Such a child may, it seems, be subject to a double allegiance, and upon arriving at his majority may elect to retain the one and repudiate the other; but until such election he retains all the rights of citizenship in both countries, though discharging its duties in but one.

Appeal from the Supreme Court. The original plaintiff, Anna R. Ludlam, and the defendant Maximo M. Ludlam, were the only children of Richard L. Ludlam, who died at New York in April, 1838, when the said Anna R. was less than one, and her brother Maximo less than seven years of age. The other defendants were the testamentary guardians of the said Anna R. and Maximo M. during their minority. As such, they had received the price of certain lands in the city of New York belonging to said infants, as heirs of an uncle, and which were sold by order of the Supreme Court. Soon after her arrival at the age of twenty-one years, Anna R. Ludlam commenced this action in the Supreme Court against the testamentary guardians and her brother Maximo, claiming the whole of the proceeds of the land, on the ground that her brother, having been born in Peru, South America, was an alien, incapable of inheriting real estate in this state, and that she was the sole heiress at law of her deceased uncle. Maximo answered the complaint, claiming that he was, at the time of his uncle's decease, a citizen of the United States, capable of inheriting real estate, and that, on the death of their uncle, he and the plaintiff became seised, as tenants in common, of one-sixth part of the lands whereof such uncle died seised, subject to the life estate of Rebecca Ludlam, and that each was entitled to one-half of the proceeds of the sale thereof, then in the hands of the testamentary guardians. The guardians admitted the facts stated in the complaint, except as to the respective rights of the plaintiff and Maximo Ludlam, and prayed for the direction of the court in that respect. The cause was tried at the Kings County Circuit in July, 1859, before Mr. Justice LOTT, without a jury. It was proved on the trial that Richard L. Ludlam was born in this country in the year 1804; that he left the country in the year 1822, "for the purpose of seeking employment and bettering his condition," his intention being to go to Cadiz, and thence to Lima, in Peru; that he made a direct

passage, and arrived in Peru a few months after leaving the United States, where he remained until November, 1836, when he left on his return to New York, where he arrived in April, 1837, in poor health, and died in April, 1838. In 1828, at Lima, he married the present plaintiff, who was a native of Chili, but had removed in childhood to Peru, and had afterwards remained there. The only children of this marriage, except such as died in infancy in this country and in Peru, are the defendant, Maximo M. Ludlam, who was born at Lima in November, 1831, and the original plaintiff in this action, Anna R. Ludlam, who was born in New York in December, 1837. There was no evidence showing the object or design of Richard L. Ludlam in leaving this country, beyond what is above stated, or that he ever took any steps to become a citizen of any other country. It appeared that after his arrival at Lima, he acted as a clerk until about the time of his marriage, when he went into business on his own account as a tobacco merchant, in copartnership with a Mr. Flint, and continued in such business until 1836, when the business was closed, and both partners came together to the United States. While in Peru, he corresponded with his brothers, sister, and mother, remaining in the United States, but the communication was not frequent, and nothing in his letters referred to a return. His widow, who was examined as a witness on the trial in behalf of her daughter, then plaintiff, testified that her husband always intended to return to this country to educate his children; that that object, and his ill health, were the reasons which induced him to return; that she was never in the United States, or out of South America, until she came with him and with their children in 1836-37, and was never naturalized. The findings of fact by the judge, and his conclusions of law, so far as they bear upon the question in controversy, were as follows:

"That the plaintiff was born within the United States, and that the defendant, Maximo M. Ludlam, was born at Lima, Peru, South America, and was never naturalized as a citizen of the United States, nor ever qualified as required by law of resident aliens, to take or hold lands within the state of New York.

That Richard L. Ludlam, in the year 1822, voluntarily expatriated himself from the United States, where he was a natural-born citizen, for the purpose of becoming a permanent resident of Lima, and of establishing his permanent domicile there, and in a few months thereafter did become such permanent resident in such last-named place, and there established his permanent domicile.

"That in the year 1828, he there married a natural-born citizen of Chili, who never became a citizen of the United States, and of that marriage the plaintiff and said Maximo were born, as afore stated."

