
    
      Matilda McClenaghan v. Horatio McClenaghan et al.
    
    A denizen cannot, under the Act of 1799, inherit real estate in South Carolina.
    The legal effect'of the Act of 1799, is to waive the right the State has to-escheat the lands of aft alien during his life, but not to remove the disability of the common law which bars him from inheriting.
    
      Before Dunkin, Ch. at Marion, February, 1846.
    Dunkin, Ch. John McClenaghan, a naturalized citizen of the United States, died intestate in February, 1844, seized and possessed of a large estate, real and personal.
    
      The intestate left no lineal descendant, father or mother, but he left a widow, the complainant, two brothers, Horatio McClenaghan and William McClenaghan, and several children of a deceased brother, George McClenaghan, and of a deceased sister, Mary McClenaghan.
    These proceedings were instituted for a settlement and division of the estate. The only question about which any doubt or difficulty existed, was in relation to the real estate, supposed to be worth about forty thousand dollars.
    The widow claimed the whole of the real estate, on the ground that the defendants, the next of kin of the intestate, were aliens, and incapable of holding real estate in South Carolina. All the defendants are aliens born, and all were resident beyond the limits of the United States, except the defendant, Horatio McClenaghan, a brother of the intestate.
    This defendant is a native of Belfast, Ireland, but has resided in South Carolina for more than sixteen years prior to the institution of these proceedings. On the 31st October, 1828, he filed his petition in the Court of Common Pleas, praying to be admitted to the privileges of a denizen. On the same day, before his Honor Judge Gantt, he took the oath of allegiance, engaging to support the Constitution of this State and of the United States, and abjuring all allegiance or fidelity to every foreign authority, and particularly to George the Fourth, King of the United Kingdoms of Great Britain and Ireland, of whom he was before a subject. The usual certificate was granted by the presiding Judge, which certificate was duly-recorded in the mode prescribed by the Act of 1799, in the office of the Secretary of State at Charleston.
    It is, I think, abundantly clear, that the rights both of the complainant and defendant, rest entirely on the statute law of South Carolina. At common law, neither of them, neither the widow, nor the alien bom brother, though a denizen, could have any interest in this matter. The widow might be entitled to dower, but the fee must necessarily escheat “for defect of heritable blood.” — 1 Bl. Com. 374 : 11 Rep. 67. But the widow claims under the positive provisions of the Act of 1791. She is made an heir by the law of the land ; and so . it was declared by the'Court in Seabrook vs. /Seabrook, Me Mullan’s Eq. 206.
    The right of the brother is derived from the same charter. By the fourth clause of the'Act, it is declared that, in the case presented by the pleadings, the widow shall be entitled to one moiety of the estate, and the brother to the other moiety.
    The disability of an alien to hold real estate was originally founded on feudal principles. He owed no allegiance to the sovereign of whom all lands were held. This principle has been adopted in our own institutions. But to a denizen, the reason of this exclusion is inapplicable. In England, the oath of allegiance may be tendered to him — 2 Just. 121; and by the law of South Carolina, (A. A. 1799,) 5 Stat: 355, it is expressly provided that the petitioner for denizenship “ shall take and subscribe the oath of allegiance.” In England, “ a denizen may take lands by purchase or devise, which an alien may not, but cannot take by inheritance; for the parent, through whom he must claim, being an alien, had no inheritable blood, and therefore could convey none to the son.” — 1 Black. Com. 374. “ And upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him; but his issue born after may.” — Co. Litt. 8.— Arbitrary and unreasonable as these- distinctions seem to be, they can have no application to the law of South Carolina.— No question of inheritable blood is presented. The widow takes as such, the father or the brother in the same manner, and the son, whether born before or after denization, because he is the lineal descendant of the intestate.
    The course of legislation on this subject, before and since the Revolution, marks the difference in our institutions, and in the principles by which the right of succession, or of distribution, was regulated.
    At a very early period of the colonial history, it was deemed important to encourage the settlement of aliens, by authorizing them to hold real estate. In 1696, the Lords proprietors passed an Act “ for making aliens free of the Province.” Among other things it was specially enacted that they might take, have, and enjoy any lands, &c., “ and make their resort or pedigree as heirs to their ancestors, lineal or collateral, by means of any descent, remainder, reverter, right or title,” &c., as also to keep and enjoy all lands which they had purchased and bought, &c., “ as fully and effectually as if they had been bom of English parents within the provinceand also to keep and enjoy all lands which they might have by way of purchase or gift, of any person or persons whomsoever: provided such alien born took the oath of allegiance to the King, and procured a certificate from the Governor to that effect, which should be recorded in the office of the Secretary.
    In 1704, during the reign of Queen Anne, a similar Act was passed, authorizing aliens to hold lands, and to prove “ their pedigree as heirs to their ancestors, lineal or collateral, by reason of any descent,” <fcc., provided they took the oath of allegiance before a Justice, who should grant a certificate, to be recorded in the Secretary’s office. It was provided, however, that they should not be qualified to be elected as members of the General Assembly, nor was such alien born permitted to vote for members of Assembly, unless he had other qualifications of property and residence prescribed by the Act.
    After the Revolution, but prior to the adoption of the Constitution of the United States, the Legislature of South-Carolina passed an Act (A. A. 1786: 1 Brev, 7,) granting to resident aliens all the privileges of citizens, on certain conditions, and with certain exceptions as to political rights. This Act was virtually repealed by that clause of the Constitution which vests in Congress the power to establish an uniform rule of naturalization throughout the United States.
    By the 1 Oth article of the Constitution of this State, it was made the duty of the Legislature, as soon as might be convenient, to “ pass laws for the abolition of the right of primogeniture, and for giving an equitable distribution of the real estates of intestates.” In conformity with this injunction, the law of 1791 was enacted. The English rules of descent were abrogated or disregaided, and a new system established, more in unison with the spirit of our institutions. An heir, as was suggested in Seabrook vs. Seabrook, is the person in whom real estate vests by operation of law, on the death of one who was last seized. In order to ascertain who is the heir, it is only necessary to inquire to whom, by the Statute law of South Carolina, the estate would pass, and whether the demandant comes under the description of the Statute. In England, a parent of the person last seized can never take, for the reason, as it is quaintly said, that lands never ascend. But in South Carolina, the father or mother may inherit, because they are made heirs by the Act of 1791. A denizen, in England, cannot take by inheritance, because his parent, through whom he must claim) being an alien, had no inheritable blood; and therefore could convey none to his son. But a denizen father in South Carolina may inherit from his native born son, and the inquiry as to the birth or the blood of his own father, or the intestate’s grandfather, is wholly irrelevant.
    But for wise and obvious reasons, neither father nor brother, nor any other person who is an alien, is permitted to hold •real estate for his own use. He is a stranger, and owes no allegiance to the country, or its government. When the reason ceases, the disability should also cease. The Act of 1799 simply declares that aliens, becoming residents of this State, and subscribing the oath of allegiance before one of the Judges, “shall be deemed denizens, so as to enable such persons to purchase and hold real property within this State, and in all other respects to entitle such persons to the like protection from the laws of this State, as citizens are entitled unto;” providing, however, that such denizen shall not have the right to vote for any public officer of the State, or to hold any office of trust or profit in the State.
    When the evil to be remedied is considered, it seems a very narrow construction of the Act to confine its benefits to those who have bought lands, or those to whom they have been de-. vised, and exclude those on whom the law casts the estate. Nothing but an obvious necessity would justify the adoption of. such construction. By the liberal terms of the Act, denizens are permitted both to purchase and hold real estate. It is true that the authority to hold includes the right to purchase, and it was finnecessary to give that right. But this objection, (if it be one,) might with more force be urged to the minute provisions of the Acts of 1696 and 1704. It is no part of the definition of a denizen, that he may not hold lands by inheritance. The Acts of 1696 and 1704 are entitled Acts “to make aliens free of this part of the province.” The Act of 1799 is entitled “An Act granting the rights and privileges of denizenship to alien friends,” &c. The meaning is the same. For reasons peculiar to the daw of England, the letters patent of denization would not enable an alien to become an heir. They removed the political objection, authorized the denizen to hold lands which he obtained by purchase or devise, but could not cure the defect of inheritable blood. In South Carolina, the removal of the political objection, by compliance with the provisions of the Act of 1799, made the alien free of the State, and enabled him not only to purchase and hold real property, but entitled “in all other .respects to the like protection from the laws of the State, as citizens are entitled unto,” except that he could not vote for, or be elected, a public officer. Allegiance and protection-are reciprocal. To enjoy “ the like protection from the laws of the State as citizens were entitled unto,” is to have all the rights .and privileges conferred by the laws. And for this reason it.was deemed necessary to declare and provide, that the right to vote, and the privilege of being chosen a public officer, should be excepted from the rights which protection from the laws of the State conferred on her citizens. To deprive a denizen of his birthright, to exclude a man from inheritance who has become a resident of the State, and taken the oath of allegiance, is not to extend to him “the like protection, in all respects, from the laws of the State, as citizens are entitled unto.” Like all other remedial laws, the Act of 1799 should receive a liberal construction.
    The Court is of opinion, that on the death of John Me Clenaghan, the intestate, his real estate vested in his widow, the complainant, and his brother, the defendant, Horatio Mc-Clenaghan, and that a writ of partition should issue to divide the same between the said parties in equal moieties, which is, accordingly, ordered and decreed.
    1. The complainant appealed, and moved to reverse the decree, on the ground that Horatio McClenaghan, being an alien, born, is not entitled to inherit the real estate of the intestate, John McClenaghan, by the laws of South Carolina.
    2. That denizenship does not entitle him to inherit the real estate of the deceased.
    Dargan, for the motion.
    Miller, contra.
    
