SHANKS V. DUPONT, 28 U. S. 242 (1830)

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U.S. Supreme Court

Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)

Shanks v. Dupont

28 U.S. (3 Pet.) 242


Thomas Scott, a native of South Carolina, died in 1782 intestate, seized of lands on James Island, having two daughters, Ann and Mary, both born in South Carolina, before the declaration of independence. Sarah married D. P., a citizen of South Carolina, and died in 1802, entitled to one-half of the estate. The British took possession of James Island and Charleston in February and May, 1780, and in 1781 Ann Scott married Joseph Shanks, a British officer, and at the evacuation of Charleston, in 1782, she went to England with her husband, where she remained until her death in 1801. She left five children, born in England. They claimed the other moiety of the real estate of Thomas Scott, in right of their mother, under the ninth article of the Treaty of Peace between this country and Great Britain of 19 November, 1794. Held that they were entitled to recover and hold the same.

If Ann Scott was of age before December, 1782, as she remained in South Carolina until that time, her birth and residence must be deemed to constitute her, by election, a citizen of South Carolina while she remained in that state. If she was not of age then, under the circumstances of this case, she might well be deemed to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his natural character as a citizen of that country.

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.

The capture and possession of James Island in February, 1780, and of Charleston on 11 May in the same year, by the British troops was not an absolute change of the allegiance of the captured inhabitants. They owed allegiance to the conquerors during their occupation; but it was a temporary allegiance, which did not destroy, but only suspended their former allegiance.

The marriage of Ann Scott with Shanks, a British officer, did not change or destroy her allegiance to the State of South Carolina, because marriage with an alien, whether friend or enemy, produces no dissolution of the native allegiance of the wife.

The general doctrine is that no person can, by any act of their own, without the consent of the government, put off their allegiance and become aliens.

The subsequent removal of Ann Shanks to England, with her husband, operates as a virtual dissolution of her allegiance, and fixed her future allegiance to the British Crown by the treaty of peace in 1783.

The Treaty 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

Page 28 U. S. 243

treaty operating between states and the inhabitants thereof.

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. These 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 facts of the case are fully stated in the opinion of the Court.

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