taking the lands by descent from their mother, 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 native of the colony of South Carolina, and died intestate, seised of the lands in dispute, in 1782. He left surviving him two daughters, Sarah and Ann, who were 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 state until 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 11th of May in the same year.

In 1781, Ann Scott was married to Joseph Shanks, a British officer, and at the evacuation of Charleston, in December 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 Great Britain of the 19th of November 1794, a moiety of their grandfather's estate in South Carolina.

The decision of the state court was against this claim, as not within the protection of the treaty, because Mrs Shanks was an American citizen.

The cause was argued by Cruger and Wirt, for the plaintiffs in error; and by Mr Legare, for the defendants in error.

After the elaborate opinions expressed in the case of Inglis vs. The Trustees of the Sailor's Snug Harbour, ante p. 99, upon the 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.

Thomas Scott, a native of South Carolina, died in 1782, seised of the land in dispute, leaving two daughters surviving him, Sarah, the mother of the defendants in error, and Ann, the mother of the plaintiffs in error. Without question 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 descent; and if so, whether the plaintiffs in error are capable of taking the same by descent from her.

Ann Scott was born in South Carolina, before the American revolution; and her father adhered to the American cause, and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the revolution, and afterwards, remained in South Carolina until December 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country. Her citizenship, then, being prima facie established, 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 descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost; and that she was capable of taking it at the time of the descent cast.

The only facts which are brought to support the supposition, that she became an alien before the death of her father, are, that the British captured James Island in February 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 evacuation of Charleston in December 1782, she went with her husband, a British subject, 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 temporary allegiance, which did not destroy, but only suspend their former allegiance. It did not annihilate their allegiance to the state of South Carolina, and make them de facto aliens. That could only be by a treaty of peace, which should cede the territory, and them with it; or by a permanent 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 native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is, that no persons can by any act of their own, without the consent of the government, put off their allegiance, and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband; which are clearly contrary to law*fn1 (a)

Our conclusion therefore is, that neither of these acts warrant the court in saying that Ann Shands 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 her allegiance, and fixed her future allegiance to the British crown

It cannot, we think, be doubted that Mrs Shanks, being then voluntarily under British protection, and adhering to the British side, by her removal with her husband was deemed by the British government to retain her allegiance, and to be, to all intents and purposes, a British subject. It may 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 removal under his authority or persuasion. If this were a 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 election of allegiance between two nations, each of which claimed 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 fixing her allegiance 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 allegiance. British femes covert residing here with their husbands at the time of our independence, and adhering to 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 interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations. The case of Martin vs. The Commonwealth, 1 Mass. Rep. 347, turned upon very different considerations. There the question was, whether a feme covert should be deemed to have forfeited her estate for an offence committed with her husband, by withdrawing 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 disposes of the case of Sewall 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. 29, the reasoning of the court proceeds upon the supposition, that the wife might have acquired the same citizenship with her husband, by withdrawing with him from the British dominions*fn2 (b)

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 government, 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 was liable to be considered as in that peculiar situation, in which she owed allegiance to both governments, ad utriusque fidem regis. Under such circumstances, the question arised 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 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, &c. &c.; and that neither they, nor their heirs or assigns shall, so far as respects the said lands, and the legal remedies incident thereto, be regarded as aliens.

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 rights 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; why should not the most liberal exposition be adopted? The object of the British government must have been to protect all her subjects holding lands in America from the disability of alienage, in respect to descents and sales. The class of American loyalists could at least, in her eyes, have been in as much favour as any other; there is nothing in our public policy which is

In either view of this case, and we think both are sustained by principles of public law, as well as of the common law, and by the soundest rules 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 Carolina.

The question is whether the plaintiffs can inherit to their mother. The objection to their inheriting is, that they are aliens, not born in allegiance to the state of South Carolina, in which the land lies. 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, they can 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 of South Carolina, before the declaration of independence; that in 1781, while Charleston and James Island, where the land lies and she and her father resided, were in possession of the British, their mother married their father, a British officer. That the descent was 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 interval the appellants were born in England.

There is no question about the right of the appellees, if the right of the appellants cannot be maintained.

The first of the grounds taken below, to wit, the statute of Edward III. was not pressed in argument here, and must be regarded as abandoned. The ...


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