#### *Exparte,*Abraham Dupont *and his wife*Jane, *and*Daniel *and*Ann Pepper.

*By the common law of England, the children of native subjects, horn in a foreign country, could not'inherit lands in England, of either parent.*.

*The Stat. 25th. Ed.*3 *d. St. 2d. only pirovides that children horn in a foreign country,*both *whose parents ivere native subjects, may inherit; or by the largest construction, only the children of a native father by an alien mother. ( Whether that statute is of force, dubitat.)*

*A native of Great Britain, born before the revolution, is not-a citizen of this country, as being born under a common allegiance, before the severance of the tico countries.*

*A woman born in this state, and residing here till the revolution, who in*1781 *married a British officer and removed" with him to England, ivhere she resided till her death, was an American citizen and not a British subject, within the provisions of the treaty of*1794, *stipulating that the British subjects holding lands in the U. States, may continue to hold, sell or devise them; and her children born in England, of an alien father, are incapable of inheriting her lands in this state:*

*JYor arc they rendered capable by the acts of Congress of 29th January,*1795, *or*14 *th April,*1802, *giving the rights of citizenship to the children oj citizens, born in a foreign country; their father never having been a resident of the United States.*

This came on upon a petition, which set forth, That Thomas Scott, a citizen of the State of South-Carolina, died some time in the year of our Lord, 1782, intestate, seized and possessed of a real estate on James Island, and leaving a widow- and two daughters, Sarah and Ann; which daughters were, according to the law's of descents then of force, the sole co-heirs of the said Thomas Scott: that the said widow' hath since departed this life: that the daughter Sarah intermarried with Pan-*6iel Pepper, a citizen of" the said state, by whom she had issue born in this state, who are the petitioners in this case: that the said Daniel Pepper and Sarah his wife, have both departed this life; the latter in the year 1802, without having sold or otherwise disposed of her interests in the real estate descended from her father; whereby the same descended to her children the petitioners. That the other daughter, Ann, intermarried in the year of our Lord, 1781, with Joseph Shanks, a native of Gf? Britain and a British officer, who returned to Europe and carried his wife with him: they have resided ever since within the' British dominions. Mrs. Shanks died in the month of June, of the year 1801, leaving five children, who are British subjects-, and are respondents opposing the petition in this case.

The petition further set forth, that the real estate left by the said William Scott, came by tortious means into the hands of other persons, who set up a false claim thereto; but that the right has been adj udged against them, and the court on application made an order that the land in question should be sold, and that one half of the proceeds should be paid to these petitioners, and the other half to be held and kept, to await the further order of the court. The petitioners pray that the said reserved half or moiety may be paid to them, as the only heirs of Thos. Scott, capable of inheriting the said land; because the children of the above mentioned Mrs. Ann Shanks, being born in G. Britain, are alicus, and incapable of inheriting any part of the real estate, situated in this state, of their grandfather the said Thomas Scott, or of their mother the said Ann. That the said Ann, being a citizen of the state and entitled to hold real estate, the treaties between G. Britain and the United States of America, of Nov. 1782 and Feb. 1783, and of Nov. 1794, had no application to her cáse, which did not require their protection: and this is the ordinary case of aliens claiming to take- and hold lands by descent, which is contrary to law.

The petition was referred to the commissioner in equity, to report upon the facts of the case. He thereupon reported that he had examined the petition and found that the statement of facts was established by the records of the court, and by the *7admission of the parties who were opposed to the prayer of the petition, namely, the children and heirs of Mr. and Mrs. Shanks.

*Desaussure,*Chancellor. This case has been ably and learnedly argued by the counsel on both sides. The single-question for the judgment of the court, is, whether the defendants to the petition, the children and heirs of Mrs. Ann Shanks, born in England, are capable of taking and holding real estate in this state, either at' common law, or under any statute, or under the protection of the treaties between Great Britain and the United States of America. If they are capable, then they are entitled to that moiety of the proceeds of the sale of the lands in question, which descended to. their mother, and which moiety has been reserved, subject to the order of the court. If they are not capable of talcing and holding lands in this state, then they are wholly out of the way, as if they were not in existence, and the petitioners will be entitled.

