APPENDIX

In Calvin's case, (which I principally resort to beUnder the first view. I will remark, that the cause it contains the whole doctrine upon this subterms "alien" and "alien born" are used synony- ject,) a definition is given of an alien; and it is mously in the English law books; for it being an "that he is a subject that is born out of the alle-, established principle of the English law, that a sub-giance of the king, and under the legiance of anject born can never shake off his natural alle- other."(h) This definition presents to us the only giance, (a) it follows that none are there considered criterion whereby to discern who an alien born is; aliens, but those who are born so. I say an alien born, because in this country a citThe terms "alien" and "alien born," and "sub-izen born may become an alien by expatriation; ject" or "citizen," are in their nature relative: and and even in England, a subject born may become to what else can they have relation; what else is an alien. by the act of the government, though not their correlative, but the sovereignty or govern- by his own act. ment where the discussion is?

having, subsequently, to his 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 subjects 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 utriusque regis, as Bracton saith in the before remembered place, fol. 477-sicut." &c. 613 *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 judges are here of opin-in France ad fidem utriusque regis, and always ion 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 Cominonwealth, 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 be ad fidem with respect to it; and, 3dly. The general plea before stated would truly have applied to them, in both its members.

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, quacunque 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 in the English cases of this æra 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 were so both before and since the loss of Normandy. and who plead here and there because ad fidem utriusque regis."(c)

614

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 wrote in the reign of Henry III. (e) which reign began in the year 1216: so that this quotation evidently means those Normans born whilst Normandy was subject 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 flef 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 The above resolution it is also contended will go French kings, in respect to their possessions holden to sustain a claim, e converso, viz. by an English upon the continent. By the feudal law, "allegiance. postnatus in Scotland, supposing the same common properly speaking. is due to the lord paramount or law to exist there, after the supposed dismember- sovereign."(f) Under this idea, therefore, those ment: and this view of the case, it is argued, has a Normans owed allegiance emphatically to the strong analogy to the case before us. I have al- French king; and in consequence of this allegiance ready said that this resolution should be considered it was, that they were, by the principles of the comwith reference to England only: in relation to a mon law, permitted to sue in France. In illustradiscussion in Scotland, it was no case before the tion of this position we find it resolved in Calvin's Court; it was wholly extrajudicial: but upon prin- case, "that those who were born in Wales. before ciple. I cannot see a difference. The English post- 12 Ed. I. whilst it was a distinct kingdom, were natnatus was as much born under the allegiance of ural born subjects, (as to England.) because holden the King of Scotland, as the Scotchman was under of England. or within the fee of the King of Engthat of the King of England. The kingdom of Scotland.(g) These Welchmen, therefore, might as well land was (before the act of union) wholly independ- as the Normans, sue in both countries: and for the ent of that of England, and James's character of same reason, viz. because, and only because, they King of Scotland was not merged in that of King of owed allegiance to both sovereigns. England; after the supposed separation, a King Whilst I am upon this subject of allegiance. I will of Scotland would still exist; there would be a con-beg to refer to 1 Hale's Pleas of the crown 58, et seq. tinuation of the same government, and the alle- who fully and elaborately proves, that there might giance due to the King of Scotland at the time of the be, and really were, in many instances, several albirth. (before the separation,) would continue to that king after that event. It might truly be said of the English postnatus, suing in Scotland, that he

(a) 7 Rep. 27. a. (b) 7 Rep. 26, a.

(c) 7 Co. 27, b.
(d) 2 Hume. 55.
(e) 7 Co. 20. b.

(f) 1 Bl. Comm. 367.
(g) 7 Co. 22, b.

legiances due from a subject to several sovereigns., ginia had been conquered from Great Britain, in 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. (2) 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 pro duced 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.

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 sov-
ereign, and by a sovereign merely coeval with the
change: and I should be sorry to be obliged to ad-
mit, that a people forming a government by com-
pact, 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 effica-
cious, in either respect, than that which, as to these
particuiars, is produced by a conquest.
I conclude, therefore, that, according to the ac-
knowledged 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 al-
legiance; 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 preten-
sions now set up by the plaintiffs in the present
instance, without revolting against, and over-
throwing, 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 Enbefore us, 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.

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? I 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 deci sions? The reign of James I. was not an æra 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 dep-glish law will suffice for the defendant in the case recate 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 to be considered in that light, and not as enemies or aliens;" and in 1 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 Vir

(a) 1 Hale's P. C. 66.

(b) 1 Tucker's Bl. part 2d, p. 370.

(c) See 11 Co. Rep. passim, to prove this.

(d) See Hume's Hist. vol. 5, p. 554, and vol. 6, p. 169. See also in 4 Cranch, 210, other authorities cited to shake the decision in Calvin's case.

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 quam sectari 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 of 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 pres616 ent case) to investigate this point at this time; but I beg leave to refer to the new edition of Blackstone, (vol. 1, part 2. note K, p. 90,) where the editor has elaborately discussed the subject, and his conclusións seem fully to sustain my (e) 1 Tuck. Bl. part 2d, p. 371.

position. (a) I rather choose to refer to the sublime, I might perhaps have saved myself this trouble, for principles contained in the declaration of inde- it appears that both the treaty of peace and the pendence, and in the Virginia bill of rights, conse- treaty of 1794 have repudiated the pretensions of the crating the right of expatriation; to the memorable antenati. (e) The latter treaty does not immediassertion of that right by the American people. ately apply to this case, being posterior to the judg who, sword in hand. expatriated themselves from ment in question, and would not now be mentioned, the government which tyrannized over them; to but as corroborating and explaining the former. the limited and qualified adoption of the common That treaty abandons those pretensions by law. as a part of our code; and to that dignified act 617 setting up a new criterion, viz. the actual of the Virginia legislature which prescribed the holding of the property at the epoch of its mode of effecting an expatriation, but did not pre- date. In setting up this epoch, and establishing a sume to bestow the right. (b) 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 law pretensions of the antenati, am I 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 case is 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 eration of those laws rights accruing before that time: and this, perhaps, is the most that can he 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.

