
    Percival E. Vaux, Executor of Mrs Elizabeth Nesbit v. Robert Nesbit and Joseph P. La Bruce, Executors of Dr R. Nesbit.
    An alien devi-exclusion of the next heir, a citizen) until office found.
    The bill stated that Dr Robert Nesbit died in July 1821 > leaving a large, real and personal estate. That before his death, on the 15th day of March 1818, he duly executed his last will and testament, by which he disposed of part of his estate. But that no valid disposition was made of his large and valuable plantation called Medway ; nor did he bequeath in any way two bonds of John A. Alston for $32,000, due to him (the testator) for the plantation called Rice Hope, which he had sold to Mr Alston. That among other provisions of his will, the testator directed that all his estate should be kept together till his just debts should be paid. That the defendants were executors, and had proved the will, and qualified thereon. That on the death of the testator without children, his widow, Elizabeth Nesbit, was the only person, according to the laws of South Carolina, entitled to his real estate ; and that she also was entitled, under those laws, to a moiety of his personal estate undisposed of by his will. That a suit was pending in this Court to settle her rights, but before she could obtain a decision she departed this life, in 1823. That she left in full force at her death a last will and testament duly executed, by which she devised a moiety of the Medway plantation to Joseph P. La Bruce, and the rest of the real estate, to which she might be entitled, to the complainant; and these devisees were appointed her executors, and had proved, and qualified on her will. That the estate of Dr Nesbit was much more than sufficient to pay his debts; and that his executors entered, under his will, into the possession of his estates real and personal and had received the rents and profits thereof. The bill prayed for an account of the rents and profits, and of the personal estate ; and for a partition of the Medway estate between the complainant and Joseph P. La Bruce.
    
    To this bill Robert Nesbit, executor and devisee of Dr Robert Nesbit deceased, and Thomas How, nephew and devisee likewise of Dr Nesbit, filed joint and several pleas to part of the bill, and joint and several answers to other parts thereof.
    1826.
    
      Charleston.
    
    
      To so much of the bill as sought a division of the plantation called Medway, or an account of the rents and profits thereof, the defendants pleaded in bar that the said Robert JVesbit, deceased, in and by his last will and testament, duly executed to pass real estate devised. That upon the death of his wife, Elizabeth JVesbit, his Medway plantation should be divided into two equal parts, one of which he gave to his nephew Robert JVesbit How, and the other half to his nephew Thomas How, and their heirs. “ And the defendants Robert JVesbit How and Thomas How alleged that they were competent to' take and did take the Medway plantation under the said devise — for they aver that R. JV. How is a citizen of the United States, and that Thomas How is a denizen of the state of South Carolina; and they are well qualified under those characters to hold and enjoy the said plantations; and the defendants, repeating their plea in bar to part of the said bill, prayed the judgment of the Court, whether they should make any other or further answer to the said bill.
    And for further plea to so much of the bill of complainant as sought a division of the Medway plantation, or an account of the rents and profits thereof, the defendants pleaded in bar, that they had held and enjoyed that plantation long before the filing of the bill, and did still hold the same as their own estate in .fee, adversely to the claims of the complainants, and all other persons. And that if the complainants or any other persons had any right, title or claim to the said plantation called Medway, (which the defendants denied) the same ought to be tried and litigated in a Court of Common Law, where they had plain and adequate remedy. And they pleaded the same in bar, and-prayed judgment whether they should make any further or other answer.
    As to so much of the bill as the defendants had not before.respectively pleaded unto, the defendants (Robert 
      
      JYesbit How and Thomas How) not waiving the benefit of their said pleas, or either of them, answered that the bonds of Col. J. A. Alston for ‡30,000, given to the late Dr Robert JYesbit, were the individual property of one of the defendants. That these bonds arose from the sale of a plantation called Rice Hope to Col. Alston, to which plantation titles were made, by Thomas Carr and wife, to Dr Robert JYesbit, in trust for the defendant Robert JYesbit How, who had joined in the conveyances to Col. Alston, and the said bonds were always considered by the testator as the property of and an advancement to the defendants, as appeared also by his last will. That the defendant Robert JY. How was willing to account as far as he was accountable; and he exhibited copies of his accounts with the estate. That some debts of the estate were still due, which must be paid out of residuary estate, and not charged on the negroes, specifically left by the testator to the two defendants. They denied that they were accountable for the profits of the Medway plantation, which was exclusively their property, they being competent to take and hold that plantation as citizen and denizen of the state. They denied their accountability since the death of Mrs JYesbit for the profits .arising from the slaves specifically bequeathed to them.
    At the hearing of the cause the following facts were agreed upon by the counsel.
    That Dr Robert JYesbit died in July 1821; having previously made and duly executed his last will and testament, to wit, on the 15th of March 1818, which had been proved and recorded. It contained the following provisions.
    That, until his debts were paid, the slaves of his wife, under the settlement, should be kept together with his own, and worked jointly as one estate; and his own after her death should be kept together. That out of the income his wife and nephew, Robert JYesbit How, should be liberally supported, and the surplus of the crops should be applied to pay his debts. That from and after the payment of his debts the proceeds of the crops should be equally divided between his wife and his two nephews Robert and Thomas How. That on the satisfaction of his debts he devised to his nephew Robert N. How and his heirs his plantation called Rice Hope, formerly purchased by him of Robert Elliot and lately conveyed to the testator as trustee, for his nephew Robert, upon the foregoing contingency. And as soon as his debts were paid he devised to his said nephew a tract of land containing twenty-three acres, adjoining Rice Hope. That his wife should have the right to live at his Medway plantation and at his Sea shore place. He gave to his wife his household furniture; and what he gave her by his will was to be in lieu and bar of dower and of all other demands. That on the death of his wife his Med-way plantation should be divided into two equal parts, one of which he devised in fee to his nephew Robert, and the other moiety to his nephew Thomas. And that on the happening of the last contingency he devised and bequeathed all the residue of his real estate and all his negroes to his two nephews, to be equally divided between them. He bequeathed all his stock of hogs, cattle, &c. to his nephew Robert on.the death of his wife. He devised all his estate in Berwick upon Tweed to his nephew Robert Nesbit How, and his heirs. He requested his nephew Robert Nesbit How to become a citizen of the United States as soon as he could, and to change his name to Robert Nesbit. He authorized his executors to cultivate Rice Hope as wrell as Medway to pay his debts. He named C. Kershaw, Joseph P. La Bruce, and Robert N. How his executors, and he revoked all other wills.
    After making his will he sold Rice Hope to Mr J. A. Alston.
    