There can .be no doubt, that on the death of Thomas Scott, a citizen of South-Carolina, intestate, in the year 1782, his real estate in this country descended to his two daughters; .Sarah, the mother of the petitioners, and Ann, who intermarried with Mr. .Shanks, a British officer, in the year 1781- It appears that she went with her husband to England, had lawful children there, who are the defendants, and she died there in. June 1801, without ever having returned to America.

It was argued for the defendants, the children of Mrs.Shanks, that she being a native citizen of South-Carolina, her children, though born in England, are entitled to hold, real estate in this country by descent from her. This is a question of great importance. The common law of England was recognized and declared to be the law of the state, by our colonial statute of 12th Dec. 1712; and it remains the law of the state, except so far as the same has been changed by British statutes made of force in this country, or by our colonial statutes, or by laws enacted since the revolution. By the common law, it is understood that the children of English parents born out of the ■King’s ligeance, except the children of Ambassadors, born *8abroad, are aliens, and cannot take lands in England by descent from their parents. But it is contended for the defendants, that the 25th of Edward III. statute 2d. is of force in this state, and that *by its*provisions, the defendants can take by descent from their mother. That statute declares that all children born out of the ligeance of the King, whose fathers and mothers at the time of their birth be of the faith and allegiance of the King of England, shall bo capable of inheriting as other inheritors; so always that the mothers of such children do pass the seas by the license and will of their husbands.

. On examining the colonial statute of 12th December, 1712, which enumerates such of the acts of the British Parliament as it was intended to adopt, and re-enacted them verbatim, exclusively of all others, I do not find *the*statute of 25th Ed. XII. included. But the late Judge Grimke, in his collection of the public laws, which has generally been considered correct, has introduced it in an appendix, as if of force. The appendix is headed with a statement that the 3d section of the above mentioned colonial statute of 1712, makes all the statutes following (that is contained in the appendix) of force in Carolina, as confirming magna charta. The third section alluded to, of the act of 1712, enacts inter alia, “that all such statutes in the kingdom of England, as declare the rights and liberties of the subjects, and enact the better securing the same, are hereby exacted and made of force, as if particularly enumerated in this act.” I am not aware of any judicial decision which has established that the statute of25th, Edward III. in question, is comprehended within the general *terms of the*said 3rd. section: Nor am 1 satisfied that such a decision would be made on a discussion; for the terms of that section may well be construed to apply only to such English statutes as related to the public liberties and privileges of the subject, and net to private rights3 such as the right in Question.

The same difficulty occurs in some degrees as to the statute, 7 Ann-Ch. 5, wbich-enaots, thatthe children of all naturalbom. subjects, born out of the ligeance of her majesty, her heirs or sue--ecssors, shall be deemed, judged and taken to be natural bom *9Subjects of England, to all intents, constructions and purposes whatever, which statute was confirmed by 4 *George, 2d. Ch.*21, with a proviso, restricting the privilege to the paternal line, that is to the children whose fathers should be natural born subjects. I repeat that I have very great doubts whether the 25 *Ed. 3d. Stat. 2,*or 7 *Ann Ch.*5, are of force. My reasons for thinking so, are the following: — The act of 1712 appears to have been drawn with great care, and it does not expressly adopt either of them, although there are statutes enumerated and adopted, of tlie same years in which these statutes were enacted; and Judge Grimke himself, who introduces in his appendix the *Stat. 25th, Ed. 3d.*does not notice the *Stat.*7 *Ann. Ch. 5,*though both relate to the same subject, the enlargement of the privilege of inheriting real estate. The colonial Legislature too, which enacted the statute *oÍ December*1712, seems to have been informed of the *Stat. of7th Ann.*yet did not expressly adopt it. For in the 11th section ofthat statute, it is declared, that as few of the statute laws of England, made since the 8th year of Queen Ann, have been transmitted to the province, all British acts (except &c.) since the 8th year of the Queen, shall be of the same force as if that act (of 1712) had never been made. And I repeat that I am inclined to think the third section of the colonial act of 1712 meant no more by its sweeping provision, than to adopt those English statutes which secured public rights and liberties. If a broader construction should be given to it, the effect would be to introduce a. prodigious number of statutes, not specially enumerated in the adopting act of 1712. For there are few statutes of a general character, which do not enlarge or modify private rights, and the doubts and confusion which would ensue, would be very mischievous, if however Judge Grimke should be considered correct in introducing the *Stat.*of 25, *Ed.*3. and rejecting the *Stat.*of 7 Ann. *Ch.*5, then it becomes necessary to consider the operation of the statute of Edward 3d on the question before ps.

