Spencer, Ch. J.
I consider these facts as proved : that William Edmonston came from England to this state in 1774, at which time he was a major in the British service. In 1776, he was arrested by direction of the committee of safety, in the town of German Flatts, as a person disaffected to the revolution. In the latter part of August, or beginning of September, 1776, he was in Albany, in consequence of this arrest. He was there as a prisoner on Ms parole, and remained there until the following winter, waiting for a passport to join his regiment. After that time, we have no further account of him during the revolutionary war ; but the inevitable presumption is, that he joined the British forces, or proceeded immediately to England ; for there is no proof that he continued to reside in this state, or in any part of the United States; and the evidence is9 that he died a general in the British army.
The lessor of the plaintiff does not claim to have derived title under the children of Robert Edmonston, as his heirs, but claims that William Edmonston was a citizen of this state, and took by descent, the real estate of his brother Robert, as his heir; and that on the death of William, it descended to his sister Eleanor, and to his nephews and niece, the children of Robert. It becomes, then, unnecessary to consider the effect of the act of the 29 th of March, 1816, and the decision of the Chief Justice and Surveyor General under it.
It is not pretended that the children of Robert Edmonston [322]*322could take the lands whereof he died seised, by descent, and as his heirs. They were aliens, and he died in 1792 5 so that the 9th article of the treaty between the United States and Great Britain, of 1794, does not apply to their case. The question, then, which I propose to examine, is, whether William Edmonston became a citizen of this state, after it had thrown off its allegiance to Great Britain, and became a distinct and independent sovereignty.
We are called upon to discuss and decide this question, as a mere matter of private right, when all the feelings and passions incident to so mighty a revolution, have subsided. I think it cannot be doubted, that when a people, from a sense of the viciousness of a government under which they have lived, are driven to the necessity of redressing themselves, by throwing off the allegiance which they owed to that government, and in its stead, erecting a new and independent one of their own, that such of the members of the old government only, will become members of the new, as choose voluntarily to submit to it. Every member of the old government must have the right to decide for himself, whether he will continue with a society which has so fundamentally changed its condition. For, having been in- . corporated with a society under a form of government which was approved, no one can be required to adhere to that society, when it has materially and radically changed its Constitution. Every member submitted to the society as it was, and owed obedience to it, while it remained the same political society. When it divests itself of that quality, by an entire new institution of government, it cuts the knot which united its members, and discharges them from their former obligations. (Vattel, b. 1. ch. 3. s. 33., and ch. 16. s. 195. Puffendorf, 639.) These principles were expounded by Ch. J. M‘Kean, in a very satisfactory manner, in Chapman’s case. (1 Dallas’s Rep. 58.) He observed, that in civil wars, every man chooses his party; but that all the writers agree, that the minority have individually an unrestrainable right to remove with their property into another country; that a reasonable time for that purpose ought to be allowed; and, in short, that none are subjects of the adopted government, but those who ha,ve freely assented [323]*323ÍOÍL The cases mentioned by the writers on the laws of nature o and nations, are not precisely analogous with the condition of the American provinces, at the commencement of our revolutionary contest» Ours was a civil war j in the event of failure it would have been regarded as a rebellion j it terminated prosperously and gloriously, and became a revolution. But, that there was an entire dissolution of the government, under which we lived as provinces, owing alieglance to the British crownj and "that a new form of government, and a new organization of the political society took place, cannot be denied 5 and hence the case occurred in which every member of the old society had a right to determine upon adhering to his old allegiance, and withdraw himself 5 or to abide among us, and thus tacitly, or expressly, yielding Ms assent to the change, and becoming a member of the new society.
It is to be observed, that although the declaration of independence was made by Congress, on the 4th of July, 1716, and although the Convention of delegates of this state adopted that declaration on the 9th of the same month, and although we had committees, and temporary bodies of men, who took charge of the public safety, we had no executive, legislative, or judicial authority, nor any organized government, until the 30th of April, 1 111, It would be a very grave question, which I shall avoid discussing, whether, until the adoption of our Constitution, treason could be committed against that imperfect and inchoate government which was called into existence by the necessity of the case, and was continued until the people could deliberate and settle down upon a plan of government calculated to secure, and perpetuate their liberties. But the question is, whether Major Edmonston, being in this state at the very commencement of that revolutionary struggle, holding a commission in the army of the British king, and being taken up, within one or two months after the declaration of independence, put on Ms parole, and finally sent out of the country as a dangerous and disafiected man, prior to the institution of any regular form of government, can be said to have renounced the former government, and to have become a mem[324]*324ber of the new society, and ever afterwards to have retain^le rights, duties, and privileges of an American citizen.
