Lynch v Clarke 1 Sand. Ch. 583, 1884- MacKay for the Complainant

Lynch v Clarke, 1 Sand. Ch, NY 583, 1844

The cause was argued by HS Mackay, Jacob Radcliff and Samuel Sherwood for the complainant GM Speir, Charles F Grim and Murray Hoffman for the defendant Clarke and AL Robertson for Julia Lynch. The report of their arguments is limited to the point as to the right of Julia L to inherit.

Hay S. Mackay, for the complainant.

It is contended, that Julia Lynch was at the time of the death of Thomas Lynch, and still is, an alien of the United States, and is thereby debarred from inheriting from the ancestor. ‘The case is in effect this, that Julia was born in this country of alien parents, during their temporary stay or sojourn in it, without the intention on their part of making it the country of their adoption. The parents while here, retaining their allegiance to the land of their birth and the animus revertendi, and actually returning to it with the design of resuming it as the place of their continued and permanent abode, and where they died. Julia having been born on the eve of their going back went with them, and was then so young, as (legally considered, at least,) to be insensible of her very existence—an infant in the arms of her parent. She has not been naturalized.

The proposition then is that Julia Lynch, under these circumstances, was and is an alien of the United States; and for the better illustration of the subject, it will be reduced to the following points:

1st. That alienage or citizenship, depend on national character, which is a national political right; that is not to be affected by municipal law, or the laws of any particular state of the Union.

2d. That accordingly, the legislative power of effecting naturalization, and also of declaring who are or are not citizens of the United States, belongs exclusively to Congress, the national legislature, by virtue of the Constitution of the United States.

3d. That Congress having legislated on the subject, where- ever it has not provided for a case that existed, or may occur, resort must be had to public or national law, which ought alone to govern it.

4th. That it is both impracticable and absurd to decide the question by the authority of English law; especially as it is on this subject, no part of the common law of this state, being so far, inconsistent with its political constitution.

5th. That this is more especially the case as the question of alienage belongs in the last resort to the head of the federal judiciary, the Supreme Court of the United States, which recognizes no common law, that of England or any other country, as its rule of action.

6th. That no act of Congress that has been passed on the subject of naturalization or citizenship, affects the case of Julia Lynch, and such as furnish any illustration of the legislative sense on the subject, show her to be an alien ; as does the English law on corresponding cases, affecting its own subjects.

7th. Then by recurring to public law, which furnishes the rule of decision, Julia is clearly an alien to the United States, on the principle that in questions of alienage and citizenship, the child follows the political condition of the parent.

I. There is no such thing, properly speaking, as a citizen of a state of the Union, independent of, or as contradistinguished from a citizen of the United States. It is impossible to conceive any rights or privileges which a citizen of a state might have, or any disability under which he might labor as a citizen, from a state law, that would not, under our system of government, yield to his paramount duties and obligations, rights and privileges, of a citizen of the United States. And wherever the terms ” citizens of a state” are used in the laws or constitution, they necessarily refer to such who happen to abide in or who have their domicil in the state, (Cooper’s Lessee v. Galbraith, 3 Wash. C. C. R. 546,) the term citizen being here used more in the sense of inhabitant. It does not mean such who owe exclusively their political rights to the state in which they live. If they are citizens at all, they are American citizens, and not New-York or Virginia citizens. What is contended for is, that there is no such thing as an exclusive parent government in any state of the Union, or an exclusive citizen of a state owing allegiance to the state alone. The citizenship, therefore, of which we speak, in reference to the people of this country, touching the legal question of alienage, is the citizenship, which implies the allegiance of the citizen to the United States, as the parent government and source of political power. It is in this character that he is known abroad, and it is in that capacity he asserts his rights as a citizen, when he has occasion to do so, either in foreign lands or in his own. This is a necessary consequence of the Constitution of the United States, and of the national fabric of government it reared ; presenting as well a national source of power at home, as a national foreign exterior abroad.

The necessary and unavoidable result of this is, that in considering the question of alienage or citizenship, we can form no idea of the political relation of alien or citizen, so far as it may affect the case in hand, but as it regards the position of the individual towards the national government of the United States. Shanks v. Dupont, (3 Peters’ K. 242.)

In Inglis v. Sailor’s Snug Harbor, (3 Peters’ R. 190,) the national character of John Inglis, an infant, was decided on a principle of public law, that it followed the condition of the father, who was a British subject, the child being under age at the period referred to, and therefore incapable of making an election of his country or allegiance.