It was contended that by the construction, of that statute, the defendants, the children of Mrs. Shanks, who was a citizen •of South Carolina, could inherit lands in the state from her; *10and some authorities are relied upon to support that position.. In 1st Bac. Abr. 126, title Alien, it is stated that if an English merchant goes beyond sea and takes an alien wife, the issue shall inherit him. So it is if an English woman goes beyond sea and takes an alien husband, the children there born shall inherit her, for although the statute be in the conjunctive, yet it hath been construed in the disjunctive, to hinder the disabili-íity, and the word *and*taken instead of *or,*as sometimes it is; it not being reasonable that the child should not inherit the parent that is of ability, for the defect of the other that is not. This is the dictum of the writer, Mr. Bacon, and he cites the case of *Bacon,*vs. *Bacon, Cro. Car.*601, 2, in support of his opinion. But on examining that case, as reported by Croke, who was himselfoneofthe judges who decided it, it appears not to furnish the least support to the latter part of the assertion. For Croke says that after argument at the bar, it was agreed that judgment should be given for the plaintiff, for *her father*being an English merchant and living abroad for mercandizing, his daughter (though born abroad) is a denizen and shall be heir to him. And it is added, that it is not material that his wife was alien; she is, as Berkly justice *said, sub poletfate viri,*and *quasi*under the allegiance of the King, so that his issue shall inherit, either by the common law, or by *St at.*25, *Edw.*3d. It is proper to remark too, that in the principle case of Bacon &i Bacon, *the mother is also stated to have been the daughter of an English merchant residing abroad,*and therefore not an alien. The citations from *Si-derfin*& *Littleton’s Reports,*are of the same case, which was deci-dedin 16th year of Charlesl. There is a query put in a marginal note of Bacon, whether the cases referred to support the construction of Bacon, to which the answer is that they do not. Afterwards, on another difficult question of alienage, in the reign of Charles the second, Lord Chief Baron Hale, in delivering the judgment of the court in the exchequer chamber, had occasion to speak of the very question we are now considering, and he states explicitly, that though an Englishman marry an alien beyond the seas and have issue, their the issue will be denizens, as hath' been often resolved;'yet *it %s without question*that if an *11English woman go beyond the seas and marry an alien, and have issue beyond the seas, the issue áre aliens, for the wife was sub polestate viri; yet the issüe born in England should inherit though the husband be an alien. See *Ventris,*413, 422, 1 *Collingwood,*vs. Pace. In the case of *Durore,*vs. *Jones,*4 *Term Rep.*300, it is decided that the son of an alien father and an English mother, borh out of the King’s allegiance, cannot inherit to his mother in England. That point of the case was not. decided solely on the ground of the *Stat. of*4, *Geo. 2d.*Ch. 21, explanatory of 7 *Ann. Ch.*5. Lord Chief'Justice Kebyon goes fully into the question, and states his opinion to be, that if there were no decided cases, giving a construction to the Stat. of 25, Ed. 3d, he thought that in order to be entitled to the benefits of the act, the children must be born of natural born parents, both father and mother within the legiance of the King, and that he did not find any of the cases cited, which established the contrary; and if there had been any, he thought the opinion of Lord Hale, in *Collingwood,*& *Pace*would have overturned them. He then examines the latter statutes, which it is unnecessary for us to do, because I do not understand them to be of force here. The judges Ashurst *h*Grose agree fully with the Chief Justice, and Grose quotes Judge-Blackstone, as giving that construction to the *Stat. 25th, Ed. 3d. Mr. Margrave,*in note 1, to page 8 of Co. Litt. states the *Stat. Ed. 3d.*as enabling children born abroad to inherit, if both their parents were within the King’s allegiance. There is a quotation by Mr. Hargrave, in note *7,*Co. Litt. page 12, of importance; but it manifestly relates to a denizen man marrying an alien woman or a denizen woman marrying an alien man, and having issue born in England. This issue shall inherit; as indeed Lord Hale had' said in Colling-wood and Pace.

