Reed v. Reed

1 Va. 611

Opinion

Judge Roane’s

opinion in the case of Reed v. Reed.

Tiie principal question arising out of this special verdict is, whether the lessors of the plaintiff, who were born in Ireland prior to the year 1770, and who did not become citizens of this Commonwealth, until after the descent of the lands in question, were, at the time of such descent, disabled to take and hold lands within this Commonwealth, and to bring any real or personal action concerning them. Such being the disabilities under which an alien labours by the common law, the question may be more succinctly stated to be, whether, in respect of the lands in question, the plaintiffs are to be regarded as aliens, or not.

1 will consider this question.

1st. In relation to the doctrines of the common law of England, as handed down to us in the Reports and Treatises on the subject, with no other variation than what arises from the erection of a new government in Virginia in 1776.

2dly. I will inquire how far those doctrines are controlled or affected by the principles of the revolution, and the provisions of our constitutional and legislative acts.

And, 3dly. Whether any, and what, effects have been produced on this question, by the treaty of peace of 1783? The treaty of 1794 is entirely out of the question, as being subsequent to the commencement of the plaintiff’s action.

Footnotes

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*

Under the first view, I will remark, that the terms "alien” and "alien born” are used synonymously in the English law books; for it being an established principle of the English law, that a subject born can never shake off his natural allegiance, (a) it follows that none are there considered aliens, but those who are born so.

The terms "alien” and "alien born,” and “subject” or "citizen,” are in their nature relative: and to what else can they have relation; what else is their correlative, but the sovereignty or government where the discussion is?

The question then in this case is, more particularly, whether or not the plaintiffs were, at the time of the descent cast, aliens, in respect of the ■Commonwealth of Virginia?

This idea is entirely borne out by the English cases themselves. In Calvin’s case, (b) the question was, "whether the plaintiff, who was born in Scotland after the descent of the English crown to James I. was an alien born, and, consequently, disabled to hold any real or personal action for lands within the realm of England:”(c) but in the same ■case it was adjudged, that “whosoever is an alien born is so accounted by law in respect of the king;” (d) the question, therefore, in Calvin’s Case was, more particularly, whether he were an alien born, or not, in respect of the King of England?

Am I not therefore correct in saying, that the present question is, whether the plaintiffs were aliens or not, in respect of the Commonwealth of Virginia?

An idea has sometimes been urged, that all those who are born subjects of the same common allegiance, can never be considered as aliens in relation to each other.(e) I admit the truth of this position in every case where the plaintiff can shew himself to be no alien to the sovereign where he sues; I ■deny the truth of it, in every other case: in other words, the relation which existed between the two individuals is wholly an immaterial and foreign inquiry. I bottom this position upon Calvin’s case itself. I have already said, from that case, that an alien born is so accounted, "in respect of the king,” and I will now add from the same case, "that this appeareth by the pleadings so often before re-612 membered, that he must be extra *ligeantiam domini regis, without any mention making of the subject.”(f) 1 might further add, from the said case, that "nec coolum nec solum, sed ligeantia et obedientia.” make the “subiect.”(g) If allegiance gives the criterion, must we not unavoidably have reference to the government, and decide whether or not this allegiance exists? Under the position now controverted, the universal plea in cases of alienage would be wholly improper: (and well established pleadings are good evidence of the law;) the inquiry would be called off, from the question of allegiance or not, to the question of a common birth between the ancestor and heir, and this absurd consequence would follow that a recovery might be had, in any country, by persons born in any other country and not naturalized in it, the plaintiff making out his case, in this latter respect; the same person might also sustain one action, and fail in another, in the same country, and at the same time, according as the person under whom he claims might, or might not, have been born under a common allegiance with him!!

In Calvin's case, (which I principally resort to because it contains the whole doctrine upon this subject,) a definition is given of an alien; and it is "that he is a subject that is born out of the alie-, giance of the king, and under the legiance of another. ”(h) This definition presents to us the only criterion whereby to discern who an alien born is; 1 say an alien born, because in this country a citizen born may become an alien by expatriation; and even in England, a subject born may become an alien, by the act of the government, though not by his own act.

Much indeed is said, in Calvin's case, about the “time of the birth being the essence of a subject born,” &c.(i) but it is evident that the time of the birth is no further material, than as explanatory of the principal question, viz. whether born within the allegiance of the king, or not? This principal question, therefore, may be regarded as the sole one upon the subject. It is further said, in that case, that “natural legitimation respecteth actual obedience to the sovereign at the time of the birth,”(k) but this is still also referring to the same standard. It is here to be remarked, that the result in Calvin’s case was, to discriminate between a Scotch antenatus and post natus, in respect of a legitimation in England: the time of the birth was, therefore, a very material ingredient of the principal question, and may be regarded as the turning point on which that question depended; it is no wonder, therefore, that, in a very long report, and one containing an abundance of extrajudicial matter, the same idea may be exhibited perhaps in different points of view, and be sometimes so indistinctly expressed, as to cause some embarrassment.

In the same case it is adjudged, “that the usual and right pleading of an alien born doth truly and lively express and describe what he is, and that this pleading is both exclusive and inclusive, viz. extra llgeantiam domini regis, et infra ligeantiam alterius regis.”(l) I can find no principle of the common law which will exempt a person against whom the above plea will truly apply, from being considered as an alien born: 1 say of the common law, because by the English statute of 29 Car. II. c. 6, an exception is made to this rule in a particular case, (m) and perhaps there may be other statutory exceptions. I hold it, therefore, to be a universal proposition, that, by the principles of the English law, no man can sustain a real action, unless he either shews that this plea is not true with regard to him; or that, being true, he forms an exception to it, by virtue of some statutory provision, or by having, subsequently, to bis birth and before the accruing of the action, become legitimated in the country where the action is instituted; or, unless his title to the land is preserved to him by treaty or otherwise, and the right of suing is preserved by-necessary consequence.

Some supposed exceptions have been confidently stated from the English books, but I flatter myself I shall be able to shew that they all fall strictly within my position. I will now proceed to examine them. And, first, great stress has been placed, on behalf of the plaintiffs, on a resolution in Calvin’s case, (a) The resolution is as follows, viz. “And, as to the fourth, it is less than a dream of a shadow, or a shadow of a dream; for. as it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth; for as the antenati remain aliens as to the crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms by descent subsequent cannot make him a subject to that crown to which he was an alien at the time of his birth; so albeit the kingdoms (which Almighty God divert, &c) should by descent be divided and governed by several kings, yet it was resolved that all those who were born under one natural obedience while the realms were united under one sovereign, should remain natural born snbjects and no aliens; for that naturalization due and vested by birthright cannot by any separation of the crowds be afterwards taken away, nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such matter ex post facto; and in that case, upon such an accident, our postnatus may be ad fidem ntrinsque regis, as Bracton saith in the before remembered place, fol. 477 — sicut.” &c.

*An objection had been made in that case by the defendant, "that if postnati were legitimated in England, what inconvenience and confusion would follow, if the royal issue should fail, whereby the kingdoms might again be divided. ”(b) The Judges, taking up this supposed case, gave the answer to it which is above quoted. The objection having reference to a supposed inconvenience in England, the answer to it must be considered under the same restriction. The j udges are here of opinion that, in case of a dismemberment of the two kingdoms, and being governed by several kings, the postnatus would still remain legitimated in England. This supposed case, however, differs from the case before us in the following particulars; 1st. The Scotch postnatus, in that case, was born under the allegiance of the King of England; 2dly. This allegiance, being, by the English decisions, perpetual, continues, (as the king of England continues,) notwithstanding the postnatus may have fallen under a different power; 3dly. And consequently, he may truly be said to be, in the language of the case, ad fidem, with respect to the King of England; and, 4thly. The general plea before stated will not exclude this postnatus; for it cannot be said of him that he was born without the allegiance of the King of England. But. in the case before us, 1st. The plaintiffs were not born under the allegiance of this Commonwealth, nor had contracted such allegiance at the time of the descent in question; 2dly. There was, consequently, no existing allegiance due from them to it, even on the English principles; nor could they be truly said to bead fidem with respect to it; and, 3dly. The general plea before stated would truly have applied to them, in both its members.

