
    *Den, on the demise of Martin against Brown.
    The declaration of independence, on the 4th of July, 1776, did not operate so completely to disunite the United States from England, as to subject all British antenati to the disabilities of alienage; their rights continued till the acknowledgment, by Great Britain, of our independence.
    An alien, whose rights are guaranteed to him by treaty, and who is thereby made competent to hold real estate, is competent to maintain an action for its recovery.
    A testator devised as follows: “ I give and bequeath to my son I. all my lands and effects, to him- and his heirs for ever; but if he should never return,^! give and bequeath to my brother M.’s eldest son, two lots of land, to him and his heirs; which ho shall fully possess, he making himself appear to be the oldest son of said M.” held that a present interest vested in B. who was such oldest son, and that the words requiring him to prove himself entitled to that character were senseless and nugatory, being merely wha.t the law would have required without them.
    
      This was an ejectment for lands in the county of Morris. On the trial of the cause at the Nisi Prius, in September 1796, a verdict was taken, by consent, for the plaintiff, subject to the opinion of the court, and open to a bill of exceptions ; with liberty to the defendant to move for a non-suit, if the court should think the evidence insufficient on a case stated, to be argued at bar, in the same manner as if the motion had been made at the trial.
    'By the case agreed upon, the defendant confessed lease entry and ouster. It was agreed, that James Martin was seized in fee simple, and possessed of the premises in dispute on the 9th of *Eebruary 1778, at which period, being so seized in fee, he-made his last will and testament, in which, inter alia, he devised and bequeathed as follows :
    “ Item. I leave to my loving wife, Mary Martin, my house, wherein I live, with seventy acres of land thereunto annexed, with the benefit of my three negroes, with one team, &c., &c., all which she shall peaceably enjoy till her decease; and afterwards the house and land shall be put to the best advantage, for the benefit of the heir, &c.
    “ Item. I give and bequeath to my son, John Martin, if ever he returns, all my lands and effects, to him and his heirs forever; excepting seven hundred pounds, that I give and bequeath to Mary Martin, the daughter of my son, Stewarc Martin, to her and her heirs forever, all which she is fully to enjoy and possess, when she arrives at the age of'eighteen years old; if my son, John Martin, should never return, then the house and lot wherein I now live, with the seventy acres of land, be the same more or less, is to be the property of the said Mary Martin, with the above mentioned seven hundred pounds, is to be her own property during her life; and after here decease, then the said house and lot shall be the property of the next nearest heir, and so to continue on forever; the above named house and lot is not to be in her possession till she arrives at the age of twenty-one years old. If the above named John Martin should never return, I give and bequeath to my brother Matthew Martin’s eldest son, two lots of land, to him and his heirs forever, the one in Sussex county, - township, the other in Morris county, Roxbury township; all which he shall fully possess, he making himself appear to be the oldest son of said Matthew Martin.”
    James Martin, the testator, continued seized and in possession of the premises from the date of the will aforesaid, until his death, viz: the 1st of March 1778,’leaving this testament unaltered and unrevoked, and in full force and effect.
    The lot of land mentioned in the said will, as situated in the township of Roxbury and county of Morris, includes the property in controversy, which at the time of the demise laid in the declaration, and ever since, has been in the possession of the defendant.
    The lessor of the plaintiff was proved, on the trial, to be the eldest son of Matthew Martin, the brother of the testator, and *the person described in the said will. It was further proved, that the lessor of the plaintiff' was born in the kingdom of Ireland, on the 1st day of August, 1750, and that he resided in Ireland until he came to the United States of America; and that the testator was also born in the kingdom of Ireland, January 1,1720, and removed from thence to the then king’s colony of New Jersey, in 174.6, where he continued to reside until his death, as aforesaid. The lessor of the plaintiff emigrated from Ireland to the United States in the month of July, 1793, about three years previous to the trial, bringing with him his family, consisting of several sons and daughters; and that possession of the tract of land devised in the said will $ the said James Martin, in Sussex county, was delivered to him by James Little, after judgment in an action of ejectment had been recovered against the said James Tuttle, at the suit of John Brown and Mary his wife; and that he, the said James Martin, was turned out of possession on a habere facias possessionem on the same j udgment.
    
      It also appeared, that John Martin, son of the testator named in the foregoing will, has been absent beyond sea for upwards of forty years, and that he has never, during the whole of this period, been heard of by any of his family, and it is not known whether he ever had issue. Mary Brown, the wife of the defendant, is the daughter and only child of Stewart Martin, which Stewart and John Martin, last mentioned, were the only children of John Martin, the testator.
    
      Aaron Ogden, for a nonsuit. The questions involved in this case are two. 1. Whether an alien can hold plea of land ? 2. Whether the lessor of the plaintiff is an alien ?