I come then to the conclusion, that by the common law, children born abroad could not inherit lands in England, even from their parents who were native subjects. The character of a natural born subject, anterior to any of the statutes, was.inci,-den\al to birth alone; as was distinctly stated by Lord Kenyon, in Purpure & Jones, And the *Stat. 25, Ed.*8, if pf force in *12this state, which I doubt, gave this privilege only to children, whose parents were both native subjects; or at any rate, under the largest construction, to the children of a native father by an alien mother. It further appears that the stat. of 7 *Ann, ch.*5 is not expressly adopted, and there is no authority to say that it was adopted by implication; and it contains no clause •specially extending it to the colonies. The children then of Mrs. Shanks, born abroad, of an alien father, are not entitled to inherit lands from her in Carolina, on any of- the grounds heretofore examined.

It was faintly argued, that as the tribunals in England have decided that Americans born before the revolution, are not made aliens by that event, but continue to be entitled td liold lands in Great Britain, notwithstanding the severance of the two countries, the same doctrine ought to Be allowed to prevail in this country. In which case, Mr. Shanks, though born in Great Britain, and never in Carolina,, but for a short time and as a hostile invader, would not be an alien, and the impediment to his children’s inheriting from their American mother 'would be removed. This point was not much relied on by Mr. King, and I do not think it open for discussion. The supreme court of the United States has decided, that a British subject, born iii Groat Britain' before the’ revolution, cannot since that event take lands By descent in the United States, u,,on the ground of his being an ante-natus, born under a common allegiance before tile separation of the two countries. He is alien to this country; *see*4 *Cra.*321; *Dawson’s lessee,*vs. *Godfrey,*and 7 *Cra.*603, Fairfax’s devisee, *vs.*Hunter’s lessee. Mr. Shanks, the father of the defendants, is in this predicament; 'and we have seen that the children of a female denizen, born abroad of an alien father, cannot inherit to their mother here.

The defendent’s counsel next rely on the .treaties between Great Britain' and America for the protection of their rights; and the decision of the supreme court of the United States in the construction of those treaties. The preliminar}' treaty of peace; signed tlie 30tli Nov. I7'S2, article *5,*and the definitive treaty of peace, signed 3d Sept. 1783, article 5, contain clauses *13In the same wards; by which it was stipulated tbát- congress should recommend to the states to restore the-estates which had been confiscated, belonging *to real British*subjects; and also the estates and rights of persons resident in districts in possession of his majesty’s forces., who have hot borne arms against the United States. It is sufficient to remark that these clauses do not apply to the case before us, even if they had been positive stipulations to restore confiscated estates; for there ivas in fact no confiscation of the estate of Mrs. Shanks, and if her children are deprived- of their inheritance, it will not be by the o -eration of any confiscation laws, but of other principles not touched by these treaties.

By the 9th article of the treaty of- the 19th-Nov. 1794-, it is stipulated; that British subjects w'ho now hold lands in- the territories of the United States, and American citizens who now hold lands in the dominion of his majesty, shall-continue to hold them according to the nature and tenure-of their estates and titles, and may grant, sell or devise them to whom they please, as if they were natives; and that neither they-nor their heirs or assigns shall, so far as regards the said lands- and-the legal remedies thereto, be regarded as aliens. This is a precise and obligatory agreement, and it would be satisfactory to find that the defendants could be protected under it.

It was by its terms intended to preserve the rights of British subjects in America, and of American citizens in Great Britain. - Mrs. Shanks was living at *the*time of *the*formation of this treaty. The first enquiry to -be made is, was she a British subject. On the declaration of independence in 1776, Mrs. Shanks, a native of South-Carolina and resident here, was a citizen. Her marriage in 1781, with.a British officer, didnot change her character. Her children, if born in America, could have inherited her property, though their father- ivas an alien. Her going abroad and residing in a foreign country, did not take away her civil character and rights. She could, continue to hold her land. The State of-South-Carolina claimed the allegiance of its inhabitants, by various acts passed during the revolution. And the supreme court of the United States *14has decided, that a citizen *of New-Jersey, who*joined the ene~ my and adhered to them, claiming to be a British subject, and receiving compensation from that government for his loyalty and sufferings as a refugee, had a right to take lands by des» cent in the state of New-JerSey. That state had claimed his allegiance as an inhabitant, and his acts could not change it. See 4 *Cranch,*209; *M'Ilvaine,*vs. *Cox's lessee.*Thus the strongest acts which a man could perform to throw off his American citizenship, could not effect that object.- The case of Mrs. Shanks does not appear to rae so strong, as this. It does not therefore appear to me that she can be considered a British subject, within the meaning and provisions Of the treaty of Nov. 1794. I am not aware that she could sustain the double character of American citizen and British subject. She could have granted, sold or devised (as far as a *feme covert*can *devise)*her lands in Carolina. She did not then stand in need of t-he protection of that treaty tor the exercise of those rights. Now the treaty was intended for the protection and benefit of those who stood in need of its provisions, to wit, British subjects, who otherwise might have been deprived of their lands in America. I acknowledge however that this is to me new and untrodden ground, and I cannot be sure that my view of the subject is the correct one: but as it appears so to me, I am bound to declare it. I should have been glad if the supreme court could have felt themselves justified by the principles of law, in taking a different view of the effect of the separation of the two countries on private rights. But I am bound by their decision.