    
      It was further agreed that Mrs JVesbit, the. widow, resided on the plantation called Medway till her death in July 1823. That the accounts of the estate, and of the sales of the crops, had been kept and were then kept in the names of the executors, and that the debts were not all paid. The defendants had resided on the plantation. That at the death of Dr JVesbit his two nephews were aliens; and Robert JVesbit How, had changed his name to Robert Nesbit, in pursuance of the will of his uncle, and that he obtained a certificate of citizenship from the federal Circuit Court in Charleston on the 8th day of December 1821, the regularity and legality, of which were reserved for discussion. And Thomas How obtained letters of denizenship on the 11th of October 1822.
    Mr Smith was called by complainant to testify to certain conversations with Dr JVesbit. This was objected to ; but it not being stated with precision what facts Mr Smith would state, he was admitted to be sworn, with the reservation of hereafter separating admissible from inadmissible testimony. He stated that Dr JVesbit was anxious that his nephew Robert should become a citizen, and inquired what was to be the course pursued, which was explained to him. That after Mr Robert JV. How's departure for Europe (May 1821) Dr JVesbit was ill, and requested the witness to go to Colonel «7. A. Alston and take his bond and mortgage - for the price at which he had sold him the Rice Hope plantation. Witness on looking at the titles remarked, that the conveyance had been made (when Dr JVesbit purchased the plantation) jointly to Dr JVesbit and Mr Robert JVesbit How; and the witness- asked to whom the bonds of Mr Alston should be made payable ; to which Dr JVesbit answered, they should be made payable to himself; for if his nephew was an alien, it was uncertain if he would return, “ and he was a poor creature any how.” He said his nephew was a minor, which had prevented his becoming a citizen. Robert, the nephew, came to this country to uncie when he was a small boy, prior to the late war, and resided and was educated here; and it was always understood he was to be Dr Nesbifs heir. The impression left on the witness’s mind was, that Dr Nesbit intended the bonds for his nephew, but being an irascible man, he liked to keep the power in his own hands. He died in July 1821, before his nephew’s return from Europe.
    Mr John L. Wilson (as a witness) stated that after the death of Dr Nesbit he was called upon to give an opinion on his last will. That to do, so it was necessary to make an inquiry into the claim of citizenship set up by Robert Nesbit How. He searched the office of the Clerk of the Court of Common Pleas at Georgetown, and saw the original paper stated to be the- notice given by Mr How of his intention to become a citizen of the United States. That the paper was headed with words of this import: “ I, Robert N. How, now or late a subject of. Great Britain,” then there was a very considerable blank and then his signature on the next page. The blank was probably left to be filled up with a petition. The witness has since searched for the paper but it could not be found. And the Clerk, Mr Heriot, stated that it was probably lost or destroyed with other papers of his office in the great storm of 1822.
    Mr Heriot, the Clerk, testified, that in the spring of the year 1821, before Mr How went to Europe, he gave notice of his intention to become a citizen. It was in May, when the Court was not sitting, and he deposited a paper with the witness as Clerk. Mr How asked if he could be made a citizen the next Court. The witness told him he believed that it would take five years. Mr How went up to the Court house to give the notice. The witness was about to sail for the north, and had not time to fill up the petition. Mr How signed a paper in the way stated by Mr Wilson. The witness had since given Mr How, at his request, a certificate that he had given the .notice, but he did not remember the terms. He did not remember the terms. He did not remember whether Mr How took any oath. His office was injured by the storm in 1822, and some papers lost. This paper could never be found. He thought the paper was signed (in blank) by Mr How according to the directions of the witness, who was to draw the petition and fill up the blank. He gave witness five dollars and no more, as his official fee. There were no other documents in his office on this subject but the paper above mentioned.
    A certified copy of the proceedings in the federal Court, as to the admission of Mr How to the rights of citizenship, was produced in evidence. It consisted of a petition from Robert JYesbit How, stating, that he had resided in South Carolina from the year 1807, and that it was always his intention to become a citizen, and on or about the first day of May IQÍQ he filed his petition for that purpose, with the Clerk of the Court of Common Pleas of Georgetoion district, as appeared by the certificate of the Clerk, and he prayed to be admitted a citizen, renouncing all foreign allegiance, &c. The petition was accompanied by a certificate of good character, and of his residence for more than ten years in South Carolina. This certificate was signed and sworn to by four persons of character on the 7th of November 1821.
    The certificate of Mr Heriot the Clerk at Georgetown stated, that Robert JYesbit How had filed his petition for citizenship with him on the 1st of May 1818, “ and the oath will be administered to him when he appears personally. Given under my hand and seal the day and year of our Lord, 1821. (Signed) Thomas Heriot.”
    
    The certificate of citizenship was given' by Mr James Jervey Clerk of the federal Court, stating that Robert JYesbit Hoto had applied to that Court for citizenship, and had complied with the requisites prescribed, and taken the oaths before Judge Drayton, and was therefore enrolled as a citizen.
    Feb. 1825.
    , A person cominginto mderTwffl arlghtbypos1 session ad-othevs^ciaim-ing under the same will: possession as fiduciary.3
    A letter was produced in evidence from Robert Nesbit How to his aunt, Mrs E. Nesbit, dated the-of July 1821, at Berwick upon Tweed, stating, that he had arrived safe there, and had been made free (of the town) the day after his arrival from America, which he left on the 25th of May 1821.
    On the part of Thomas How a certificate was produced, bearing date the 11 th of October 1822, admitting in due form the said Thomas How to the rights and privileges of a denizen of South Carolina. This certificate issued from the Court of Common Pleas, and was duly recorded.
    De Saussure, Chancellor.
    The first points for our consideration are those made by the pleas in bar.
    
