Article 4, Section 2, Clause 1

Document 8

Apthorp v. Backus

Kirby 407 Conn. 1788

Law, C. J. and Ellsworth, J.: . . . A state may exclude aliens from acquiring property within it of any kind, as its safety or policy may direct; as England has done, with regard to real property, saving that in favor of commerce, alien merchants may hold leases of houses and stores, and may, for the recovery of their debts, extend lands, and hold them, and upon ouster have an assize. Dyer, 2, 6.--Bac. Abrid. 84.--But it would be against right, that a division of a state or kingdom should work a forfeiture of property, previously acquired under its laws, and that by its own citizens; which is the case here.--The plaintiff's title to the land in question accrued while she was not an alien, nor could she be affected by the disability of an alien, but was as much a citizen of the now state of Connecticut, as any person at present within it, and her descent was cast under its laws;--her title is also secured by the treaty of peace, which stipulates, that there should be no further forfeitures or confiscations, on account of the war, upon either side.

The subsequent statute of this state, declaring aliens incapable of purchasing or holding lands in the state, does not affect the plaintiff's title, otherwise than by recognizing and enforcing it; for it hath a proviso, that the "act shall not be construed to work a forfeiture of any lands which belonged to any subjects of the king of Great Britain before the late war, or to prevent proprietors of such lands from selling and disposing of the same to any inhabitant of any of the United States."--It is not, indeed, expressly said, that the proprietors of such lands may maintain actions for the possession of them, but this is clearly implied; for lands without the possession are of no use; and wherever the law gives or admits a right, it gives or admits also everything incident thereto, as necessary to the enjoyment and exercise of that right:--And besides, they cannot sell their lands till they first get possession of them; for all sales of land in this state, whereof the grantor is dispossessed, except to the person in possession, are, by express statute, void--So that the plaintiff is not barred of her title, or right of action, either at common law, or by statute.

The Founders' Constitution
Volume 4, Article 4, Section 2, Clause 1, Document 8
The University of Chicago Press

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