28 U.S. 242 (1830), Shanks v. Dupont

Citation:28 U.S. 242, 7 L.Ed. 666
Case Date:February 02, 1830
Court:United States Supreme Court

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28 U.S. 242 (1830)

7 L.Ed. 666




United States Supreme Court.

February 02, 1830

THIS was a writ of error from the supreme court of appeals in law and equity, in and for the state of South Carolina.

The suit arose out of a partition of a tract of land in the state of South Carolina; the right of the plaintiffs in error to a moiety having been denied on the ground of their alienage, and their consequent incapacity to inherit the same.


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The case was argued at January term 1829, by Mr Cruger and Mr Wirt for the plaintiffs in error; and by Mr Legaré for the defendants; and was held under advisement to this term.

The facts of the case are fully stated in the opinion of the court.

The counsel for the plaintiffs in error contended, that Ann Shanks, the mother of the plaintiffs in error, was a British subject, and that her title was protected by the treaty of 1794. The decree of the court of the state of South Carolina was therefore erroneous, and should have been in favour of the plaintiffs, for a moiety of the land of which Thomas Scott died seised.

The defendants in error insisted, that the decree of the state court ought to be affirmed, because Mrs Shanks was an American citizen, capable of holding by the laws of South Carolina; so that there was no interest or title in her, to which the ninth article of the treaty of 1794, by which the titles of British subjects, holding lands in this country, were saved from the disabilities of alienage, could in any wise attach.


Mr Justice STORY delivered the opinion of the Court.

This was a writ of error to the highest court of appeals in

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law and equity of the state of South Carolina; brought to revise the decision of that court, in a bill or petition in equity, in which the present defendants were original plaintiffs, and the present plaintiffs were original defendants. From the record of the case it appeared that the controversy before the court respected the right to the moiety of the proceeds of a certain tract of land, which had been sold under a former decree in equity, and the proceeds of which had been brought into the registry of the court. One moiety of the proceeds had been paid over to the original plaintiffs, and the other moiety was now in controversy. The original plaintiffs claimed this moiety also upon the ground that the original defendants were aliens and incapable of taking the lands by descent from their mother, Ann Shanks, (who was admitted to have taken the moiety of the land by descent from her father Thomas Scott,) they being British born subjects.

The facts, as they were agreed by the parties, and as they appeared on the record, were as follows:

Thomas Scott the ancestor, and first purchaser, was a native of the colony of South Carolina, and died intestate, seised of the lands in dispute, in 1782. He left surviving him two daughters, Sarah and Ann, who were also born in South Carolina, before the declaration of independence.

Sarah Scott intermarried with Daniel Pepper, a citizen of South Carolina, and resided with him in that state until 1802, when she died leaving children, the present defendants in error, whose right to her share of the property is conceded.

The British took possession of James Island, on the 11th of February 1780, and Charleston surrendered to them on the 11th of May in the same year.

In 1781, Ann Scott was married to Joseph Shanks, a British officer, and at the evacuation of Charleston, in December 1782, went with him to England, where she remained until her death, in 1801. She left five children, the present plaintiffs in error, British subjects, who claimed in right of their mother, and under the ninth article of the treaty of peace between this country and Great Britain of the 19th of November 1794, a moiety of their grandfather's estate in South Carolina.

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

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

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After the elaborate opinions expressed in the case of Inglis vs. The Trustees of the Sailor's Snug Harbour, ante p. 99, upon the question of alienage, growing out of the American Revolution; it is unnecessary to do more in delivering the opinion of the court in the present case, than to state, in a brief manner, the grounds on which our decision is founded.

Thomas Scott, a native of South Carolina, died in 1782, seised of the land in dispute, leaving two daughters surviving him, Sarah, the mother of the defendants in error, and Ann, the mother of the plaintiffs in error. Without question Sarah took one moiety of the land by descent; and the defendants in error, as her heirs, are entitled to it. The only question is whether Ann took the other moiety by descent; and if so, whether the plaintiffs in error are capable of taking the same by descent from her.

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

The only facts which are brought to support the

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supposition, that she became an alien before the death of her father, are, that the British captured James Island in February 1780, and Charleston in May 1780; that she was then and afterwards remained under the British dominion in virtue of the capture; that in 1781, she married Joseph Shanks, a British officer, and upon the evacuation of Charleston in December 1782, she went with her husband, a British subject, to England, and there remained until her death in 1801. Now, in the first place, the capture and possession by the British was not an absolute change of the allegiance of the captured inhabitants. They owed allegiance indeed to the conquerors during their occupation; but it was a temporary allegiance, which did not destroy, but only suspend their former allegiance. It did not annihilate their allegiance to the state of South Carolina, and make them de facto aliens. That could only be by a treaty of peace, which should cede the territory, and them with it; or by a permanent conquest, not disturbed or controverted by arms, which would lead to a like result. Neither did the marriage with Shanks produce that effect; because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is, that no persons can by any act of their own, without the consent of the government, put off their allegiance, and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband; which are clearly contrary to law [a.]

Our conclusion therefore is, that neither of these acts warrant the court in saying that Ann Shands had ceased to be a citizen of South Carolina, at the death of her father. This is not, indeed, controverted in the allegations of the parties.

The question then is, whether her subsequent removal with her husband operated as a virtual dissolution of her allegiance, and fixed her future allegiance to the British crown

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by the treaty of peace of 1783. Our opinion is that it did. In the first place, she was born under the allegiance of the British crown, and no act of the government of Great Britain ever absolved her from that allegiance. Her becoming a citizen of South Carolina did not, ipso facto, work any dissolution of her original allegiance, at least so far as the rights and claims of the British crown were concerned. During the war, each party claimed the allegiance of the natives of the colonies as due exclusively to itself. The American states insisted upon the allegiance of all born within the states respectively; and Great Britain asserted an equally exclusive claim. The treaty of peace of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown. All those who then adhered to the British crown, were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states on each side, and the inhabitants thereof; in the language of the seventh...

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