      First, That the defendants, the nephews and devisees of Dr Robert Nesbit, hold the land in question, adversely, against the complainant, and all the world; and that if the complainant has any right, he has a plain and adequate remedy at law; to which alone he ought to have recourse : and they pray judgment, whether they are bound to answer.
    
      Secondly, That the defendants are, the one a citizen, and the other a denizen, and entitled to hold the land; and also devisees under the will of Dr Robert Nesbit; # and, whether aliens or not, are entitled to take and hold the lands devised to them : and they pray judgment, &c.
    ^ appears to me that the possession of the defendant Robert Nesbit How is not, and cannot be, adverse. It was fiduciary at first, acquired under the will, with au-thoritv to reside on, and cultivate the place, together J _ r ... with his aunt; and the estate to be kept, together with the negroes, even after her death, in order to pay his debts; which is not yet done. He was then a trustee under the will for the creditors, as well as for his aunt and her representatives. The defendant cannot change this fiduciary character, and make this possession an adverse one. No suit could have been brought against him to deprive him of the possession, as he held under the will for the purposes of the will. The widow, and those claiming under her, are interested in the proceeds of the estate, and are entitled to an account of the rents and profits to which the will gave her a right, if she claimed under it j and if not, then she was entitled to an account for the use, hire, and labour of her own slaves employed on the plantation by the executors. For these, and other rights and claims in the estate, real and personal, thus blended together, including the widow’s separate estate worked on the land in question, neither she nor her representatives have plain and adequate remedy at law. The joint possession of Thomas How, the denizen, with his brother Robert, the qualified executor, is permissive before the debts are paid (supposing him to have a right after that event), and cannot be allowed to be set up as adverse by the connivance of his brother, the executor and trustee. In the case of Scott v. Scott, the rights of the parties were tried and decided in equity, in relation to real estate, on thé question of alienage. Another branch of the same case, Scott v. Cohen, was tried in the Court of Law, and is reported in 2 Nott & M’Cord’s Reports, 293. The decision, in which six of the Judges of that Court concurred, approved the decision in the Court of Equity. Upon the whole, I am of opinion that the plea in bar, on the ground that the defendants held adversely, and that the complainant has plain and adequate remedy at law, cannot be supported, and the plea is overruled.
    We come now to the second plea in bar; to wit, whether the defendant, Robert JYesbit How, was a citizen of the United States, and Thomas Hoio a denizen, so as to entitle them to hold the land in those characters; and also, whether as devisees they may not hold the against the complainant, even if they should be aliens.
    Denizenship spectív^opé ration.
    We must take them up in their order.
    Was Robert JYesbit How made a citizen, and Thomas How a denizen, regularly, according to the laws of congress, so as to enable them to take and to hold the lands in question either as heirs or devisees 9
    The manner and the time of the one being made a citizen, and the other a denizen, has been heretofore stated. As the question relating to the denizenship of Thomas is the simplest and easiest, we will dispose of that first. No objection has been made to the regularity of the course pursued, or the certificate of denizenship which was dated the 11th of October 1822. That was fifteen months after the death of his uncle Dr Robert JYesbit. He was then clearly an alien at the death of his uncle. Has his denizenship a retroactive operation, so as to entitle him to take and to hold land anterior to his deni-zenship 2 By the common law it is quite certain that denizenship has no retrospective operation. All the decisions are to that effect. And our statute of the 18th December 1799, granting the rights of denizens to alien friends, does not alter the common law. It is entirely prospective. Resident aliens, on taking the oath prescribed, shall be deemed denizens, so as to be enabled to purchase and hold real property within the state. Mr Thomas How cannot then claim the land in question as denizen. There are two acts of our state legislature, of December 1806 and December 1807, which were supposed to have some bearing on this question. But on examining them, the first provides for certain aliens named in the act, and no further. The latter act provides that titles derived by contract, grants or deeds of conveyance, from or through aliens, shall be legalized under certain provisoes, one of which is, that the act should not affect in any measure descents already cast. And authority is given to all persons holding, or who shall hold, real property in the state, under the said provisions, to convey or devise the land to their children or grand children, though born before the grantor or denizen had acquired titles under the terms of the act. None of these provisions applies to the case we are considering.
    The question of the citizenship of Robert JVesbil How requires a fuller examination. That right depends on the acts of congress, and his compliance with the conditions required. The principal act is that which bears date the 14th of April 1802. By that statute it is provided, that “ any alien being a free white person may be admitted to become a citizen on the following conditions, and not otherwise.
    
      First, That he shall have declared on oath or affirmation before the Supreme, Superior, Circuit, or District Court of some one of the states, or of the territorial districts of the United States, or the Circuit or District Court of the United States, three years at least before his admission, that it was bona fide his intention to become a citizen of the United States, and to renounce for ever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, whatsoever, and particularly, by name, the prince, potentate, state, or sovereignty, whereof such alien may at the time be a citizen or subject.
    