    Before the adoption of the federal constitution the States exercised the right of naturalizing foreigners; but that power is now vested exclusively in Congress. The right to make a denizen, however, still belongs to the State governments ; and* further, a State may, within its local limits, confer upon a denizen, and even upon an alien, the righst and privileges of a citizen, to be exercised and enjoyed within the jurisdiction of the State, but not so as to entitle such denizen or alien to the rights of citizens in other States of the Union. For instance, a State may pass a law conferring upon an alien the right to purchase or inherit real estate, and this would not conflict with the exclusive right of Congress, “to establish a uniform rule of naturalization.” (Const, art. 2, sec. 8, cl. 4.) In the exercise of this power the State governments, both before and since the adoption of the constitution, have passed laws, subject to certain conditions, giving to aliens coming hither to reside, and taking the oath of allegiance, in some cases, all the rights and privileges of citizens, except the political right to vote, or to hold office; and South Carolina has, by numerous Acts of the Legislature, declared her approval and adoption of this wise and liberal policy. (See A. A. 1696, 2 Stat. at L. 131, and 1704, lb. 251, making aliens free of the province, with the right to inherit land, <fec. also A. A. 1784, making aliens-citizens, P. L. 339, repealing A. A. 1704.) The reasons of this policy are obvious. When this State was first settled by Europeans, to enable her to maintain a political existence, and to conquer a savage foe, population was the great desideratum, and, like infant Rome, our country became the resort of alien adventurers from various nations, who were encouraged to settle here. From the first settlement, down through every age, this want of population has ever prompted liberal laws for the encouragement of immigration; and as an inducement to this end much higher immunities were allowed to settlers from abroad, than were granted by the old and densely peopled countries of Europe, where pride, prejudice, and the elevation of power caused aliens to be looked upon with suspicion or treated as enemies, and the ancient laws against them to be enforced with the utmost rigor.
    The want of population in this country was particularly felt immediately after the war of the revolution, when the carnage and slaughter of that struggle had left but few inhabitants to people our fertile and widely extended territory, and South Carolina, like the other States, was poor in every thing but her dominion. To remedy this disastrous state af affairs as far as such legislation could, the General Assembly of this State, in the year 1786, before the adoption of the federal constitution, passed an Act, (P. L. 412,) entitled “An Act to confer certain rights and privileges on aliens, and for repealing the Acts therein mentioned.” The chief provision of this Act is, “that all free white persons, (alien enemies, fugitives from justice, and persons banished from either of the United States, excepted,) who shall reside in this State for a year, take and subscribe an oath or affirmation of allegiance, before one of the Judges of the Common Pleas, (who shall give to such person a certificate of his having taken such oath or affirmation,) shall be deemed citizens, and entitled to all the rights, privileges and immunities to that character belonging. Provided always, that no such person shall be entitled to vote at the election of members'of the Legislature, or the city council, nor qualified to serve on juries, (except on coroners’ inquests, juries de medietate linguce, or special juries in the Common Pleas,) nor be eligible to the office of Governor, Lieutenant Governor, privy Councellor, delegate to Congress, Intendant of the-city, or a member of the City Council, nor to a seat in the Legislature, until he shall have been naturalized by a special Act Of the General Assembly.” *
    