To this it may be added, that if Mrs. Shanks could he considered a British subject, within the provisions of the treaty of 1794, she has neither granted, sold or devised her lands, as the treaty? permits; but died in 1801, leaving them to descend to . those on whom the laws would cast them. The treaty makes no provision for that case. It does not stipulate that the lands of British subjects may descend to aliens, who by our municipal law's are incapable of taking and holding lands by descent, .1 am constrained then to.come to the conclusion,, that the child-*15rcn of Mrs. Shanks, bom in Great Britain and alien, to tisis country, are not entitled to take lands by descent from licr, cither by knv or by the treaty.

. It ought to have been noticed earlier, that there are two acts of Congress which have a bearing on the question wrc are considering; the one is of the date of the 29 th Jan.-1795, see 3d. *vol. of the laxos, p.*163. The third section enacts, *inter alia,*that the children of citizens ■ of the United States, born out of the limits of the jurisdiction of the United States, shall be considered as citizens of the United States: Provided that the right of citizenship shall not descend to heirs whose fathers have never been resident in the United States. • This statute is analogous to that of 25th Ed. 3d. This act con-continued in force till 1802,-when if was repealed by Stat. of 14th April, 1802, 6th. vol. laws, p. 79, 81: But a similat "clause was then re-enacted. Mrs. Shanks died in 1801, and her children, it seems to me, could inherit to her lands in this state under the Stat. of 1795, unless the proviso stands hi their way; for the enabling words do not say, that these children shall have both parents citizens. Let ris examine the effect of the proviso. Mr. Shanks, the father, never ivas a resident of the United States, for I cannot consider his presence for a short time, in the character of an enemy, as a- residence within the meaning of the statute. But it may be made a question, whether this proviso was meant to be operative oft the immediate children, one of whose parents was a citizen and the other an alien and non resident, or merely on their remoter descendants. I believe there are no .decided cases or constructions to guide the judgment on this question; w6 must therefore. look to the words of the proviso itself. They are very general, and taken literally, they import that the right of citizenship created by the enabling clauses, shall not go or. descend to persons whose fathers have never beeft resident in the United States. The provisions of this statute may be compared to' the *Stat. of Ann. Ch.*5, and 4 *Geo.*2, *Ch. 21,*the former gave a new right of citizenship to the children of all natural born subjects; so does the enabling clause in question, The latter restricts *16the benefit to the paternal line. The proviso in our statute prevents the enjoyment of the privilege by children of citizens, whose fathers have never been.resident in the United States. I apprehend therefore, that the children of Mrs. Shanks who was a citizen, cannot inherit to'her, under the provision of our statute; because their father never was a resident in the United States. No office has been found in the case we have been considering; but it does not appear to me to be material. The distinction seems to be that aliens may take and hold lands *by*•purchase, which includes devise, against all the world, till office found; but they can take nothing by descent.

We have how finished our examination of this tedious case. Many of the points were of a nature which seldom arise in our courts, and Of course we have not always had the aid of the judgment of other and abler minds, though there áre luminous decisions on some of the questions I have been obliged to examine. I am far therefore, from being assured that ! have been correct in all my conclusions; and it would not be a subject of regret,' if a higher tribunal should take a different view of the subject. For it scorns peculiarly hard that these unfortunate persons should lose their inheritance, because their father was an alien, and they being born abroad cannot inherit their American mother, on account of his alienage, and because their mother was a citizen, and therefore her children are not protected by the operation of the treaty of 1794, as they might have been if she had been a British subject. Judges however do not make, but administer tbe law.