The above resolution it is also contended will go to sustain a claim, e converso, viz. by an English postnatus in Scotland, supposing the same common law to exist there, after the supposed dismemberment; and this view of the case, it is argued, has a strong analogy to the case before us. I have already said that this resolution should be considered with reference to England only: in relation to a discussion in Scotland, it was no case before the Court; it was wholly extrajudicial: but upon principle, I cannot see a difference. The English postnatus was as much born under the allegiance of the King of Scotland, as the Scotchman was under that of the King of England. The kingdom' of Scotland was (before the act of union) wholly independent of that of England, and James's character of King of Scotland was not merged in that of King of England; after the supposed separation, a King of Scotland would still exist; there would be a continuation of the same government, and the allegiance due to the King of Scotland at the time of the birth, (before the separation,) would continue to that king after that even't. It might truly be said of the English postnatus, suing in Scotland, that he was born under the allegiance of the King of Scotland, and was ad fidem with respect to him; and the general plea before stated would not truly apply to him. The effect of this supposed dismemberment, therefore, would not be to destroy the tie of allegiance, by destroying the correlative of the subject, by establishing a different government on the ruins of that government to which the allegiance was due: but to transfer and continue to the persons of two kings that allegiance which before was due to one. I shall presently attempt to shew that,, under the doctrines of those times, (as derived from a feudal origin.) it was no novelty for a subject to owe allegiance to two or more sovereigns. In this supposed case, therefore, quacuflque via, there would be, according to the English decisions, an existing allegiance due to the king, in either country, which would capacitate the plaintiff to. sustain the action.

The supposed case of a dismemberment, therefore, (entirely extrajudicial and hypothetical as it is,) only proceeds upon the idea of a separation of the crowns, of a descent to several kings: it does, not put the case of a destruction of the kingly government. It goes upon the idea of a continuation of the same government, though under different kings, and a consequent continuation of the original allegiance: it is entirely different, therefore, from the case of the destruction of the tie of allegiance, by the erection of a new and different government upon the ruins of the old. Every position to be found m the English cases of this tera proceeds. at most, upon the former idea. The right of revolution, and erecting a new government, was not an admitted doctrine of the day; it was incompatible with the jure divino ideas which then prevailed. May we not, then, say with confidence, that, the case now before us, had never entered the minds of the English Judges? And that their decision. even where general, shall not be applied to a case, in which the grounds and reasons of their actual decision fail us, and which those judges most certainly never contemplated?

These same ideas must be borne in mind, while we examine a quotation from Bracton, 427, which is also much relied on, on the part of the plaintiffs-That quotation says, “there are some Frenchmen in France ad fidem utrinsque regis, and always were so both before and since the loss of Normandy, and who plead here and there because ad fidem utriusque regis.”(c)

The Frenchmen here alluded to were Normans, born under the allegiance of the King of England, whilst he had possession of Normandy. It is here to be remarked, that the loss of Normandy which Bracton speaks of, happened in the reign of King John, and in the year 1205, (d) and that Bracton 614 wrote in the reign of Henry *111. (e) which reign began in the year 1216: so that this quotation evidently means those Normans born whilst Normandy was sub j ect to England, very many of whom may be reasonably supposed to have been yet alive when Bracton wrote. Because they were born under the allegiance of the King of England they remained legitimated in England, by the English doctrines, even after the loss of Normandy, and were still considered as ad fidem with respect to the King of England: but they were also born under the allegiance of the King of France. Normandy was a fief holden under him: the King of England was, in respect of it, a vassal, and the King of France, his liege lord; and there are many instances to be found in the history of both nations, of the Kings of England doing homage to the French kings, in respect to their possessions holden upon the continent. By the feudal law, “allegiance, properly speaking, is due to the lord paramount or sovereign, "(f) Under this idea, therefore, those Normans owed allegiance emphatically to the French king; and in consequence of this allegiance it was. that they were, by the principles of the common law, permitted to sue in France. In illustration of this position we find it resolved in Calvin’s case, “that those who were born in Wales, before 12 Ed. I, whilst it was a distinct kingdom, were natural born subjects, (as to England.) because holden of England, or within the fee of the King of England. (g) These Welchmen, therefore, might as well as the Normans, sue in both countries: and for the same reason, viz. because, and only because, they owed allegiance to both sovereigns.

Whilst I am upon this subject of allegiance, I will beg to refer to 1 Hale’s Pleas of the crown 58, et seq„ who fully and elaborately proves, that there might be, and really were, in many instances, several al fiegiances due from a subject to several sovereigns. Thus, in p. 66, he tells us, that when Hen. II. made his eldest son King of England, in his life-time, so that there was rex pater and rex filius, and when William King of Scotland had, at the same time, 'done homage to Henry the son, for his kingdom, •saving the faith due to Henry the father, these several kings, though subordinate in respect of each other, were sovereign in respect of their subjects; and the subjects of Scotland owed an allegiance to their king, saving their faith to the Kings of England, father and son, and an allegiance to Henry the son. saving their faith due to Henry the father, (a) It follows that these Normans, referred to by Bracton, owed at their birth an allegiance to both kings, (viz. of England and France,) and this allegiance continuing during their lives, upon the principles of the English law, they could always be said to be, in the language of the case, ad fidem utriusque regis. Blackstone, in confirmation of this position of owing several allegiances, admits that a natural subject of one prince may, even by his own act, subject himself to another, though he may thereby bring himself into straits and difficulties. (b) Without inquiring into those difficulties, or differing the case of two several allegiances produced by the act of the party himself, this quotation is decisive to shew that, under the English doctrines, a natural born subject may owe allegiance to more sovereigns than one, even since the destruction of the feudal system.

Am I not correct, therefore, in accounting for all these supposed exceptions, by shewing that, in •every instance, there was an existing allegiance due from the party suing, to the respective sovereigns ?

J have said, and I repeat, that no position by any •of the English Judges was predicated upon the idea of the erection of a new and different government. If there be any such, let it be produced. Are we not then to consider ours as a new case, not contemplated, nor provided for. by the English decisions? The reign of James I. was not an eera when the Judges were independent enough to have dared, or would have been permitted (c) to argue upon the supposition of a destruction of the kingly government. That loyal and devout spirit which caused the Judges in Calvin’s case, (27, a.) so much to deprecate a descent of the kingdom to several kings, that slavish devotion of the Judges to the will of King James, which, in relation even to this very case of Calvin, Hume remarks with censure, in more passages than one of his history, (d) while it goes far to destroy the authority of the decision, would not have permitted them, for a moment, to contemplate the idea of the erection ,of a popular government upon the ruins of a throne, deemed, in the mania of the times, to have been held by divine authority.

In the total absence, therefore, of a case of this kind, either actual or contemplated, in the English authorities, we must reason only from analogy.

It is held in Cowp. Rep. p. 208, “1st. That a country •conquered by the British arms becomes a dominion of the king in right of his crown,” &c. and, 2dly. “That the conquered inhabitants once received under the king’s protection become subjects, and are universally tobe considered in thatlight, andnot as •enemies or aliens;” and in l Bl. Com. 103. the reason of this privilege is given; it is, “that in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and conquered, that, if they will acknowledge the victor for their master, he will treat them in future as subjects, and not as enemies.” Now nothing 615 *can be clearer than that, if the whole territory of the belligerent nation is not conquered, the inhabitants of the unconquered part continue to be, in respect of the sovereign of the part conquered, enemies and aliens; enemies during the war. and aliens after the peace. They do not become subjects of the conquering power and are not to be considered in that light; because they have not submitted to the conqueror, nor by any compact «entitled themselves to the privileges of subjects; and yet they were once inheritable in the territory conquered, and can say as much as the present plaintiffs can say in respect of the territory of Virginia, viz. that, at the time of their birth, they were legitimated here. The people themselves who are conquered are legitimated by virtue of the implied compact only, and cannot claim such legitimation by the paramount title of having been, at the time of their birth, inheritable in that territory under another sovereign. If, then, the territory of Virginia had been conquered from Great Britain, in the ordinary way, by an existing sovereign, there is no doubt but that, upon the foregoing principles of the common law, the residuary subjects of the British empire, not residing here, nor contracting an allegiance to the conquering power, would have remained aliens, as to the sovereignty established here by such conquest. I confess I cannot see a difference between that case and ours: I see no difference in this respect between a change of the sovereignty of Virginia effected by an existing sovereign, and by a sovereign merely coeval with the change: and I should be sorry to be obliged to admit, that a people forming a government by compact, have not as ample power, both to confer rights upon the members of such compact, and to exclude the rest of the world from a participation of them, as a conqueror dictating at the point of the sword; nor can I agree that the natural (though silent) operation of a compact government is less efficacious, in either respect, than that which, as to these particulars, is produced by a conquest.

I conclude, therefore, that, according to the acknowledged doctrines of the English common law, all the beforementioned supposed exceptions are referrible to a principle which does not exist in our case; I mean that of a continuing and existing allegiance; that the case before us, of the erection of a different government, and the destruction of the ancient tie of allegiance, had never entered the minds of the English Judges, when they were so copiously, and so extrajudicially, (in Calvin’s case,) dealing out their doctrines on this subject; that if it had, they could not have sustained the pretensions now set up by the plaintiffs in the present instance, without revolting against, and overthrowing, their own admitted principles; and that as far as we can judge by analogy, the principles of the English law authorize us to say that, in the actual case before us, an English court, itself, would render judgment in favour of the defendant.