    By this Act, if unrepealed, the defendant, Mr. McClenaghan, would unquestionably be entitled to inherit the one-half of his deceased brother’s real estate. Although the constitution of the United States, which was framed in 1787, (art. 2, sec. 8, cl, 4,) giving Congress the power “ to establish a uniform rule of naturalization,” takes away from the States the right to confer citizenship of the United States, and has repealed this Act, so far as it has this effect, yet all the rights to property and other substantial provisions of the Act, not repugnant to the constitution, remain of force, unless repealed by the Act of the Legislature of this State, passed in 1799, (5 Stat. at L. 355 ; 1 Brev. Dig. 236.) This last Act is entitled “An Act granting the rights and privileges of denizenship to alien friends, residing or intending to remove within the limits of this State.”
    It is framed on the model of the Act of 1786, using the same words, for the most part, referring to the same subject, and the two Acts, with the clause of the constitution above quoted, being in pari materia, are to be taken together as one Act, and so construed that every part of the first Act shall stand, except such parts as are repugnant to the constitution and the provisions of the latter Act. The important provisions of the Act of 1799 are in these words : “ That from and immediately after the passing of this Act, all free white persons, (alien enemies, fugitives from justice, and persons banished from either of the United States excepted,) who now are, or hereafter shall become, residents of this State, shall, on taking and subscribing the oath or affirmation of allegiance, before one of the Judges of the Court of Common Pleas, be deemed denizens, so as to enable such persons to purchase and hold real property within this State, and in all other respects to entitle such persons to the like protection from the laws of this State as citizens are entitled unto.”
    ' After making provisions for the certificate of denization, &c. the Act concludes with this proviso : “ Provided that nothing herein contained shall be construed to confer on any denizen the right of voting at any election for members of either branch of the Legislature, or for any public officer of this State, or of being eligible as a member of either branch of the Legislature, or to any office of trust or profit in this State.”
    The contending parties in this case are each entitled to inherit by virtue of the statute law of this State, and not by the common law canons of descent, and this point has been settled by the appeal Court, in the casé of North and others vs. Valle and others, Dudley’s Eq. Rep. 215. In that case it is decided, “that persons in this State do not inherit by the common law, but by the direct force of the statute of distributions ; therefore the child of a deceased alien brother or sister, who is naturalized at the time of the descent cast, may inherit real estate under that statute, notwithstanding the alienage of the parent of such child.” Chancellor Harper, in that case, refers to his opinion in the case of Barksdale vs. Bona, (2 Hill’s Ch. 416,) “for the reasoning to show that the various canons of descent have no application under our statute.”
    By the fourth clause of the statute of distributions of 1791, (l Faust, 23, Brev. Dig. 422,) the widow of the intestate and his brother the defendant are each “entitled to one moiety,” of the real estate — the subject of litigation.
    But the question here recurs, can the defendant, being a denizen, legally claim the one half of the estate ? To settle this question, 1 take the position that the Act of 1786, the constitution of the United States, and the Act of 1799, above quoted, being construed together to form one sjrstem and one law, will clearly entitle him to it. But should it be held that the Act of 1786 is repealed by the constitution of the United States and the Act of 1799, the latter Act will in that ■event entitle him to inherit the aforesaid moity of the land,, The constitution is to be expounded by the same rules of ■construction as the Acts of Congress, or the Legislature. It is a part of the written law of the land, (see Judge Johnson’s opinion in the allegiance case, Book of Allegiance 230, and 2 Hill L. R.) “The great object of the maxims of interpretatation,” says Chancellor Kent in 1 Com. 468, “is to discover the true intentions of the law.” Judge Johnson, in the case of Richards vs: McDaniel and Richards, 2 Mill’s Con. Rep. 22, quoting Noy, 42, says “general laws and special laws, the old law and the' new law, the laws of God and the laws of man, are oftentimes all joined together to help a man to his right.”
    He further says, “there is perhaps no rule better supported by justice and wisdom, than that when there are several Acts on the same subject they should be read together as one Act, so far as their provisions are consistent; by this means the mischief, the remedy, and the intention of the Legislature, are more distinctly seen and applied.”
    This was a decision in which it was held that the Act of 1806, and the Act of 1807, the first a special and the other a general law, giving aliens the right in certain cases to inherit and transmit real estate in this State, should be read and construed together as one law. As to the policy of these Acts he says (what will also apply to the Acts of 1786 and 1799,) “they speak a language worthy of an enlightened and liberal Legislature, which cannot be misinterpreted. It was an encouragement due to the industry of many respectable foreigners, who resided among us, that the fruits of their labor should be transmitted to their relations.”
    The intention of the law giver, and the meaning of the law, are to be discovered from a view of the whole statute, and of every part taken and compared together ; (Dwarris on St. 45;) and the same author, at page 46, holds this language: “As one part of a statute is called in to help the construction of another part, and is fitly so expounded as to support and give effect if possible to the whole, so is the comparison of one law with other laws made by the same Legislator, or upon the same subject, or relating expressly to the same point, enjoined for the same reason and attended with like advantage.”
    “ In applying the maxims of interpretation, the object is, throughout, first to ascertain and next to cany into effect the intentions of the framer. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. It is therefore an established rule of law that all Acts in pari materia are to be taken together as if they were one law.”
    The author cites in support of the text 4 T. It. 447 ; 5 T. R. 417. Earl of Ailesbury vs. Patterson, Dougl. 30. The same doctrine is treated of and supported in 1 Kent Com. 462. See also The State vs. Fields, 2 Bail. L. R. 554: and the State vs. Baldwin, lb. 541, deciding the same principle.
    ■ Applying this rule to the case before the court, it will appear that the constitution of the United States, and the Act of 1799, have only in part repealed the Act of 1786. The whole effect of the power “to establish a uniform rule of naturalization,” was to take away from the States the right to make citizens, because one State might have one regulation, and another a mode and conditions totally different; one State-might be satisfied that an alien should become a citizen after only one year’s residence, and another State might think five years little enough, (see 1 Kent Com. 423;) and it was the design of the framers of the constitution to give Congress alone this power to naturalize, so that the rule might be uniform. (See the Federalist, 183 and 184, in which Mr. Madison thus explains.) In Chirac vs. Chirac, 2 Wheat. 269, the Chief Justice of the United States has expounded the constitution to vest in Congress exclusively the power of naturalization, (see 1 Kent’s Com. 423.) The constitution, (Art 3, Sec. 2. Cl. 1) provides that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” As an alien becomes a citizen on being naturalized, justice, propriety and consistency all require that one coming for instance into South Carolina, should not be admitted to the “privileges and immunities of citizens in the several States,” without having taken the same oath, resided in the United States the same length of time, complied with the same conditions, and gone through the same forms of naturalzation as the naturalized citizens of any other State into which he might migrate and settle.
    