If therefore, what is contended for be true in reference to the political relation which a citizen of this country bears and bears only towards the United States and its national government, the principles of the above cases cover the whole ground, and exclude the municipal law either of England or of that of any of the states of the Union, from governing the question of alienage or citizenship. This is a dictate of common sense and of just policy. Left to the action or direction of mere municipal law, any rule that might be established on the subject of alienage, would seldom be decided on those general principles of political right or expediency that are necessary to maintain the consequent privileges of the citizen on a respectable or proper basis ; for besides the right of the citizen and of his nation in the question of his alienage or citizenship, foreign countries or their citizens are often interested in its proper establishment.

II. In accordance with the principles above stated, the Constitution of the United States has very appropriately conferred on Congress the power of providing a uniform rule of naturalization, as a matter not of state or municipal, but of national concern.

Before the adoption of the constitution, the several states legislated on the subject, and declared who were or were not to be considered citizens. (2 Kent’s Com. 73.) And indeed for a long time afterwards, several states claimed and acted on the solecism, that they retained a concurrent power with the national legislature on the subject. But it is now finally settled by the decision of the Supreme Court of the United States, that the power of passing naturalization laws, belongs exclusively to Congress by virtue of the Constitution. (Chirac v. Chirac, 2 Wheat. R. 259; United States v. Villato, 2 Dall. 370.) That a system of national naturalization should be uniform, belongs to the very system itself. But it could not be so, lefi to the discordant action of the 26 states of the Union. Besides that, the Constitution declares that the ” citizens of each state shall be entitled to all the privileges and immunities of the citizens of the several states,” which could not be effected without a system of naturalization emanating from a source superior to and controlling the state legislatures.

This is exemplified by referring to some of the instances of state legislation. By a law of Louisiana, all persons who were residents in the state at the time of the adoption of the constitution of that state, are deemed citizens, (Hil. & Curtis Dig., vol. 1, title Alien.) By a statute of Virginia, (1 Lomax Dig., p. 6,) it is declared that all the rights of citizenship are conferred upon persons other than alien enemies, who shall migrate into the state, and make oath that they intend to reside therein, and also take an oath of fidelity to the commonwealth. But such would not enjoy the rights of citizenship in other states if not otherwise naturalized.

In exercising the power of establishing a uniform rule of naturalization, Congress assumed as a necessary incident, the power of declaring in some few instances who, and under what circumstances, particular classes of persons, should be considered citizens, which however, properly considered, is nothing more than one of the modes of naturalizing such, who without the provision, would have remained aliens. Uniformity, in the sense of the Constitution, does not seem therefore to have meant a general unqualified uniformity, running through the whole system, but only a uniformity of degrees or classes. This became necessary in consequence of the diversity of situation in the general population of the country, and their consequent diversified claims to their political rights, so that one general uniform rule of admission to the privileges of citizenship would not have been proper. Some were ” native here, and to the manor born;” others born abroad, had emigrated and resided here ; some were born here, but of alien parents. And Americans by birth, had children who had been born abroad; some of these were of age, others not; others were daily arriving. Some had been naturalized by the action of die States. It

was obvious therefore, that some of these classes of persons were entitled at once to a greater degree of political privilege than others. He who had been born here, or long resident, had more claims than the one who should have arrived but yesterday, or who might thereafter arrive. The soldier who fought for, or the civilian who assisted in establishing, the constitution of the country, rather than the coming adventurer. Each class of the general mass of the population therefore received, in the distribution of this power, its share and measure of it, conferred on Congress. This will appear from the acts of Congress.