This view of the subject supersedes the necessity of saying much on the second branch of my inquiry; namely, how far the English doctrines on this subject are controlled by the principles of the revolution, and the provisions of our constitutional and legislative acts. If the actual principles of the English law will suffice for the defendant in the case before ns, that defendant holds a much stronger ground in this country, and in this Court, which must reject such of those principles as are heterogeneous to our republican institutions. All the English decisions upon this subject are bottomed upon three main principles, neither of which can be admitted in the case before us. They are, 1st. That allegiance is perpetual, and cannot be renounced by the subject; 2dly. A supposition of the continuation of the same sovereignty to which this perpetual allegiance was originally due; and, 3dly. The character of that allegiance, by the Engligh law, is, that it is due to the person of the sovereign, and not to his political character, (e) As to the last position, we have, happily, no king, to whose sacred person this allegiance may be said to be due. It is the government only, which affords protection to the citizen, and to this government only, which is perpetually changing, as to the persons who administer it, though itself is permanent, the allegiance of the citizen is due. As to the second position, I need not repeat that the American people have erected a different as well as a new government. The first position requires more consideration.

The decisions by the English Courts at remote and arbitrary periods, and the municipal treatises of that country bottomed thereon, have denied the existence of a great natural right; I mean the right of expatriation. It is the character of the common law that it draws from various sources, is compounded of parts of various laws and codes, and refers to various arts and sciences. It is also a maxim of that law that “cuilibet in sua arte credendum est;” and Lord Coke tells us, somewhere, that it is better “petere fontes quamsectari rivulos.” Shall we not, under the sound sense of these maxims, correct the mistakes of a municipal code, touching a question of general law, by referring to the fountain from which itself has drawn? Shall we decide a question of natural right, and of general law, by referring to the most approved writers, and to the sense of the world, on that subject, or be governed by the particular municipal codes óf a particular country? I believe, sir, that this position of the English judges has always stood condemned by the most enlightened writers upon natural law. I mean not (as being unnecessary in the pres-616 ent *case) to investigate this point at this time; bull beg leave to refer to the new edition of Blackstone, (vol. l, part 2, note K, p. 90,) where the editor has elaborately discussed the subject, and his conclusions seem fully to sustain my position, (a) I rather choose to refer to the sublime principles contained in the declaration of independence, and in the Virginia bill of rights, consecrating the right of expatriation; to the memorable assertion of that right by the American people, who, sword in hand, expatriated themselves from the government which tyrannized over them; to the limited and qualified adoption of the common law. as a part of our code; and to that dignified act of the Virginia legislature which prescribed the mode of effecting an expatriation, but did not presume to bestow the right, (b)

While these great authorities destroy some of the main pillars on which the English doctrines on this subject are founded, the Virginia legislature by several acts have declared who shall be deemed citizens, and who aliens. Under those acts, the plaintiffs, at the time of bringing the actiou in question, must have fallen into the latter class. It has been supposed by some that, inasmuch as the act of May, 1779. c. 55. after declaring who shall be deemed citizens, declares that all others shall be deemed aliens, and as in a subsequent act (October, 1783, c. 16,) on the same subject, this latter declaration is omitted, that the last law is to receive a more enlarged construction in relation to aliens than the former, (c) These answers occur to me, however, to this position. 1st. As every man, according to the English doctrines, is either “an alien born or a subject born,” (d) and, according to those doctrines, as here received, is either an alien or a citizen, it was perhaps a work of supererogation after declaring who, and who only, should be deemed citizens, to declare, also, who should be deemed aliens; and, 2dly. That position proves too much, for it would equally legitimate the subjects of all other countries in the world, as of England, whereas the same authority seems to think that the omission was produced by the intermediate conclusion of the treaty of peace between America and England. To say nothing of the absurdity of the legislature’s doing away, in the gross, the disabilities of alienage, when, ,at the sametime.it was grantingin detail, the rights of citizenship, it is contrary to all fair deduction to infer a conclusion, which is very general and extensive, from a cause which is limited and particular.

Such is the construction which I deem myself obliged to adopt in the present instance. If the adherence of the British subjects to their own government, on the erection of our government in 1776, has thrown them into the class of aliens by election, a definition I think properly applied to them in the new edition of Blackstone, (see vol. 1, part 2, App. p. 102,) they stand on as good a footing as our own expatriated citizens. Subjects of foreign nations have no reason to complain at receiving the same measure as is dealt out to oür own citizens, unless they have ulterior rights secured by treaty. Such a treaty would not be natural nor reasonable; but if such a one exists, it must probably have its effect. Whether there be ansr such treaty rights in the present instance, we shall presently inquire. These British subjects have, however, less pretensions to sue than our own expatriated citizens; for the latter can say (which the former cannot) that they were once under the allegiance of the Commonwealth of Virginia; nay, in some instances, that they were born under the allegiance of this Commonwealth. Why then shall we not consider these British subjects as expatriated, in respect of the Commonwealth of Virginia? expatriated, by having refused to yield to us their allegiance, and to unite their destiny with ours.

I have thus chosen to consider the pretensions of the antenati, or in other words- the common law doctrines of legitimation, somewhat at large; because those doctrines have been often pressed upon this court, particularly in the cases of Fairfax v. The Commonwealth, and have received countenance from the opinion just delivered.* In all the elaborate discussions which have taken place in this Court upon this subject, there has been heretofore no difference of opinion upon this point, as far as I have understood the Judges: and our late venerable President† (who did not sit in those causes) has informed me, since they were determined, that he entirely agreed in opinion-with the Court upon this subject.‡ But for the foregoingconsiderations. I might perhaps have saved ms'self this trouble, for it appears that both the treaty of peace and the treaty of 1794 have repudiated the pretensions of the antenati, (e) The latter treaty does not immediately apply to this case, being posterior to the judgment in question, and would not now be mentioned, but as corroborating and explaining the former. That treaty abandons those pretensions by 617 setting **up a new criterion, viz. the actual holding of the property at the epoch of its date. In setting up this epoch, and establishing a new criterion in relation to British subjects, that treaty goes beyond the common law idea of antenati. which calls merely for the period of our separation from Britian; and by superadding the other requisite, (an actual holding at its date,) it also abridges the pretensions of such antenati, for all the residue of their lives, subsequent to the signature thereof. In thus enlarging and abridging the common la3V pretensions of the antenati, ami not correct'in saying that the treaty of 1794 has set up an entirely new rule, and has abandoned those pretensions altogether? So, with respect to the treaty of peace, the caséis precisely the same, if that treaty be considered as relating at all to the laws of alienage of the several states, and the epoch of its signature be resorted to as protecting from the operation of those laws rights accruing before that time: and this, perhaps, is the most tnat can be contended for. Whether this construction thereof be correct will presently be considered. At present I will remark that it is entirely incompatible with the before mentioned common law rights of antenati which are commensurate with the duration of their lives. Am I not, therefore, correct in saying that both these treatise have abandoned the pretensions of the antenati, and taken a new ground (whatever it may be) in favour of British subjects? If that ground of claim exists, therefore, in the case before us, it is not upon the foundation of either of the said treatise.

We come next to consider, somewhat more at large, the application and effect of the treaty of peace, in arresting the operation of the laws of alienage of the several states.

Under this head, I will consider, for the sake of greater pespicuity, the rights of British subjects, in a fourfold point of view. 1st. In relation to land actually holden by such subjects in this country, at the epoch of our separation, or declaration of independence: aright of this sort not existing in the present case, this topic will be but slightly and incidentally touched;

2dly. In relation to lands purchased by such subjects in this country, since the epoch last mentioned, and which, if they be aliens, enure to the Commonwealth by way of “forfeiture:”

3dly. In relation to such lands as since that epoch have descended to such subjects, and which, if they be aliens, enure by way of “escheat.” Every thing said on those two points will apply, a fortiori, to the case now before us, being that of a descent cast, since the date of the treary;

And, 4thly. In relation to the capacity of such subjects to sue for lands so holden, purchased, or descending, as the case may be.