      To effect this bbject best, the sole power of making citizens of aliens, by requiring them to go through the same forms and comply with the same conditions in all the States, was vested in Congress ; but to that extent and no farther was the power given. It will not be urged that because Congress alone is to convert an alien into a citizen, that therefore the States have divested themselves of the power to pass laws declaring that within their local limits aliens may enjoy the same rights to personal security, personal liberty, and private property, which their natural born citizens are entitled to.
    A citizen of South Carolina is entitled to inherit real estate. Would it not be within the reserved rights of the State, to pass a law, that an alien should be entitled to the same privilege in express terms? If the Legislature, in the exercise of its sovereign power, should enact in these words, “ that aliens shall unconditionally inherit land in this State,” no one would say that such a law would conflict with the constitution of the United States. Can any one discover any substantial difference between such an Act, in regard to the right to inherit land, and one that should provide thus: “ aliens shall be entitled, in South Carolina, to all the rights, privileges and immunities of a citizen ?” Unquestionably, such an Act as this last, would not entitle aliens going from South Carolina into another State, to the privileges of citizens, but within the limits of this State, they would be clearly entitled to inherit land, and enjoy the rights oí citizens. By the Act of 1786, the Legislature has enacted, that aliens coming into this State, taking the oath of allegiance, &c. “ shall be deemed citizens, and entitled to all the rights, privileges and immunities to that character belonging,” with a proviso denying certain political rights. So far as this Act is repugnant to the constitution, it is repealed by it, and no farther. Repugnancy in part, will not repeal the whole; if so, no two laws could be construed together as one law, where there was any difference in their provisions. The only repugnancy in this clause of the Act, to the constitution, consists in making an alien a citizen, so as to entitle him to rights out of the State. The power to do this, belongs, alone, to Congress; and therefore, the words “ shall be deemed citizens,” are perhaps null and void. But the rest of the clause remains of force within the limits of this State, surely; for it has no other effect than to provide for the enjoyment, by aliens taking the oath of allegiance, of the rights to personal protection, personal liberty and private property, which a natural born citizen enjoys. The enactment means no more than if the legislature had passed a law in these words: “ that aliens, on taking the oath of allegiance to this State, shall thereby not be deemed citizens, but shall be entitled,. within the limits of this State, to all the rights and privileges of citizens, provided they shall not hold office nor vote at elections,” &c. Such an Act would not conflict with the constitution, and it would give to an alien the right, as in the case of the defendant, to inherit land. The object and design of the constitution was to prevent such an alien from, going out of one State into another, to claim the rights and privileges of citizenship there; and therefore, it would not be saying too much, to assert that the whole Act of 1786, so far as the persons provided for by it should claim rights under it within this State, would be consistent with the letter and spirit of the constitution; and that it would only be regarded as null and void, when it should be set up as a charter of rights in another State, by any one of the class of persons protected by it here. The whole scope of the power to naturalize given in the constitution, was to prevent one State from passing any law concerning aliens, which would give them the rights of citizens in another State, or which would affect the rights of another State. Although South Carolina might lawfully enact that an alien should have the right to inherit land in this State, he would not, thereby, be entitled to inherit land in another State.
    It would also infringe the rights of other States, if South Carolina should enact that aliens should have the right to vote for members of Congress in this State, because legislation by such members of Congress would affect the rights of all the States of the Union. For this, among other reasons, denizens are prohibited from voting in this State, by the proviso of the Act of 1799.
    The Legislature of this State may pass any law, except such as are contrary to the law of nature, the law of God, the constitution of this State, and the constitution of the United States. Thus limited, the Legislature is the sovereign power of the State, invested by the people, the source of power, with the right to make laws for their government. The constitution of the United States is a body of delegated powers, and those not expressly given, “ are reserved to the States respectively, or to the people,” (Art. 10th of the amendment^.) And the 9th Art. of the amendment provides, that “ the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
    There is nothing in any of the restrictions upon State legislation, which forbids a State from enacting, as by the Act of 1786, that an alien, on taking the oath of allegiance, and residing within the State one year, shall be entitled to all the rights of a natural born citizen, to be enjoyed in this State, except the right to vote and hold office. Such an Act, while its operation is confined to the State enacting it, affects the rights of no other State, and does not seek such an object; but merely to act within the local limits of the State, and to promote and effectuate a State policy, which, so far from injuring any other State, is calculated to add to the wealth and power of the whole nation.
    The form of words used in framing the Acts of 1786 and 1799, appears to have been dictated entirely by convenience and necessity. It was intended, that under the restrictions, and with the reservations mentioned in the Acts, aliens should be entitled to the rights which citizens enjoy. To particularize the manifold rights of a citizen, embracing and specifying each and all the rights of personal security, personal liberty, and private property, the three classes of absolute rights of persons, as divided by Sir William JBlackstone, together with what he denominates the rights of things, would have been impracticable in a statute, as it would have required a codification of all the common law and statute law of force on these subjects in South Carolina at the time. Is there any thing in the word citizen which forbids the legislature from referring to it in a statute, lest the Federal Constitution should be invaded l Suppose the Legislature should wish to enact, that aliens should be entitled to purchase, inherit and convey real estate, and to effect this, should, if possible, frame an Act, in which these three things only should be provided for, not expressly, but by the words: “aliens shall be entitled to the rights and privileges of citizens,” with a long voluminous proviso negativing specifically every other right of a citizen ; would such an enactment touch constitutional ground ? It would be as clearly lawful as to confer those three rights in express terms. '
    If it be an undeniable position, that the State may confer certain rights of citizens upon aliens, then, in order to ascertain what the law now is upon this subject, let us adopt the method of the Appeal Court in the case of the /State vs. Baldwin, (2 Bail. L. R. 543,) by substituting the new law wherever it differs from the old, so that as much of the old may stand, as is not repugnant to the new. The result will be, that the substance of the Act of 1786 will stand, except that a year’s residence is not required, but merely a residence; and that the terms “ shall be deemed citizens,” are changed into “ shall be deemed denizens,” by the Act of 1799 ; which last was evidently done by the Legislature out of respect td the Federal Constitution, which confers on Congress the sole power of declaring who “ shall be deemed citizens,” but which still leaves in the States the power to say who shall, Within their respective limits, enjoy the rights of citizens.
    It is a rule of construction, that an affirmative statute will not repeal a former statute, except so far as the old law is repugnant to the new. (Broom’s L. M. 37; 1 Bl. Com. 89 ; 19 Yin. Abr. 525 ; “ Statutes,” (E. 6,) pi. 132; 2 Dwarris on St. 638; 7 Law Lib. 6; 4 T. R. 2, 4; 12 A. and E. 470; 9 M. and W. 777.)
    Both the constitution and the Act of 1799 are in affirmative terms, and there are no words of repeal used. Repeal, therefore, is only to be effected by repugnancy, and this, as has been noticed, makes but a slight change in the old law.
    The Acts of 1786 and 1799 are remedial statutes, and are therefore entitled to a liberal construction. .“ Statutes that are remedial and not penal,” says Chancellor Kent, (1 Com. 465,) “ are to receive an equitable construction, by which the letter of the Act is sometimes restrained, and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy.”
    It is held the duty of Judges “ so to construe a remedial statute, as to suppress the mischief and advance the remedy,” (Tomlin’s Law Die. 521, citing Co. Litt. 11, 42; 3 Rep. 7.) “ In cases of public utility, where the end and design of the Acts appear larger than the words, they shall be strained even beyond the words.” (Yaughan, 179.) “Statutes for the benefit of the people, should be construed largely, and not with restriction.” (Tom. L. D. Style 302.)
    “ For the sure interpretation of all statutes, whether penal or beneficial, four things are to be considered; what was the common law before the Act, what was the mischief against which the common law did not provide, what remedy the Parliament had provided to cure the defect, and the true reason of the remedy. It was held to be the duty of the Judges to give such a construction as would repress the mischief and advance the remady.” (1 Kent. Com. 464, citing Hey-don’s case, 3 Co. 7.)
    Having these rules of construction for our guide, it will not be difficult to determine that the only alteration or repeal of the Act of 1786, by the Act of 1799, consists in providing that the alien shall only be a mere resident, and not a resident for a year; that the alien, on complying with the terms of the Acts, shall be deemed a denizen, and not a citizen; and that the rights conferred are to be enjoyed within the State, and not beyond. For the meaning of the Legislature is the same, evidently, when it says such alien shall be “ entitled to all the rights, privileges and immunities to that character belonging,” (referring to the word citizen,) and when it says such person shall be entitled “to the like protection from the laws of this State as citizens are entitled unto.” The whole object, we may well suppose, in using a different phraseology in the two Acts, was to show that the Legislature did not wish to conflict with the constitution by making an alien a citizen, while at the same time it was the intention to preserve to aliens all the rights which they had before enjoyed in this State, without interfering with the laws of any other State. The reason of the old law still existed in 1799. The State still wanted population, and many enter-prizing aliens had settled here. It was but just in the State to allow them to inherit land from others, or to enjoy, or sell, or transmit it to their relations. But thirteen years had elapsed between the two enactments, and it is to be inferred that the State intended to do no less, in substance, in 1799, than had been done in 1786. The difference of the two Acts is very small. The one Act calls the alien, complying with its terms, a citizen, and gives him the rights of a citizen; the other calls him a denizen, but likewise gives him the rights of a citizen. These rights were to be enjoyed, however, only within the limits of this State; for the words of the Act of 1799 are “like protection from the laws of this State as citizens are entitled unto.”
    The words “from the laws of this State,” are restrictive and repugnant terms, and were evidently inserted for the sake of consistency with the constitution, and respect to the rights of other States. To the extent of this restriction, the new law repeals the old ; but the rights and privileges conferred by the Legislature, so far as they are to be enjoyed in this State, are as large in one Act as in the other. Let us compare the two chief clauses oí these Acts together, and see if there be any other repugnancy. The words “and in all other resjiects to entitle such persons to the like protection from the laws of this State as citizens are entitled unto,” contain no opposition of meaning as to rights to be enjoyed in this State, to the words “ entitled to all the rights, privileges and immunities to that character belonging,” (alluding to the term citizen.) If it appears that there is no opposition in the meaning of the two clauses except that referred to, and there be no repealing clause in the Act of 1799, then, according to the rules of construction, the two Acts are to be taken together as one law, and the Act of 1799 read as enacting the same thing with, or as cumulative of, the Act of 1786.
    But it may be asked, why did the Legislature see fit to use different language in regard to the same thing, in the Act of 1799, from that used in the Act of 1786, if it did not intend to repeal the old law ? The reason seems inferrible from a view of the constitution, the decision of the Federal Court, and the history of parties at the time.
    The constitution confers on the citizens of one State the rights of citizenship in the several States. - The Federal Court had intimated that the power to make a citizen belonged solely to Congress, and was taken away from the States; There was in the United States a party extremely inimical to the privileges which had been given to aliens, and this was testified by the famous “Act concerning aliens,” passed by Congress in 1798, (1 Story’s L. U. S. 515,) which was nullified, and by a law of Congress, passed in 1798, (1 Story’s Laws of U. S. 512,) the year before our last Act, which required of aliens, before naturalization, a residence of fourteen years instead of five years, as required by the Act of 1795. South Carolina favored aliens, but was at the same time loyal to the constitution, and as the Act of 1786, entitling aliens “to all the rights, privileges and immunities of citizens,” might be construed as a provision to enable an alien to go into another State and claim the rights of citizens there, it is to be inferred that the Act of 1799 was passed to restrict the enjoyment of the rights of aliens to the local limits of the State in express terms, and to call such aliens denizens, while they should have the same rights under the laws of this State as citizens were entitled to. If these same rights were conferred in different language in the new law, it was within the power of the Legislature to do so. It is, perhaps, enough for us to know that the words used are large enough to convey them.
    It is impossible to say with certainty, why different words were used. But the most probable inference is, that while the State desired to give the same encouragement to aliens, by securing to them the same rights as they had enjoyed under the Act of 1786, regard for harmony and consistency in the law of the State and the constitution of the United States, stimulated by the political struggles of the times, prompted the change in the form and phraseology, without intending to repeal the substance of the old law.