      Secondly, That he shall, at the time of his application to be admitted, declare on oath or affirmation, before some one of the Courts aforesaid, that he will support the constitution of the United States, and that he doth renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, &c. whereof he was before a citizen or subject; which proceeding shall be recorded by the Clerk of the Court.
    That the Court shall be satisfied on admitting such alien that he has resided within the United States five years, and within the state or territory where 'such Court is held, one year at least. His own oath not to be received to prove, his residence. And it shall appear to the Court that he has behaved as a man of good character, attached to the principles of the constitution.
    By the 6th section it is enacted, that all free white persons being aliens, who may arrive in the United States after the passing of the act (14th of April 1802), shall, in order to become citizens of the United States, make registry and obtain certificates in the following manner, to wit, every person desirous of being naturalized shall, if he has attained twenty-one years of age, make report of himself (or if under twenty-one years, by his guardian, &.c.) to the Clerk of the District Court, &c. where such alien may arrive; stating his name, birth place, age, nation, and allegiance, together with the country whence he or she migrated, and the place of his or. her intended settlement; and it shall be the duty of such Clerk on receiving such report to record the same in his office, and to grant to such person making such report, when required, a certificate under his hand and seal of office of such report and registry : which certificate shall be exhibited to the Court by every alien who may arrive in the United States after the passing of the act, on his application to be naturalized, as evidence of the time of his arrival in the United States.
    
    The subsequent acts of Congress on the subject of alienage do not', I apprehend, contain any regulations applicable to this case, except one clause of the act of the22d of March 1816, which will be used hereafter as illustrative of another point.
    
      We perceive, by the acts of congress referred to and quoted, what is required of an alien that he may become a citizen. Now it does not appear that Mr How reported himself to the Clerk of any Court in the United States, according to the provisions of the 1st section of the act of the 22d of March 1816: though his arrival within the United States, which was prior to the 18th of June 1813, may protect him from that neglect. It does appear that the application, or rather notice, to Mr Heriot the Clerk of the Court of Common Pleas at Georgetown, on the 1st of May 1818, was not a compliance with the provisions of the act of the 14th of April 1802. The paper presented by Mr R. JY. How to the Clerk was a mere blank, and might have been filled up with any other matter as well as with a notification of an intention to become a citizen. It was not presented in term time, or in open Court, and can not now be produced. It is said to be lost. Mr How did not take any oath as prescribed by the statute, nor did the Clerk then give any certificate. In no one particular then was the act complied with. So that the basis, on which the final application to be admitted a citizen, on which the last act was to be founded and consummated, was not laid; and the subsequent proceedings had nothing to sustain them. It does also appear, that Mr Robert JYesbit How did not seem disposed to follow up his imperfect notification of his intention to become' a citizen; for he subsequently writes from Scotland, that he got himself made free of Berwick on Tweed as soon as he arrived there, some time after such notification. Yet it seems at a subsequent day, to wit, on the-day of JYovember 1821, an application was made to the Circuit Court of the United States sitting in Charleston, by Robert JYesbit How for admission to the full rights of citizenship. The petition alleged that Robert JYesbit How was a native of Berwick on Tweed in Great Britain, and was about the age of twenty-two years, had arrived in South Carolina in JVb-vember 1807, and from that time to the present continued to reside here, that it was always his intention ofbecom-*nS a citizen of the United States, that on or about the 1st of May 1818 he filed his petition for that purpose with the Clerk of the Court of Common Pleas for the district of Georgetown, as appeared by the certificate of the Clerk ready to be produced, and that he, the said iRobert JYesbit How, 'would support the constitution of the United States, and renounce his allegiance to the British and all other foreign governments. A certificate of good character was produced from four respectable citizens, and the certificate of the Clerk from Georgetown, that Robert JYesbit How did file his petition for citizenship with the Clerk of that Court, on the first day of May 1818, and that the oath would be administered at the sitting of the Court, when he appears personally: which certificate is dated “ this-day of-in the year of our Lord 1821;” on these papers Judge John Drayton signed his fiat: and Mr Jervey issued his certificate in due form on the 8th of December 1821. The statutes of Congress do not provide explicitly, that the final act of application for citizenship should be made in the same Court where the notice was given. But I should apprehend that it is implied, for the proceedings altogether make up a judgment; and it seems to be an anomaly to have the separate parts of the judgment in two different Courts, and one in the state Court and the other in the federal Court. In this way impositions may be practised, and the Court last applied to may be misled into a belief that the proceedings in the other Court, where notice was given, were regular, and formed a proper basis for the superstructure of the last application. Thus the acts of Congress may be eluded, and the highest right and privilege in the world, that of an American citizen, may be illegally conferred. All this may occur even where the officers are men of character, as in the present case; how much more dangerous should the clerks not be trustworthy, as may happen, though there is no reason to think so in the case we are considering. I have doubts, however, as the statutes are not explicit on this point. It does, however, appear to me that the requisitions of the acts of congress were not complied with, and that Mr Robert JVesbit How was not entitled to be made a citizen, nor to a certificate that he was a citizen.