    1. It is a part of the long established law of England, that an alien is not competent to possess any real estate, unless it be a mere house for his habitation ; and it follows from this, that he is not allowed to maintain an action in which any interest in land is to be recovered. 1 Woodes. 376. It was thought that the interest of the native'born subject would be sacrificed, and the welfare of the community endangered, by permitting strangers in blood, in feelings, and in interests — men connected by no tie to the government, but tainted with foreign prejudices and attachments, to become proprietors of landed estates, and to obtain that influence which is inseparably connected with large real *property. Thus, at a very early period in the English history, aliens were regarded with extreme jealousy; and although this spirit has, to a certain extent, been softened by the increase of commerce, and the feelings which flow from it, yet an alien is not allowed at this day to acquire and to hold any real property either by inheritance or purchase. 1 Woodes. 371. An alien, also, cannot take lands by what is termed the act of the law; as a husband alien cannot be tenant by the curtesy; a wife, unless she be the king’s consort, cannot be endowed ; and in all cases, where if he were a natural born subject the law would invest him with the estate, the alien is not only precluded from holding, but he is not permitted to take. The estate therefore becomes discharged of the claim, and no forfeiture accrues to the crown. Ibid. 374. This maxim of the law, independent of its being sanctioned by motives of interested policy, is founded upon tbe principle, that every man owes allegiance to the country under the government of which he was born; that this duty imposed upon him by his birth, can terminate but with Ms death, and cannot be discharged by entering into new engagements with another sovereign. 1 JBl. Com. 371. These being the maxims of the common law, it has always been held as a corollary from them, that a devise to an alien, or to the heir of an alien, is void. 4 Bae. Abr. 247; (Bib. on Dev. 15.
    Bo far as tho common law of England extends, it is the law of this country until repealed by some legislative act. Nothing, however, has yet been done to change the rule; on tho contrary it appears to be indirectly sanctioned by the treaty between the United States and Great Britain, of November, 1794, article 9, which declares, that “British subjects who now hold lands in the territories of the United States” shall continue to hold thorn, and to exorcise all acts of ownership over them, as if they were nativos; and “neither they, their heirs nor assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, bo regarded as aliens.” 2 Laws U. /S'. 476. Under tbe act of the legislature, of the 25th of November 1789, (Bat. 93) alien friends who bold mortgages are confirmed in their rights, notwithstanding such alienism; which shews that in the opinion of the legislature, such securities for debts would be void without some legislative sanction. If anything further is required to shew that, independent of statutory provisions, this is tbe law of *New Jersey, it may be found in the act of February 6, 1794, (Bat. 123) by which a capacity is given to aliens, who. are the-subjects of powers at peace with the United States, to purchase lands, and to hold the same as fully as a natural born subject could do.
    These authorities fully prove, that, under the common law, a devise to an alien is void; and that, if good, he cannot maintain an action for the recovery of real property; and that this doctrine, so far from being contradicted or abrogated in this state, has been indirectly and directly sanctioned by the executive of the general government and the state legislature.
    The principal question however, and that to which it is more difficult to give a ready solution, is, whether the lessor of the plaintiff is to be considered as an alien, aud subject to those incapacities which are attached, by the wisdom of the law, to the character of an alien ?
    This action was instituted previous to the act of 1794, and, consequently, if the case of the plaintiff were embraced by the words, it would not be included within the provisions of that act. At the time of the devise under which the lessor of the plaintiff claims, in 1778, the lessor was an alien enemy, residing within the dominions of the sovereign with whom we were waging war: when he arrived in the United States, in 1793, he was an alien friend.
    The constitution of the state of New Jersey was adopted July 2, 1776; and, under that instrument, the ties which connected us with the crown of Great Britain were broken ; the old government was abolished, and we created a new o ¡e. On the 4th of July, 1776, the independence of the whole United States was declared by their representatives in congress; all former bonds of allegiance were absolved, all political connection destroyed.
    On the 19th of September, 1776, (Wils. 1, 2) an act was passed, for the security of this newly established government, imposing a test, and requiring an oath to be taken by every officer, civil and military, renouncing all allegiance to the king of Great Britain. -These measures were carried still further by the act of October 4, 1776, (Ibid. 4) for the punishment of traitors and disaffected persons. The independence of the United States was expressly recognized by Great Britain in 1783, (1 Laws of * IT. S. 477) and, by the same treaty, the acts of confiscation are expressly recognized as lawful and valid.
    By these several proceedings, the declaration of independence on our part, and the subsequent recognition of it by Great Britain, a barrier -was interposed between the citizens of the United States and the subjects of the British crown, and each became aliens to tho other.
    The term alien, which is used by the common and civil law writers, is a word of precise and definite signification. An alien is one born in another country, the subject of another sovereign, who lias not been naturalized. 2 Domal. 376. The lessor of the plaintiff comes within this civil law definition, having been born in Ireland. Vattel 92, b. 1, e. 19, see. 212, uses still more comprehensive language, lie says, tho “ natives or indigenes are those born in the country of parents who are citizens; the inhabitants, as distinguished from the citizens, are strangers, who are permitted to settle and stay in the country.”