III. Thus it is clear that Congress, to whom alone it belongs, has acted on and exhausted, so far as it has been judged necessary, the power of establishing a rule of naturalization and of citizenship. Looking to the times, and the character of the leading men of Congress, immediately after the formation of the Constitution, much instruction and authority is to be collected from what they did, and what they did not do, on the subject. Their acts stand in the light of commentaries on the Constitution, and the political rights of the citizen. They had the advantage of the contemporaneous exposition and understanding of the constitution, and were, many of them, those especially who had the preparation and drafting of the important laws ; politicians in the just sense of the term ; jurists and civilians, instructed in what they undertook to perform. Some of them practical lawyers, peculiarly versed in the laws of England, and the political rights of English subjects. When, therefore, we find them in their legislation on the subject of citizenship, omitting to provide for a case that must have existed, or that was likely to occur, we are not hastily to conclude that it was even a casus omissus in the legislature, but rather an omission from design, with the view of leaving the case to the operation of the general rules of public law, which as enlightened legislators, they knew governed the case; and the individual, to the incapacity under which he labored. If they did not think proper to adopt the policy of England established by her laws in respect to such a case, they are not supposed to have done so through inadvertence or neglect; but a marked design is rather to be inferred from it, that they intended to leave the alien in that instance just where he was, and to compel him to work his way to citizenship through the probationary or other steps prescribed by the laws. Cases like the present must have existed and presented themselves to their consideration. They were not only obvious and probable, but the case is especially mentioned in Blackstone, the manual of the day, in the correlative case of children born in England of foreign parents. Being silent on such a case, and under such circumstances, without saying that the child should be considered a citizen, manifests the design to leave him just where he was as to his political rights ; arguing that such an one must give evidence at a proper age of his own devotion to the government of the United States ; especially if they had in view that the alien parent might have no intention of becoming an American citizen, and might, with his offspring, return to his country, leaving the child when grown to manhood with every feeling of a subject of the foreign government, to visit this country with the claims and pretensions of a native born citizen ; which is this case. In the case, therefore, of any such designed omission by Congress as this, the general or public law is the only rule of decision properly applicable to the subject, as will be shown.

IV. We could not on such a subject go to a more enlightened source, and to what other should we apply? Not as has been shown to the municipal laws of the state in which the question might happen to occur. Not surely to England or English law. Is it not a gross absurdity to search in the black lettered pages of English law, in as darkened ages, among the records of “departed tyrants,” for cases establishing the present political rights of American citizenship, and which Chancellor Kent calls the ” dormant and doubtful principles of English common law 1″ And when we reflect that all laws or adjudications of ancient nations, as to the political rights of their subjects, must necessarily be selfish, politic and one sided, unfit for a free and just nation to adopt; the absurdity is enlarged, and it appears no less when we observe the monopoly England has attempted to make, as well of subjects as of most other things, affecting her political interests and national policy. She claims all who are born in her dominions, whether of subjects or alien parents; not on any principle, that should bind the subject to the government, so much as just so many people of whom she has need to man her fleets and armies, and supply her work shops, and foreign possessions; and once a subject, she denies them forever the right of expatriation. If to this we add the want of respect, her policy has at times paid to the rights of our own citizens and laws, when in need of men, and which became the principal cause of the last war between the countries, we may form a still better idea of the absurdity of permitting English municipal law to decide such a question.

The United States has a different policy. Desirous of encouraging emigration, she is yet to do it on proper principles, not only as relates to herself and her own interests, but also in justice to other nations. If, therefore, other countries declare that the children of their subjects born abroad are their subjects, (and that is the case of Julia Lynch,) in which our law concurs, it is not for the United States to declare otherwise. If we make citizens of children born here of alien parents, we could not complain that other countries made subjects of children of our citizens born there. If such children born in this country, wish to shake off the allegiance they owe in consequence of the political condition of their parent, they must do so like other aliens.

The question must be decided on the same principles as if it were in the Supreme Court of the United States. Still, even considered on the basis of the laws of this state, English common law is to be excluded ; it being on this subject, for the reasons stated, repugnant to and inconsistent with the constitution ; and so by its express exception, no part of the laws of this state.

To show the absurdity of the laws of England on the subject, when applied to this country, and their want of adaptation to its views and policy on the subject; ” All children born out of the king’s allegiance, whose fathers, or grandfathers by the father’s side, were subjects, are considered as natural born subjects to all intents and purposes, unless their ancestors were attainted or banished.” (2 Barn. & Cress. 229; 1 Black. Com. by Christian, 373; 2 Kent’s Com. 39; Stat. 7 Ann, ch. 5; 4 Geo. II. ch. 21 ; 12 Geo. III. ch. 21; 25 Edw. III.)

