Right of Aliens to Hold Lands.—Colonial and Indian Laws.

memorandum by mr. abbott.

Aliens are debarred by the common law of England from holding, inheriting, or transmitting landed property, for, being under a foreign allegiance, they are supposed to be incapable of rendering service and homage to the sovereign of England, from whom it is a settled principle of tenure that the title to all lands in the kingdom is primarily derived.

That the forfeiture to the Crown of lands held by aliens has been enforced from a very early period appears from 17 Edward the 2d, stat. 2, cap. 12: “That the King [Page 1419] should have escheats of the lands of Normans, of whose fee soever they were, saving the service appertaining to the chief lords of the same fee; and this also was to be understood, that if any inheritance descended to any that was born in the parts beyond the sea, whose ancestors were, from the time of King John, under the allegiance of the Kings of France, and not of the Kings of England, as then late it had happened of the barony of Monmouth, after the death of John de Monmouth, (whose heirs were of Britain and other places,) King Henry, by the foresaid occasion, recovered many escheats of Normans’ lands out of, the fees of other men, and gave them to be holden of the chief lords of the fee, by the services due and accustomed therefore.

“An alien is entitled to purchase in fee-simple lands, tenements, or hereditaments, although he cannot hold them, for upon office found the King shall have them; and even on a covenant to stand seized, a use will arise for an alien; but of course the same result will follow as in the case of a purchase, and the same would take effect where an alien purchased lands in joint tenancyand the King would, on office found, be entitled to a moiety.

“With respect to copyholds, it appears to be doubtful what rights an alien may acquire therein, for the lord is not to be prejudiced by losing his services and fines; but it is laid down in Watkins on Copyholds thatan alien cannot be a copyholder; and it should seem that if an alien purchases any copyhold property it would escheat to the lord. However, the title of an alien in all respects will be good against all persons except the Crown in the case of freeholds, and as against the lord in case of copyholds.” (Hansard’s “Law Relating to Aliens,” 1844, pp. 131–133.)

Previously to the act 7 and 8 Vict., c. 66, aliens could not take houses on lease for a term of years without danger of forfeiture.

The statute 32 Henry the 8th, cap. 16, enacted that no alien strangers, not being denizens, should take any leases of houses, under a penalty of 5l.; and all leases granted to strangers, artificers, or handicraftsmen, born out of the King’s obeisance, (nor being denizens) of any dwelling-house or shop within this realm, or any of the King’s dominions, are declared to be void and of no effect; and the person so taking such lease forfeits 100l, and the person letting, 100l. more; one moiety to the King, and the other to him that will sue for the same.

Lord Coke explains the law as follows: “As to a lease for years of a house for the habitation of a merchant stranger, being an alien, whose King is in league with ours, and a lease for years of lands, meadows, &c., upon office found, the King shall have it; but of a house for habitation he may take a lease for years, as incident to commerce, for without habitation he cannot merchandize or trade. But if he depart or relinquish the realm the King shall have the lease. So it is if he die possessed thereof, neither his executors or administrators shall have it, but the King; for he had it only for habitation as necessary for hisr trade or traffique, and not for the benefit of his executor or administrator. But if the alien be merchant, then the King shall have the lease for years, albeit it were for his habitation; and so it is if he be an alien enemie. And all this was so resolved by the judges assembled together for that purpose in the case of Sir James Croft. Pasch. 29, of the reigne of Queene Elizabeth.”

Upon the report of the aliens committee of 1843, the law relating to aliens holding personal and leasehold property was amended by the fourth and fifth clauses of the act 7 and 8 Vict., c. 66:1 (Naturalization Act, appended to my memorandum, Addenda I.)

“IV. And be it enacted that from and after the passing of this act every alien, being the subject of a friendly state, shall and may take and hold, by purchase, gift, bequest, representation, or otherwise, every species of personal property, except chattels real, as fully and effectually, to all intents and purposes, and with the same rights, remedies, exemptions, privileges, and capacities as if he were a natural-born subject of the United Kingdom.

“V. And be it enacted that every alien now residing in, or who shall hereafter come to reside in, any part of the United Kingdom, and being the subject of a friendly state, may, by grant, lease, demise, assignment, bequest, representation, or otherwise, take and hold any lands, houses, or other tenements, for the purpose of residence or of occupation by him or her, or his or her servants, or for the purpose of any business, [Page 1420] trade, or manufacture, for any term of years not exceeding twenty-one years, as fully and effectually, to all intents and purposes, and with, the same rights, remedies, exemptions, and privileges, except the right to vote at elections for members of Parliament, as if he were a natural-born subject of the United Kingdom.”