I cannot bring my mind to doubt on this question; and to me it appears most clearly, that Major Edmonston never did acquire the character of a citizen of this state. In Chapman’s case, Ch. J. J\£‘Kean said, that when the word subject, instead of inhabitant, is used, it meant a subjection to some sovereign power; it refers to one who owes obedience to the laws, and is entitled to partake of the elections into public office; and he observed, that if there were no laws to be obeyed, the prisoner could not be deemed a subject of the state of Pennsylvania. It has been decided by the Supreme Court of the United States, (4 Cranch’s Rep. 321.) that a subject of Great Britain, born before the declaration of independence, who was never in the United States, cannot take.lands in this country by descent from a citizen. In Kelly v. Harrison, (2 Johns. Cases, 30.) it was decided, that although the division of an empire worked no forfeiture of a right previously acquired, and, as a consequence, all the citizens of the United States who were bora prior to our independence, and under the allegiance of the .king of Great Britain,
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Spencer, Ch. J.
I consider these facts as proved : that William Edmonston came from England to this state in 1774, at which time he was a major in the British service. In 1776, he was arrested by direction of the committee of safety, in the town of German Flatts, as a person disaffected to the revolution. In the latter part of August, or beginning of September, 1776, he was in Albany, in consequence of this arrest. He was there as a prisoner on Ms parole, and remained there until the following winter, waiting for a passport to join his regiment. After that time, we have no further account of him during the revolutionary war ; but the inevitable presumption is, that he joined the British forces, or proceeded immediately to England ; for there is no proof that he continued to reside in this state, or in any part of the United States; and the evidence is9 that he died a general in the British army.
The lessor of the plaintiff does not claim to have derived title under the children of Robert Edmonston, as his heirs, but claims that William Edmonston was a citizen of this state, and took by descent, the real estate of his brother Robert, as his heir; and that on the death of William, it descended to his sister Eleanor, and to his nephews and niece, the children of Robert. It becomes, then, unnecessary to consider the effect of the act of the 29 th of March, 1816, and the decision of the Chief Justice and Surveyor General under it.
It is not pretended that the children of Robert Edmonston [322]*322could take the lands whereof he died seised, by descent, and as his heirs. They were aliens, and he died in 1792 5 so that the 9th article of the treaty between the United States and Great Britain, of 1794, does not apply to their case. The question, then, which I propose to examine, is, whether William Edmonston became a citizen of this state, after it had thrown off its allegiance to Great Britain, and became a distinct and independent sovereignty.
We are called upon to discuss and decide this question, as a mere matter of private right, when all the feelings and passions incident to so mighty a revolution, have subsided. I think it cannot be doubted, that when a people, from a sense of the viciousness of a government under which they have lived, are driven to the necessity of redressing themselves, by throwing off the allegiance which they owed to that government, and in its stead, erecting a new and independent one of their own, that such of the members of the old government only, will become members of the new, as choose voluntarily to submit to it. Every member of the old government must have the right to decide for himself, whether he will continue with a society which has so fundamentally changed its condition. For, having been in- . corporated with a society under a form of government which was approved, no one can be required to adhere to that society, when it has materially and radically changed its Constitution. Every member submitted to the society as it was, and owed obedience to it, while it remained the same political society. When it divests itself of that quality, by an entire new institution of government, it cuts the knot which united its members, and discharges them from their former obligations. (Vattel, b. 1. ch. 3. s. 33., and ch. 16. s. 195. Puffendorf, 639.) These principles were expounded by Ch. J. M‘Kean, in a very satisfactory manner, in Chapman’s case. (1 Dallas’s Rep. 58.) He observed, that in civil wars, every man chooses his party; but that all the writers agree, that the minority have individually an unrestrainable right to remove with their property into another country; that a reasonable time for that purpose ought to be allowed; and, in short, that none are subjects of the adopted government, but those who ha,ve freely assented [323]*323ÍOÍL The cases mentioned by the writers on the laws of nature o and nations, are not precisely analogous with the condition of the American provinces, at the commencement of our revolutionary contest» Ours was a civil war j in the event of failure it would have been regarded as a rebellion j it terminated prosperously and gloriously, and became a revolution. But, that there was an entire dissolution of the government, under which we lived as provinces, owing alieglance to the British crownj and "that a new form of government, and a new organization of the political society took place, cannot be denied 5 and hence the case occurred in which every member of the old society had a right to determine upon adhering to his old allegiance, and withdraw himself 5 or to abide among us, and thus tacitly, or expressly, yielding Ms assent to the change, and becoming a member of the new society.