It is ordered and decreed, that the money arising from the sale of the land in question, heretofore reserved subject to the-order of the court, be paid over to tbe petitioners, tbe only heirs of the late Mrs. Shanks, who are capable of taking the ■same.

From this decree the respondents appealed, oh the grounds:'

1st. That Mrs. Shanks *was a British*subject,-Within the meaning of the treaties of one thousand seven hundred and eighty-three, and one thousand seven hundred and ninety-four.; an& *17the respondents as her heirs are entitled to the benefits of these treaties.

2nd. That should the court be of opinion that Mrs. Shanks was not a British subject within the meaning of the treaty,- she was an American citizen, and her children, under the acts of Congress of the 29th of January, one thousand seven hundred and ninety-five, and of the fourteenth *of*April, eighteen hundred and two, can inherit lands owned by her in S. Carolina.

*King,*for the appellants,

contended that Mrs. Shanks was a British subject and within the protection of the treaties of 1783 and 1794. There can be no doubt that she was born a British subject, nor has she changed that character. On the declaration of independence, the natives of America had a right to choose between the two states, the old and the new. The act of *the*legislature of this state, passed on the sixteenth of March, 1783, regulating .confiscated estates, (P. L. 323,} speaks of persons who were formerly citizens; implying that they have lost that character. What is meant by the terms, British subjects, used in the treaty? Can there be any doubt that Mrs. Shanks, who was confessedly born a British subject; who went to England as the wife a British officer, was to all intents and purposes, a British subject after her removal, entitled to dower, &c. If she is within the provisions of the treaties, her children are entitled to take land from her by inheritance. *Cited,*7 *Co. Calvin's*case; 1 *Hales’*Pl. *Cr.*61; 2 *Mass. Rep.*246; *Hining*& *Mun.*613, 14; 2. Cra.280; 4 *Cra.*24; *Vaughan’s Rep.*283. 8 T. *R.*31, 45; 1 *Bos.*& *Pul.*443. 2 *Comyn’s Rep. (1 Scott, q. t. vs. Schwartz;)*2 *Mass. Rep.*179; 3 *Dall*133; 4 *Wheat. 453;*2 *Dall.*225; 3 *T. R.*726; 8 *T. R.*584; *Vattel, 17th. Chap.*4 *Johns.*74, 5.

*Legare,*contra,

denied that Mrs. Shanks was a British subject. She was born here; she-was here at the declaration of independence, and so till she went away in 1782. At what period or by what act, did she lose her character of American citizen? It seems however, not to be denied that she is an American citizen, but contended that she is also a British subject; but there seems to be some inconsistency in this potion of *18á double allegiance. It is said that she had a right to choose her allegiance; if she had, was not her election made by remaining here several years after the declaration of'independence? The treaty of 1783 did not give American Independence, but recognized it; and what British statutes or British courts may have declared, cannot alter our doctrines on the subject. Was she a subject, owing allegiance to Great Britain, when residing in this her native country, then at war with G. ■Britain? Lord Coke says, if the realms of G. Britain, (England and Scotland) should be separated, the subjects would be *utriusque ligeantice;*but this cannot apply to a violent separation — a state of war. If her character of American citizen was determined after the declaration of independence, her subsequently marrying a British subject cannot divest her of it. 1 *Wilson’s Lectures;*7 *Cranch,*609, 10; 2. *Tucker’s Blac. Ap. note c. p. 54. Pub. Laws*306; 2 *Cranch,*294, 5; 3 *Dall.*238. 243; 1 *Dall.*402; 2 *Cra.*280; 4 *Cra,*214; 3 *T. R.*726.

*By the Court.*

This case is of great importance and involves principles of great delicacy and difficulty. These have been very fully examined in the decree of the circuit court. On a careful consideration of that decree we are fully' satisfied therewith. It is therefore ordered and adjudged, that the decree of the circuit court be affirmed.

Chancellors *Desaussure, Waties, Thompson*and James, concurring.

