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States have made with several States for allowing, in a modified way, the transmission of real estate to aliens, despite of State laws, we could not but recognize the existence of serious doubts as to the constitutional right of the Federal Government to regulate, by treaty, without the consent of the States, matters so exclusively of State cognizance as the succession and descent of property.
We have, therefore, deemed it advisable to insert in the appendix, the documentary matter which has hitherto attracted little notice, on which our conclusions are based.. The Expatriation Act, in connection with our naturalization laws, as well as the corresponding provisions of the English law, including those for the readmission of a subject previously denationalized, as contained in the Naturalization Act of 1870, will all be found there. We have brought together the naturalization treaties, and the conventions respecting the abolition, or rather modification, of the droit d'aubaine; and we have also given a synopsis of the laws of the States as to alien disabilities.
We have added, in a second appendix, the remarks respecting the marriage laws of various countries, as affecting the property of married women, which we had occasion to make at the Congress of 1869 of the (British) Social Science Association, in discussing the Married Women's Property Bill, then the prominent topic of debate. They are here reproduced, as published at the time, the subject being one intimately connected with the intermarriages of our female citizens with foreigners.
OCHRE POINT, NEWPORT, RHODE ISLAND,
W. B. LAWRENCE.
(4.) Supplementary convention
V. Convention with the Austro-Hungarian monarchy....
"As to the right of the children or nearest relatives of the deceased to inherit, its origin," says the able annotator, who has adapted the Commentaries of Blackstone to the existing laws of England, "is to be traced to a higher source than the mere institutions of civil society. There is a general and intuitive feeling that it has nature on its side, and there seems in truth good reason to refer it to the same natural title of occupancy on which the right of property itself is founded." (Stephen, New Commentaries on the Laws of England, vol. I, p. 169.)
The earliest acts of the New York Legislature, after the war of the Revolution, not only abolished primogeniture, but they professedly abrogated all distinctions as to the descent of real estate between males and females. The general policy of the State, moreover, for several years past, has been to do away with the common law disabilities of coverture, and to place married women, whether native or foreign born, domiciled in the State, in the uncontrolled use and disposition of their property, of whatever kind, with the power of bequeathing and devising it at their death.
Indeed, the recent legislation has gone further than exact justice between the parties to the marriage would seem to authorize. While the wife has the entire usufruct of her own property, the obligation to maintain the family rests, as before, exclusively with the husband; she also retains, inalienable, except with her own consent, her right of dower, while it is always in the power of the wife to divest, by her own act, the curtesy of the husband.
But, though nothing further may be required to perfect the civil rights of married women, who remain in their own country, the position of those who, in the legitimate pursuit of their own happiness form foreign matrimonial alliances, is far different. Their marriage, according to the present law of New York, in respect to alienage, may, in the cases where, by the recent treaties of naturalization, the nationality of a married woman becomes that of her husband, operate as an absolute forfeiture of her claims to the real estate of her parents or other relatives, situate in that State, so that it will pass to the relatives of the deceased, who are citizens of the United States, however remote. At all events, if she herself be capable of taking real estate by descent or devise, her issue, if their father is a citizen or subject of any foreign country, whether the United States have or have not a naturalization treaty with it, cannot succeed to the mother's real estate in the State of New York, even though she may have inherited it from her own ancestors.