It is to be observed, that although the declaration of independence was made by Congress, on the 4th of July, 1716, and although the Convention of delegates of this state adopted that declaration on the 9th of the same month, and although we had committees, and temporary bodies of men, who took charge of the public safety, we had no executive, legislative, or judicial authority, nor any organized government, until the 30th of April, 1 111, It would be a very grave question, which I shall avoid discussing, whether, until the adoption of our Constitution, treason could be committed against that imperfect and inchoate government which was called into existence by the necessity of the case, and was continued until the people could deliberate and settle down upon a plan of government calculated to secure, and perpetuate their liberties. But the question is, whether Major Edmonston, being in this state at the very commencement of that revolutionary struggle, holding a commission in the army of the British king, and being taken up, within one or two months after the declaration of independence, put on Ms parole, and finally sent out of the country as a dangerous and disafiected man, prior to the institution of any regular form of government, can be said to have renounced the former government, and to have become a mem[324]*324ber of the new society, and ever afterwards to have retain^le rights, duties, and privileges of an American citizen.
I cannot bring my mind to doubt on this question; and to me it appears most clearly, that Major Edmonston never did acquire the character of a citizen of this state. In Chapman’s case, Ch. J. J\£‘Kean said, that when the word subject, instead of inhabitant, is used, it meant a subjection to some sovereign power; it refers to one who owes obedience to the laws, and is entitled to partake of the elections into public office; and he observed, that if there were no laws to be obeyed, the prisoner could not be deemed a subject of the state of Pennsylvania. It has been decided by the Supreme Court of the United States, (4 Cranch’s Rep. 321.) that a subject of Great Britain, born before the declaration of independence, who was never in the United States, cannot take.lands in this country by descent from a citizen. In Kelly v. Harrison, (2 Johns. Cases, 30.) it was decided, that although the division of an empire worked no forfeiture of a right previously acquired, and, as a consequence, all the citizens of the United States who were bora prior to our independence, and under the allegiance of the .king of Great Britain, would still be entitled there to the rights of British subjects; yet the rule would not apply e converso, and British subjects have not, with us, the privileges of citizens; and for this reason, that the sovereignty of the United States was created by the act of independence, and there could be no previous right acquired in re-: spect to it, and, consequently, none to lose ; nor could it include any other than residents, at the time, within the jurisdiction of the state; and that, therefore, the demandant, who was the widow of Kelly, prosecuting for her dower in lands acquired by her husband after the declaration of independence, who had been married to Kelly before the revolution, but who remained in Ireland during, and after it, he having resided here, and become a citizen, was held not to be endowable of such after acquired lands. This decision fully sanctions the principle, that there must, even in the case of a feme covert, be some personal act, indicative of an assent to become a member of the new government, and without it, the rights of citizenship are not acquired. Re[325]*325mdeuce here, after the organization of the government, would generally authorize the presumption of assent; for it would be evidence of a union with the new society» When, however, we find a person holding a military ofiice under the regal government, arrested by those who were zealously engaged in effecting a division of the empire, and in rearing a new government, for his disaffection to that new government, so soon after the declaration of independence ; and. when we find him a prisoner for that cause, and immediately thereafter departing out of the jurisdiction of the new government, and in all human probability, taking part, and bearing arms against its independence j and, finally, when we consider, that his arrest and departure took place before the institution of a regular government in any of its departments, it appears manifest to me, that he cannot be considered as having thrown off his allegiance to the former government, and that, consequently, he never became a member of the new government, but remained a British subject.