    The express terms employed by Vattel are not applicable to this country, unless we consider the declaration of independence as giving to all who were at that period within our territories a kind of political birth, and creating ties of allegiance and fidelity between them and the government.
    The common law acceptation of the term is correctly stated in 2 Anstruthcr 469, where it is said to be a legal term, implying a person born out of the allegiance of the king, and within that of another state. This definition is almost in express words adopted. 1 Woodes. 370; 1 II. Com. 366; 3 Rep. 31.
    The change of government, and the transfer of allegiance which was occasioned by the American revolution, is unprecedented in the English history, and seems never to have been contemplated by the common law writers, unless in some parts of Calvin’s- case. It is impossible, therefore, to adduce an adjudged case strictly in point; but whenever the circumstances of such a case occurred to their minds, they have considered the person, situated as the lessor of the plaintiff here is, as an alien. Woodeson, after stating •the common law doctrine, that no individual can so pub off or transfer the allegiance which was due by his birth to his native country, as to cease to be the subject of that country; proceeds — “but when by treaty our sovereign cedes any island or region to another state,, the inhabitants of *such ceded territory, though born under the allegiance of our king, become effectually aliens, or liablej[to the disabilities of alienage, in respect-to their future concerns with this country. And similar to this, I take to be the condition of the revolted Americans, since the recognition of their independent commonwealths.” 1 Woodes. 382-3.
    In the courts, however, of our own country this doctrine has been recognized and confirmed. In the case of Wilcox v. Henry, (1 Dall. 69) in Pennsylvania, Backhouse was looked upon, during' the continuance of the war, as an alien enemy. M’Kean, C. J., in the case of Johnson v. Hocker, (Ibid. 406) states, that the court, in the year 1778, had determined a British sergeant to be an alien enemy.
    No writer has ever pretended to give a name to the character of persons circumstanced as the lessor of the plaintiff is, unless they-are aliens. The only distinction that has ever been thought of is between aliens and citizens — between those who owe allegiance, and those who do not. Those who do not belong to the one class, are necessarily included •in the other. Can it be pretended that .the natives of Great Britain are citizens; that they owe allegiance to this government; that they are punishable for violations of our laws ; may commit treason against the United States, or be eligible to offices in this republic ? If these, which are the privileges and obligations, the rights and duties, of citizens, do not belong to them — they are not citizens; and until a denomination is suggested, appropriate to the anomalous character which they are contended to wear, they must pass under the appellation of aliens.
    It may be objected, that these doctrines are uncontrovertible, so far as respects subjects of Great Britain, born subsequent to the recognition of our independence, in 1783 ; but that previous to that event, by which the separation between the two countries was finally consummated, by an authority delegated by both, the natives of either are entitled to the privileges of citizens or subjects of the other.
    This idea, however plausible it may appear, is hostile and insulting to the principles of the revolution; and if carried into practice will be productive of evils of a serious nature. The independence of the United States was perfect and complete before the recognition of it by Great Britain. If not, all the acts of *the state legislatures and of congress were void, as being made without competent authority; all the indictments, condemnations, and punishments for high treason would be illegal and murderous, as coram non judieeBefore we assent to such a doctrine, the court should cautiously weigh the reasons that require, and the consequences which must result from its adoption.
    But it never has been recognized as law, even in England. Though the United States were in rebellion against them— though, until our independence was recognized by their government, some color or grounds might have existed to declare these legislative acts void, as against them; yet Lord Loughborough, (1 H. Bl. 135) in the case of Folliott v. Ogden, considers an act of the legislature of New York of as much validity as the act of any independent state; and this doctrine was confirmed in Chancery, in the case of Wright v. Nutt, (1 H. Bl. 149). The truth is, we obtained our independency by our own declaration — we confirmed it by our own actions; we never claimed nor received it as a gift from the British crown.
    
      Still, however, conceding, for the sake of argument, that the United States were the colonies of. Great Britain until the treaty of peace which raised us to the rank of an independent nation, it wall scarcely benefit the case of the lessor of the plaintiff. Under the devise, he acquires no claim to the estate in question, until he comes to this country, and proves himself entitled to it. It is a condition precedent to the vesting of the estate, that he should “ make himself appear to be the oldest son of Matthew Martin.” This event, until the happening of which no title-vested in him, did not take place until the year 1793, ten years subsequent to the treaty. On every principle, then, the lessor of the plaintiff cannot recover.
    
      M' Whorter, for the plaintiff.
    The first question is, at what time, under this will, did the estate vest in the eldest son of the testator’s brother Matthew ; was it at the time of the-testator’s death, or .upon the arrival of the lessor of the plaintiff in this country ?
