Lynch v. Clarke.

Treaty of Peace. Judge Story, in his opinion, rested upon the grounds that she was not incapacitated by coverture from determining her allegiance on the Revolution in the government, and her removal and the Treaty, effected a dissolution of the allegiance to the state of South Carolina. Mr. Justice Johnson dissented, on the ground that the common law disallowed of expatriation, and it was in that respect the law of South Carolina.

These cases growing out of the anomalous state of allegiance produced by the Revolution, cannot with propriety, be deemed authorities against well established principles, as applicable to the ordinary questions of alienage and allegiance. In the one, the new principle applied to an unprecedented case, happens to be analagous to principles which the civil law applied to all the children of foreigners. It does not, therefore, follow that the Supreme Court of the United States thought the civil law to be right, and the common law wrong, in respect to the citizenship of such children. In the other case, the common law rule as to expatriation was departed from, because the separation of the countries by a revolution, and the construction of the treaty, were supposed to require it. It does not follow that the rule of the common law was therefore abandoned in all cases of expatriation, much less in its application to citizenship by the place of nativity.

In conclusion, I entertain no doubt but that Julia Lynch was a citizen of the United States when Thomas Lynch died. She therefore inherited the property in controversy, if Thomas Lynch had any estate therein, to the entire exclusion of the complainant, who was then an alien, and incapable of taking by descent.

It is unnecessary, in this view of the case, to examine the right of Thomas Lynch to the premises in question. The complainant's bill must be dismissed. The question which I have discussed and decided, was new in our courts. For this reason, and others that arise upon the merits of the case, I will give no costs to the defendants.

INDEX.