And, as conclusions of law upon the facts so found, the Justice determined:

"That the plaintiff is a natural-born citizen of the United States.

"That the defendant, Maximo M. Ludlam, is not a naturalborn citizen of the United States, but at the time of the death of his uncle, Thomas R. Ludlam, was an alien, incapable by law of taking land or real estate within the state of New York.

"That the lands and real estate mentioned in the complaint, and whereof Thomas R. Ludlam died seised, upon his death descended, as to one undivided one-sixth part thereof, to the plaintiff in fee, as the representative of her father, to the exclusion of said defendant, Maximo M. Ludlam, and that the plaintiff is entitled to the whole of the proceeds thereof," &c.

The defendant, Maximo M. Ludlam, excepted to the several conclusions of fact and law above stated.

Judgment was entered in accordance with those findings, and Maximo M. Ludlam appealed to the Supreme Court, at general term, when the judgment was reversed and a new trial ordered: 31 Barb. 486. From that judgment the plaintiff brought this appeal, stipulating that final judgment be entered against her, in case the judgment of the general term shall be affirmed.

John K. Porter, for the appellant.

Daniel Lord, for the respondent.

SELDEN, J.-Our statute concerning tenures provides that "every citizen of the United States is capable of holding lands within this state, and of taking the same by descent, devise, or purchase:" 1 R. S. 719, § 8. Aliens can neither take nor hold such lands, except under certain conditions not claimed to exist here: Id. §§ 15, 16, 17.

The question, who are citizens of the United States, must depend upon the laws of the United States. In 1790, Congress passed an act declaring that "the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural-born citizens:" 1 U. S. Stat. at Large 103. In 1795, the following provision was substituted for that previously existing, viz.: "The children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States:" 1 U. S. Stat. at Large 445, §§ 3, 4. In 1802, Congress repealed the law of 1795, and enacted that "The children of persons who now are or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States." This provision continued unchanged until 1855, when an act was passed declaring both the wife and children, in a case like the present, to be citizens: 10 Stat. at Large 604.

As the Act of 1802 did not embrace the children of those who might thereafter become citizens, and as the father of the defendant, Maximo Ludlam, was born after 1802, and died before 1855, this case does not come within the provisions of any of the statutes of the United States on the subject. The same question is presented, therefore, in this respect which arose in Lynch vs. Clark, 1 Sandf. Ch. Rep. 583, where it is, I think, very clearly shown that in the absence of any statute, or any decisions of our own courts, state or national, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognised as the law of all the states by which that Constitution was adopted.

This conclusion does not involve the question very earnestly debated soon after the organization of the government, whether the common law of England became the law of the Federal Government on the adoption of the Constitution: 1 Tucker's Blackstone, appendix E. p. 378; 1 Story's Com. on the Const., § 158, and note 2; Madison's Rep. to the Virginia Legislature, 1799, 1800; Instructions of Virginia to her Senators in Congress, January, 1800; Speech of Mr. Bayard on the Judiciary, 2 Benton's Debates 616; 1 Kent's Com. 331, 343. It only assumes, what has always been conceded, that the common law may properly be resorted to in determining the meaning of the terms used in the Constitution, where that instrument itself does not define them. Judge Tucker, at the close of his essay against the common law powers of the Federal Government, says: "We may fairly infer, from all that has been said, that the common law of England stands precisely upon the same footing in the Federal Government and the courts of the United States, as such, as the civil and ecclesiastical laws stand upon in England, that is to say, its maxims and rules of proceeding are to be adhered to, whenever the written law is silent, in cases of similar or analogous nature:" 1 Tucker's Blackstone, app. E., p. 429. The Legislature of Virginia, in its instructions to the senators of that state, in Congress, in January, 1800, directing them "to oppose the passage of any law founded on or recognising the principle that the common law of England is in force under the government of the United States," expressly excepted "from such opposition, such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government." The Constitution uses repeatedly the terms, "citizen of the United States," but does not define them. Our statute, above referred to, uses the same terms, and also leaves them undefined. It becomes necessary for the court to decide whether the defendant, Maximo M. Ludlam, under the circumstances of his birth and life, is a citizen. of the United States within those terms. No case, so far as we are informed, presenting a similar question, has ever been before