    Another question, however, arises whether the proceedings can be looked into, and the grant and certificate of citizenship be annulled, on account of the irregularities stated in obtaining them. I am certainly not disposed to increase the difficulties of aliens, or to diminish the security derived from a certificate of citizenship, but the law must guide wherever it speaks distinctly. On this subject the law prescribes a certain and clear course to aliens to enable them to acquire the proud distinction of an American citizen. That course has not been pursued. Is the alien in question entitled to the' benefit of the citizenship, of which he has acquired the evidence of right, not in accordance with, but in despite of, the law'? Would it not be a fraud on the laws, not perhaps a moral fraud in this case, but a legal fraud; that is, the acquisition of a benefit under a law without complying with the prerequisites'? Now it is a maxim that fraud vitiates every thing which it contaminates. In insurances, even in marriages, fraudulent misrepresentations vitiate the contract. Even judgments at law, obtained by fraud, are set aside; sometimes by the Courts of Law, more frequently in Equity, as has been settled and acted upon ever since the famous controversy between Lord Coke and the Chancellor Ellesmebe. Now I apprehend that the proceedings directed by the statutes to be pursued by aliens to entitle themselves to citizenship, of which the certificate is only the evidence, cannot he placed on a higher or better ground than a judgment of a competent tribunal, which we have seen may be examined, opened and set aside for fraud. Even foreign judgments, to which more reverence has been attached by the comity of nations, may be examined, and their effects prevented in many cases. There has been great diversity of opinion certainly — but I think the better opinion seems to be that they may be so examined —at any rate in those cases in which the papers, proceedings and judgments of the foreign Courts themselves furnish proof against their legality and validity. Judge Cooper, in his well reasoned opinion in Dempsey, As-signee of Brown v. The Insurance Company of Philadelphia, goes further, and holds that the sentence of a foreign Court of Admiralty (to which this reverence has been chiefly attached) is examinable in all its parts, and is evidence of nothing but that the property captured was condemned. In the case before us, the proceedings and certificate of citizenship produced for Mr R. JY. How, to establish his right to that character, distinctly shew that he had not regularly pursued the steps required by law to be taken to entitle himself to the judgment of the Court in his favour. In the case of Maburry v. Madison, 1 Cranch, 137, it was held, that a commission is merely the evidence of a right and not the right itself. In Campbell v. Gordon, 6 Cranch, 176, parol evidence was gone into as to the proceedings pursued by an alien in order to obtain the character and right of a citizen under the then existing laws; and it was decided, that where the oath was taken, and nothing appeared to the contrary, it must be presumed that the Court was satisfied as to the character of the applicant, and it amounted to a judgment of the Court. But by the words used by Judge Washington, who delivered the opinion of the Court, it is evident that if any evidence had appeared to the contrary the presumption would not have arisen. Now in the case before us, the very evidence produced to shew the right of the party proved that the acts prescribed to be done by the alien were not performed. And the statute of 1802 expressly declares, that the acts required to be done by the alien are conditions without a compliance with which the alien cannot become a citizen. And congress, finding perhaps some doubts had been expressed, has explicitly declared in the statute of the 22d of March 1816, that any “pretended admission of an alien” to be a citizen, after the promulgation of the act, without such recital of each certificate at full length (as prescribed), “ shall be of no validity or effect under the act aforesaid.” It is true that this act speaks of aliens who have arrived in the United States since the 18th of June 1812, but I considered it as only declaratory of a pre-existing principle, that if aliens were admitted by the carelessness of officers and Courts to become citizens without complying with the conditions required of them, such admissions were mere pretensions and of no validity or effect when questioned. It is difficult to find decided cases on this question. In our own Courts a few cases have arisen which have been reported. That of Richards v. McDaniel, 2 Const. Rep. 18, was decided on our statutes of 1806 and , 1807, the provisions of which do not apply to this case. In the case of Richards v. James M'Daniel and A. Richards, 2 Nott & M’Cord’s Rep. 351, which seems to have been substantially the same case as the preceding brought up in another shape, Judges Richardson, Nott, and Colcock, looked into the proceedings of the alien who sought to be made a citizen, and finding that he had not complied with the required conditions of the statute of 1802, decided that the certificate was not conclusive, and pronounced against the eta™ citizenship shewn to have been erroneously obtained. The irregular conduct of the clerk too, in granting the certificate of his. own mere authority, was considered as affecting the right of the alien to the benefit of the right of citizenship claimed under the certificate. In the case before us the same or greater irregularity occurred. The clerk of his mere authority, out of Court, and out of the time of the sitting of the Court, received a petition or notice, or rather a blank paper, now alleged to have been intended as a legal notice, on which a certificate was grounded, and became the basis of an actual admission in a regular Court three years afterwards, although not one of the conditions prescribed by the act of 1802 had been complied with. It is true that in the same case, subsequently brought up in another shape, 1 M’Cord’s Rep. 187, it was decided ky a majority of the Court, against the charge of Judge Nott to the jury, and against the opinion of Judge Colcock, in the Constitutional Court, that the records Qf a(qmissi0n to naturalization, not mentioning that the alien previously declared his intention of becoming a citizen, are not sufficient to defeat the alien of his right; because the Court will presume that the Court which . admitted the alien must have received evidence of that fact at the time, and admitted the party as the law directs. This presumption might have been rebutted by other presumptions, or counteracted by positive proofs, such as have been produced in the case we are considering. In 6 Cranch’s Rep. 176 and 182, it is expressly said, that the presumption of all being regular will be raised if nothing appears to the contrary. As the proofs produced in this cause to support the right of the alien to citizenship actually shew, that the conditions, required by the act of congress 1802, have not been complied with, and thereby prevent the presumption of regularity, I am of opinion that Mr Robert JYesbit How is not a citizen of the United States entitled to take or hold land by descent.
    