Inlaying down these points, I must be permitted to cling, with equal pleasure and pertinacity, to the epoch of our declaration of independence, rather than that of the treaty of peace, as erecting us into an independent nation; as affording that precise point of time to which alone the treaty applies, (if it applies at all,) in arresting the laws of alienage of the several states: I must cling to this epoch, because the United States, on that day, for the many weighty reasons then declared, dissolved for ever the connection antecedently existing between us and Great Britain; because, in the emphatical language of the. Virginia constitution, the many acts-of misrule theretofore committed, by the British king, had dissolved his government over us; because the whole fabric of the old government was, in truth, annihilated and destroyed by that king’s withdrawing his protection from us, and our abjuring allegiance to him; and because the British nation itself has conceded this point, bsr admitting in the treaty of peace, (Art. X,) that it “treats with' the United States as free, sovereign and independent states,” and not as revolted subjects; thereby clearly relating, in that treats'-, to the sera of the* declaration of independence. Away then with that absurd and slavish doctrine which would derive every thing from the recognition and bounty of the British king; would postpone, for near eight years, our title to rank among the independent nations of the earth; and degrade for the same period, all our laws and resolutions, to the level of usurped and ■unauthorized acts. We date our independence from this eera on grounds paramount to any thing in the power of that king to grant orto do: we treated with him for peace, but not for independence: we asked him to put an end to the war, but not to sanction a government already established upon the only just basis, the consent of the governed.*

*1 would construe the general words of the treaty to relate to this epoch, not only for the abovementioned reasons, but because, in truth, that great event, in connection with the laws of alienage of the several states, drew a prominent line of distinction, in relation to lands acquired in this country by British subjects. While it exhibits all lands previously acquired, and then holden in this country, as being lawfully acquired, under the faith of existing laws, and entitled to the attention of the contracting parties, it throws into the class of nullities, and illegal and unauthorized acts, all posterior acquisitions of lands by British subjects. Powerful reasons existed, therefore, on this ground, for embracing the epoch of our independence. rather than that of the treaty, in applying that instrument to the arrestation of the laws of alienage of the several states, admitting, for the present, that it at all relates to such laws. On the pari of the United States the great considerations just stated, (to say nothing of others which will be presently noticed,) must have had great weight; and the British king might, on his part, while he admitted himself bound to treat for a guaranty of lands fairly acquired by his subjects in this country before that epoch, have justly considered himself absolved from any obligation to create, or at least enlarge titles in favour of his subjects; to support and extend that nullity of an interest acquired here, by them, after the commune vinculum was broken.

In contemplating the effect of the treaty of peace upon the case before us, I will first consider, as being a stronger case for the plaintiffs, than that of a right accruing hy “escheat,” the right of the Commonwealth, hy way of “forfeiture,” to lands purchased b3' British subjects, since the sera of our independence.

The words of the treaty, which are supposed to have an effect on the present question, are, that “there shall be no future confiscations made.” (Art. 6.) What is the import and extent of the term “confiscations” here used?

The right of the Commonwealth to lands purchased by an alien, is an ordinary right derived from the common law. It exists at all times. It is independent of, and does not arise out of a state of war. In the present case it resulted to the Commonwealth from the establishment of a new government here, and the nonaccession of the plaintiffs to that government, prior to the commencement of their claim. Although in fact, the plaintiffs were enemies to their country, from the commencement of our hostilities with Britain, they were not, legally speaking, aliens, until the erection of our new government. Anterior to that event, the right now in question could not have resulted to the Commonwealth. So, on the other hand, if the erection of our new government had preceded or been unaccompanied by a state of war, the right in question would have resulted, as well prior as subsequent, to the existence of hostilities. Therefore it is that I say this right does not arise out of a state of war: it results from a mere municipal regulation. It accrues not because the person purchasing is an enemy, but because he is an alien. It is not a right pointed against the subjects of a particular power with whom we may chance to be at war, but against the subjects of all foreign nations whatsoever. This right is, by the common lawyers, technically denominated a “forfeiture. ”† “Forfeitures of lands and goods for offences,” (and this right is founded on the offence of an alien in presuming to purchase lands contrary to law,) (a) says Sir William Blackstone. “are called by the Civilians bona confíscala, because they belonged to the Fiscus or imperial treasury, or, as our common lawyers term them, bona foris facia.”(b) Indeed, Lord Coke seems, in one passage, to consider “confiscation” and “forfeiture” as synonymous terms ;(c) and the author oi the Commentaries appears also, in a few passages of his work, to have used the term “confiscation” as descriptive of a forfeiture into the treasury; but keeping in view the distinction, 619 *which this elegant and accurate writer has taken, between the terms as above stated; (the one being a civil law, and the other a common law term;) and finding that he has expressly treated of the right now in question in a chapter headed “title by forfeiture,”(d) r must conclude that the technical and appropriate term, descriptive of this right, is forfeiture, and not confiscation. At least, it must be granted, and that is sufficient for my purpose, that the former is a much more usual and proper term than the latter, to designate the right in question. I urge it as a very respectable authority in favour of this opinion, that the constitution of Virginia, in transferring this, among other rights, from the king to the Commonwealth, uses the terms “escheats, penalties and forfeitures,” (e) without making any mention of "confiscations.”

I admit that, where the term “confiscation” shall occur in a treatise or instrument relating only to the common law, it shall there, from obvious necessity, be taken as synonymous with “forfeiture;” and, indeed, in any other treatise or instrument, where the term may not otherwise be satisfied, or where it appears evident it was intended to have that extensive signification. But on the other han d, in instruments which concern the civil law, or the jus belli, it is reasonable to tie up the meaaing of the term confiscation to forfeitures of that kind; or rather to understand the word in its proper and legitimate signification; it would be unnatural and unnecessary, in that case, to extend it so as to comprehend forfeitures arising only from the common law.

Besides this ordinary and municipal right of forfeiture, there is, as I have before said, an extraordinary one accruing to belligerent nations, of confiscating the property of their enemies. This right does not await and attend on the contingent event of a purchase by, or descent to, an alien; it effects property then actually holden by the enemy; it is not carried into effect by the ordinary course of the municipal laws; the property is seized and confiscated by an extraordinary act of the government of the belligerent nation. It is seized, not because it is the property of an alien, but oi an enemy. This right is technically and properly denominated a right of confiscation ; I know of no other term which will properly designate it.

Here, then, are two senses, in which the term “confiscation” may be nsed. The one, (to omit its civil law signification,) a restricted sense, going merely to a seizure by a belligerent nation in right of war; the other an extensive sense, meaning not only what is jnst mentioned, but, further, a mode of acquiring property by the Commonwealth under a permanent municipal regulation: a sense extensive enough, not only to repeal the general laws of alienage of this Commonwealth, in cases like the present, but also, (if not restrained by other considerations,) to remit perhaps, all forfeitures whatsoever incurred, in this country, by British subjects or refugees, by crimes or otherwise! Let us inquire in which sense this term was intended to be used in the article in question.

This article is contained in a treaty of peace. “A treaty of peace,” says Valtel, “naturally and of itself relates only to the war which it puts an end to, and therefore it is only in such relation that it is to be understood.”(a) Sucha treaty, therefore, does not naturally relate to a mere municipal forfeiture or regulation, no way dependent on, or produced by a war. This construction is much strengthened, in the present case, by the consideration th at the American government, which formed the treaty in question, was much limited in its powers by the articles of confederation. That compact had emphatically reserved to the several states “their sovereignty, freedom and independence, and every power, jurisdiction and right not thereby expressly delegated to the United States in congress assembled.” (Art.2.)* Such stipulations in treaties, therefore, and such only as were warranted by the express grant of power to the United States, were binding on the several states when opposed by their laws. This construction of that compactis admitted by the circular letter of congress of April 13th, 1787, (b) requesting the several states to repeal all acts contrary to the treaty of peace; it is asserted by the legislature of Virginia in their two acts of 27th June, 1784, and 12th December, 1787, which have only made such repeal in relation to British debts, on the conditions therein contained; it is expressly maintained and acted upon by our commissioners 620 who negotiated *that treaty,(c) and is admitted by the British commissioners, who acceded to a recommendation only, in relation to the restitution of the confiscated estates. (See art. 5.) In short, the limited government of the confederation was principally a government of requisition. In some cases a recommendation, or request to the several states, to repeal their conflicting laws, is expressly contained in the treaties themselves. In other cases, such request is inferable from the insertion in treaties of such stipulations as congress deemed necessary for the public good, but which yet required the sanction of the state legislatures. The 5th article of the treaty in question, just noticed, furnishes an instance of the former kind; and instances of the latter are to be seen in several of our foreign treaties which expressly waive the disabilities of alien-age, in favour of the subjects of certain friendly powers.