Doubts having arisen whether the act 7 and 8 Vict., c. 66, of 1844, extended to the colonies, an act was passed in 1847 (10 and 11 Vict., c. 83) declaring that it did not extend to the colonies, and that all laws, statutes, or ordinances duly passed or to be passed within Her Majesty’s colonies or possessions abroad, conferring the privileges of naturalization within the limits of such colonies were valid, subject to the usual confirmation by the Crown.

The acts of the Imperial Parliament, constituting various colonies with independent legislatures, have expressly provided that the local legislatures should have power to deal with questions of land tenure, and certain colonies have accordingly made provisions by which aliens are enabled, within their limits, to hold land, either absolutely or on lease.


By the act of the Dominion of Canada (cap. 66 of 1868) no power is given to aliens who have not been naturalized to hold, inherit, or devise lands.

But by a consolidation act of Canada, (now the provinces of Ontario and Quebec,) cap. 8, s. 9, and a later act, cap. 16, of 1865, aliens have the same power as to holding, devising, &c, lands as natural-born or naturalized subjects of Her Majesty. And the 9th section of the former act is expressly kept alive by the act of the dominion.

In Nova Scotia aliens were empowered to hold, devise, &c, lands, by c. 34 of revised statutes, sect. 1, and this section is expressly kept alive by the act of the dominion.

In New Brunswick there does not appear to have been any like power conferred on aliens.


No power is conferred upon aliens who have not been naturalized of holding, lands. There is a general naturalization act, 20 Vict., c. 8.

prince edward island.

By act of 22 Vict., c. 4, (1859,) aliens are empowered to hold, &c., land up to the limit of 200 acres.

british columbia.

The colonies of British Columbia and Vancouver Island were united into one colony, “British Columbia,” by imperial act, 29 and 30 Vict., c. 67; and by a subsequent local act, No. 37 of 1867, s. 10, which applies to the whole colony, aliens are empowered to hold lands, as if they had been natural-born British subjects.

cape of good hope.

By an act, No. 8 of 1856, all former laws, customs, or usages inconsistent with the act are repealed, and from its promulgation (June 4, 1856) aliens may purchase, acquire, and own fixed property in the colony, in like manner as natural-born subjects. But beyond this nothing in the act is to be taken as naturalizing any aliens, or bestowing upon them any of the privileges conferred by deeds of burghership.


By ordinance No. 6, of 1856, aliens are empowered to purchase or hold transfers of lands upon certain conditions, viz: The right does not extend to a period beyond that of four years from the date of registration of the transfer, and aliens may not alienate without license of the governor; and further, a fine is imposed unless letters of naturalization be taken out within four years from registration of the title.

By ordinance No. 7, of 1858, aliens are empowered to hold and give transfers of fixed property in the manner of natural-born subjects.

Under the law No. 1, of 1860, any alien who shall be the owner of landed property within the colony, and registered in his name, of not less a value than 300l, is enabled to obtain naturalization without a previous residence of five years, as required from other aliens.

new south wales.

By the colonial act 11 Vict., c. 39, 1847, aliens, subjects of a friendly state, may, without being naturalized, hold every species of personal property except chattels real. But for the purposes of residence or trade, they may hold land and houses for twenty-one years, with all the privileges of natural-born subjects, except that of voting at elections of members of the legislative council.

The law is therefore practically the same as in England.

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The position of aliens is regulated by the aliens act of 1867, (31 Vict., No. 28,) the provisions of which, as regards aliens holding lands and houses, are similar to those of the aforesaid New South Wales act, 11 Viet., e. 39, of which colony Queensland formed part, until its separation in 1859.


The “aliens statute 1865” (28 Vict., No. 256) provides that alien friends resident in the colony may inherit, acquire, hold, and dispose of every description of property, whether real or personal, in the same manner as natural-born subjects of the Crown, and all dispositions of property made before the passing of the act to or by such aliens are declared to be valid.

south australia.

By the aliens act No. 5, of 1864, every person born of a mother who is a natural-born or naturalized subject is capable of holding real or personal estate. Alien friends may hold every description of property, whether personal or real.

western Australia, tasmania.

No power is conferred upon aliens who have not been naturalized of holding lands.

new zealand.

The provisions of the alien act, 1866, (30 Vict., No. 17,) are the same as in New South Wales.


No power is conferred upon aliens who have not been naturalized of holding lands. Special acts of naturalization are passed in each case;


The provisions of the act No. 11, of 1857, are practically the same as those in New South Wales.


By an act, 25 Vict., c. 15, aliens are empowered to hold lands, houses, &c, for any term not exceeding twenty-one years, with full rights as natural-born subjects, except right of voting, &c.; and the governor is empowered to grant licenses to any company formed of aliens to hold lands for the purposes for which such company may be formed.


