assigned the reasons for his decree, which were the same as those expressed in the judgment of the court below. (See 1 Johns. Ch. Rep. 206.)
Yates, J.The question is, whether the appellants are entitled to a moiety of the intestate’s personal estate, to the exclusion of two of his brothers, and the children of another deceased brother, who are admitted to be alien enemies at the time of the intestate’s death.
The principle, that wars ought not to interfere with thopersonal property of an alien, in an enemy’s country, or with the security and collection of debts, has, in modern times, gained ground in all civilized nations. The latest cases in the English courts concur in the opinion, that the ancient severities of war have been much mitigated by modern usages; this is to be attributed, in a great measure, to the more frequent intercourse between citizens of .different nations, by means off commerce, the successful handmaid in securing an interchange of sentiments, whereby more liberal and enlarged views are necessarily introduced, contributing, in a great degree, to soften the estranged and cold feelings of nations towards each other, and thus promoting the security and happiness of individual members of every civilized community. Mankind have'a relative connexion, and ‘there ever must exist a dependence on each other, to which they are subjected by nature; and although nations may not be in the same situation with individuals, in that respect, yet, when there is an intercourse, they ought to be governed by the same common principles of moral obligation.
In our country, .these enlightened and humane principles have *4been recognised, as appears by -the decisions of our courts»! founded on the authority of, the common law; and the law of nations. The principle is here- well understood, that an enemy» under the protection of our government, can sue and be sued; and that the prohibition to an alien enemy, not in the country-, ta-; do the same, is temporary» and continues only during thé ex-, istenee of the war ; and it is' also a doctrine well established -in the English courts.
In a lace case, in chancery, (ex parte Boussmaker, 13 Vescy, 71.,) Lord Erskine declared, that the alien’s right of action, ipsuch case» was only, suspended by the wav; and'if the contract was originally good,'the remedy would revive op-thé’return of' '.peace,
I shall not controvert--thé. correctness the principle laid down by. Sir William Blackstone, in his Commentaries, cited- by., the appellants ; (1 Black. Com. 372.;) “ That alien' enemies have no rights, no- privileges, unless by the king’s special favour, during the time of war.;’.’ -but, conformably to this, doctrine, I think it may well be urged, in this case, that the benefit of the Statute of distributions ought to be extended to the kindred of the deceased, notwithstanding- their ,alienage, as .a- -consequence resulting out of privileges granted to the,intestate by our.-government before his death.
It does not .appear that John Brad-well, the intestate, had become a naturalized Citizen of the United States, but that he .was ■ an Englishman by birth ; and that he, and his brother Benjamin,. moved from England to tlie United States, in 18Q2. The infer-, ence, therefore, is, that he continued an alien,-and that he resL ded in this country, before.the war, as an alien friend, and, after-wards,, during the war, as an alien, enemy, under the protection of government, .and in the enjoyment of privileges .guarantied to him by, the law of thé land, Vattel( book iii. ch. iv. sect. 63.) gays, “ The sovereign declaring war, can neither detain the subjects-of the enemy who- are: .W-ith-in his dominions, at the time of the declaration, nor their effects’;, they came into his country pn the public faith. By permitting them to enter Lis territories, and continue there, he tacitly promised them liberty and seen-a’i-ty for their return,” ’ And in ch. v. sect.’76., in the-same book, tie says, u War being now carried on with so much moderation And indulgence, safeguards aré allowed to houses and lands posmamá by foreigners in ah enemy’s eountry. For the same rea*5sans, he who declares war does not confiscate the immovable goods possessed in his country by his enemy’s subjects ; in per-milting them to purchase, and possess those goods, he has, in this respect, admitted them into the number of his subjects,-
In the case ’of Clark v. Morey, (10 Johns. Rep. 72.,) it is Stated by the supreme court, that the evident construction of the act of congress, of the ;6th July, 1798, is, that where an alien comes to reside here during.peace, no letters of safe conduct are requisite, nor any license from’ the president; that the-license, is implied by the law and the-usage of nations; that if he came here.eveii since the war, a license would be implied* and the protection to him would be continued, until the executive should think proper to order him out of the United States,
In this case, it does no.t appear that the intestate has ever,, in any way, been molested by any order of government, but has continued to reside here, by permission, as before stated, until his--decease, ^ 1 can see no reason-why t.he rights he enjoyed, as to the destination of his pers.onal property, if he had died during peace, should' not (while he thus continued) be secured to him during war. If his relations abroad were entitled'to a distributive share in the one case, .they aré equally entitled in the other. That they would have been permitted to take their shares before the war, in case of his death,- will not be questioned.- Every member of this court must know, that the benefit of that rule of law in England has frequently been experienced by citizens here. They ought not, perhaps, .to be allowed to recover the property while the war continues; and,, in that respect, ought to be placed on the footing of an alien enemy, who is a creditor, not resident here, and, consequently, incapable to prosecute for his debts. • But the permission given to the alien to remain, must, in. case of his decease, during that-period, secure to his alien relatives the ability to take, and, on the return of peace, to recover their shares of his personal property, according to the statute of distributions, in the same manner as if no War had' intervened. This cannot be deemed a violation , of the principles laid down in the books, that alien enemies have no rights, no privileges, unless by special favour of the'government of the country; because, it is a consequence necessarily attached to the special favour granted, of remaining in the country during the war. '
I am aware that this is extending the consequential right of *6protecfion in timé'of war further than appears heretofore to have been donefor, by the books, it is not carried.beyond the right 0f suing for debts; but it is probable that this question has never been brought up; I believe no case,, to that effect,.can be found; It is -not unreasonable, therefore, to infer, that no.claim like that of the appellants has ever before been interposed., . y
Admitting, however," for a moment, that this reasoning is not-warranted by. the facts in the case, because it does not. appear; affirmatively and explicitly, that the intestate was an alien enemy at the time of his - death, nor that he remained here by perrnis-' sibn of government, (although there Pan be no doubt of it, ac-' cording to the. construction given to the act of congress, in Clark v. Morey, before slated,) yet, in order to take a more full and satisfactory view of the subject, I shall proceed to examine" the claims of the-appellants .on the' ground urged by their counsel. ‘ . : y -. .