    In all' cases of wills, it is of primary importance to ascertain whát was the intention of the testator ; and keeping that intent studiously in view, employ it as a key to unfold the meaning, and to explain the ambiguous expressions which may have crept *in. Eollowing this rule in the construction of the present will, it is plain that the testator did not intend that the coming of the lessor of the plaintiff into this country, should be a condition precedent to his taking the estate. The ■ title vested in him immediately on the death of the testator, subject to be divested by the arrival of John Martin; and had the lessor died in Ireland, without ever putting in his claim, the right which had.vested in him would have descended to his heir. “ It sometimes happens that a remainder is limited in words which.seem to import a contingency, though in fact they mean no more than would have been implied without them; they only denote the time when the remainder is.to vest in possession.” Fearne 167.
    
      In Boraston’s case, (3 Co. 19) which is cited in illustration of this doctrine, it is said, that when and then, although adverbs of time, do not necessarily imply a condition precedent ; that they express the time when the estate shall come into possession, but not when the interest vests. The case of Stocker v. Edwards, (Show. 398) is to the same point, as is Kerlin's lessee v. Bull, (1 Dall. 175) decided in the state of Pennsylvania.
    It may be urged, that there is another contingency in the case which affects the interest of the lessor of the plaintiff. The estate is devised to him, “if John Martin should never return.” It would be still more extraordinary to contend that the not returning is a condition precedent, and that James Martin is to wait until it should appear that John never could return, before ho would become entitled to the property. It is true that in the arrangement of the words in the will, the never returning of John does precede the devise under which the plaintiff claims; but, as was said by Lord Chancellor Talbot, in Robinson v. Comyns (Cases in Eq. 164), “ there are no technical words to distinguish conditions precedent and subsequent; but the same words may indifferently make either, according to the intent of the person who creates it.” Hence, the estate vested in the eldest son of Matthew, subject to be divested by the return of John.
    2. If the estate devised to the lessor of the plaintiff was vested in interest at the death of the testator, in 1778, the next question is, whether the lessor of the plaintiff is incapable of taking and holding this estate, being an alien ?
    It is to be observed that this estate vested, if at any time, in the year 1778, and nothing occurred to divest it previous to the *treaty of 1783. No British subject can be looked upon as an alien, in this country, prior to the treaty. Previous to that time, the independence of the United States had been declared by us; some foreign nations, actually engaged, or about to engage in hostilities against England, had acquiesced in our claim ; but our connection with Great Britain was a mutual tie, it could be dissolved only by mutual consent, or by a rejection, on the one side, of all duties of allegiance, and an incapacity, on the other, to compel submission. Until the treaty of peace, our independence never was recognized by Great Britain, and until the troops of that nation were withdrawn from our shores, the contest for freedom never having been closed, the question' never was decided. There was a claim on the one hand, a denial on the other, and the treaty of peace determined the controversy.
    Nor can this treaty be said to have a retrospective operation. There is nothing, either expressed or. implied, to warrant such a construction. The King of Great Britain admits the independence of these states at the time of executing the convention; but he never could be understood to stigmatize the exertions of the loyalists as treasonable, by acknowledging that these governments were legal at any period subsequent to the 4th of July, 1776. The case of Folliott v. Ogden, which was cited to shew that the English courts recognized the validity of our confiscation laws, afterwards came before the King’s Bench (3 Term Rep. 726), and the question was strenuously argued. But Lord, Kenyon held that the act could -not be recognized as valid, until after the treaty of peace, in any court of England.
    If the separation between the countries was consummated by the declaration of independence, so that all Englishmen from that time are to be looked upon as aliens here, all American are, upon the same principle, to be regarded as aliens in England. This idea, however, is contradicted by an express authority quoted on the other side. Woo'des. 382-3, says, that we are aliens since the recognition of our independence.
    The doctrine of a retrospective operation in the treaty of peace is not only unsupported by authority, but it is contrary to every principle of the English law. If, at the time of signing or ratifying «the treaty of peace, the subjects of the British crown wore not aliens under our laws, estates may have descended, and rights been acquired by individuals among them, which it *would be in the highest degree unconstitutional to say, could be divested by the single act of the king, in acceding to the treaty of peace. The idea is equally novel and indefensible.
    Under the most favorable view of the doctrine of allegiance and expatriation that has ever been advanced or contended for, no man can exonerate himself from the duties which he owes to his country without some open and notorious act; or forfeit his rights as a member of the body politic, without some crime of a flagrant nature. This is the doctrine most consonant to the principles of our government, and it ought not idly or unnecessarily to be extended further. The inhabitants of Great Britain, previous to the declaration of our independence, had an unquestionable right to purchase or inherit lands within the state of New Jersey. In what manner has this right been parted with ? Not by their own consent, by the very circumstance of that declaration, because it was an act in which they did not concur, to which they did not assent. There is, therefore, not a single circumstance warranting an inference that they have parted wdth this right, neither is there any greater foundation for the idea of forfeiture. They have committed no crime which can bring upon their heads this punishment, this forfeiture; and without the supposition of a voluntary abandonment, or a legal forfeiture, the right in question remains in them.