The documents just referred to entirely shew that the American commissioners who negotiated the treaty in question strenuously disclaimed a power in congress to “interfere in matters appertaining to the internal polity of the several states;” and even declared that their power did not extend to stipulate for a restitution of confiscated estates, because those confiscations had been made under the authority of the several states; and hence a mere recommendation was proposed by them, and acceded to by the British commissioners. Congress did possess the power, and did exercise it, to prohibit confiscations (i. e. jure belli confiscations) in future: but they disclaimed the power to restore such property as confiscations, even of this class, had brought into the treasuries of the several states. This last case is much stronger than the one before us. As congress had the power of peace and war, it might well have been argued that a right arising only out of the war appertained to them, rather than to the several states, and' that their power would reach even the case of a restitution; yet the several states having actually exercised this right, by seizures and sales, congress disclaimed the power to interfere otherwise than by recommendation. But the right of escheat and forfeiture now in question could on no construction appertain to congress; it strictly “appertained to the internal polity of the several states,” and was, emphatically, beyond the power of congress. Congress had a right, bv treaty, to convert en'emies into friends, and to release the disabilities attached to the former character; but they had no power to invade the ordinary rights of the several states, and to invest with the privileges of citizens of Virginia, those whom the policy of her laws had thrown into the class of aliens. If congress, by the confederation, could not draw a shilling of money from the several states, but by requisition, it would seem to follow, that the assent of the states was equally necessary to pass their right to property, which needed only the formality of an inquisition and sale to bring it into their treasuries. If congress, by the 8th article of the confederation, were bound to defray “all charges of war and other expenses to be incurred for the common defence and general welfare, out of a common treasury, to be supplied equally,” (by a given rule,) “by all the states,” shall we make a construction, in the case before us, which would throw the price of peace, in the present instance, on some of the states, in ease of others ? upon the states’ keeping up the laws of alienage, as incidental sources of revenue, in favour of such states wherein no such laws existed?

If by the 9th article of the compact aforesaid, the powers expressly specified, and delegated to congress, are only those of peace and war, and other powers of an external nature, relating chiefly to our intercourse with foreign nations, shall we adopt a construction in the present instance, which will depart from the general character of those powers, and invade a right of the several states, entirely of an internal and municipal nature?

But, independently of these considerations, I have supposed the word “forfeiture” to be a more proper term than “confiscation,” to extinguish the right now claimed. The English law and ours are precisely the same on this subject: nay, I have even taken my ideas upon the subject entirely from the English authorities. As the English commissioners are not to be supposed ignorant of the real powers of our government, neither can they plead ignorance in relation to their own laws or technical terms, in forming the treaty. If the right now in question had been intended to be extinguished, would not the most appropriate terms have been used, especially in an instrument which, of itself, does not naturally reach that right? As these commissioners must have known, and were even warned, (as the aforesaid documents shew us,) of the incompetency of congress to affect the municipal polity of the several states, would they not at least have used the strongest and most unequivocal terms to effect that purpose, had it been contemplated or intended? Is it not an established principle of the law of nations, “that the state in which things are found at the moment of the treaty shall be considered as lawful; and, if it is meant to make any change in it, the treaty must expressly mention it; and that, consequently, all things about which the treaty is silent remain as they were found at its conclusion?”(d) and does not the sound sense of this rule equally extend to cases where 621 terms are used, which, to say the least. **are equivocal,, and may be otherwise amply satisfied? If in several of our treaties of amity and commerce with friendly European powers, the several states are called on, by the most particular and express stipulations, to waive their laws of alienage, in favour of the subjects of such powers, does it readily follow that in a treaty of peace with an enemy nation, an expression entirely congenial with the character of such treaty, and which can be otherwise abundantly satisfied, shall have this most important effect? Nay, even, if in the treaty of amity and commerce, formed by us with the same power, (Great Britain,) in 1794, some partial privileges on this subject could only be obtainedfor British subjects, and those conferred by the most explicit and unequivocal terms; if even these privileges, notwithstanding the lapse of eleven years since the date of the treaty of peace, created a general ferment in our country, arising from the recollection of ancient injuries; shall we construe the general words of the treaty before us, to have an equal or more extensive effect?

The term “confiscation,” then, when occurring in a treaty of peace, and especially in such a treaty formed by the limited government of the confederation, naturally means, ex vi termini, a confiscation jure belli, and nothing further. If I am right in this idea, it was unnecessary, in the 6th article of the treaty before stated, to annex other and tautologous words, to make this more plain, to confine its signification to forfeitures, on account of the part taken in the war. Such was already its meaning, and additional words would have been entirely superfluous: and this is an answer to the objection arising from the annexation of such words to the prosecutions mentioned in the same article, of which more hereafter. I hold it also to be of great weight, in favour of my construction in this particular, that the confiscations here prohibited have this character more clearly designated, by being interdicted in the same article, and sentence of that article, with prosecutions on account of the part taken in the war.

If I am right in the above idea, as to the natural and general signification of the term “confiscation,” when occurring in treaties of peace; that construction gains additional weight in relation to the treaty before us, by the further consideration that there were, in fact, many such confiscations made by the several state governments, during the revolutionary war. Perhaps I shall be warranted in saying that there were in fact such confiscations made by every state in the union, (a) Some ot those confis-cations were made by the very bills of rights or constitutions of the several states, bnt in general by legislative acts. Of the former class it may be seen that the 25th article of the bill of rights of North Carolina seems to confiscate the proprietary rights to lands within the limits of that state; the legislative acts were of various descriptions, as acts of attainder, of seisure and confiscation, &c., as may be •seen at large in the documents attached to the letter just referred to. The Virginia act, upon this subject, after reciting that, by the declaration of independence, by the United States, the residuary subjects of the British empire became enemies and aliens to the said state, enacts, tnat all the property lying within the Commonwealth, belonging at that time to any British subject, &e., shall be deemed to be vested in the Commonwealth; and a subsequent clause describes who shall be deemed British subjects within the meaning of the act. (b) The passage of this act. ipso facto, confiscated the property therein contemplated; and the only inquiry necessary to be made, or which in fact was made,(c) under this act, as it respected the proprietor of the land, was whether he were a British subject, or not, within the meaning of the act; there was no inquiry whether he was, by law. an alien.

This act was emphatically an extraordinary act of confiscation. It was in addition to. and not in exclusion of, the ordinary'municipal law of escheat and forfeiture, on account of alienage. It only reached British property then actually holden; whereas the general law extended also to lands afterwards acquired by British aliens. This act confiscated the property of all British subjects; whereas, the general law only reached the real property of those who were aliens. It may not universally hold, that all British subjects were then aliens, and if the ideas of the plaintiff’s counsel were correct thegeneral law would not reach lands acquired here by British antenati. These are prominent marks of distinction between the two laws; and this partial exercise of the extraordinary right of confiscation certainly did not supersede, or interfere with the general law, further than that act has expressly gone.

Some stress has been laid upon the act of October, 1784, c. 58, respecting future confiscations. It is not proper for me to avail myself of a knowledge acquired in another place, that it was decidedly the intention of the then legislature to avoid construing the treaty. There were various opinions then existing as to its true construction, and the prejudices and animosities of the day were not inconsiderable, Hence the act eventuated in using the very words of the treaty itself; and that merely by way of yielding the sanction of this state to that instrument as it really existed. That act meant not to take any new or extended ground what-622 soever; *and the proviso, contained therein, inhibiting suits commenced posterior to the ratification of the treaty, can only extend to suits grounded on such confiscations as were intended by the treaty and the act to be prohibited.

Before I come to a particular examination of the 6th article of the treaty, I will take a short view of the 5th. The character of the confiscations interdicted by the 6th article will be elucidated by considering what kind of confiscations are contemplated In the 5th.

That article is in the following words:

“It is agreed that congress shall earnestly recommend it to the legislatures of the several states, to provide for the restitution of all estates, rights, and properties, which have been confiscated, belonging to real British subjects, and also of the estates, rights, and properties, of persons resident in districts in possession of his majesty’s arms, and who have not borne arms against the said United States. And that persons of any other description shall have free liberty to go to any part or parts of the thirteenUnited States, and therein to remain twelve months unmolested, in their endeavours to obtain the restitution of such of their estates, rights, and properties, as may have been confiscated; and that congress shall also earnestly recommend to the several states a reconsideration and revision of all acts or laws regarding the premises so as to render the said laws or acts perfectly consistent not only with justice and equity, but with that spirit of consiliation which on the return of the blessings of peace should universally prevail. And that congress shall also earnestly recommend to the several states that the estates, rights and properties of such last-mentioned persons shall be restored to them, they refunding to any persons who may now be in possession of the bona fide price, (where any has been given,) which such persons may have paid on purchasing any of the said lands, rights or properties since the confiscation. And it is agreed that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights.”