    Taking the two Acts together, then, and concluding that the Act of 1786 stands, except where altered by the constitution and the Act of 1799, the law of this State, at this time, would authorize us to read the two charters of rights thus: “All free white persons (alien enemies, fugitives from justice, and persons banished from either of the United States excepted,) who now are, or who shall hereafter become, residents of this State, shall, on taking and subscribing the oath or affirmation of allegiance before one of the Judges of the Court of Common Pleas, be deemed denizens, and entitled, within this State, to all the rights, privileges, and immunities of citizens, and in all respects to the like protection from the laws of this State as citizens are entitled unto.” After striking out and reconciling repugnances, this is the residue, and it is clearly enough to entitle the defendant to be an heir of his deceased brother’s real estate.
    It was argued by the opposing counsel, on the circuit, that supposing the Act of 1786 to be unrepealed in its chief provisions, the defendant cannot take under it, because he has not proved that he was a resident in the State for a year before taking the oath of allegiance. The answer to this is, that the Act of 1799 dispenses with a year’s residence, and requires that the alien should be merely a resident, without requiring a residence for any specified length of time. Both Acts prescribe the same mode of taking the oath of allegiance before a Judge of the Common Pleas. If there be a difference in the two Acts, in respect to the certificate of having taken the oath, that prescribed by the Act of 1799, although in affirmative terms, repeals that prescribed by the Act of 1786, by repugnancy, fro tanto, in the new law to the old. As the defendant has complied with the new law, he is entitled to the benefit of the old law, so far as it remains unrepealed.— “ Sometimes affirmative words imply a negative of what is not affirmed, as strongly as if expressed.” (See Judge Johnson’s opinion in the Allegiance case — The State, exrel. Mo Gready, v. Hunt — Book of Allegiance, 230, 2 Hill — Citing Judge Nott, in Cohen v. Hoff, 2 Tread. Rep. 671.)
    The 'term naturalization, as used in the constitution, is a technical word, and is to be used in a technical sense, according to a rule of construction. Dwarris on St. in 7 Law Lib. 48. “ By naturalization,” says Sir Wm. Blackstone, (1 Com. 280,) “ an alien is put in exactly the same state as if he had been born in the King’s legiance, except only, that he is incapable, as well as a denizen, of being a member of the privy council or parliament, holding offices, grants,' &c.” He cannot even hold the office of constable — 5 Burrows, 2788. In the United States he is, by the laws of Congress, entitled to many more privileges. “ He becomes entitled ,to all the privileges and immunities of natural born subjects, except that a residence of seven years is requisite to enable him to hold a seat in Congress, and no person, except a natural born citizen, is eligible to the office of Governor in some of the States, or President of the United States.” — 2 Kent Com. 65.
    Naturalization, therefore, in its techical sense, means the apt of converting an alien into a citizen of the United States. It is admitted that the States, by adopting the Federal Constitution, have denied to themselves the right to do this. — • But, as before said, they have reserved to themselves the right to confer any privilege or immunity of a natural born citizen on an alien that may be enjoyed within the State.— It is common, for example, for the Legislature to pass special Acts to allow aliens to be examined and admitted to practice law in this State. If one such privilege maybe granted, there is nothing to prevent all. This will not be denied.
    I am now brought to the concluding view of this branch of the case. The power to naturalize, is the power to convert an alien into a citizen of each and all of the United States. This power is exclusive in Congress, and no State can, by any legislation, constitutionally confer on an alien born, a right to go from one State to another and enjoy citizenship in that other. The reason why the words of the Act of 1786, “shall be deemed citizens,” are against the constitution of the United States, is obviously because the power to make citizens of foreigners is exclusively in Congress, and’because the rule of naturalization should be uniform. There is another reason ; to say by an Act of the State Legislature, that an alien, on taking the oath of allegiance, &c. “shall be deemed a citizen,” although a State law, is to make such alien a citizen of the United States, for the constitution provides that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” But although a State may not enact laws declaring how aliens shall be made citizens, it is not againt the constitution of the United States for a State to enact that aliens, on certain conditions, shall be entitled “to the rights, privileges and immunities of citizens,” for this is not to declare that they shall be citizens of the State. If it be said that this provision would give them the rights of citizens in other States, and is therefore void, because one of the rights of a citizen of this State, is the right of citizenship in the other States, the answer is, that as far as the Act of 1786 gives this right, it is void; but there are other “rights of citizens” intended to be given which are not against the constitution, and as to such rights, it remains of force, on the ground, as before stated, that it is repealed only to the extent of its repugnancy to the constitution, and no further.
    Among the rights of a citizen which a denizen may enjoy in this State, without conflicting with the constitution or the rights of other States, is the right to inherit real estate.
    I come now to the second position; that supposing the Act of 1786 to he entirely repealed, the provisions of the Act of 1799 clearly entitle the defendant to inherit a moiety of the land in dispute.
    This latter Act is remedial of the common law, and is entitled to a liberal construction, so as to effectuate the intention of the Legislature. The common law and the mischief to be remedied have been sufficiently stated. The remedy provided, was to give denizens the rights of citizens in this State, with the exception of political rights, such as are denied by the proviso of the Act of 1799. The reason of the remedy, as before remarked, was to encourge immigration, for the peopling of our thinly settled country, so that we might have arms to strike in our defence, and an increase of national strength, which is the result of the accumulation of wealth by the individuals of a nation. These ends could well be expected from the remedy provided, and all danger from ignorance of our institutions or prepossessions against our form of government in those coming hither from abroad, was completely guarded against, by the proviso which denies them the right to hold offices, or vote for officers.
    The whole legislation, from the earliest period of our history as a State, before and since- the revolution, discovers the intention of the Act of "1799 to have been to confer on denizens the rights, in respect to land and personal property, as well as in respect to personal security and liberty, which natural born citizens enjoyed. The Acts before referred to, abundantly prove this, and Lord Mansfield has said, “ it is a rule in the construction of statutes, that all which relate to the same subject, notwithstanding some of them may he expired, or are not referred to, must be taken to be one system, and construed consistently.” {Rex vs. Loxdale and others, 1 Burr. 447; Dwarr. on St. 700.) It is not pretended that an Act repealed, is to be incorporated with a subsisting Act, as a part of it, but “ for a collateral purpose, it may be deemed competent to call in aid a repealed statute to assist in the construction of another statute.” (Dwarris on Statutes, 47, 7 Law Lib.) By some of these old Acts referred to, aliens were made free of the province; in others, they were entitled not only to the rights, but the name of citizen; and in all, the right to inherit real estate is, in some form of words or other, unequivocally given. When the Act of 1799 was passed, the same reason for conferring these rights on aliens existed, and the legislature has, under a different phraseology in that Act, placed them in the same state as under the older Acts, except they are called denizens, as before said, out of respect to the constitution of the United State. The Act of 1799 provides that aliens, on taking the oath of allegiance, &c. shall be deemed denizens, “so as to enable such persons to purchase and hold real property within this State, and in all other respects to entitle such persons to the like protection from the laws of this State, as citizens are entitled unto.”
    The Act thus clearly confers all the rights of a citizen of this State. Had the Act stopped at the word “ denizens,” the defendant would have been restricted to the common law rights of denizens, and could not have inherited real estate ; but other rights are added, if the clause means any thing, and we are obliged to find some meaning for it, on the maxim ut res magis valeat quam pereat. (Dwarris on St. 45, 7 Law Lib. See also, the allegiance case, 2 Hill.)
    The Act drops the word denizen, and after enumerating the right of a denizen to purchase and hold real property, it adds, “ in all other respects, the like protection from the laws of this State, as citizens are entitled unto;” taking up the word citizen, and putting him who is called denizen in this State, on the same’ footing, in all respects, as a citizen. The “ protection” which a citizen enjoys, is protection in the enjoyment of certain rights. These, as before said, are the rights of personal security, personal liberty, and private property, embracing the right to inherit real estate.
    If it means protection in the enjoyment of personal security, or in freedom from violence, it means protection in the enjoyment of all the rights of a citizen, for the Act says such person shall be entitled “ in all other respects, to the like protection, from the laws of this State, as citizens are entitled unto.” If the clause does not mean protection in the enjoyment of rights, it means nothing, and secures nothing to the persons intended to be benefitted by it. But we are not allowed to conclude that the Legislature has used a long clause to mean nothing.
    That protection which the citizen enjoys from the goverment in return for his allegiance, is the protection intended by the clause, and supposing it to be a technical term, it means a defence by the law, in the enjoyment of those rights secured by the government. Tomlin’s Law Die. Title “Protection.” It had reference particularly to land under the feodal system, from whence the reciprocal character of allegiance and protection is derived. 1 Black. Com. 336, and 337.
    If a technical sense is to be attached to this word, the right to inherit land is embraced under it, for the feodal meaning was a protection, first of all, in the rights to land. But this appears to be refining too much on a term of such universally well understood and popular signification; and it can hardly now be said to have a strictly technical meaning. It seems more proper to construe it by the rule laid down in Dwarris on Statutes, 47, (7 Law Lib.) that “the words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and popular use.” This is the rule except where words of art are used.
    The meaning of the Legislature in giving like protecteetion to denizens as citizens are entitled to, may be clearly seen by referring to the proviso of the Act of 1799. By the rule, as before stated, all the parts of a statute are to be read and compared for the purpose of ascertaining the intention of the law. If the Legislature had not considered that the words, “ and in all other respects to entitle such person to the like protection from the laws of this State as citizens are entitled unto,” were large enough to entitle a denizen to all the rights of a natural born citizen, and were not intended to signify either nothing or protection from personal violence only, there would have been no necessity to pass the long proviso denying some of the rights of a citizen, at the end of the statute — “ That nothing herein contained shall be construed to confer on any denizen the right of voting at any election for members of either branch of the Legislature, or for any public officer of this State, or of being eligible as a member of either branch of the Legislature, or to any office of trust or profit in this State.”
    A proviso is a qualification of a rule. If the Legislature had not in the Act laid down a rule that denizens should have all the rights of citizens, not only a citizen’s rights of property but a citizen’s rights of voting, and oí holding office," no proviso would have been passed or thought of, qualifying the rule so as to negative political rights.
    If there be any doubt as to the meaning of the words and the design of the law, by a rule before stated, the expositors of the Act, where it is remedial and of public utility, are authorized “to construe largely, and not with restriction ;” and where “the end and design appear larger than the words, the statute may be strained even beyond the words.” (Tom. Law Die. 524.) The words, however, seem to be so clear' as not to require the help of this rule.
    The same reason and policy, to a great degree, exist now hr this State, which caused the enactment of the law of 1799. But if such reason and policy had now become changed, the law would still remain of force according to the original design ; the maxim, ratione cessante, cessat et ipsa lex, applies to the common law, but not to a statute. (Dwarr. 23, 7 L. L.) This is not the only State which has seen the wisdom of encouraging aliens.
    In New York, “Aliens are enabled to take and hold lands in fee, and to sell, mortgage and devise, but not demise or lease the same, equally as if they were native citizens; provided that the party had previously taken an oath that he was a resident in the State, and intends always to reside in the United States, and to become a citizen thereof, as soon as he could be naturalized, and that he had taken the incipient measures required by law for that purpose.” 2 Kent, 70.
    “ There are similar statute provisions in favor of aliens in South Carolina, Indiana, Delaware and Missouri; and in Louisiana, Pennsylvania, Maryland, Illinois and Ohio, the disability of aliens to take, hold and transmit real property seems to be entirely removed.” Id. 70.
    “ In North Carolina and Vermont there is even a provision inserted in their constitutions, that every person of good character, who comes into the State and settles, and takes the oath of allegiance, the same may thereupon purchase, and by other just means acquire, hold and tiansfer land, and after one year’s residence, become entitled to most of the privileges of a natural born subject. Id. 70.
    “These civil privileges, conferred by State authority, are dictated by a just and liberal policy; but they must be taken to be strictly local.” Id. 70.
    In the case of the Trustees of Lomesville vs. Gray, 1 Litt. 149, (Kentucky, 1822,) it was decided that under the Act of 1800, (of Ky.) a sister, though an alien, may inherit land from her deceased brother, if she prove two years’ residence in the State, previous to the death of her said brother.— The Act is in these words: “ That any alien other than alien enemies, who shall have actually resided within this commonwealth two years, shall, during the continuance of his residence herein, after the said period, be enabled to hold, receive and pass any right, title or interest to any lands or other estate known within this commonwealth, in the same manner and under the same regulations as the citizens of this State may lawfully do.” 2 Litt. 399.
    