The plaintiff’s counsel has referred us to an ordinance of the Convention of this state, of the 16th of July, 1776, which, he supposes, recognises persons in the situation of Major Edmonston, as citizens. It resolves, 61 that all persons, abiding within the state of Mew- York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state $ and that all persons passing through, visiting, or making a temporary stay in the said state, being entitled to the protection of the laws, during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto; and that all persons, members of, or owing allegiance to this state, as before described, who shall levy war against the said state, within the same, or be adherent to the king of Great Britain, or others, the enemies of said state, giving to him or them aid and comfort, are guilty of treason against the state j and, being thereof convicted, shall suffer the pains and penalties of death.”
This ordinance takes the distinction between such persons as were abiding within the state, and, as such, deriving protection from, and owing allegiance to the laws, and thereby [326]*326becoming members of the state 5 and such as were passing' through, visiting, or making a temporary stay within the state. The former class, those who were abiding here, were considered by the Convention as citizens; but the latter class were considered as owing a mere temporary allegiance, which terminated with their departure from the state. The resolution distinctly admits, that such persons as were making a temporary stay, who did not mean to abide here, but to leave the country as soon as they could, were not members of the new community. This ordinance, then, so far from regarding persons in the situation in which we find Major Edmonston, as members of the new government, in my judgment, considers them not to be such members. It will be recollected, as a known historical fact, that in the early part of the contest, the several provinces assumed arms, merely for the redress of grievances, and that there was no idea of erecting independent governments, and throwing off all allegiance to the British government, until thé period of the declaration of independence by Congress. Residence in this state, prior to that event, imported nothing, as regards the election or determination of such residents, to adhere to the old, or to adopt the new government. The temporary stay, mentioned in the resolution of the Convention, passed only twelve days after, the declaration of independence by Congress, and within five days after the adoption of the declaration by the Convention of this state, clearly imports, that such persons who were resident here without any intention of permanent residence, were not to be regarded as members of the state; and such was the precise character and situation of Major Edmonston’s residence. The case of M‘Ilvaine v. Coxe’s Lessee, (4 Cranch, 209.) has been relied upon, as a strong and decisive authority for the plaintiff. The facts of that case are stated in 2 Cranch, 289. The opinion delivered by Mr.. Justice Cushing, contains no principle at variance with the conclusion to which I have come in this case. It proceeds entirely on the ground, that Daniel Coxe remaided in JYew-Jersey, not only after she had declared herself a sovereign state, but after laws had been passed, by which he was pronounced to be a member of, and in allegiance to the new government. The [327]*327right which Cosoe liad to elect to abandon the American cause, and to adhere to his allegiance to the king of Great Britain, I understand not to have been doubted by Judge Gushing s and he places the decision not only on the continued residence of Goxe in JYew-Jersey, until in 1777, but on rfae legislative acts of that state, at several periods, recognising .him as a citizen of the state. That case being essentially different from this, in the important facts of the case, can have no influence in the decision.
The plaintiff’s counsel relied, also, on another ordinance or resolution of the Convention of this state, of the 10th of May, 1777, offering u a free pardon to such of the subjects of the state as, having committed treasonable acts against the same, shall return to their allegiance.” This ordinance leaves the inquiry, who were subjects of the state, open to examination 3 and I have endeavoured to show, that Major Edmonston was not a subject of the state. Besides, this resolution was posterior to the adoption and promulgation of the state constitution 3 and treasons may have been committed in the interval between the adoption of the constitution and this ordinance. There may, also, have been persons who had, openly and unequivocally, made their election to become members of the new government, and who were afterwards guilty of treasonable acts. When the Convention speak of subjects of the state, they speak of those who owed a permanent allegiance to the state as a political body, and had acquired the rights and ovyed. the duties of citizenship 3 for we perceive, that the same Convention had, on the 16tli of July, 1776, discriminated, with great accuracy, between an abiding in the state, which produced permanent allegiance, and a temporary stay, which exacted obedience only during such stay.
Having come to the conclusion, that William Edmonston never became a citizen of this state, he was incapable, from his alienage, of taking by descent from his brother. This disposes of the cause, and renders it unnecessary to consider the other points raised by the defendant’s counsel.
Platt, J. concurred.
Woodworth, J» dissented.
Judgment for the defendant.