By our acts of Congress of 1796 and 1802 on the subject of naturalization, there are similar provisions declaring that children of citizens born out of the United States are to be considered citizens. So far, the rule is proper and just, and in conformity to that of public law, making the political condition and allegiance of the child, to follow that of the parent. But not content with this, if Calvin’s case (7 Co. 10, 1 Bl. Com. 369,) makes the law on the subject, as is contended for, it is also the law of England, that children born in that country of alien parents are held to be natural born subjects ; which comes directly to this, that the rule that England herself establishes as to the birth of a child in foreign parts, of British subjects, out of the king’s allegiance, when adopted by any other nation, is destroyed as to such nation, by the rule which renders a child born within the dominions of Great Britain, of foreign parents, a British subject. This very Julia Lynch is herself a subject of Great Britain, on the principle admitted by both countries. If so, how can she be an American citizen, on the authority of British or any other law ?

This is a case therefore in which if we adopt English law; we must take it as it stands; and then as birth in her country from citizens of this country, renders the issue a British subject, it repeals our act of congress which declares that children of American citizens born abroad are citizens.

That the children of citizen parents born out of the country should be considered citizens, is reasonable; as they should enjoy the political condition of their parents, and the government should have the right to the citizenship of the child born of parents to whom it owes the duties of protection. But when the parents are not citizens of the country in which the child is born, and between them and the government the reciprocal duties of protection and allegiance do not exist, what just motive or right is there, to declare such offspring to be citizens ?

This then is one of those questions that requires to be settled on the broad basis of a general rule from sound, consistent national polity, and the sense and reason of the thing. The general presumption arising from the fact that the parents were at the time of the birth aliens to the government is, that their stay in the country was temporary. If otherwise, the contrary may be made known, by declaring in a court of record their intention. And in the case now in hand, the presumption is sustained by the fact that they did not declare their intention. The parents were absent from the place of their allegiance, by the implied consent of their sovereign, and remained in this country by the courtesy and permission of its government, as foreign subjects. So that this case must be referred to the same principle that would govern when the birth was while the parents were passing through the country, in itinere; or on being cast in shipwreck or through mistake of the latitude in navigation, on shore, fortuitously and nolens colens detained in the country until they could re-embark; or where it may have occurred on the high seas while making the foreign port; in all which cases, can it be pretended that the birth out of the allegiance of the parents, would render the child a citizen or subject of the country of which they may have thus been the mere temporary and incoluntary sojourners ? And yet where is the difference in principle between these instances and the present case. The stay, if longer continued, was still a mere temporary residence of the parents.

To say that birth, no matter under what circumstances, whether of alien parents or not, is the best and most convenient test of citizenship, is not meeting the question. Universal or public law should decide it, as the rule in truth affects the policy and interests of nations.

We are apt to take our impressions on alienage and citizenship, from readings of English authors. This is improper in considering the political rights of Americans. English laws respecting the mere rights of persons and of things, may be justly the same at London and New-York. In the one case the contract, the policy of insurance, the charter party, &c., the parties and their rights, all stand the same, and sustain their proper relations to one another; in the other not.

Chancellor Kent says, that the section of the statute of 1802, relative to children of citizens born abroad, only applies to those in existence before or at the time of passing the act, and not to after born or after becoming citizens; so that the statute will in time, run itself out for the want of subjects. If permitted to differ from such authority, I think the intention of the legislature cannot be mistaken, and that the act applies to all future cases. Considering the subject matter of the enactment, its importance to the public at large—the absence of all reason for limiting its operation to the existing population, and in truth the greater necessity for applying it to the after born race, proceeding from the greater probability of intercourse which would become unavoidable between the two countries ; it appears to me, that the terms of the act are sufficient to give to the American population then and thereafter existing,’considered as a mass or politic body of people of perpetual duration, the benefit of the law; and that the words which the learned Chancellor seems to think imply only such mere citizens as would supply the present tense of the act, are sufficient, perhaps most proper, to secure to their mere personal successors the advantage of the rule. It is a purely politic act. Not directly or necessarily personal, and is like granting a right or privilege to the members of a corporation or body politic, in which they shall be referred to as the subjects of the enactment, which would enure for the benefit of their successors.

The great and learned Chancellor, was cited on the argument for saying in his Commentaries, that citizens were aliens or natives, and that natives were all persons born within the jurisdiction of the United States. As a general definition, it is true as stated, but it presupposes that the parents are themselves citizens, so as to be in a situation to give to the child the benefit of their own political condition. Where the parents are aliens, if mere birth still constitutes citizenship, the parents must surely give some evidence of the renunciation of their foreign allegiance, or of their intention to become citizens.