      The Court orTa^question °uirÜfñtofté regularity of ingsPtakendby an alien to ob-cate of citi-certificate"^!10 prima fade conclusive (jper De ChancORE’
    
      With respect to the denizenship claimed by the nephew Thomas Hoio. I do not understand that there is any objection to the regularity of the proceedings in obtaining the certificate which evidences that right. He is therefore entitled to all the advantages which the laws of South Carolina give to denizens. Our state law, enacted on the 13th day of December 1799, points out the course to be pursued by aliens desirous to become denizens; and declares that, on compliance with the terms of the law, they shall “ be deemed denizens, so as to enable such persons to purchase and hold real estate within this state,” and to be entitled to the protection of the laws of the state as citizens are entitled. Mr Thomas How became a denizen on the 11th of October 1822, about fifteen months after the death of his uncle, Dr Robert JYesbit. It was argued that the certificate of den-izenship had a retroactive operation and enabled Thomas How to take under the devise of his uncle’s will as a purchaser : for a devisee is in the language of the law a purchaser, and does not take by descent. .On this point, however, the law is quite clear. Denizenship has no such operation. It acts wholly prospectively. Mr Cruise in his Digest of the Law of Real Property states, that an alien made a denizen becomes capable of holding land purchased after his denization. See 4 Cruise, 21.24. Co. Litt. 8 a. 129 a. 2 Bla. Com. 249,250. The language of our statute is clearly prospective. If we had considered the citizenship of Robert Nesbit How as duly established the same question would arise whether the certificate of citizenship (thus supposed to have been correctly given) had any retroactive operation. For in his case the certificate is in 1821, (December) which was five months after the death of his uncle, Dr Nesbit, who devised the land in question to him. The parties and the Court of Appeals are entitled to the judgment of this Court on this point, as the judgment of the Court of Appeals may not go with this Court on the point on which this case is ultimately decided. Mr Justice Blackstone does say that “ naturalization cancels all defects, and is allowed to have retrospective energy which simple deni-zation has not,” 2 Bla. Com. 249, 250. For which he quoted Co. Litt. 129 a. The very words used by Blackstone are also used by Cruise in his Digest, vol. 3, p. 225. 343, and there we find the illustration which shews that these writers are speaking of descents and not of purchases } for they put the case of a father who had a son born before denization or citizenship (naturalization) and a son born after. By denization the eldest son cannot inherit. By naturalization he may. It is certainly the settled law, that where the next heir of a person dying, seised of lands, intestate, is an alien, he is considered as not in legal existence ; and not being capable of inheriting real estate himself, he does not stand in the way of a remoter heir who is a citizen. The latter will inherit. Now can it be admitted that an act of naturalization, which may be obtained by the nearer alien relations after the death of the ancestor, should have a retrospective operation, and divest the estate already devolved on the remoter heir, who is a citizen % I apprehend that this would be too full of inconvenience; for many years might elapse between the death of the ancestor and the naturalization of the nearest relation. There are not many decisions on this question. There are a few, however, which deserve to be noticed. In Fish v. Klein, 2 Meriv. 431, it was decided that an alien, who was a devi-see in trust to sell, and who joined in the sale and conveyance, did not give a good title ; and that his ■ subsequent naturalization by act of parliament did not operate to confirm the title of the purchaser ; even though the words of the act of parliament have the appearance of an intention to give a retroactive effect; for they say that he (the alien) shall from henceforth be reported and taken as if he had been born a natural subject, and shall be enabled to inherit, and to be inherited from and to ask, take, and enjoy all lands which he may or shall have by purchase or gift. That able and excellent person, Sir Samuel Romilly, who was counsel in the cause, contended that these words of the statute might well have a retrospective operation. But the Master of the Rolls decided against him, and said that the estate of the trustee being out of him at the time when the act passed, his alienee was in no better situation, as to titles, than the defendant the grantor. In the note of this case by Mr Merivale, he states that the vendor had been desirous of having retrospective words introduced into the naturalization act, which was refused, because parliament would not depart from the common form. And the words of our statutes for naturalizing aliens are evidently prospective, and do not furnish so strong a ground for retrospective operation as the words of the British act which we have just cited, and which were denied to have a retrospective force. Upon the whole I am satisfied that an alien, becoming a citizen in the most regular manner, does not acquire a right to inherit, or to take and hold land which belonged to an ancestor who died before he became a citizen, so as to divest the right of a remoter heir who was a citizen at the time of the death of the ancestor.
    
      An alien can neither take nor hold hy descent, and if he is not naturalized at the time of the descent cast, he cannot stand in the way of the next heir’s taking.
    Naturalization is not retrospective.
    
      An alienmay take by purchase and hold against all the world till office found.
    Another ground has been taken for the defendants which requires particular examination. It is contended that an alien, though not entitled to take by descent, is entitled to take by purchase, and to hold the land against all the world except the sovereign, and even against him till office found. On examining the books we find the following rules laid down. Lord Coice lays it down, that an alien may take land by purchase, but he cannot hold it; for the king shall have it by his prerogative, but not before office found, except in case of the alien’s death, when the king may take it without office found. Coke Litt. 2 b.
    