This article, upon a general view, relates only to legislative acts of confiscation. It relates materially to the refugees, who, not being aliens, were already safe from the operation of the laws of alien-age. It relates, also, it is true, to confiscations made of the property of real British subjects: but as it purports to provide for the “restitution of their estates, rights, and properties.” it cannot mean to extend to cases of purchases of lands by, or descents to, British aliens, posterior to our separation, nor to the common law proceedings adapted to such cases. In such cases such aliens have not any estate, right or property in such lands, nor would they be restored thereto: If the treaty arrests such proceedings, it would not restore, but create and enlarge the estates of such aliens. Cases of this kind, and the ordinary proceedings of forfeiture founded thereon, were not therefore contemplated in this article. With respect to the superior claims of those who held land here at the aera of our separation, I am not prepared, at present, to say, whether the ordinary proceedings of escheat and forfeiture could ever have devested them. Meaning to touch this topic slightly hereafter, I will only at present say that, if they could not, then, (as no necessity exists for it,) such proceedings shall not be construed to be comprehended in the confiscations mentioned in this article; nor will the case be otherwise, admitting the law to be different, if (as I believe) no forfeitures of this class had in fact taken place in America prior to the date of the treaty; and such, therefore, could not have been the ground of any stipulation in it. During the existence of the war, the ordinary law of escheat and forfeiture had not been put in force against British subjects. It had yielded to the more powerful and direct course of legislative confiscation, which was deemed preferable, and was universally pursued I am authorized to assume this as an indubitable fact, because Mr. Hammond,(d) after ransacking all our laws and judicial decisions, from the beginning of the war to the time of his writing, has only stated, one case (that of Harrison’s representatives) in which a decision on this point has been given. That case will be set out presently from the documents attached to the before mentioned correspondence; from which it will appear that it was neither rendered by the Supreme Court of the State (Maryland) in which it was decided, nor rendered until the year 1790. When the devise in question in that case accrued is not stated. Am I not, therefore, correct in saying that no instances of the enforcement of the ordinary laws of alienage had taken place, in relation to British subjects, prior to the treaty of peace, and that, therefore, in providing for the restitution contemplated in the 5th article, it was wholly unnecessary to meet such cases? Courts, in making their constructions upon laws or treatise, may take notice of general and notorious facts, affecting such construction. The English Courts (for example) have in many instances taken notice of and acted upon the general delusion created by the South Sea bubble in that country in the beginning of the last century, (e) So, as in the present instance, the long and laborious researches of the British minister before 623 noticed *have produced no instance of the enforcement of the laws of alienage against British subjects prior to the conclusion of the treaty, wherefore shall we give to that instrument a construction confronted by so many objections, an,d only (at most) necessary, if such decisions had actually existed??

It is* also not unworthy of observation, that congress are called upon by this article, “to recommend to the several states a reconsideration and revision of all acts or laws regarding the premises,” thereby meaning such special and particular statutes as may have been passed by the state legislatures on the subject: they are not enjoined to recommend an exemption in favour of British subjects from such disabilities, as accrued, not by virtue of particular legislative acts, but by the conjoined effect of the revolution, and the common law, relating to alienage, antecedently existing in America.

If, then, the 5th article of the treaty relates to legislative confiscations only, let us next inquire whether the 6th article is to be understood in a more extensive point of view ; bearing in mind the general principle; that the same word, occurring in different parts of an instrument, shall generally be understood in the same sense.

That article is as follows :

"That there shall be no future confiscations made, nor any prosecutions commenced, against any person or persons, for or b37 reason of the part which he or she may have taken in the present war, and that no person shall on that account suffer any future loss or damage, either in* his person, liberty or property : and that those who may be in confinement on such charges at the time of the ratification of the treaty in America shall be immediately set at liberty, and the prosecutions so commenced be discontinued.”

This article, upon the whole context of it taken together, can only relate to those who, being American citizens, afterwards became refugees, and joined the enemy; it cannot relate (in a collective point of view) to real British subjects. Keeping out of view, for the present, that member of the article, which prohibits future confiscations, and which requires a more particular examination, would it not be absurd to stipulate that after peace had taken place between the two nations, we should commence no prosecutions against real British subj ects for the part they had taken in the war ? That partwasnot, in them, a culpable, part; it was one which their duty and allegiance as subjects required them to take. Not residing in this country, nor being oppressed as the Americans were, it was not their business to join in our revolt, nor to take a part in our battles. If there had been no such article in the treaty, and America had thereafter commenced such prosecutions against such British subjects, Great Britain would have justly considered them as acts of hostility against her. This provision, then, as relative to real British subjects, is wholly superfluous, and unnecessary ; it shall not, therefore, be construed to have relation to them. But, with respect to the American refugees, this stipulation was strictly necessary and proper. They had become citizens of the American states, and without expatriating themselves, had joined the standard of the enemy. After the peace, the several states might justly have called these their offending citizens to a severe account, for their conduct: but the humanity and honour of the British nation was deeply interested to protect them ; to protect these American traitors from the vengeance of their own governments. The latter part of this article therefore applies exclusively to them : however it may be with the former. The interdiction of prosecutions for the part they had taken in the war, and of loss or damage accruing therefrom, as it related only to them, so it alone effectually secured them from such common law forfeitures as were incident to attainders or prosecutions for treason. As to confiscations, in relation to these persons as they were not legally aliens, in the several states, they were already sufficiently safe from the effects of the laws of alienage. The inhibition then of legislative confiscations, conjoined1 with the interdiction of prosecutions on account of tUe part taken in the war, would entirely secure and protect the refugees. Wherefore then "give the treaty a construction which entrenches upon the municipal rights of the states, when every necessary end, in respect of the refugees, can be attained, by understanding the term "confiscations” in its usual and ordinary sense ?

With respect to real British subjects, it is equally absurd to apply to them the interdiction of the prosecutions, and tautologous to extend to them the confiscations prohibited in this article, even meaning thereby legislative confiscations. At the most, the article can be so understood, as to them, only through abundant caution. We will next inquire whether any necessity exists, in relation to them, (as it clearly does not in relation to the refugees,) to strain the term in question, beyond its usual and proper signification, and so far as to arrest the operation of the general laws of alienage ? , •

The policy of the British government may justly be considered as different in relation to lands held here by their subjects at the time of our separation, and those afterwards acquired. With respect to the former lands, they are safe in the hands 624 *of such holders, by the principles of the common law concerning escheat and forfeiture, iterally understood. The principles of that law, as understood in England, not permitting a renunciation of the. original allegiance, nor contemplating the event of the erection of a new and different government, the case now before us was never presented in England, nor provided for by their law. The only inquiry in that country had relation to the capacity of the person purchasing or claiming by descent, at the time of such purchase or descent respectively. The British holders of land in this country, at the aera of our separation, having been therefore capable of obtaining and holding lands here at their respective times of acquisition, committed no offense against our laws, and are safe from the penalties, of the laws of escheat and forfeiture, by the literal terms of the common law. It is a great question, but one respecting which I have formed no final and decided opinion, whether the common law should be moulded, in this country, on the great principle that citizens may become aliens, and of course incapable of acquiring lands, so as to reach this case also, of lands lawfully acquired, and only rendered unlawful to be holden (if at all) by matter ex post facto; or whether a respefct for vested and existing rights, falling in with the literal spirit of the modern law of n ations on this subj ect, (a) should turn the scale in favour of a literal adherence to the English law, and thus protect lands actually holden here by British subjects, at the time of our separation.

If such should be esteemed the correct opinion, the lands of the then holders are already safe from the law of escheat and forfeiture ; and the treaty therefore need not receive an extended construction in order to protect them; and as such lands are also protected from legislative confiscations, (or, in other words, acts of hostility,) by the mere conclusion of the peace, the stipulation in question need not be applied at all, to real British subjects, even in relation to lands by them holden in this country before the war.

But, however this may be. and whatever strong obligation there may be upon a sovereign to guaranty to his subjects lands held in the enemy’s country at the time of the commencement of hostilities, and", however this circumstance migh t weigh in forming a construction of a treaty when such a case shall actually occur, the case is widely different in respect of future, eventual and possible acquisitions : future, I mean, in relation to the establishment of our new government, and the actual commencement of hostilities. Such is precisely the character of the case now before us ; and what makes it still infinitely weaker is, that it accrued even long after the signature of the treaty of peace 1! In the case of war, all civil intercourse* between the subjects of the different nations, becomes prohibited and unlawful. This was particularly the case in our revolutionary war ; the statute of 16 Geo. III. on the part of Britain, and many similiar acts on the part of the several states, having prohibited all. but a hostile, intercourse between the people of{the belligerent nations. In such a state of things, therefore, there would be but few to purchase lands (in the ordinary sense of the term) in either country ; and even in respect of devises and descents to British subjects, we cannot, without imputing a gross ignorance to our people, in relation to the laws of alienage, (an ignorance which could not, especially, be pretended, in this Commonwealth, after the strong legislative declarations on the subject contained in the before-mentioned act of 1779.) suppose that many instances took place of devises being made, or descents permitted, to those who, in the double character of enemies and aliens, were liable to the double penalties of legislative confiscations, and municipal forfeitures on account of alienage. The permission of such vain and fruitless devises and descents, would argue great negligence and weakness on the part of our people; and we may therefore fairly conclude that cases of this class, occurring during the war, were probably few ; and those as I have already said, possessed no strong claim on the British king to stipulate in their favour. Besides* no construction can be made, in the present instance, in favour of heirs and devisees, which will not equally operate in favour of actual purchasers of land here, (in the ordinary sense,) who* with their eyes open, have violated the laws, and contravened the policy of their sovereign! If a plaintiff of this description were now before the Court, would the construction of the treaty be extended in his favour? Certainly not. But the construction must be uniform; and it is a sound rule that in making a construction, all the consequences are to be taken into consideration. I repeat, therefore, that the cases of any of these classes were probably but few; that none of them had any strong claim upon the British king- to stipulate in their favour, and that the actors in some of them actually contravened his policy and injunctions. These cases were therefore probably not contemplated nor considered in forming the treaty, or if so contemplated, were abandoned on account of the weakness of their pretensions.

