Mr Justice Story
delivered the opinion of the Court.
This was a Writ , of error to the highest court of appeals in [244]*244law and equity of the state of South Carolina; brought to revise the decision of that court, in a bill or petition in equity, in which the presen^ defendants were original plaintiffs, and tho present plaintiffs were original defendants. From the record of the case it appeared that the controversy before the court respected the right to the moiety of the proceeds of a certain tract of land, which had been sold under a former decree in equity, and the proceeds of which had been brought into the registry of the court. One moiety of the proceeds had been paid over to the original plaintiffs, and thé other moiety was now in controversy. The original plaintiffs claimed this moiety also .upon the ground that the original defendants were aliens and incapable of taking the lands by descent from their mother, Ann Shanks, (who was admitted to have taken the moiety of the land by descent from her father Thomas Scott,) they being British born subjects.
The facts, as they were agreed by the parties, and as they appeared on the record, were as follows.:
Thomas Scott the ancestor, and first purchaser, was a native of the colony of South Carolina, and died intestate, seised of the lands in dispute, in 1782. He left surviving him two daughters, Sarah and Ann, who. were also born in South Carolina, before the declaration of independence.
Sarah Scott intermarried with Daniel..Pepper, a citizen of South Carolina, and resided with him in that state,until 1802, when she died leaving children, the present defendants in error,, whose right to her share of the property is conceded.
The British took possession of James Island, on the 11th of February 1780, and Charleston surrendered to them on the 11th of May in the s.ame year.
In 1781, Ann Scott was married to Joseph Shanks, a British officer, and at the evacuation of Charleston,, in December 1782, went with, him to England, where she remained until her death, in 18'01. She left five children, the present plaintiffs in error, British subjects, who claimed in right of their mother, and under the ninth article of the treaty of peace between this country and Creat Britain of the 19th of November 1794, a moiety of their grandfather’s estate in South Carolina.
The decision of the state court was against this claim, as' [245]*245not Within the protection of the.treaty, because Mrs Shanks was an American citijzen.
The cause was argued by Cruger and Wirt, for the plaintiffs in error; and by Mr Legaré, for the defendants in error.
After the elaborate opinions expressed in the case ofInglis vs. The Trustees of the Sailor’s Snug Harbour, ante p. 99, upon the question of alienage, growing out of the American Revolution; it is unnecessary to do more in delivering the opinion of the court in the present case, than to state, in a brief manner, the grounds on which our decision is founded.
Thomas Scott, a native of South Carolina, died in 1782, seised of the land in dispute, leaving ‘ two daughters surviving him, Sarah, the mother of thé defendants in error, and Ann, the móthér of the plaintiffs in error. Without question Sarah took one moiety of the land by descent; and the defendants in error, as her heirs, are entitled to it. The only question is whether Ann took the other moiety by descent ; and if so, whether the plaintiffs in error are capable of taking the same by descent from her.
- Anri Scott was born in South Carolina, before the American revolution; and her father adhered to the American causé, and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the revolution,- and afterwards, remained in South Carolina until December 1782. Whether she was of age during this time does not appear. If she. was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a coqq^ry, Continuing while under age in the family of the father, partake of his national character, as a citizen of that country.. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost; or was it.lost before the death of her father, So that the estate in, question was, upon the descent.cast, incapable of vesting in her Upon the facts stated, it appears to Us that it was not lost; and that she was capable of taking it at the time of the descent cast.
The only facts which are brought to support the suppo[246]*246si.tion, that she became an alien, before the death of her father, are, that the British captured James Island in February 1780, and Charleston in May 1780; that she was then and afterwards remained under the British dominion in virtue of the capture; that in 1781., she married Joseph Shanks, a British officer, and upon the evácuation of Charleston in. December 1782, she went with her husband, a British subject, .to England, and there remained until her death in 1801. Now, in the first place, the capture and possession by the British was not an absolute change of the allegiance of the captured inhabitants. They owed allegiance indeed to the conquerors during their occupation; but it was a temporary allegiance, which did not destroy, but only suspend their, former allegiance. It did not annihilate their allegianpe to tile state of South Carolina, and make them de facto aliens. That could only be by a'treaty of peace, which should'Cede the territory, and them with it; or by a permanent conquest, not disturbed or controverted by arms, which would lead to a like result. Neither did the marriage with Shanks produce that effect; because marriage w'fth an alien, whether a friend ,or an enemy, produces no dissolution of the riqtive allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges; The general doctrine is, that no persons can by any act of their own, without the consent of the government, put off their allegiance, and become aliens. If it were otherwise, then a. femme alien would by her. marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband ; which are .clearly contrary tolaw(
Our conclusion therefore is, that neither of these acts warrant the court in saying that Ann Shqnks had .ceased to be a citizen of South Carolina, at the death of her father. This is not, indeed, controverted in the allegations of^the parties.