    But we could not, by our own act, relieve ourselves from the duties which we owred, as subjects of Great Britain. By the principles of the law of nature, so long as a prince asserts his right over a people they are not independent. Puff end. lib. 7, see. 5. This is conformable to the common law of England, one of the principles of which is, that no subject can, by his own voluntary act, put off his allegiance. 1 Bl. Com. 369; II. II. P. C. 68. Uo government lias ■ever pointed oat the mode in which a citizen can discharge himself from these obligations; and in the United States, according to. the opinions of some eminent jurists, the doctrine of perpetual allegiance is recognized. 1 Swift’s Syst. 164. ' / '
    But supposing the separation between the two countries to have been1 consummated by the declaration of independence, such separation will not operate to render the antenati aliens. This was resolved in Calvin’s case, (7 Pep. 54,) where it is said, that “ if the kingdoms of England and Scotland should, be *divided, and governed by different kings, yet that those who were born under one natural obedience, while the realms were united under one sovereign, should remain natural born subjects, and no aliens. And, in that case, one may be adfidem utriuque regis, as Bracton saith, 427.”
    • Cases have been cited from Dallas to shew that tempore belli Englishmen were held to be aliens. It is true that, so far as regarded anything .like allegiance to this country, or obedience to our laws, these persons could .not be amenable as culprits; nor their capacity to inherit lands stand in the way of the rights of others.' Decisions of this kind, however “flagrante bello,’’ are in general grounded rather on motives of policy and public expediency than of strict law; they are not entitled to the same respect, particularly when, being collateral and secondary points in the case, they are frequently decided without argument, and without much consideration.
    If then, previous to. the treaty in 1783, the rights of the lessor of the plaintiff were unimpaired and undiminished, nothing has since occurred to affect them. By the fifth article of that treaty, “ it is agreed that' congress shall earnestly recommend it to the legislatures of the respective states, to provide for the restitution of all estates, rights .and properties which have been confiscated, belonging to real British subjects;” aud the rights of all others, that is, of those whose estates have not been confiscated, are recognized and confirmed. Uniil, therefore, it is shewn that the rights of the lessor were actually confiscated and forfeited previous to the treaty, they remain perfect in him, under its solemn sanction.
    In the state of New Jersey, however, there has been an express legislative recognition of the right of British subjects to hold real estate. An act of the legislature was passed December 29, 1781, (Wilson's Laws 259,) the professed object of which was to appoint agents to take charge of, and manage the real estates of the subjects of Great Britain. No escheat or forfeiture was thought of. The general doctrine contended for has been solemnly recognized in the state of Connecticut, in the case of Apthorp v. Backus, (Kirby 413,) the court say, “ it would be against right, that a division of a state or kingdom should work a forfeiture of property previously acquired under its laws, and that by its own citizens.” And in the same case it is hold, (what *indeed is too plain to be controverted) that the incapacity to sue in a real action is a consequence of the incapacity to hold, and that where the one incapacity is removed the other follows as a consequence.
    But the objection, on the part of the defendant, is altogether unfounded, on another ground. There is no principle in the common law which prohibits an alien from taking land; he is disabled from holding, but he may take, and, on office found, the property will vest in the king. 1 Bl. Com. 371; 1 Lnst. 2.
    The question, whether an alien or not, is a question of fact, to be determined by a jury, on an inquest of office. 3 Bl. Com. 258; 1 Com. Dig. 427. If an alien purchase lands or tenements to him or his heirs, he takes the fee-simple, but upon office found it goes to the king. 1 Com. Dig. 425. In 10 Mod. 124, it is held, that if land be given to an alien in tail, and the alien suffers a common recovery, the recovery is good; for an alien is a good tenant to the prceeipe, until office found.
    Again, by the common law, which has been recognized and acted under in this state, every acquisition of real estate must be by descent or purchase. Whenever an individual acquires property in any other manner than by the act of law casting the inheritance of his ancestor upon him, he is considered- as taking by purchase. 2 Bl. Com. 201. Upon this principle the lessor of the plaintiff may be considered as entitled to the protection of the law of February 6, 1794, for legislators are to be presumed acquainted with the legal import of words employed by them. 10 Mod. 95; 2 Ibid. 177.
    
      Williamson, on the same side. — Two questions arise for consideration in this case. 1. What is the construction of the will ? 2. Whether is the devisee capable of taking ?
    1. It is a vested estate in fee in the lessor of the plaintiff, subject to being divested by the happening of an event which might or might not happen, to wit, the return of the testator’s son John.
    The intent of the testator is perfectly clear upon part of his-will; he intends that Mary is not to have the estate in question, whether John does or does not return; this is evident from the view of the whole instrument, and, in order to effectuate this intent, the condition upon which it vests in the lessor is to be considered as a subsequent condition. The intention of the testator *is principally to be regarded, and if it be not inconsistent with the rules and policy of the law, it is always to be followed in the interpretation of the instrument.
