An Historical Analysis of Alien Land Law: Washington Territory & State 1853-1889f

• Publication year: 1988

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 12, No. 2WINTER 1989

An Historical Analysis of Alien Land Law: Washington Territory & State 1853-1889(fn*)

Mark L. Lazarus III(fn*)

I. Introduction

From its earliest days as a territory until the present time, the area now known as the State of Washington experienced a diverse range of policies regarding alien land ownership. Throughout most of Washington's early history as a territory, the alien land laws-influenced principally by the need to stimulate immigration for economic growth-were nondiscriminatory and served to encourage alien land ownership. However, during the period immediately prior to statehood, the territorial lawmakers enacted legislation under which some aliens-most notably the Chinese and Japanese-were restricted from certain kinds of land ownership. This restrictive approach, which was incorporated in the state's constitution and which continued through the middle of the twentieth century to disable aliens from fully enjoying the rights of their nonalien neighbors, was the product of several factors. There were economic fears concerning industrial labor competition and the domination of agriculture by absentee landowners. There were also the insidious forces of xenophobia and bigotry. Aliens did not regain the unfettered right to own land in the state until after World War II, as restrictive alien land laws were gradually eliminated in response to the changing economic and social realities of the post-war years. Hence, modern-day aliens in Washington now stand in the same position as did their predecessors during most of the years before statehood; their right to own land is unrestricted by discriminatory alien land laws.

The purpose of this Article is to analyze the historical development of Washington's alien land law from the birth of the territory in 1853 to the drafting of the state constitution in 1889. Because alien land law necessarily involves relationships among people, this Article focuses not only on historical legal sources such as statutes, constitutional material, and judicial opinions, but also on the underlying social forces that compelled change in the law.

This Article consists of three sections, the first of which is a brief discussion of the common-law roots of alien land disability in feudal England and its subsequent application and transformation in colonial and post-Revolutionary War America. The second section traces the origins of Washington Territory's first alien land statute and considers the factors responsible for the pre-statehood evolution of that law. Included in the second section is a discussion of an early abortive attempt to achieve statehood that also signalled a turning point in the evolutionary development of Washington's alien land law. The third section explores the drafting of the state's constitutional provision that restricted the landowning rights of aliens. This section continues by discussing further statutory disabilities imposed after statehood, the judicial interpretations of the constitutional and legislative restrictions on alien land ownership, and the constitutional amendments that ultimately resulted in the elimination of the alien land disability altogether. The Article concludes by summarizing the main themes of the historical development of Washington's alien land law.

II. The Common Law Alien Land Disability

The common law, as inherited by the American colonies from England, did not permit aliens to own land on an equal footing with subjects of the crown. Aliens could take land only by act of the parties through sale, devise, lease, or gift, but the right to hold onto land so acquired was limited because the English monarch had the prerogative to claim an alien's land holdings without compensation through a divestment process known as "inquest of office."(fn1) Moreover, because this potential for forfeiture followed the land on conveyance, an alien could convey only a defeasible title at best, regardless of whether the acquiring party was another alien or a crown subject.(fn2) A further disability existed, because aliens were considered to lack "inheritable blood," and thus were not permitted to take or convey land by operation of law.(fn3) Two consequences resulted from this feature of the common law alien land disability. First, land that might otherwise go to an alien by operation of law escheated to the sovereign unless an eligible heir of the decedent could be found. Second, untransferred land remaining at the time of an alien landowner's death automatically escheated because aliens were deemed to have no legal heirs.(fn4)

Thus, the alien at common law was truly under a disability. At most, he could do little more than occupy land. Land ownership, to the extent that it was possible, was a hollow state of affairs; not only might the alien lose his land and purchase money, his ability to convey land was diminished by the fact that those who acquired his land also acquired his disability of potential forfeiture. And, due to a lack of "inheritable blood," he could not provide for the future of his family's real property interests with any degree of certainty. Such uncertainty, coupled with the threat of forfeiture of land acquired through an act of the parties, made investment in improvements to the land a risky matter.

The origins of the common law alien land disability are somewhat cloudy. It is generally accepted that the disability arose in thirteenth-century feudal England.(fn5) Chief Justice Coke rationalized the crown's prerogative to seize alien land-holdings in wartime as a measure to protect the secrets and revenues of the realm, and in peacetime as a means to assure sufficient English freeholders to serve as jurors.(fn6) However, it has been suggested that Coke's explanation is deficient because, except for the right to acquire and hold land, aliens could reside in England and were able to carry on their lives and businesses essentially the same as English subjects.(fn7) Another reason for the alien disability, put forward by some historians of English law, is that it evolved from the tendency of thirteenth-century English kings to seize the lands of their Norman and other French enemies.(fn8)

Conventional wisdom, based on the teachings of Black-stone, suggests that the disability resulted from the feudal tenurial incident of military service which tied defense of the kingdom to the way in which land was held by manorial lords and their tenants.(fn9) Under the feudal system, land was held, rather than owned, in the modern sense of the word, based upon personal oaths of fealty (loyalty) between king and lord, and similarly, between lord and tenant.(fn10) Through this arrangement, the tenant promised to provide certain services, including military service, to the lord in exchange for the right to hold and use the land.(fn11) The promise, once made, devolved to the tenant's heirs and to any subtenants who might later, through subinfeudation, have use of part of the tenant's holdings.(fn12) Since an alien, by definition, was presumed to have divided loyalties, the feudal lords were reluctant to let control of the land pass to someone who might later prove to be an enemy in their midst.(fn13) Even if he were not an active antagonist, an alien who owed no allegiance to the lord of the land was not expected to defend him with the same zeal as a "loyal" subject.

Whatever the real reason for the alien land disability, it persisted in England until abolished by Parliament in 1870.(fn14) During England's colonization of America, however, the Crown planted the seeds of her alien disability laws in a land destined to be populated by untold numbers of aliens. That destiny grew out of necessity. The American continent was huge, largely uninhabited, and rich in natural resources; many people would be required to exploit its potential fully. Also, the dream of land ownership was a strong motivation for emigrants willing to risk life and treasure in the hardships of ocean passage and settlement in an unfamiliar land. The alien land disability, rooted in anachronistic feudal notions, would act as an impediment to the fulfillment of such dreams.

A. The Common Law Alien Land Disability in the Colonies

Although the feudal basis for the alien disability did not exist in the new world, it appears that the American colonies generally, but reluctantly, adhered to the rule that aliens could not hold good title to land.(fn15) The colonists were not especially enamored of the rule because it tended to be a brake on immigration and development of the land.(fn16) As much as they may have wanted to, however, the colonists were in no position to eliminate the alien disability through enactment of new laws. Standing in the way of progress were the veto power of the colonial governors and the ultimate possibility of rejection by the Crown.(fn17)

Regardless of official British policy, the Colonies found ways to get around the alien land disability. Denization and naturalization were popular methods for the individual alien;(fn18) general legislation to quiet and confirm titles was also employed.(fn19) After attaining the status of a denizen, an alien could buy and hold land and pass it on to those of his offspring who were born after denization.(fn20) England tolerated this practice for a number of years but, in 1709, it reduced the authority of colonial governors to confer the denizen...