But further, British subjects so claiming on any of the three grounds of descent, devise, or actual purchase, held not actual interests, with reference to the epoch of our independence, but mere possibilities of interest, (even admitting the ques-625 tiori of *alienage to be in their favour,) interests emphatically in nubibus, interest often assailed by the acts of our legislature, and reprobated bj the decisions of our courts. As well might the eldest sons of our citizens complain of the destruction of the right of primogeniture, living their fathers, as these British subjects object, that long antecedent to the accruing of their claims, they were thrown into the class of aliens by the natural and necessary effect of our pre-existing municipal regulations. It was too much for the British king to ask, (were he even impelled by a strong motive,) or for our government to grant, that the rights of escheat and forfeiture, accruing during the war, should be surrendered in relation to British subjects. Such a relinquishment, in itself, would not perhaps have been very important, had congress possessed adequate powers, but it might have carried with it the appearance of a concession, to which America would have been extrem ely averse; namely, that the doctrines of alienage did not attach here till the signature of the treaty; or, in other words, that we were not, until then, an independent nation! With respect to such acquisitions here, after the date of the treaty, (as in the case before us,) they stand upon a still weaker ground. It would have been most unreasonable for the British king to ask, or for us to grant, in favour of mere future and possible interests, that his subjects should be, in some sense, the same people with us, after we had established ourselves to be wholly independent of that nation; and that they should, without rendering us any services, or owing us any allegiance, be entitled, through all time, to important privileges in our country, which only the subjects of one or two of the most friendly and favoured nations were, at that time, permitted to enjoy. 1 will close this part of the subject by one general observation; and that is, that in all those of our treaties in which it was intended to yield np the laws of alienage in favour of the subjects of highly friendly and favoured nations, nay, even in the instrument of confederation itself, in relation to the citizens of the other states of the union, (see art. 4,) express, explicit, and appropriate terms are used to effect such surrender: whereas this is an attempt, under general and ambiguous expressions, (to admit the most,) to infer a surrender of those laws, and to create or enlarge interests in favour of the subjects of a nation, then certainly standing at the head of tho.se the least favoured by America, and which has not been able to obtain from us up to this day, even by the famous treaty of 1794, the boon in question, in the extent now contended for!

I have avoided, as much as possible, in this whole discussion, having reference to that treaty: (the treaty of 1794:) I must, however, here repeat my remark, that that treaty has not left vested and existing rights to rest upon the same basis with future, contingent and possible ones; and that while that treaty has guarantied, in a remarkable manner, the property in lands then actually holden in either country, ithas suffered those future and possible rights, together with this famous doctrine of legitimation, to perish in the quicksands of the revolution; to be cast into the fathomless vortex prepared, by that revolution, for all those parts and principles of the common law of England, which are heterogeneous to our republican institutions! If it should even (contrary to what seems to have been decided by the Supreme Court of the United States as before mentioned) be argued that that treaty protects and enlarges the null and defeasible interests acquired here by British subjects up to the time of its formation, it proves nothing in relation to the treaty of 1783, both because the present general government of the United States has powers, perhaps, competent to that purpose, and because the treaty of 1794 has used strong words to effect it; in both which important respects, the treaty of 1783 is widely different.

As the 5th article of the treaty only recommends to the several states to do what congress had no power to do absolutely, i. e. to refund money produced by confiscations, and if congress, as J contend, had no greater right to arrest property vested in the several states by their laws of alienage, than to demand .the money contemplated by the 5th article, if such arrestation had been contemplated by the 6th article, would not the style of recommendation have been also kept up therein? and as there is a positive interdiction of “confiscations” stipulated by that article, shall we not infer from this change of style that it relates merely to such confiscations as congress possessed an absolute right to prohibit? It may not be improper to add, that another part of the terms of the clause in question seems to favour the construction I contend for. These terms are “that there shall be no future confiscations made.” This term “made,” seems strongly to import an. active measure to effect a forfeiture, such as a legislative act, and not that kind of confiscation which is produced by the ordinary and passive operation of the law of escheat and forfeiture.

I have so far considered this case as if it were a case of forfeiture; whereas it is a right accruing to the commonwealth by way of escheat. Every thing that I have now said, to discriminate between forfeiture and confiscación, holds more strongly in relation to a right accruing by escheat. It 626 is doing much more violence to the ^meaning of the latter term than the former, to make it synonymous with confiscation. I have also-viewed it, in general, as if the descent in question had fallen prior to the date of the treaty of peace; whereas it was cast long after. Ours, therefore, is a much stronger case than that; for with respect to antecedent descents and purchases, there was some ground, or semblance of ground, for the treaty to operate upon; but, in this case, as the antenati pretension is entirely exploded, the present plaintiffs cannot recover, unless we are prepared to say that, (bating the treaty of 1794,> through all time, all British subjects, in cases like the present, are entitled to recover! I

The 4th inquiry I proposed to make under the head of the treaty, is in a great measure anticipated; I mean respecting the capacity of British subjects to sustain real actions. This right is, I think, incidental to the right to the subject. In all cases in which lands are preserved to British subjects, (for example, under the treaty of 1794,) their right to sue for them is also preserved; and this right forms, in that case, an exception to the general doctrine of alienage: but, on the other hand, where the principal does not exist, neither does the incident; they stand, or fall, together. While, therefore, I can never subscribe to the position, I had almost said the absurd position, taken by the plaintiffs, that all those are entitled to sue for lands here, who were so entitled at the time of their birth, under another government, of which they were then members, I can readily admit those to sue, in derogation from the general principle attaching a disability to aliens in this respect, to whom our laws or treaties have yielded a right to the subject sued for.

I have thus given to the treaty of peace a construction which outstrips and goes beyond the actual case before us. I have done this, not only because all the aspects of the case seem much involved with each other, but also for the reasons before assigned for discussing somewhat at large the pretensions of the antenati. My observations are so multifarious and desultory, that I fear I shall not be fully understood; but I have not time to reduce them to order, nor even to recapitulate.

The construction of the treaty, which I now contend for, has been impreached, loudly impeached, as gaining nothingfor the other contracting party, by merely inhibiting legislative confiscations, while it leaves free the ordinary laws of alienage. To this objection I would answer, 1st. That that construction fully satisfies the words of the treaty, and goes the full length of the actual powers of the government of the confederation on the subject; 2dly. That it secures every thing for the refugees, ■ whose interests were anxiously attended to by the British government in the formation of the treaty: Bdly. That it secures money and personal property to whomsoever belonging; there being no ordinary laws in any of the states to work a forfeiture of such property: and, 4thly. That if the ordinary laws of alienage cannot devest land actually holden here by British subjects at the time of our separation, (on which, however, I give no conclusive opinion,) my construction of the treaty abandons no claims of British subjects to lands in this country, but eventual, contingent and unlawful ones; unlawful, as being acquired at a time when they were equally interdicted by the laws, and by the actual state of things between the two countries; and that if our ordinary laws can devest such lands, (lands holden here in 1776,) it is meet that the British subjects should lose something by the war, when the Americans lost every thing. While we argue from, what was incumbent upon the British king to do, on behalf of his people, we ought not to lose sight of a construction which respects the rights of the sovereign states of America, and the actual temper and situation of the times; we ought not to stickle for liberalities in favour of British subj ects, when such were not the order of the day, and have not, in fact, been dealt out to us by them. It ought not, however, to be lost sight of as abridging the extent of this evil, (if it be one, and is not otherwise cured,) that in several of the states, (Pennsylvania, I am informed, for example,) no laws imposing forfeitures on account of alienage do exist, and that, therefore, as to those states, every possible end, to be desired in favour of British subjects, will be attained by confining the confiscations intended by the 6th article of the treaty to mean legislative confiscations merely.*

I cannot dismiss this very important subject, without declaring my satisfaction to find the result of my inquiries entirely corroborated by a great authority. A production truly worthy of the pen of the author of the declaration of independence; a production which must ever rank high among the most distinguished of diplomatic 627 *dissertations: which bears the most evident marks of the most patient and laborious investigation; an essay which confounded the British minister, and put him to silence, cannot but be considered by me as a great authority. Americans can never be indifferent to a work written by Jefferson, and sanctioned by Washington. I will even bring this work into a Court of justice, infinitely sooner than the obiter dicta of judges, pronounced without necessity, and founded on no deliberation. There is no magic in the name or character of judges, which will induce me to repel the ablest opinions, of the greatest men, on the most important subjects. Truth and right are my objects; and I will avail myself of all practicable means to endeavour to attain them.