    No particular form of words are necessary to create a condition subsequent or precedent. “ Some cases are to be met with,” says Fearne 172, “ where the contingency upon which an estate is limited has been considered as a condition subsequent, instead of precedent; so that the estate becomes vested immediately subject to be defeated b}r the condition, when it happens, in the room of not taking effect till such condition happens.” The same expressions may indifferently be construed as creating conditions precedent or subsequent, they being wholly governable by the intentions of the party who frames the instrument; and where it appears to be the intent that the estate shall vest previous to, and until the event which is to defeat it, this is construed to be a subsequent condition. 2 Woodes. 141.
    There are no expressions, throughout the whole of this instrument, which wear the appearance of an intent to prescribe a condition precedent to the vesting of the estate, unless the words “ then ” and “ when ” lead to a presumption of this kind. But this foundation is utterly destitute of strength, and will not, support such an inference. Fearne 167-8. 3 Rep. 19. This doctrine, if confirmation is necessary, is strengthened by the decision in Taylor v. Biddal, (Mod. 289) and Goodtitle ex dem. Hayward v. Whitby, (Burr. 288). The estate vests in the devisee during the' interim, until the happening of the contingency.
    Gan it be presumed that the testator designed, that if the lessor had died previous to the determination of the question, whether the estate was or was not ultimately to vest in him ; that his heirs were not to take, but that the estate was to go to Mary, contrary to the apparent intention of the whole instrument? The devise to her of £700 is express, and, if John does not return, she is to have, in addition, the house and lot, and seventy acres of land. This devise cannot be construed a future devise, further than it is made so by the express words used, which limit it to come into possession at the age of twenty-one. From this special restriction it may fairly be inferred, that the testator himself thought that the estate would vest presently; this ought therefore to be considered as his intent, when he has not declared to the contrary.
    
      *The construction contended for by the plaintiff is plain, consistent and rational; no difficulty occurs in giving efficacy to the whole design of the testator. At any rate, the son never has arrived; no evidence has been adduced to shew that he has returned to this country, and from the length of time which has elapsed since he has been heard of, the jury might have presumed his death at the time of the death of the testator.
    2. It has, however, been contended, that the present claimant was disqualified to take the land in question, and is incompetent to hold it or to maintain this action.
    Whether or not the lessor of the plaintiff is now subject to the disabilities which, by the policy of the law, are imposed upon aliens, it is perhaps superfluous to inquire; the important question is, whether, previous to the treaty of 1783, he had, in any manner, lost or forfeited those rights which it is, on all hands, acknowledged -he at one period possessed. At his birth, he was capable of taking lands, within the limits of Eew Jersey, by descent; this right or capacity, agreeably to the fundamental law-S of this country, at least, could only be divested by compact, or forfeited by the commission of a crime. It is not pretended that he has ever incurred the guilt of an'y offence which could have occasioned so severe a retribution, nor has any evidence been adduced to shew that he ever voluntarily abandoned his rights. The pretence set up on the other side is, that he became an alien by the declaration of independence; but no authority has been produced in support of this doctrine, nor has it any foundation in reason. The duties of allegiance, and the right to protection, agreeably to the principles •which lie at the foundation of our free governments, are founded in compact and consent. They cannot be- imposed upon unwilling objects, nor can they be arbitrarily withdrawn at the caprice of either party. Like all other con- - tracts, the agreement of two parties is required to give them validity, and when valid the consent of both is necessary to their abrogation. The lessor of the plaintiff rests his claim upon this foundation, and, appealing to the principles which give form and substance to our government, denies the authority of the American congress to divest him of rights, which he acquired independently of them, and which he cannot be deprived of without his own concurrence. 1 Hale H. P. C. 68.
    The declaration of independence released this country from *all its ties to Great Britain, so far as the inhabitants of the United States were concerned. It would not lie in the mouth of an American citizen to question the operation of that act, or to require anything further to add to its validity. We were all directly or virtually parties to it; it is our act; we are estopped to deny or limit it. This, however, is not the case with the citizens or subjects of any other power. Until our independence was recognized by the governments to which they respectively belonged, or until Great Britain had relinquished her claim to dominion over us, we were not an independent nation.
    The writers on the common law not only lay down the principles from which this inference is drawn, but they uniformly acquiesce in the doctrine itself, that the duty of allegiance can be destroyed only by the concurrent act of both parties. 1 PI. Com. 368-9; 1 H. H. P. C. 68.
    The treaty of peace recognized our independence; but there is nothing in it which carries the appearance of a design that it should have a retrospective operation. It is contrary to reason, and to the first principles of justice, to oust individuals of rights by ex post facto regulations; and whenever it is possible to give any other construction to the act of a legislature or government, one which will operate retrospectively is to be avoided. If this is the case when the language is ambiguous, there can certainly exist no reason for construing an act to divest existing rights, when the language in which it is couched leads more naturally to another construction.