    
      Blackstone states this to be the law in his time. 2 Bla. Comm. 249. This subject has been often before the Supreme Court of the United States, and its decisions are entitled to the highest authority on questions of alienage, as congress has the exclusive right of legislating on the subject. See the cases in 7 Cranch, 603.619. 3 Wheat. 563. 589.594. 597. These cases seem to decide the question, unless some other principle should intervene to take the case we are considering out of their range. One was suggested, i. e. that if a citizen dies intestate, and his next relation is an alien, a remote heir, who is a citizen, is entitled to inherit, and the land will not escheat. This is certainly true. But this before us is not a case of intestacy. The ancestor makes a will in due form to dispose of real estate, and he devises his lands to his two nephews, who are aliens. Such a, devise constitutes them, according to all the authorities, purchasers, and as purchasers they may take the land under the devise and hold it too, against all the world, except the state, and against that also till office found. This puts an end to the claim of the other heir, who is a citizen (as the widow of Dr Nesbit is from whom the estate is devised). In Fairfax’s case, 7Cranch, 603, it was decided that the devisee, though an alien, was entitled to take the land under the devise, and to hold the same until office found, which had never taken place, and the treaty intervened and protected his rights. In that case the devisor had a nephew who was a citizen. So in Craig v. Radford, 3 Wheat. 594. In Orr v. Hodgson, 4 Wheat. 453, the Court supported the distinction between an alien claiming by descent and by devise. It was a case tried in the District Court of Columbia on a bill inequity. The aliens claimed by descent. It was decided that they were not entitled to take or to hold real estate, and that the remoter heirs should take and hold the land, there being no escheat nor ground for one. But if it had been a devise, the aliens might have taken and held till office found, and then not be responsible for rents and profits. In the case of Scott v. Cohen and others, 2 Nott & M’Cord, 293, the Court of law decided, that the devise did not take effect as to the land in question, but the land descended to the heir at law, who being an alien could not take the land, which thereupon descended to the nearest relation who was a citizen, there being in such case no escheat to the state. There is an old case, The Attorney General v. Duplessis, reported 2 Ves. Sen. 286, which it may be as well to mention. Lord Colerain devised all the rents and profits of his lands in such manner that his daughter Rosa should have the principal benefit, and her mother an annuity. An information was filed on behalf of the crown, on suggestion of alienage of the devisees, and upon motion for injunction to stay waste, a demurrer was put in, and it was insisted that the crown had no right or estate till office found. And that if there were a trust, it was not such a one a,s the Court of Equity exercises jurisdiction over, and there was no proof of alienage. For the bill it was argued, that where the crown has a right on the foun-elation of alienage, this Court will not suffer any one who goes into possession to destroy the estate before the right of the crown be determined. An alien may purchase, but ^ ^01' the benefit of the crown, though office must be found. The crown wants the assistance of this Court to obtain evidence to lay the case before the jury. The mother will be bound to answer the question where the child was born, which is not being called upon to answer an illegal act. The demurrer was overruled, and that judgment affirmed by the House of Lords. See 1 Bro. P. C. 415, (Edit. Toml.) where the facts and grounds are most fully stated.
    An alien at purchase by under a his ancestor, differently of descents""
    Another ground suggests itself which, if solid, might change the character of the devise in question. It is a rule, that where a testator devises his real estate to his heir at law, he takes by descent, and not by purchase under the devise. On reflection, however, I am satisfied that this rule of law does not apply to the case we are considering. For the rule, admitting its existence here, has this qualification, that the devise must be of the same estate which the law would have thrown upon the de-visee as heir. Now that is not the case here, for the devise gives the enjoyment of the estate for life to the widow, and has other provisions which break the descent, so that the defendants take under the devise, which makes them purchasers, who may take and hold against all the world, except the state, and against that too till office found. I have looked into our two state acts of the 20th of December 1806, and 19th of December 1807, as before mentioned, but I do not think they have any application. In my opinion then, Robert JYesbit How and Thomas How are entitled, not in the character of citizens or denizens, but as alien devisees, to take and hold the lands devised to them till office found ^against them in behalf of the state. Should either party desire an issue at law to try this question, I have no objection even at this stage to direct an issue; though perhaps, the quickest and least expensive course would be, to carry up the case immediately to the Court of Appeals, where it will, and ought, ultimately to go. The result then of my judgment is, that the plea in bar, as to the land devised to the two nephews, Robert JYesbit How and Thomas How ought to be sustained, and the party complainant referred to his remedy at law, if he chooses to go there, or take an issue under the order of this Court. As the answer was only to such parts of the bill as were not pleaded to, and as there was no evidence gone into upon some of the points, and no argument upon any part of the case made by the bill and answer, it would be improper for me to express, or even to form any opinion, or to order any reference of the' accounts; for the accounts must ultimately be made up according ■ to the decision of the Court on certain important questions made by these pleadings.
    i Marchi826.
    The Reporter has not been able to procure the grounds of appeal, further than will appear from arguments of counsel.
    
      JDunkin, for appellant.
    When one. takes possession as executor, the law will presume that he holds in that character, and his possession will not be considered as adverse to the rights of the devisee or heir.
    The only question in the case is, whether an alien devisee can take and hold the estate in exclusion of others next of kin, who might take by descent 9
    Connected with this was the question, whether the subsequent denization of TJiomas, and naturalization of Robert, could have such a retrospective operation as to enable them to take 9
    There is not a dictum to be found in any of the books which goes to shew that it can have such operation. The naturalization of Robertwas irregular, and therefore void. The Court can look into the irregularity of those proceedings. Richards v. M’Daniel, 1 M’Cord’s Rep. 187. There is no question about the irregularity of these proceedings. It follows then that he is even now an alien; and the question now occurs, whether he can take by the devise, in exclusion of complainant. The fee cannot be in abeyance. An alien can not take by descent; a cousin, citizen, will take in exclusion of an alien brother. City Council v. Large, 1 Const. Rep. 454. By the act the lands cannot escheat while there is any one who can take, 1 Brev. 303. Remote relations, citizens, will take in exclusion of those standing in a nearer relation, rather than the land shall escheat. 7 Johns. 214. But it is contended that the devisee takes by purchase, and in that case he holds, although an alien, till office found.
    The question then is, what sort of estate or interest has he in the estate? The Judge remarks in this.case, that the law permits the alien to hold until office found, and that the process of escheat is only the mode of ascertaining the rights of the state; it is not that which gives or fixes the interest. The dicta that he can hold must be taken sub modof It can not be the fee; and that can not be in abeyance. 1 Const. Rep. 454, Mr Justice Cheves’s opinion. An alien purchaser can not convey. He can not maintain an action for the recovery of lands, nor can his wife be endowed. Co. Lit. 42 6. Co. Lit. 129 6. 1 Haywood, 485. An office conveys no right, it is only the mode of proving the alienage. 7 Cranch, 616, in Harper’s argument. A devise to an alien or to the heir of an alien, is void, because he can not take. Gilbert on Devises, 15.
    
      Powell appears to be opposed to this doctrine, as he lays it down that an alien devisee, until office found, can take; but it is evident that hé only means those cases in which there is an entire failure of heirs. Gilbert 
      refers to those cases in which others could take. Powell, 316. The case of Fairfax v. Hunter will be relied on in opposition,to the motion, but in that case the Court only determined that the state could not grant escheated lands until office found. The Judge (Story) does, it is true, enter into the doctrine; but as the only question before the Court did not embrace it, it can only go for the reasoning of the Judge, and not the decision of the Court. 7 Cranch, 616. In a case in 2 Hayw. 104. 108, the devisor died without heirs. The devise to an alien was held void — the lands escheated and vested in the trustees. The case of Scott v. Cohen, 2 Nott & M’Cord’s Rep. 293, is decisive on this question. It- is attempted to distinguish between those cases where the descent is cast on intestacy, and cases by dévise; but if there are those who can take by descent, the property can not escheat. If process is commenced, even the devisee in possession may defeat it,' by shewing that there are those who can take.
    