V. The English legal rule is more especially to be discarded in this case, which makes subjects from the children of alien parents born in their dominions, as the question is one of national character, and involves the political right of the party and of the government, arising under the constitution and laws of the United States, and belongs therefore, in the last resort to the Supreme Court of the United States, which recognizes in no case the common law of England as of binding authority. Chancellor Kent does indeed consider it, as to civil cases, ” open to consideration,” (1 Kent’s Com. 338.to 342,) whether the English common law is not the rule of action for that court, and strongly recommends it as a rational system to its adoption. But Mr. Duponceau is clear that there is no common law, considered as a source of jurisdiction, controlling the United States courts.

Then this court must decide the question on the same principles on which it would be decided in the last resort, which must be by reference to public law.

VI. In the legislation which Congress has made on the subject of citizenship and naturalization, nothing has been done or said in express terms, on a case like that of the present. This is very decisive of the question, and amounts to a virtual declaration by Congress, that the person so born is an alien, even unattended with the circumstances that here belong to it, of the parents retaining the animus revertendi, and of actually returning to their allegiance in pursuance of it. The writers on public law were well known to those who framed the laws of Congress on this subject, and they had before them the English writers with their finger pointing to this very case. They would then have declared it, if so it had been their intention, that a child so born was to be esteemed a citizen of this the country of its mere birth. But they leave it where the policy and reason of public law had settled it, unaffected by statutory regulation ; the child an alien. Or they may have thought it best to leave the case to the adjudication of the courts, as each particular instance might arise, rather than to attempt to lay down a rule that would at once admit, or exclude him from admission, to the privileges of a citizen.

That Congress had such a case in eye and regarded him as an alien is clear beyond a doubt, from several parts of the statutes on the subject. In the instance of the birth of children of citizens of the United States, which is the correlative case on the same subject, they did legislate, (act of Congress, 1802,) and followed the English rule, because a proper one, and in consonance with the principle of national law. But by the 4th section of the act of Congress of 1802, it is declared that the children of aliens who are under age, shall when their parents are naturalized, if then dwelling in the United States, be considered citizens. Here we perceive several things. 1. The children are made to follow the condition of the parents, being still under pupilage and their subjection. 2. This is only permitted however, as long as the children manifest their allegiance to the United States, by dwelling in the country. 3. The enactment is general, of children of aliens, without saying those born abroad, or in the United States. It was immaterial and therefore did not require the discrimination. Then as it seems to include the children of aliens born here, a statute was required for the purpose of naturalizing such alien issue, by translating the allegiance of the parent on his becoming a citizen, to the child, he giving assurance of his own fidelity by dwelling here. But so strict did Congress conceive the principle that the political state of the parent actually affected that of the child, and so completely identified the political existence of the one with the other; that in case the alien parent died, even after he should have taken the incipient steps towards his naturalization, and thus gave earnest of his intention to become a citizen; his children had nevertheless been aliens without deriving any benefit from the act; so that it was necessary in the act of Congress of 26th March, 1804, to provide as it does, that when an alien shall have died after declaring his intention to become a citizen before his actual naturalization, his widow and children shall be considered citizens. Here again it is not said what children, and it therefore must include those born here as well as others.

The necessity of these enactments is worth consideration. If it had been intended to allude to children of the alien who had come with him from his country to this, the act would have said so; but it speaks of children generally, which includes all he may have had born abroad or here. There was no reason for a distinction, and therefore none is made. The inseparable condition of the parent and the children controlled; not the birth of the children, but their parentage.

Justice Story, in his Conflict of Laws, p. 46, § 40, after citing the English position that persons born in a country are generally deemed to be citizens or subjects of that country, says, a reasonable qualification of the rule would seem to be that it should not apply to the children of parents who are in itinere in the country, or who were abiding there for temporary purposes, as for health, curiosity, or occasional business.

VII. There is no law of the United States that professes to define in what the character of an American citizen consists, nor to exhaust entirely the general subject of naturalization or citizenship. It could not have been done at the time when these laws were passed on the subject, owing to the diversity of situation of the general mass of inhabitants in respect to their political rights, so that no one general rule could then, nor can there now be made, declaring in what precise condition the qualities of an American citizen shall consist. Much of the general question, who are American citizens, was left necessarily to the judiciary to settle and establish, and the books of reports of the United States courts furnish many cases on the subject. But these are of course insular in a greater or less degree : each depends on its own intrinsic peculiarity, from which, except in a few instances, general rules cannot be drawn. For the reasons which have been stated, we must recur for our guide whenever a case occurs, rather to national law, of which it is unnecessary to multiply citations, considering the source from which that now made comes, it is clear that Julia Lynch is an alien. Vattel, by Chitty, ch. 19,101, 2, to p. 106, 6. ” By the law of nations, children follow the condition of their fathers, and enter into all their rights ; the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him.” (Ed: But see Story’s Com. Confl. p. 23 sect 21. [1])

Ed: [1] Vattel on the other hand seems to admit the right of allegiance not to be perpetual even in natives and that they have a right to expatriate themselves and under some circumstances to dissolve their connection with the parent country.