    
      If the title of the lessor, then, accrued prior to the treaty of 1783, the language of that act should not be tortured, in order to destroy his rights. Did this title, then, accrue before that period ? There was, at least, a possibility that the estate would vest in him, and a possibility, coupled with an interest, is recognized, in the law, as an estate which is subject to the ordinary rules of inheritance, and may be devised. Roe ex dem. Perry v. Jones, (1 H. Bl. 30) which decision was affirmed in the Court of King’s Bench. 3 Term Pep. 88. This case shews, that if there was but a possibility that James Martin, the present claimant, should come to this' property, the law would recognize this possibility, as amounting to a title, and, if so, his right is expressly guaranteed to him by the treaty.
    Even supposing that the plaintiff did incur the disabilities of *alienism previous to the treaty, yet this cannot interfere with his right to this estate, until the fact of alien-age is judicially determined. Until office found, an alien is entitled to' hold land by the common law, and, as this proceeding has.never been had, his 'rights are unaffected. Subsequent to the treaty of 1783, any steps of this kind would have been illegal; all rights then existing are secured from violation by the government; and if the government has waived its right to enforce its claims, or is estopped to consider the lessor as an alien, or to take the steps necessary to acquire the rights which belonged to him, no. private individual can interpose either a claim or a defence arising from such a foundation.
    A devise to an alien is not void. Pow. on Dev. 316, 317. Knight v. Duplessis, (2 Vez. 360). Godfrey v. Dixon, (Noy. 137). 10 Mod. 94. An estate passes to him which the state may, by certain proceedings, divest him of, and appropriate to itself. If] however, the right to pursue this course is surrendered or relinquished by the state, it is an exoneration from the demand, and no one else can impute the disability to him. It does not lie in the mouth of a third person to plead a right in the state which the state has relinquished. By the treaty of 1794, the titles of British subjects to lands in tbis country are secured; the right to take possession of them, under the plea of alienage, is surrendered, and if any right existed previous to that period, in the lessor of the plaintiff, he is secured, by the treaty, in the full enjoyment of it.
    The act of February 6, 1794, which has been already cited on the other side, confirms all estates acquired by purchase by alien friends previous to its enactment. The title of the lessor of the plaintiff is derived from this source, it not being an estate by inheritance, and he therefore comes within the express words of the act in question, which secures to him the enjoyment of his property.
    
      Stockton, in reply.
    The estate devised to the lessor of the plaintiff was, at the time of the death of the testator, contingent and uncertain. If John should return, the property was to go to him, if not, to the lessor, on his proving himself Matthew’s son. The testator himself must be the expounder of his own meaning, and we are to examine the language in which he expressed *himself, in order to ascertain his intention. He directs it to await a certain event, which might or might not happen. Depending, therefore upon a contingency, the estate could not be vested. It is not contended that any set form of words will necessarily create a condition precedent, or that because the words “ when ” and “ then ” are employed by the testator the condition is precedent. But when the language is — if such an event- occurs, the estate is to go to A., if it does not to B., it is impossible to consider the right of B. as certain and fixed, until the contingency of the circumstance is determined. Fearne 438, says the words introducing the limitation to B., viz. “if he should live” made the devise to him expressly conditional, and to depend upon the events there mentioned, and of consequence prevented any estate from vesting in him, until the event should happen. This is his commentary upon the case of Brownsword v. Edwards, Ves. 243, 248.
    Both of the devises, depending on the same contingency, must be vested, or neither; the estate was to go to his son John, or to the pi-esent claimant, according to .the happening of a certain event. Upon what principle can it be contended, that the same words can create a condition precedent in relation to the one, and a condition subsequent in the other. If the return of John was a condition precedent to the vesting of the estate in him, his not returning was a condition precedent to the vesting in the lessor. They must receive the same construction, But it is perfectly apparent that the devise to his son John was. contingent; until liis return he took nothing ; and it is impossible to suppose that the testator attached two different, and even contradictory meanings to the same expressions.
    Every devise to disinherit the heir ought to be unambiguous and clear. The defendant’s title is that of the heir at law, a title viewed with the most favorable eyes by all .courts of justice, and in support of which they will strain, as far as possible, the language of wills and testaments. It is not, as has been insinuated, the design of this defendant to keep possession of property, illegally acquired, by throwing difficulties in the way of the plaintiff’s establishing a righteous claim. Our title is founded upon law and reason, until a stronger one is shewn.
    If the estate, then, was contingent at the time of testator’s death, the next question is, at what time, under the words of *the devise, could it have vested in interest? John, the son of the testator, was allowed his entire life, within which to return; there is no proof of his death; the testator considered him alive, and within what time is the presumption of death to arise ? It is immaterial to examine this question fully, but it is presumed that no such presumption could have been raised in the mind of a court or jury previous to 1783, a period of five years after the death of testator.