The colonial act, 14 Vict., c. 40, May, 1851, confers the same privileges on aliens with regard to leaseholds as the English act.

By 22 Vict., c. 1, (November, 1858,) every “immigrant,” (i. e., person introduced at the public expense from certain specified places,) who may obtain or become entitled to a certificate of industrial residence, becomes entitled to all the privileges of a natural-born subject within the colony.

turks and caicos islands.

By ordinance No. 8, of 1857, (passed October 17, 1857, and confirmed February 13, 1858,) aliens may hold lands, salt ponds, &c, (except salt ponds at Turks Island,) on lease not exceeding twenty-one years, which lease may be renewed at the end of the term.

british guiana.

Letters of naturalization are required to enable aliens to hold property in shipping, but not to enable them to hold or bequeath property, or to qualify them for civil rights and duties within the colony.


By a local act (28 and 29 Vict., c. 4) aliens may hold leases for purposes of residence or occupation for any term not exceeding twenty-one years.

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trinidad, saint vincent, grenada, saint lucia, antigua, dominica, tobago.

No power is conferred on aliens who have not been naturalized of holding lands. In some of these islands special acts of naturalization are passed for each person; in others, as Saint Vincent and Grenada, there are general acts of naturalization.


By aliens act of 1856 (No. 77) alien friends may take and hold lands by purchase or otherwise, as if they were natural-born subjects of Her Majesty.

saint kitts and anguilla.

By a local act, No. 127, February 3, 1857, all domiciled or resident liberated Africans are to be deemed natural-born subjects and capable of holding real or personal estate. As are also the children, wherever born, of a mother a natural-born subject.

Aliens, subjects of a friendly state, may acquire and hold either real or personal estate as effectually as natural-born subjects, but they are not thereby made capable of becoming members of the council or of the assemby, nor of voting at the election of members of the assembly.


By order in council of 1859, aliens who have been resident and domiciled for fifteen years, or who, if resident and domiciled for less than fifteen years, have obtained the governor’s special licenses, may hold lands as if they were British subjects.

sierra leone.

By the imperial act 16 and 17 Vict., c. 86, (August 20, 1853,) liberated Africans, domiciled or resident in Sierra Leone, are to be deemed within the colony to be natural-born subjects, and capable of holding and transmitting any estate, real or personal, within the colony. Power is, however, given to the local legislature to alter or repeal any of the provisions of the act so far as they relate to the right to real property.


The naturalization act 18 Vict., c. 18, (July 19, 1855,) is the same as the South Wales act.

By the 23d section of the immigration act, 24 Vict., c. 5, (1861,) every immigrant, born out of the British dominions, who shall have obtained or become entitled to a certificate of industrial residence, is entitled to all the privileges of a naturalized alien, except the capability to become a member of the assembly, which privilege, however, may be allowed by the superintendent.


By the colonial ordinance, No. 2 of 1853, aliens may acquire and dispose of real estate within the colony as effectually as natural-born subjects.

[The foregoing information, so far as it relates to the colonies, is in part compiled from the colonization circular, No. 27, 1868, issued by the emigration commissioners, and has been revised by Mr. Holland, legal adviser to the colonial office.]


Lord Brougham, in the case of the Mayor of Lyons v. The East India Company, cited in “Hansard’s law relating to aliens,” said, with regard to the right of aliens to hold leasehold and freehold property in India, “No instance has been produced, indeed it is agreed on all hands that no instance has ever existed of a forfeiture to the Crown for this cause. There is no such thing known in those parts as an inquisition of office or any analogous proceeding, or any proceeding whatever for entitling the Crown, or those exercising its delegated authority, to the real estate or chattels real of aliens within the district. When those foreigners die their real estates have descended to their heirs, or been taken by their devisees, or been administered as assets by their executors, without any claim ever having been made by the sovereign power, which would here in England have been entitled without any office. Ejectments have been brought, and the parties in possession have never been advised to set up the defense that the lessor of the plaintiff claimed by descent from an alien; and dower has been assigned to widows alien also.” (Moore’s Privy Council Cases, vol. 1, p. 175.)

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It appears from the printed “Proceedings of the Government of India Revenue, March, 1868,” that a report has been prepared by that government on the state of the law as to the right of aliens to hold lands in India.

This report states that the point was fully raised in the year 1834, when, in the case of General Claude Martin’s will, “it was distinctly held by the supreme court at Calcutta that the English law as to aliens had never been introduced into India. * * * This decision gave rise to considerable excitement at the time, and the government of India addressed the court of directors very strongly on the subject.”

The decision of the Calcutta court was confirmed on appeal by the Privy Council in the judgment of Lord Brougham above quoted.