This involves the great principle which evidently was on the mind of Congress when it enacted the naturalization laws. Vattel is in favor of the child retaining his allegiance to the country of which his parent was a subject, and being born abroad therefore cannot take away what nature has given him from the allegiance of the parent. (Ed: But see [1] above) Nor consequently will it enable him to assume a condition inconsistent with this natural and political right, by claiming allegiance to the government of his mere accidental birth, for the acquisition of property, &c., which in the present instance is the only motive of the defendant in setting up her citizenship, when nature, reason and national policy deny it.

What legally considered, constitutes that political condition, are the circumstances affecting his residence or domicil. The great political distinction between persons abiding within the state, and owing to it allegiance, and those who make a temporary stay in it, who do not owe allegiance, is pointed out in the ordinance of the Convention of this State, passed 16th July, 1776, which is stated in Jackson v. White, (20 Johns. R. 313,) and is entitled to great respect. Two things must concur to make a domicil, the fact and intent. (Story’s Com. Confl. of L. p. 41, sect. 44.) (Ed: But see Story’s Com. Confl. p. 23 sect 21. [1]). With this Pothier agrees, who says there must be animo et facto. (And see Manchester v. Boston, 16 Mass. 230 ; Harper’s Eq. Rep. 5 ; Case v. Clarke, 5 Mason’s C. C. R. 70.)

Ed: [1] Every nation has hitherto assumed it as clear that it possesses the right to regulate and govern its own native born subjects everywhere; and consequently that its laws extend to and bind such subjects at all times and in all places. This is commonly adduced as a consequence of what is called natural allegiance that is of allegiance to the government of the territory of a man’s birth. Thus Mr Justice Black says “Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth”.

The whole of the question turns upon what from its political character is the gist of it, the allegiance of the child of the alien to the government, which may be irrespective of place or locality. Now there is every fact in the case before the court to fortify the principles here stated, and call for the application of the cases cited, and from which it appears that Julia Lynch did not and does not owe allegiance to the United States.

That Julia Lynch is a woman, makes no difference in the application of the law. A woman is for any purpose requiring it, as much bound to be naturalized as a man. It has been decided in many cases that their alienage affects them in the same manner as it does a man, whether as relates to the recovery of property or what else. (Kelly v. Harrison, 2 Johns. Gas. 29 ; MDaniel v. Richard, 1 M’Cord R. 187; Mick v. Mick, 10 Wend. 379.)

It is so much of a distinct political right with her, that in Priest v. Cummings, (16 Wend. 617,) it was decided that the wife might be naturalized without the concurrence of her husband.

This case must be decided on general principles, and however unimportant or harmless, politically considered, Julia Lynch may be, the decision of the question will affect the condition of all others in like situation. We cannot see how far this and all other questions touching naturalization, may extend at some future time, and become of consequence to both government and party. The child of alien parents, inimical to the political interests of this country, accidentally born in it, after obtaining his education and imbibing his tenets in the country of their allegiance, might come here and claim a seat in our councils; an alien in feeling, to the country and its political interests. Suppose a man in the place of Julia Lynch; could he vote at our elections, or would he be eligible as a native born citizen to the office of President of the United States ?

From what has been shown it follows that as Julia Lynch is beyond all question alien to the United States, she is incapable of taking as heir at law of her uncle Thomas Lynch, the resulting trust in the property in question.

An alien cannot be cesiui qui trust of such an estate. (Attorney- General v. Sands, 3 Johns. Ch. R. 20;, Com. Dig. title Alien, 3 ; Gilbert on Uses, by Sugden, 5, 6 ; 4 Kent’s Com. 62.) The people may enforce the equity for the want of other heirs by way of escheat. Leggett v. Dubois, (5 Paige, 117, 119.) Hubbard v. Godwin, (3 Leigh’s R. 514.)