      Petigru, Mt. Gen. contra.
    The case resolves itself Into the question, whether the devise was void: so much so that its effects would be the same as if the devise was struck out. The rule of law is, that an alien cannot take by the operation of law, but he may take by purchase. Com. Dig. tit. Estate, letter-I. An estate by devise is an estate by purchase. An alien may take by conveyance, and although he cannot hold, it divests the grantor of title, and it escheats. Lord Core lays it down, that an alien may take the fee by purchase. 6 Cruise, 7. 2 Woodeson, 347. Co. Lit. 2 b.
    
    The freehold is not in the king until office found. It is an office of intituling. 5 Coke, 52. In the case of Fairfax v. Hunter, the point is clearly settled, that an alien enemy may take by devise and may maintain an action until office found. By a devise, the fee vests, eQ insfanf^ jn the devisee, and does not vest in the heir. Co. Lit. Ilia. If one convey to an alien for money, can say deed is void and take back his land % The devisee takes as a purchaser, and is in the same situation.
    
      King, on the same side.
    The only question in the case is, whether an alien can take by purchase1?
    The authorities cited by Mr Petigru are decisive of this point, and are supported by many other authorities. 2 Atk. 398. Butler v. Brown, 2 Johns. Ca. in Er. 401. 1 Const. Rep. 41, (Tread. Edit.) The statute of wills allows one to devise lands to any one whom one pleases, except bodies politic and corporate. - All descriptions of persons may therefore take. Powell on Devises, 352. An alien can take by devise. Cruise, tit. 38, ch. 22. An alien devisee is not liable to account for mesne profits, before office found. Craig v. Lester, 3 Wheat. Rep. 589. 614. The case of Fox v. Southack, 12 Mass. Rep. 145, in which the Court held that an alien might take by devise, is in all respects similar to that under consideration, and explains the text of Gilbert. In the case of Scott v. Cohen, the only question was, whether the decree of the Court was conclusive on the rights of the parties. The decree of the Court of Equity was made on the ground that the lands were not covered by the residuary claim, and descended to William Scott.
    
    
      J. L. Wilson, in reply.
    It is the essence of a will that there should be some one in esse capable of taking. 4 Bacon, tit. Wills, &c. 302. A devise of lands to an alien is void. Swinburne, 359. Collingwood v. Pace, 1 Ventris, 43. On looking into the Year Books, it will be seen that all the cases were cases of sale by livery of seisin, where the Courts hold that the alien purchaser may hold in exclusion of all others, until office found: and that the king shall seize, and that the tenant shall account for the mesne profits. 4 H. 4. 26. An alien may purchase, but the king may take. Rolle’s Ab. 94. The lord of a manor has such a possession of an escheat, that the person in possession is his tenant at will. Runnington, 172. 177. 2 Strange, 838. An alien may purchase, but he can not hold. Co. Inst. 2 6. His purchase enures to the king. Yiner, tit. Alien. The rights of aliens are altogether a matter of domestic regulation. Trezevant’s case, 1 Const. Rep. 61, (Tread. Edit.) The common law should only be adopted in this country when it is reasonable and just. 1 Const. Rep. 166.
    
      
       In 3 Dallas, 357, 363, Fennimore v. The United States, the Supreme Court decided, that imposing on a public officer and getting certificates was fraudulent and void; but the United States might affirm or disaffirm the act.
    
    
      
       In the argument of the case of M’Call v. Oliver, at Columbia, June 1827, the Reporter understood from what fell from the Court, that the latter opinion in the case of Richards v. M‘Daniel, 1 M’Cord’s Rep. 187, would be supported by the present Court of Appeals, and that they would not look beyond the certificate (not alluding to a case of fraud in obtaining it). In M’ Call v. Oliver, the Court said they would not look into the formalities of a certificate granted by the Courts of another state which had the same power to construe the act of congress which they had.
    
   Cuma, per

Nott, J.

The Chancellor concludes his decree by observing — It is then my opinion that Robert N. How and Thomas How are entitled, not in the character of denizen or citizen, but of alien devisees, to take and hold the lands devised to them till office found against them in behalf of the state. The correctness of that opinion is the only' question now submitted to the consideration of this Court. And it is the unanimous opinion of the Court that it is well supported by the numerous authorities relied on in the decree. It is contended however that whatever may be the English law upon the subject, it is incompatible with the principles of our government, that an alien devisee should take by purchase, when there is a more remote relation who can take as heir. If that question were now for the first time to be considered in this country, the argument might perhaps have been entitled to great consideration. But in the case of Sheaf v. O’Neal, 1 Mass. Rep. 256, it is held, that an alien can not only take and hold, but that he may convey. In the case of Fairfax’s Devisee v. Hunter's Lessee, 7 Cranch, 603, it is held that an alien devisee may take and hold until office found, although there was a nephew who might have taken as heir. That is a case of high authority, for it is supported by the una-mmous opinion of all the Judges of the Supreme Court of the United, States who were then present. Judge JohNson differed in opinion with the Court on another ground. But with regard to that question, he expresses his unequivocal approbation of the opinion of his brethren. There are other cases in which the same principle has been recognized. This Court therefore does not feel authorized to introduce the innovation which has been contended for. In the case of Scott v. Cohen, alluded to in the decree, the Constitutional Court decided nothing more, than that as the Court of Equity had previously settled the rights of the parties to the land in question, that decision should be conclusive, dnd the Court of Law would not look into the case. The Judge who delivered the opinion of the Court does take occasion to say, that lands cannot descend to an alien. But no opinion is given as to the right of an alien devisee. The decree of the Chancellor is affirmed.

Decree qffi,rmed . 
      
       In this country where there is a failure of inheritable blood by reason of alienage, the lands do not escheat but go to the next of kin. Escheator of Charleston District v. Orsborn, January 1812, MS. The same v. White. See also 7 Johns. Rep. 214. For the English rule on the subject, see Coke Littleton, Craig on the Law of Feuds, and Charles Yorbe’s Treatise on the Law of Forfeitures.
     