      The word pass, thus, by a liberal and fair construction, transmits lands by descent. A similar liberal construction will transmit lands by descent to denizens, under our Act of 1799.
    Act of 1819 of Tennessee, (Carter & Nicholson’s Digest,. 87,) gives aliens, intending to reside in, and become citizens of, the State, the right to inherit real estate.
    An Act of Georgia, of 1700, (Hotchkiss’s Digest, 317,) gives the right to inherit real estate in express terms. This Act still remains of iorce.
    The opposing counsel, Mr. Dargan, on the circuit trial, stated that it was a tradition which had come down to him, concerning the Act of 1799, that South Carolina was at that time warmly interested to protect aliens against the onslaught made on them in the middle States by the federal party, and this Act was framed with the intention of giving aliens all the rights and privileges which a Stale might constitutionally confer. If such was the intention of the Legislature, the words used should be construed in their widest sense, to meet the end in view, and are sufficient to confer one right at least, which is not in conflict with the constitution, and that is the right to inherit real estate.
    If the intention of the Legislature to confer on aliens, by the Act of 1799, the rights of a citizen, could be rendered plainer than our own numerous statutes have made it, history may furnish some of the light which is needed. In the years 1798 and 1799, the great contest for ascendancy occurred in the United States between the Federalists and Republicans. Among the measures of the federal party, under the administration of John Adams, was the passing of the Alien Law, before referred to. By that Act it was declared “ that it shall be lawful for the President to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect are concerned in any treasonable or secret machination against the government thereof, to depart,” &c.
    The republican States of Virginia and Kentucky, in order to protect such alien friends as were within those States from banishment and disfranchisement, declared this law of Congress null and void ; and amid the fury of the contest for the Presidency, between the incumbent, John Adams, Thomas Jefferson, Aaron Burr and General Pinckney, (3 Ramsay’s Hist. U. S. 130,) the Act of 1799 was passed by South Carolina. The cautious words of the Act, so as not to interfere with the constitution, were, most likely, the result of party collision, but they are to be taken as a clear exposition by the 
      State of her opposition to the efforts of the federal party to disfranchise friendly aliens, and as an indication of the legislative will, that aliens should enjoy all the substantial privileges which they had before enjoyed. This State was then strenuously active against the federal party, and anxious for the elevation of a republican to thé presidency. The expiration of the Alien Law, two years after its enactment, and the election of Mr. Jefferson, as President, allayed the excitement on the subject of aliens and the other federal measures, which might, otherwise, have involved the United States in the calamity of civil war. It is fair and lawful to make this reference to history; indeed, it has been decided by the Federal Court, (1 Wheat. 116, 3 Cond. Rep. 508,) that “in the construction of statutes, or local laws of a State, it is frequently necessary to recur to the history and situation of the country, in order to ascertain the reason, as well as the meaning, of many of them, to enable a Court to apply with propriety the different rules of construing statutes.”
    As I have before said, if the Legislature, in the Act of 1799, had intended to confer no other rights than those of a denizen, the Act would have stopped at the word denizen, because that is a technical term, and has a common law signification,' and it would not have been necessary to have added another word ; but the Act goes on, after this word, and accumulates on the rights of denizens, the rights of citizens; and one of the rights of citizens, is the right to inherit land.
    I have heard it said, that under the Act of 1799, the right to inherit land is not given in terms, nor does “ protection ” mean a gift of rights; and the “protection” of law will only be afforded to rights given. But in looking at the whole clause, in which the word protection is used, it is clear that a gift of the rights of citizens is conferred. If the Act had provided that aliens, on taking the oath of allegiance, &c. “ shall be deemed denizens, and entitled to protection,” and there stopped, the rights of a denizen only, would have been conferred; but when it goes on to add the like protection as citizens are entitled to, it becomes a gift of additional rights; for the protection which a citizen is entitled to, is protection in all the rights which the law allows him. For example, a citizen, on the death of his father, has a right to hold his father’s lands by descent cast, and when any one invades this right, the law affords its protection, by enabling him to recover and hold his land, and -by redressing the wrong. So of any other right. This is the “ protection from the laws of this State which citizens are entitled unto,” and this is the gift conferred, by the Act of 1799, on denizens.
   Caldwell, Ch.

