The primary object of the letter addressed last year to Governor Hoffman, was to solicit his intervention with the Legislature, at the then approaching session, to assimilate the rule as to the descent of real estate in the cases of female citizens and their descendants, the issue of foreign marriages, to that which applies in like circumstances to male citizens married abroad and their descendants.

The tendency to which we have alluded of the legislation of New York, in common with that of most of the States, of placing women, including married women, on an equality with men, as regards their property, real as well as personal, has been so uniform that the disinherison of their offspring, under circumstances which would not apply to the descendants of male citizens, could exist, it was supposed, only from the fact that the subject had not been brought to the attention of the competent authorities.

To effect a remedy for the particular grievance here referred to, a law similar to the English statute of 1844 (7 & 8 Vict. c. 66), might, before the conclusion of the naturalization treaties, have sufficed. By that law, as is elsewhere explained, every person born of a British mother, though he is not made a British subject, is rendered capable of taking real or personal property, by devise, purchase, inheritance or succession.

As, however, not only had Congress passed, in 1868, a law recognizing expatriation and emphatically repudiating all the judicial decisions of the federal and State

courts based on the idea of a double allegiance, but as the same principle had been incorporated into the several naturalization treaties since concluded between the United States and those European powers with which we have the most intimate connection through emigra tion and inter-marriages, and, as the naturalization effected by a foreign marriage might place the American woman under the same disabilities as her children now confessedly are, it seemed to the writer that any partial legislation of the character suggested might be inadequate to the end proposed.

Indeed, even before the conventions in question, it was held, by Attorney-General Stanbery, that, as between nations, a woman, whose father was an American citizen, and who, though born in France, had not taken the measures required by the law of that country to claim the quality of a Frenchwoman (Code Civil, art. 9), but who had acquired, by her marriage with a Frenchman, the condition of her husband (Ib., art. 12), did not, when a widow, and continuing to reside in France, become reinvested with the quality of a citizen of the United States. (Mr. Stanbery to Mr. Seward, August 13, 1866. Opinions of the Attorney-Generals, vol. XII, p. 7.) There is no allusion in this case to a double allegiance.

The most eminent British jurists having given it as their opinion that the changes, introduced by the statute of May 12, 1870 (33 Vict. c. 14), were indispensable preliminaries to the entering by Great Britain into a naturalization convention, and the same changes being supposed

requisite in the law of the American States, which, to use the language of the British Commissioners, "had inherited rather than adopted the English common law," it was conceived that the exigency of the case, in all its parts, might be best met by the passage of a law based on the English statute.

It should be noted in this connection that by the Civil Code of the State of New York, as reported complete by the Commissioners (Messrs. Field and Bradford) in 1865, though it has not been passed on by the Legislature, it is provided:

66

"§ 170. Any person, whether citizen or alien, may take, hold and dispose of property, real or personal."

This provision is said to be in accordance with the recommendation of the then governor in his message of January, 1862.

66

"§ 660. Aliens may take in all cases by succession, as well as citizens; and no person, capable of succeeding under the provisions of this chapter, is precluded from such succession, by reason of alienage of any relative."

66

"§ 637. Succession is the coming in of another to take the property of one who dies, without disposing of it by will."

The first clause of § 660 is new, and, had the Code become a law, would have rendered unnecessary the present discussion. The remainder of the section is taken from the Revised Statutes of 1830, vol. I, p. 754,

§ 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.