The question then is, whether her subsequent removal with her husband operated as a virtual dissolution of'ber allegiance, and fixed her future allegiance to the British crown [247]*247by the treaty of peace of 1783. Our opinion, is that it did. In the first place, she was born under the allegiance of the British crown, and no act of the government of Great Britain ever absolved her from that allegiance. Her becoming a citizen of South Carolina did not, ipso facto, work any dissolution of her original allegiance, at'least so.far as the rights and claims of the British cro'wn were concerned.
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Mr Justice Story
delivered the opinion of the Court.
This was a Writ , of error to the highest court of appeals in [244]*244law and equity of the state of South Carolina; brought to revise the decision of that court, in a bill or petition in equity, in which the presen^ defendants were original plaintiffs, and tho present plaintiffs were original defendants. From the record of the case it appeared that the controversy before the court respected the right to the moiety of the proceeds of a certain tract of land, which had been sold under a former decree in equity, and the proceeds of which had been brought into the registry of the court. One moiety of the proceeds had been paid over to the original plaintiffs, and thé other moiety was now in controversy. The original plaintiffs claimed this moiety also .upon the ground that the original defendants were aliens and incapable of taking the lands by descent from their mother, Ann Shanks, (who was admitted to have taken the moiety of the land by descent from her father Thomas Scott,) they being British born subjects.
The facts, as they were agreed by the parties, and as they appeared on the record, were as follows.:
Thomas Scott the ancestor, and first purchaser, was a native of the colony of South Carolina, and died intestate, seised of the lands in dispute, in 1782. He left surviving him two daughters, Sarah and Ann, who. were also born in South Carolina, before the declaration of independence.
Sarah Scott intermarried with Daniel..Pepper, a citizen of South Carolina, and resided with him in that state,until 1802, when she died leaving children, the present defendants in error,, whose right to her share of the property is conceded.
The British took possession of James Island, on the 11th of February 1780, and Charleston surrendered to them on the 11th of May in the s.ame year.
In 1781, Ann Scott was married to Joseph Shanks, a British officer, and at the evacuation of Charleston,, in December 1782, went with, him to England, where she remained until her death, in 18'01. She left five children, the present plaintiffs in error, British subjects, who claimed in right of their mother, and under the ninth article of the treaty of peace between this country and Creat Britain of the 19th of November 1794, a moiety of their grandfather’s estate in South Carolina.
The decision of the state court was against this claim, as' [245]*245not Within the protection of the.treaty, because Mrs Shanks was an American citijzen.
The cause was argued by Cruger and Wirt, for the plaintiffs in error; and by Mr Legaré, for the defendants in error.
After the elaborate opinions expressed in the case ofInglis vs. The Trustees of the Sailor’s Snug Harbour, ante p. 99, upon the question of alienage, growing out of the American Revolution; it is unnecessary to do more in delivering the opinion of the court in the present case, than to state, in a brief manner, the grounds on which our decision is founded.
Thomas Scott, a native of South Carolina, died in 1782, seised of the land in dispute, leaving ‘ two daughters surviving him, Sarah, the mother of thé defendants in error, and Ann, the móthér of the plaintiffs in error. Without question Sarah took one moiety of the land by descent; and the defendants in error, as her heirs, are entitled to it. The only question is whether Ann took the other moiety by descent ; and if so, whether the plaintiffs in error are capable of taking the same by descent from her.