delivered the opinion of the Court.

The only question involved in this case is, can a denizen under the Act of 1799 inherit real estate m South Carolina?

The acquisition of real estate is either by the act of law, or by the act of the party : when the law casts the estate upon the acquirer, independently of his own or of another’s acts, it is generally by descent, escheat, curtesy, or dower.— When the estate is obtained by the act of the party, it is technically termed purchase, which includes every lawful mode by which it can be acquired. (1 Steph. Com 351.) An alien, at common law, cannot acquire a title to real property by descent or by other mere operation of law; (Ib. 406) and although he may purchase it, or take it by devise, yet he is exposed to the danger of being divested of the fee, and of the land being forfeited to the State upon an inquest of office found. (2 Kent Com. 53) But the law quce nihil frustra, never casts the freehold upon an alien heir who cannot keep it: even a natural born subject or citizen cannot take by representation from an alien, because the alien has no heritable blood through which a title can be deduced. Upon the death of an alien who has purchased and held land, it instantly and necessarily (as the freehold cannot be kept in abeyance) without any inquest of office, escheats and vests in the State, because he is incompetent to transmit it by hereditary descent. A denizen is in a middle state between an alien and a natural bom citizen, and although subject to some of the disabilities of the former, is entitled to many of the privileges of the latter: (1 Blac. Com. 374; Com. Dig. Aliens D. 1; 1 Vent. 419.) He may take lands by purchase or devise, which an alien may not, but cannot take by inheritance, for his parent, through whom he must claim, being an alien, had no inheritable blood, and therefore could convey none to the child; from a like defect of hereditary blood the issue of a denizen born before denization cannot inherit to him, but his issue born after may. The only exception to the rulé of deriving title by descent through heritable blood, arose in the case of two sons bom in England of an alien father. One of them purchased land and died without issue ; it was held that the surviving brother could inherit to the other and derive title through the alien father. (Collingwood vs. Pays, 1 Sid. Rep. 193 ; 1 Vent. Rep. 413; contrary to the doctrine of Lord Coke, Co. Lit. 8. A.)

These established rules of the common law must control this case, unless they have been repealed or modified by our Statutes.