Mr. Hammond, the British minister in this country, had made complaints on the very subject now before us; that is, the subject of infractions of the treaty of peace, and had invited the then secretary of state (Mr. Jefferson) to a discussion. He had complained, inter alia, of a decision, in the state of Maryland, on the subject of alienage, in the case of Harrison’s representatives. He had complained of this decision; but although he was conjuring up all the infractions of the treaty which the wit of man could invent or suggest, he did not urge it as an infraction of the 6th article, nor even, in itself, of any article of that treaty. He did not urge this decision, or any other decision, as an infraction of that article interdicting "future confiscations,” although he undoubtedly would have done so, had he concurred with the plaintiffs’ counsel in the construction they now contend for. He has come into my construction of the treaty in this instance, by confining his list of infractions of the 6th article to legislative violations only; (see his letter, p. 15, of the correspondence;) he merely complained of the decision in Harrison’s case, as establishing a principle which, taken in connection with the laws of some of the states compelling creditors to receive lands in payment of their debts, infringed the fourth article of the treaty guarantying the bona fide payment of British debts. He complained that the fourth article of the treaty was infringed, or eluded, by compelling British subjects to receive lands in payment, while the decisions on the laws of alienage, did not permit them to hold such lands. (Ibid. p. 12.) This, then, seems to be the extent of his complaint on this head. Be that matter, however, as it may, the secretary of state obtained from the senators and delegates of the state of Maryland, in congress, the following statement in relation to that case of Harrison's representatives, viz. “On the disclosure of facts made by the trustees of the will of Harrison, upon oath, in chancery, in consequence of the claim made by the Attorney-General in behalf of the state, the Chancery Court determined it. in behalf of the state, it is believed, on this principle, that however Great Britain might consider the antenati as subjects born, and that they could not devest themselves of inheritable qualities, yet that the principle did not reciprocate on America, as those antenati of Great Britain could never be considered as subjects born of Maryland. The legislature, however, took the matter up, and passed an act relinquishing any right of the state, and directing the intention of the testator to take effect, notwithstanding such right. It is conceived that this was a liberal and voluntary act, on the part of the legislature, in behalf of Harrison’s representatives, who are atliberty to pursue their claim.”(a)

Mr. Jefferson, the secretary, taking up this case, upon the above report, observes; “The case of Harrison’s representatives, in the Court of Chancery of Maryland, is in the list of infractions. These representatives being British subjects, and the laws of this country, like those of England, not permitting aliens to hold lands, the question was, whether British subjects were aliens. They declared that they were; consequently, that they could not take lands; and, consequently, also, that the lands in this case escheated .to the state. Whereupon the legislature immediately interposed, and passed a special act, allowing the benefits of succession to the representatives. But had they not relieved them, the case would not have come under the treaty, as there is no stipulation, in that, doing away the laws of alienage, and enabling the members of each nation to inherit or hold lands in the other.” (b)

I conclude, sir, as the best result of my judgment, that the law of this case is in favour of the defendant, and that the judgment of the District Court should be affirmed.

Note by Judge Roane. Since this opinion was delivered, the decision of the Supreme Court ot the United States in the case of Dawson v. Godfrey, 4 Cranch, 321, has been rendered; from which it is inferred that the treaty of 1794 would be held not to apply. In that case the descent to a British antenata was in 1793; and yet the judgment of the ■Court was. that she was incapable of taking the lands descended; and this although the case of Lambert v. Payne, 3 Cranch, 97, in which this point was much relied on by counsel, was considered £y the Court in forming its judgment upon the principal case, and indeed superseded another argument. ,See also note f post, p. 616.

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Bl. 369, 1 Rep. 25, a.

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7 Rep. 1.

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Ibid. 2, a.

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Ibid. 25, a.

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See Wythe’s Rep. case of Parley v. Parley.

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7 Rep. 25, a.

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Ibid. 6.

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7 Rep. 16, a.

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Ibid. 18. 6.

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7 Rep. 27, a.

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7 Rep. 16. b.

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1 Bl. 372.

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7 Rep. 27, a.

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7 Rep. 26, a.

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7 Co. 27, b.

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2 Hume. 55.

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7 Co. 20, b.

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1 Bl. Comm. 367.

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7 Co. 22, b.

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1 Hale’s P. C. 66.

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1 Tucker’s Bl. part 2d, p. 370.

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See 11 Co. Rep. passim, to prove this.

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See Hume’s Hist. vol. 5, p. 554, and vol. 6, p. 169. See also in 4 Cranch, 210, othér authorities cited to shake the decision in Calvin’s case.

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1 Tuck. Bl. part 2d, p. 371.

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See also Vattel, 170, § 220, 172, § 223.

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See Acts of Oct. 1783, c. 16.

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2 Tuck. Bl. App. p. 62.

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7 Co. 601.

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By Judge Tucker.

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Judge Pendleton.

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Since this opinion was delivered, this question has been decided in entire conformit3r thereto, by the Supreme Court of the United States, in the case of Dawson’s Lessee v. Godfrey, 4 Cranch, 321. It was so decided by the unanimous judgment of the Court, contained in a very able and luminous opinion delivered by Judge Johnson. — Note in Original Edition.

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See note to p. 1, of this opinion.

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Since this opinion was delivered it has been decided by the Supreme Court of the United States, in the case of M’Ilvain v. Cox, 4 Cranch, 211, that the “treaty of peace contains a recognition of our independence, nota grant of it;” that the laws of the several states were, after the 4th of July, 1776, the acts of sovereign states; and that this was not derived from the concessions of the British king. This doctrine had before been agreed to even by the English courts themselves, as may be seen in H. Black. Rep. 149; Wright v. Nutt, and ibid. 135: Folliott v. Ogden, by Lord Loughborough: and Judge Chase had, in his very able opinion in the case of Ware v. Hylton. (3 Dallas, 255,) laid it down as an established doctrine “that the independence of the United States commenced with the declaration of congress of July 4th, 1776; that no other period could be fixed for the commencement of it; and that all laws passed by the legislatures of the several states after that epoch were the laws of sovereign and independent governments.” — Note in Original Edition.

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T might here observe that in 4 Bro. Parl. Cas. and Parker’s Rep. p. 163, it is said to have been holden by the house of lords that the disability of an alien to purchase lands was not a penalty or forfeiture, but arose from the policy of the law; andón this ground a demurrer to a bill, praying a discovery in this particular, was overruled; to which I will add that, if itis not considered as a penalty or forfeiture under the construction of the English laws, much less can it be considered in the stronger light of a confiscation jure belli. In giving my opinion, however, I will admit the most, that it isa forfeiture under the provisions of the common law. — Note in Original Edition.

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1 Bl. Com. 372; 2 Bl. Com. 274.

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1 Bl. 299.

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3 Inst 227.

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2 Bl. Com. 267.

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Art. 20.

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Vattel. p. 34.

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In the same opinion of Judge Chase, (mentioned in the note before the last,) these sentiments are contained: “I entertain this general idea that the several states retained all their internal sovereignty, and that congress properly possessed the great rights of external sovereignty. That congress did not possess all the powers of war is evident from this consideration alone, that she never attempted to lay any tax on the people of the United States, but relied on the several state legislatures to impose taxes, &c. and that after the confederacy was completed, the powers of congress rested on the authorities of the state legislatures, and the implied ratifications of the people, and was a government over governments.” — Note in Original Edition.

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See it quoted in Jefferson’s letter to Hammond, p. 48, § 38.

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See documents 7, 8, 9, 10 and 11, p. 70, attached to Jefferson’s letter aforesaid.

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Vattel, b. 4, s. 21.

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See Hammond’s letter to Jefferson.

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October, 1779, c. 14.

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See inquisitions in the office of the general Court.

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See his letter, p. 10, of the correspondence.

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See 1 P. Wms. 746.

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Vattel, p. 575, §200; p. 483, § 76.

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As the Supreme Court of the United States, in the before mentioned case of Dawson v. Godfrey, seems to have disregarded the treaty of 1794, as applying to a descent to a British alien in 1793, possibly the construction of that instrument in favour of persons then “holding” lands, is to be restricted to cases in which a beneficial holding was permitted by the laws of some of the states; and if so, the ground of that construction equally applies to the treaty of peace, which has no words to shew that interests other than beneficial interests were intended, and may be satisfied, pro tanto, In such states as allow aliens to hold lands, — Note in Original Edition.

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Documents, p. 96.

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Jefferson’s letter, p. 36.