- Anri Scott was born in South Carolina, before the American revolution; and her father adhered to the American causé, and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the revolution,- and afterwards, remained in South Carolina until December 1782. Whether she was of age during this time does not appear. If she. was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a coqq^ry, Continuing while under age in the family of the father, partake of his national character, as a citizen of that country.. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost; or was it.lost before the death of her father, So that the estate in, question was, upon the descent.cast, incapable of vesting in her Upon the facts stated, it appears to Us that it was not lost; and that she was capable of taking it at the time of the descent cast.
The only facts which are brought to support the suppo[246]*246si.tion, that she became an alien, before the death of her father, are, that the British captured James Island in February 1780, and Charleston in May 1780; that she was then and afterwards remained under the British dominion in virtue of the capture; that in 1781., she married Joseph Shanks, a British officer, and upon the evácuation of Charleston in. December 1782, she went with her husband, a British subject, .to England, and there remained until her death in 1801. Now, in the first place, the capture and possession by the British was not an absolute change of the allegiance of the captured inhabitants. They owed allegiance indeed to the conquerors during their occupation; but it was a temporary allegiance, which did not destroy, but only suspend their, former allegiance. It did not annihilate their allegianpe to tile state of South Carolina, and make them de facto aliens. That could only be by a'treaty of peace, which should'Cede the territory, and them with it; or by a permanent conquest, not disturbed or controverted by arms, which would lead to a like result. Neither did the marriage with Shanks produce that effect; because marriage w'fth an alien, whether a friend ,or an enemy, produces no dissolution of the riqtive allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges; The general doctrine is, that no persons can by any act of their own, without the consent of the government, put off their allegiance, and become aliens. If it were otherwise, then a. femme alien would by her. marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband ; which are .clearly contrary tolaw(
Our conclusion therefore is, that neither of these acts warrant the court in saying that Ann Shqnks had .ceased to be a citizen of South Carolina, at the death of her father. This is not, indeed, controverted in the allegations of^the parties.
The question then is, whether her subsequent removal with her husband operated as a virtual dissolution of'ber allegiance, and fixed her future allegiance to the British crown [247]*247by the treaty of peace of 1783. Our opinion, is that it did. In the first place, she was born under the allegiance of the British crown, and no act of the government of Great Britain ever absolved her from that allegiance. Her becoming a citizen of South Carolina did not, ipso facto, work any dissolution of her original allegiance, at'least so.far as the rights and claims of the British cro'wn were concerned. During the war, each party claimed the allegiance of the natives of the colonies as due exclusively to itself; The American spates insisted upon the allegiance of all born within the states respectively; and Great Britain asserted an equally exclusive claim. The treaty of peace of 1783 acted upon the state of things as it existed at that period. It took the actual state of things as its basis. All those, whether natives or otherwise, who then adhered to the American states, were virtually absolved from all allegiance to the British crown. All those who then adhered to the. British crown, were deemed and held subjects of that crown. The treaty of peace was a treaty operating between the states, on each side, and the inhabitants thereof; in the language of the seventh article, it was a firm and perpetual peáce between his Britannic majesty and the said states, “ and between the subjects of the one and the citizens of the other.” Who were then subjects or citizens, was to be decided by the state of facts. If they were originally subjects of Great Britain and then adhered to her, and were claimed by her as subjects, the treaty deemed them such. If they were originally British subjects, but then adhering to the states, the treaty deemed them citizens. Such, I think, is the natural, and indeed "almost necessary meaning of the treaty; it would otherwise follow, that there would continue a double, allegiance of many persons; an inconvenience which must have, been foreseen, and would cause the most-injurious effects to both nations.
It cannot, we thflik, be doubted that Mrs . Shanks, being then voluntarily und^r British protection, and adhering to the British side, by her removal with her husband was deemed by the British government to .retain her allegiance, and to be, to all intents and purposes, a British subject. It may [248]*248be said that, being sub potestate viri, she had no right to' make an election; nor ought she to be bound by an act' of removal under his authority or persuasion. If-this were a case of a crime alleged against Mrs Shanks, in connexion with her husband, there might be force in the argument. But it must be considered, that it was at most a mere election of allegiance between two nations, each of which claimed her allegiance. The governments, and not herself, finally settled her national character. They did not treat her as capable by herself of changing or absolving her allegiance; but they virtually allowed her the benefit of her choice, by fixing her allegiance finally on the side of that party to whom she then adhered.