The Act of 1799 (5 Stat. of S. C. 355.) provides that “all .free white persons, alien enemies, fugitives from justice; and persons banished from either of the U. States excepted, who now are, or hereafter shall become, residents in this State, shall, on taking and subscribing the oath or affirmation of allegiance before one of the Judges of the Court of Common Pleas, be deemed denizens, so as to enable such persons to purchase and hold real property within this State, and in all other respects to .entitle such person to the like protection from the laws of this State, as citizens are entitled unto,” &c. withholding from them the right to vote for public officers, or of being eligible to such offices. The object of the Act was to remove the disability of aliens who were willing to take the oath of allegiance and desirous of settling in this State, and to place them upon the footing that the letters patent ex donatione regis, put an alien in England: the legal effect of the Act is to waive the right the State has to escheat the lands of an alien during his life, but does not remove the disability of the common law which bars him from inheriting. The words “purchase and hold real estate,” had, at the passing of the Act a well defined meaning Avhich we cannot presume the Legislature either misapprehended or misapplied; and if the object had been to remove all disabilities of alienage and to confer all the rights of citizenship, except those that were political, it is more than probable that it would have been explicitly expressed. The denizen claims the right, in derogation of the common law, under terms that qualify and restrict the privilege merely “to purchase and hold real estate,” and it would be a violation of the rules of construction to infer that the Act intended to confer upon him the right to inherit by descent, (the principal impediment arising from alienage) as this is an entirely different mode of acquiring title. The granting of one privilege to an alien cannot be construed to bestow all the other privileges of a citizen upon him.

Although cotemporaneous exposition is not always conclusive, it is often strongly corroborative of the correct inteiv pretation of a statute; and the note appended to the Act by the learned Judge Brevard, who compiled the digest of our Statutes, indicates his opinion in the negative of this qustion. (1 Brev. Dig. 236 note; Car. Law Journal 214.)

From principles of analogy (for no case can be found expressly in point) we may fairly infer that denization does not remove the disability of an alien to inherit.

In the case of Richards vs. McDaniel et al. (which was three times before the Constitutional Court) Mrs. McDaniel had taken the oath of allegiance when she applied' for naturalization, instead of taking the declaratory oath of her intention to become a citizen of the U. States, agreeably to the Act of Congress, and although the Court held that it was a substantial and sufficient compliance with its requisitions, yet that she was bound to take the oath of allegiance after the prescribed period had expired, before she could be admitted as a citizen, and having failed to do so, she died an alien, and her husband, who was naturalized, could not inherit land through her. (2 Mill Const. Rep. 18 ; 2 Nott and McC. 351; l McCord, 187; ex parte Granstien, 1 Hill Rep. 144.)

Although it is unnecessary to resort to the former Acts of the Legislature to expound the meaning of the Act of 1799, as those of 1696 and 1704 were expressly repealed by that of 1786, which was shortly afterwards annulled and superseded in its further operation by the adoption of the constitution of the U. S. which placed aliens in the same condition as if no Act had been passed removing their disability, and gave origin to the Act of 1799, by which the privilege of denization was conferred upon aliens: (2 Stat. of S. C. 131, 252; 4 Ib. 600, 746; 5 Ib. 355, 523, 547; Chirac vs. Chirac, 2 Wheat. R. 269; 1 Kent Com. 423;) it may also be remarked that their phraseology is very different from the latter — there never was any doubt about their construction — some of them expressly granted to aliens, who complied with their requisitions, the right to inherit by descent; with such models before them it is highly improbable the Legislature intended to grant more than they have expressed. Every State has the unquestion- . able right to establish the rules by which real estate shall descend or be distributed; some of them, Pennsylvania, New Jersey, Ohio, Louisiana and Michigan, have extended to aliens the right of inheriting real property, while others, Massachusetts, New York and South Carolina, have restricted the exercise of their rights over real estate.

It was argued that the Act of 1791, abolishing the right of primogeniture, and giving an equitable distribution of the real estates of intestates, had abrogated the English rules of descent and introduced a new system.

It was not a primary or incidental object of this Act to abolish the disability of aliens to inherit real estate, and if such a construction should be given to it, then alienism would be no bar to inheritance: ( a bastard cannot inherit, 1 Blac. Com. 459; Chit. on descents, 27, 28; 2 Cruise Dig. 374; Barewick vs. Miller et al. 4 Des. E. R. 434; Jones vs. Burden, Ib. 439:) but the right of the heir depends not merely upon the Act of Distributions but upon his ability to inherit: thus it has been repeatedly ruled, that when the next of who would be entitled to inherit if no't an is disabled to take, by reason of his alienage, yet the land shall not es-cheat, if there be an heir capable of taking by succession, (Ennas vs. Franklin, Brev. Rep.; Escheator of Char. Dist. vs. Ex’rs of White, 2 Brev. Rep. 398; Laborde vs. Weightman, 1 Speers R. 535.)

The Act does not contemplate an alien as coming within its provision, for no rule is better established than when an alien would take by a course of descent, then the estate shall go over to him to whom it would have gone if the alien had been already dead. (Hamilton vs. Fleetwood; North et al. vs. Valk et al. Dud. E. R. 215; Edwards vs. Barksdale, 2 Hill.Ch. R. 416.)

The Supreme Court of the U. S. held in Orr vs. Hodgen, 4 Wheat. 416,— '“when a person dies leaving issue who are aliens, the latter are not deemed his heirs at law, for they have no inheritable blood, but the estate descends to the next of kin who have inheritable blood, in the same manner as if no such alien issue were in existence.”

The Statute of distributions has left the law on the subject of alienage where it found it, and has merely modified the canons of descent, without repealing the common law in other respects, and if it had not, proximity of blood under its provisions would invariably have been preferred, instead of having been postponed, in every degree from the nearest to the remotest, in favor of such as have inheritable blood. (Vaux vs. Nesbit, 1 McCord C. R. 352; Edwards vs. Barksdale, adm'r, 2 Hill Ch. R. 416, 419.) The succession is therefore cast upon the heir by operation of law, which declares an alien incapable of inheriting, and transmits it to the next of kin that is under no disability.

In McKellar vs. McKellar et al. (Ms. cases, vol. B. 251, in 1820, note to Speers Rep. 536) it was decided that tbegrand nephews who were citizens were entitled to the real estate of the intestate who died without leaving a widow or issue, in preference to his brothers who were aliens that had removed to this State and had given notice of their intention to become citizens, but had not completed their naturalization when he died. The brothers urged their claims under the provisions of the Act of 1807 (5 Stat. of S. C. 547) but the Court held that they were not entitled, unless this is construed to be a new law of descent which has abolished in future a great rule of policy which forms a part of the legal jurisprudence of every country.” This Act was passed eight years after the Act of denization, which was adopted eight years after the statute of distributions, and we cannot perceive that they have changed the law of descents depending upon inheritable Mood. We are therefore of opinion, that a denizen is not entitled to a distributive share of the real estate of an intestate, and it is ordered and decreed that Matilda McClenaghan, the widow of John McClenaghan, dec’d, is entitled to the whole real estate of her deceased husband,.and that the Circuit decree be reversed so far as it decreed that Horatio McClenaghan, a denizen and brother of the intestate, was entitled to a moiety of said estate, and ordered a writ of partition to divide the same.

Harper, Ch. and Johnston, Ch. concurred.

Decree reversed.  