Lord Brougham’s ruling was accepted as the law on the subject by Sir C. Jackson, as advocate-general, in 1852.

It seems from the “Proceedings” that it may be open to doubt “whether the English alien law has, in effect, been extended to India by any more recent legislation, either English or Indian, and whether the transfer of the executive administration in India from the company to the Crown, by the 21st and the 22d Vict., c. 106, has in any way affected the case.”

There is nothing in the Indian law disabling aliens, as being aliens merely, from holding lands. But there have been special regulations showing the jealousy with which the acquisition of land by alien Europeans has been regarded. (Bengal Regulations of 1793, 1795, 1803, 1813; Bombay, 1827.)

Indeed, up to 1834 no European, whether British or alien, could acquire land or rights in land except in certain specified cases, or by the permission of the governor-general, in either Bengal or Bombay. The law in Madras was not so accurately defined, but was substantially the same.

An act of 1837, the draught of which was drawn by Lord Macau]ay in 1835, was passed partly to clear up doubts which had arisen under the charter act of 1833, regarding the nature of the estate which European British subjects could hold in land in India.

“In the original draught of that act, in Lord Macaulay’s handwriting, stands, “It hall be lawful for any subjects of His Majesty to acquire and hold,” &c.

But in the course of circulation the words “subjects of His Majesty” were struck through, and the words “any person of whatever nation” substituted. Eventually the original words were restored, and the act passed accordingly.

The jealousy with which the residence of Europeans, and especially alien Europeans, in the interior was looked upon by the East India Company, is ascribed to the doubts which existed as to the jurisdiction of the company over such European residents.

As a matter of fact, nevertheless, the courts of the East India have long since assumed (as early as 1796) and exercised, without demur, such jurisdiction.

The report of the “Proceedings” concludes with a recommendation “that there is no longer any reason of good policy why European foreigners should not be placed, in the same position as European British subjects with respect to holding land in India.

* * In practice European foreigners have resided without let or molestation, and have even held landed property all over India for the past forty or fifty years at least. * * *

“On the other hand, there are valid objections to the state of the law as it now exists. It disinclines cautious foreigners against acquiring property, and * * * it is quite possible that it may be made an instrument of private annoyance and injury.

* * * During the Indigo disturbances in 1860–61, one of the most turbulenf and unpopular of the indigo planters in Behar was a Spaniard, Mr. Tolano, who was not at that time even naturalized, and who had no special permission to hold land. * * * Had the state of the law been known it would certainly have been taken advantage of by his native opponents, to his great injury and loss.”

In accordance with this recommendation the following minute was issued on the 11th of April, 1868, (“Proceedings of the Government of India, Home Department, Legislative, April, 1868:”)

“The governor-general in council has considered it expedient that all the regulations and acts which provide against the acquirement of land by Europeans in India should be repealed.

“2. They have no effect as regards Europeans, being British subjects, sinceAct IV of 1847, and they can therefore only operate against European foreigners.

“His excellency in council considers that the retention of these lands, as they now stand, is not only unnecessary and invidious, but might afford an opportunity for malicious injury.

“4. His excellency in council accordingly caused all the existing Bengal laws and regulations of this nature to be included in the bill for repealing certain enactments which have ceased to be in force or have become unnecessary, which became law as Act VIII, of 1868, on Thursday, the 2d instant.

“5. It is understood that both the governments of Madras and Bombay have similar repealing bills under consideration.

Resolved, That the attention of the governments of Madras and Bombay be drawn to the expediency of repealing any laws affecting the free acquirement and enjoyment [Page 1424] of immovable property, or rights in such property, by European aliens which may exist in the code of either presidency; as, for example, the Bombay Regulation XXIII of 1827, sections 3 and 4, and the Madras Regulation of 1803, section 41.”


  1. With regard to the question of aliens holding real property, the committee reported, “Several of the witnesses examined by the committee expressed a decided opinion that it would be expedient to permit aliens to acquire real property in this country with the same facility as in France and other European states. It is contended that foreigners are allowed to hold property in the funds to any extent; that by paying the cost of letters of denization they may acquire a legal right to hold any extent of land; that the law which forbids an alien to hold land is openly and easily evaded; and that this law, with all others to which the state cannot command obeisance, would be much better abandoned and repealed. On the other hand, it has been remarked that were a better system of conferring native rights on foreigners adopted, and were the process rendered less expensive and more expeditious than at present, little practical evil would accrue from rendering a foreigner’s capacity to hold land dependent on naturalization; and that as in Great Britain certain civil and moral duties are considered to be attached to the possession of landed property, which could hardly be performed by non-resident aliens, it would be well for the state, on this ground, to refuse the capacity of holding real property to foreigners not domiciled in this country.”