. It does not appear to us that her situation as a feme covert disabled her from a change of allegiance. British femes covert residing here with their husbands at the time of our independence, and adhering tq our side until the close of the war, have been always supposed to have become thereby American citizens, and to have been absolved from their antecedent British allegiance. The. incapacities of. femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those, political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general-principles of the law of nations. The case of Martin vs. Tile Commonwealth, I Mass. Rep. 347, turned upon very different considerations. There the question was, whether a feme covert should be deemed to have forfeited her. es~. tate for an offence committed with her husband, by withdrawing from the state, &c. under the confiscation, act of 1779 ; and it was held that she was not within the purview of the act. The same remark disposes 4f the case of Sewall vs. Lee, 9 Mass. Rep. 363, where the court expressly refused to decide whether the wife by her withdrawal with her husband became an alien. But in Kelly vs. Harrison, 2 Johns. Cas. 29 the reasoning of the court proceeds upon the supposition, that the wife might have acquired the same [249]*249Citizenship with her husband, by withdrawing with him from the British dominions(a).
But if Mrs Shanks’s'citizenship was not virtually taken away by her adherence to the British at the peace of 1783, still it must be admitted that, in the view of the British government, she was, at that time, and ever afterwards to the time of her death, and indeed at all antecedent periods, a. British subject. At most, then, she ivas liable to be considered as in that peculiar situation, in which she owed, allegiance to both governments, ad utriusque fidem regis. Under such circumstances, the question arises whether she and her heirs are not within the purview of the ninth article of the treaty with Great Britain of 1794. It appears to us'that they' plainly are. The language of that article is, “ that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of;his majesty, shall continue to-hold them according to the nature and tenure of their respective estates and titles therein, &c. &c.; and that neither they, nor their heirs -or assigns shall, so far as respects the said lands, and the legal remedies incident thereto, be regarded as aliens.
Now, Mrs Shanks was at the time a British subject, and she then held the lands in controversy; she is therefore within the words of the treaty. Why ought she not also to be held within the spirit and intent 9 It is said that the treaty meant to protect- the rights of British subjects, who were not also American citizens; but that is assuming the very point in controversy. If the treaty admits of two interpretations, and one is limited, and the other liberal; one which will further, and the other exclude private rights; why should not the . most liberal exposition be adopted % The object of the British government must' have been to protect all- her subjects holding lands in America from the disability of alienage, in respect to descents and sales. The class of American loyalists could at least, in her eyes, have been in as much favour as any other; there is nothing in out public policy which is [250]*250more unfavourable to them than to other British subjects: After the peace of 1783 we had no right or interest in future confiscation; and the effect of alienage was the same in respect to us, whether the British subject was a native of Great Britain or of the colonies. This part of the stipulation then being for the benefit of British subjects who became aliens by. the events of the war; there is no reason why all persons should not be embraced in it, who sustained the character of British subjects, although we might also have treated them as American citizens. The argument supposes that because we should. treat them as citizens, therefore Great Britain had no right tó insist upon their being British subjects within the protection of the treaty. Now; if they were in truth and in fact^upon principles of public and municipal law, British subjects, she has an equal right to require us to recognize them as such. It cannot be doubted that Mrs Shanks might have inherited any lands in England, as a British subject, and her heirs might, have taken such lands by descent from- her. It seems to us, then, that all British born subjects .whose allegiance Great Britain has never renounced, ought, upon general principles of interpretation,'to be held within the intent, as' they certainly are within the words, of the treaty of -1794.
In either view of this case, and we think both are sustained by principles of . publicdaw, as well as of the. common law, and by the soundest rules of interpretation applicable to treaties betweenindependent states, the objections taken to the right of recovery of the plaintiffs cannot prevail.
Upon the whole, the judgment of the court is; that the plaintiffs in error are entitled to the moiety of the land in controversy, which came by descent to their mother, Ann Shanks, and of course to. the proceeds thereof; and that the decree of the state court of appeals.ought tó be reversed; and the cause remanded, with directions to enter a decree in favour of the plaintiffs in error.
(a) See Kelly vs. Harrison, 2 Johns. Cas. 29. Co. Litt. 31, b. Com. Dig. Alien. C. 1. Dower, A. 2. Bacon’s Abridg. Alien. Dower, A.