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 action 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 posi-signature be resorted to as protecting from the option. 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 same time, it was granting in detail, the rights of citizenship, it is contrary to all fair deduction to infer a conclusion, which is very general and exten-alienage of the several states. sive, 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 our 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 any 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 lat ter 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 haying 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 Presidentt (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 foregoing considerations, (a) See also Vattel, 170, § 220, 172, § 223. (b) See Acts of Oct. 1783. c. 16. (c) 2 Tuck. Bl. App. p. 62.

(d) 7 Co. 601.

*By JUDGE TUCKER.

+JUDGE PENDLETON.

#Since this opinion was delivered, this question has been decided in entire conformity 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 opin

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

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: a right 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.

In laying 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, by admitting in the treaty of peace. (Art. 1,) that it "treats with the United States as free, sovereign and independent states," and not as revolted subjects; thereby clearly relating, in that treaty, to the æra 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 ion delivered by JUDGE JOHNSON. -Note in Original Edition. (e) See note to p. 1, of this opinion.

unauthorized acts. We date our independence, denominated a "forfeiture." "Forfeitures of lands from this æra on grounds paramount to any thing and goods for offences," (and this right is founded in the power of that king to grant or to do: we on the offence of an alien in presuming to purchase treated with him for peace, but not for independ- lands contrary to law.) (a) says Sir William Blackence: we asked him to put an end to the war, but stone. "are called by the Civilians bona confiscata. not to sanction a government already established because they belonged to the Fiscus or imperial upon the only just basis, the consent of the gov- treasury, or, as our common lawyers term them, erned.* bona foris facta."(b) Indeed. Lord Coke seems, in 618 *I would construe the general words of the one passage, to consider "confiscation" and "fortreaty to relate to this epoch, not only for the feiture" as synonymous terms; (c) and the author abovementioned reasons, but because. in truth. of the Commentaries appears also, in a few pasthat great event, in connection with the laws of sages of his work, to have used the term "conalienage of the several states, drew a prominent fiscation" as descriptive of a forfeiture into the line of distinction, in relation to lands acquired in treasury; but keeping in view the distinction, this country by British subjects. While it exhibits 619 *which this elegant and accurate writer has all lands previously acquired, and then holden in taken, between the terms as above stated; this country, as being lawfully acquired, under the (the one being a civil law, and the other a common faith of existing laws, and entitled to the attention law term:) and finding that he has expressly treated of the contracting parties, it throws into the class of of the right now in question in a chapter headed nullities, and illegal and unauthorized acts, all pos- title by forfeiture," (d) I must conclude that the terior acquisitions of lands by British subjects. technical and appropriate term, descriptive of this Powerful reasons existed. therefore, on this right. is forfeiture, and not confiscation. At least, ground, for embracing the epoch of our independ- it must be granted, and that is sufficient for my purence, rather than that of the treaty, in applying pose, that the former is a much more usual and that instrument to the arrestation of the laws of proper term than the latter, to designate the right alienage of the several states, admitting, for the in question. I urge it as a very respectable authorpresent, that it at all relates to such laws. On the ity in favour of this opinion, that the constitution part of the United States the great considerations of Virginia, in transferring this, among other just stated. (to say nothing of others which will be rights, from the king to the Commonwealth, uses presently noticed.) must have had great weight: the terms "escheats, penalties and forfeitures." (e) and the British king might, on his part. while he without making any mention of "confiscations." admitted himself bound to treat for a guaranty of I admit that, where the term "confiscation" shall lands fairly acquired by his subjects in this country occur in a treatise or instrument relating only to before that epoch, have justly considered himself the common law, it shall there, from obvious necesabsolved from any obligation to create, or at least sity, be taken as synonymous with "forfeiture:" enlarge titles in favour of his subjects; to support and, indeed, in any other treatise or instrument, and extend that nullity of an interest acquired where the term may not otherwise be satisfied, or here, by them, after the commune vinculum was where it appears evident it was intended to have broken. that extensive signification. But on the other hand, In contemplating the effect of the treaty of peace in instruments which concern the civil law, or the upon the case before us, I will first consider, as be- jus belli, it is reasonable to tie up the meaning of ing a stronger case for the plaintiffs, than that of a the term confiscation to forfeitures of that kind: or right accruing by "escheat," the right of the Com- rather to understand the word in its proper and legitmonwealth, by way of "forfeiture," to lands pur- imate signification; it would be unnatural and chased by British subjects, since the æra of our unnecessary, in that case, to extend it so as to comindependence. prehend forfeitures arising only from the common law.

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 gov ernment. 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 *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, not a 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: Folhott 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 Edi

cion.

Besides this ordinary and municipal right of forfeiture, there is, as I have before said, an extraor dinary 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 of 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 used. 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 just 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 Vattel. "naturally and of itself relates only to the war which it puts an end

+I 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; and on this ground a demurrer to a bill, praying a discovery in this particular, was overruled; to which I will add that. if it is 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 is a forfeiture under the provisions of the common law. -Note in Original Edition.

(a) 1 Bl. Com. 372; 2 Bl. Com. 274.
(b) 1 Bl. 299.

(c) 3 Inst 227.

(d) 2 Bl. Com. 267.
(e) Art. 20.