It hah been stated that ühé people have no right on. the ground of forfeiture,, and ought not to' interfere with thisi property, because- the claimants abroad having no privileges, being alien enemies, could not take it.
It must be admitted, that the principles, .in relation • tb .reai estate, as to the alien’s taking, and holding, until office found;,' cannot apply to the present ease.
An alien can- take personal property with him* when ordered but of the country; but the soil is a portion of its dominion, and allegiance to the government, on the part of the owner, cannot he -dispensed with; they are inseparable, and the safety of ev.éxy community forbids the introduction of a measure which would inevitably .give a permanent influence to persons- not. interestcd in its destinies.
Blackslone (1 Bl. Com. 371.) says,, if an alien could acquire' a permanent properly in lands,.- he must-owe an allegiance equally permanent with that property, which would, probably' he inconsistent with that ..which he owes to-his. own: natural liege lord ^besides that, the nation might, in time) be subject to foreign influence. . ' . " . ' .'
The property in question is personal, and the- peculiar situation. of it arises out of a state of .hostility, and never can enure to the benefit of the appellants, so as to give them the exclusive right to it. The disability (if it exists at all) is created for %hi advantage and security, of the- government,. who óught, per-*7baps, to retain it in the country during the existence.of the war. But, it is said, the court, in the decision of. this cause, ought to be governed by policy ; and the relative situation of the claimants has been adverted to, and the exclusive ability of the appellants to render essential services to the country,-while in a state-of war, has been urged in their favour.
In Cornu v. Blackburne, (Doug. 641.,) Lord Mansfield declared, that it was sound policy, as well as good morality, to keep faith with'an enemy in time of war, and-that a contract which • arises out of a state of hostility, ought to be governed by the ■law of nations, and the eternal rules of justice.
This, indeed, is not a contract; but, according to the view first taken of the subject, if. would be an advantage claimed, in consequence of - an implied permission given to the intestate, and could not, according to the rules of justice, be extended to the appellants, nor enforced by the people.
I believe it will be admitted, that the soundest policy of every government, in relation to questions of this kind, is to .observe good faith towards foreigners of every description; more especially, if they continue their residence by permission of government, during a war with their country, and not to • allow such permission to entrap them, or to produce a disposition of their property different from what would have taken place in á state of peace, and .thus suffering manifest injustice to be exercised towards their representatives abroad.
To encourage a foreigner to remain with us in time of peace, with an understanding that, according to the law of nations; in the event of his death,, his personal estate shall go to his representatives abroad, although aliens ; yet if,, unfortunately, a war intervenes, during which he dies, to deprive the same representatives of this- property, notwithstanding the permission of government to the intestate, to remain in the country until ’his decease, appears to me to be repugnant to justice and humanity.
It, assuredly-, must operate as a direct discouragement to that commercial intercourse, so requisite to. promote the happiness1 and prosperity of our country.. According to the view, then,' which I have taken of the subject, true policy would lead to a course, securing to the alien representatives, abroad, the ultima te enjoyment of the personal property of their deceased relative.
I am, accordingly, of opinion, that the next of kin of the intestate, residing in England, are entitled to their distributive shares *8of his personal estat e; and that the decree óf the court of chati". eery ought to be affirmed.
Van Ness, j,, Spencer, J., and Thompson, .Ch. J.,(Platt, J., being absent)' declared themselves to be.of the same opinion.
P. W. Radcliff, Stewart, Atwater, Tibbits,, Van; Schoonhoven, Vanbbyck, and Wendell,Senators,-were also of the same opinion.
Arnold, Bricknell, Bishop, BloodgoOd, Bloom, Can-tine, Clark, Prendergast, Ross,' Swift, and Tabor,Senators, Were of Opinion that the decree of the court of chancery ought to be reversed*
The members of the court, who were present,- being thus equally divided in opinion, the President (Lieut. Gov. Tayler) declared his opinion, that the decree of the court below ought to be reversed.
It Was, thereupon, “ordered, Adjudged, and degreed, that-the decree of the court of chancery be reversed, and that the respondent pay to the. appellants 87 dollars and 96 cents, being the amount of costs ordered and decreed by the court of chan* eery to be paid by the appellants to the respondent, and which has been paid accordingly 5 and that the respondent do account, under oath, before one of th.e masters of the court of chancery, for the personal estate of John Bradweli, deceased; and that the said respondent be allowed out of the said estate, the taxable costs of his defeneció this suit,- in the said court of chancery, and on this appeal, and all. necessary disbursements b) him made, prior to the commencement óf the said suit; and that he pay over -the balance to the appellants, or to the guardiáns of such of them as may be then under age, in equal proportions; and that the court of chano,ery take all necessary measures for carrying this order into execution,” &c. • ’
Judgment of reversal.(a)
The patties, who were aliens, it is understood, applied to the circuit couftof the United Slates, and obtained an injunction in the cause, before any proceedings were had on the remiititiir to the courbof chancery? sd that the question will, probably, bedecíded, m the last resort, by the supreme court of the United States.