Alien Land Restrictions in the American Common Law: Exploring the Relative Autonomy Paradigm
70 Pages Posted: 21 Jul 2000
This paper explores the judicial origins of alien land restrictions in the United States. Alien land restrictions originated in judge-made law, and until the later part of the nineteenth century continued to be dominated by the common law. Legislators and framers of Constitutions in the early American republic left to judges the task of enumeration of rights to accompany the status of "citizen". The gap in our understanding of this process is widened by the failure thus far to explore the importance of judicial decisions that restricted fee simple ownership of land to citizens.
As a source of law, state and federal courts in the United States adopted an English common-law rule, seemingly oblivious to the incongruity of applying a rule by which a monarch governed subjects to the political context of the newly formed United States. Among other restrictions, the common law rule required that real property held by an alien automatically escheated to the state upon his death, even if his or her heirs were American citizens. Courts frequently enforced escheat of land following an alien's death, sometimes decades later, and often to the detriment of citizens who claimed title to the property. Judges continued to protect the common-law doctrine in the face of attempts to construct alternative landholding mechanisms, becoming stalwart protectors of their presumed ideal that all landholders should be citizens.
This study of judicial enforcement of the common law of alien land rights leads to both general and specific observations about the nature and effect of judicial method in the nineteenth century. Among the general observations, I argue that these cases provide important evidence of the controversial paradigm of the "relative autonomy of law". Judges in this period were largely unconcerned that forfeitures could result in a chaotic market economy for land, especially in periods in which large percentages of the inhabitants were foreign-born. I suggest that the tenacity of a taught legal tradition helps to explain the staying power of legal doctrine in the face of social forces we might expect to lead to change; namely, that the underlying doctrine withstood social forces that tended toward rationalization of property law in other contexts.
JEL Classification: E11
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