Chancellor, *Gaillard,*

dissenting. — It was admitted by the counsel for the petitioners, on the argument of this case, that if Mrs. Shanks was a British subject, her children are entitled to lake; which renders unnecessary any other enquiry than whether she was a British subject. In making it, the law of England must govern, and it is immaterial whether Mrs. Shanks could or could not take by descent under the .laws of this state; for in neither case, would her rights as a British subject be affected.

The supreme court of the United States, in *J\J‘llvaine against Coxe’s lessee, 4th Cranch,*decided that a citizen who joined the enemy and adhered to them, claiming to be a British *19subject and receiving compensation from that government, bad a right to take lands by descent in New-Jersey; upon the principle that the several states which composed the union, so far at least as regarded their municipal regulations, became entitled from the time when they declared themselves independent, to all the rights and powers ot sovereign states, and that they did not derive them from concessions made by the British king. South Carolina, *as tegarded her municipal regulations,*was a sovereign state prior to the declaration of independence in 1776; for she had before that time thrown off her 'allegiance to Great Britain, and governed herself by her own authority and laws; and - every nation that governs itself, under what form without any dependence on foreign power, is a sovereign state. Vat tel, lb. 1. ch. 1 Section 4th. The claim in M'llvaine against Coxe’s lessee was decided under the laws of New-Jersey 1 The Shanks set up no claim under the laws of South-Carolina, but under the treaties of 1783 and 1794, between the United States and Great Britain; and admitting that Mrs. Shanks could take by descent under the laws of the state, this right could not impair her rights as a British subject; treaties being the supreme law of the'land. Mrs. Shanks married a British officer, a subject of Great Britain, in 1781, and-went with him to Wales, where she resided until her death in 1801. Her father from whom she claimed, died in 1782, and in *Ogden against Folliott, in error, 3rd. Term reports,*726, the court considered as a nullity the acts of confiscation passed m the several states of North-America, after the declaration of independence and before the treaty of peace; recognizing the independence of the United States only from the definitive tre.aty of peace. I', have no doubt, that according to the law of England Mrs-.'. Shanks was born a British subject; that she was a British subject when she married Mr. Shanks in 1781, and that she continued so until her death. Iam therefore of opinion that the. decree of the circuit court should be reversed.

*20*On a rule against the master, it was held incompetent to go into proofs of the irregularity or unfairness of a sale of lands made by him; either for the purpose of invalidating the title of the purchaser, or mailing the master accountable for the value.*

On a rule against the master, *W. H. Oibbcs,*to shew cause why he did not proceed to sell two certain tracts of land, belonging to J. Stanyarne; the master made a return on oath, and shewed for cause, that he had duly sold the said two tracts of land to-Mazyck, and executed titles for the same, on the 6th February, 1823: That they composed a part of the plantation called in the said titles, *Laurel Hill;*which contained 349 acres; having under that name comprehendéd the said quantity of land while owned by Mr. Stanyarne, and which was declared at the sale. The master further stated that the report of the sales made by him of the lands of Stanyarne had been duly confirmed by the court. Mr. Hunt, in support of the rule, admitted that the two tracts of land before referred to, had been conveyed by the master to Mr. Mazyck; but he insisted that there was no regular and valid sale of them, and that the master should still proceed to sell them or be made to account for their value to the creditors of Stanyarne. He offered to go into proof of the irregularity of the sale; and the master stated that he was prepared to shew the fairness of it, by opposite proof.

Chancellor *Waties.*

I think it would be highly improper to permit, under the present proceeding, such an investigation. It would implicate the title of the purchaser of the lands, who is no party to the rule, and would lead to no result on which the court could make any definitive order. It would be to no purpose to shew any irregularity in the sale, for the court could not set it aside in a summary way; nor would the court make the master liable to the creditors of Stanyarne for the value of the two tracts said to be improperly conveyed to Mr. Mazyck; for this would be assuming the power of assessing damages, which properly belongs to a jury. If the creditors have been injured by the conveyance, they must seek their redress against the master and Mr. Mazyck; either by a bill in this court to set it *21aside, or by an action at lav? for damages. They have no-right, under this rule, to any other enquiry than whether the two tracts of land said to be unsold, have been actually conveyed by the master to Mr. Mazyck; and this fact has been admitted. The rule therefore must be discharged.

On appeal, decree confirmed by the whole court.