    In 1778, John is presumed to be alive, and if he was allowed during his life, to return and claim the estate, until a legal presumption can arise that he is dead, or until his death is proved, no title can vest in the son of his brother. The lessor of the plaintiff did not make his appearance in New Jersey until 1791, a period of sixteen years after the date of the devise, and it would have been equally rational, after such a lapse of time, to have presumed his death. If the lessor then fails to shew that his title legally vested previous to the treaty of 1783, then, according to the argument of the opposite counsel, he is cut off by that treaty from the acquisition of any future rights, and becomes, so far as regards his relations with this country, absolutely an alien, and subject to all the disqualifications and disabilities connected with that character.
    Thus far the claim of the plaintiff has been considered upon the grounds upon which it has been placed by his own counsel. We, however, contend, that whether the estate became vested in him at the death of the testator, or at any subsequent period, is perfectly immaterial, but that, upon cither supposition, ho is now incapacitated to maintain this action.
    On the 2d of July, 1776, by the adoption of our state constitution, the connection between the province of New Jersey and Great Britain was severed, the ancient government under the royal charter was dissolved, and a new one instituted. Two days after, the whole United States were solemnly declared free and independent by congress. This was an act of the government, obligatory upon all its citizens, and which did not .depend for its validity upon any subsequent recognition by any other nation. All who at that time, upon the institution of this new government, owed allegiance to it were citizens; all who did not were aliens. The duty of allegiance and the right to protection are, under every free and well oi'ganized government, particularly *under such a government as that of the United States, reciprocal and inseparable. The lessor of the plaintiff never owed or tendered allegiance to us'in 1778: he owed allegiance to the government with whom we were waging hostilities; he never claimed protection from us for any of his rights; all his rights were derived from, and held under a government with whom we were contending. The simple question then is, whether he could, under circumstances of this kind,^acquire any title to lands in this state ? If his claim is recognized,.a principle is introduced into our system^of laws, under which the real estates of the United States could become vested in the subject of a foreign and hostile power, the revenues derived from our lands would nourish the strength and feed the armies employed for our destruction, and the wise provisions of the common law, by which we profess to be governed, would be annulled.
    It has been contended, that the ties of allegiance can be dissolved only by mutual consent, and that the connection between Great Britain and her provinces continued unimpaired until the recognition' of our independence by the treaty of peace. To this it is answered, that the treaty of peace does not pretend to make us independent, it is an acknowledgment that we were so — that we were liberated ■from all ties to her.
    But the British government had previously done acts which amounted to an acknowledgment that we were free. They afforded us no protection; they declared us out of the protection of the law; they declared war against us; they carried on hostilities against us, and thereby effected, oil their part, the dissolution of the bonds by which we were connected.
    The American people, however, do not claim to hold their independence by virtue of any grant from the British nation. We were formerly the subjects of the British crown. This connection, if it bound us to them, and subjected us to their authority, gave us privileges, and invested us with rights. When the rights which belonged to us were violated; when the privileges to v'hich we were entitled were withheld; when our immunities were infringed, the compact which united us together was cancelled; we became absolved from all duties of allegiance by their own act, by their violation of the terms of the contract.* This principle not only lies at the foundation of American independence, but it is the corner-stone of the British constitution, as established by the revolution of 1688, the pedestal of their liberties, the basis on which rests the throne of the house of Hanover. The Scottish convention, which met in 1689, declared that James, by his mal-administration and abuse of power, had forfeited all title to the crown. Hume’s Hist. c. Ixxi. And the English convention considered him as having broken the original contract between the king and the people. Ibid.
    
    Precisely in the same manner did George III. violate the compact between himself and us, refusing us protection, and releasing us from all those duties of allegiance which ceased to be obligatory when the government ceased to guard our rights and secure our privileges. These circumstances were declared to have occurred prior to the 4th of July, 1776; the contract between us and the King of Great Britain was declared to have been destroyed; and, unless that epoch is considered as the one at which the ties of connection were dissolved, it would be difficult, with any shew of reason, to fix upon another.
    The dictum which has been cited from Puffend. is inapplicable, unless the court previously determine that we were engaged in an unjust rebellion against the authority of Great Britain, or that the language and doctrines applicable to such a rebellion may be justly applied to a legal resistance to tyranny and lawless oppression. Kenyon, in the case from Term Reports, calls it a rebellion, but he evidently shews that he felt himself bound to apply that term to it, in deference to his own government. The same deference, on our part, would confer upon it a title of a totally different character.
    The treaty of peace was designed to put an end to hostilities, and the very circumstance of commencing negotiations with the agents or ministers of the United States, was, on the part of Great Britain, an admission that we were an independent power, vested with the'rights of sovereignty, and able to treat with her upon the footing of equality. The treaty therefore acknowledged that we were free and independent, it did not, nor was such its intent, confer independence upon us.
    The doctrine of perpetual allegiance, is, however, wholly inapplicable to a case of this kind, a division of the constituent parts of an empire never can arise, except in cases where *all legal provisions would be absurd and useless; when the government is dissolved, and the supremacy of law is set at nought. Such a revolution is founded in a violation of law, and is established by force of arms. Every case must create the laws by which those who act in it are to be governed, and it would be vain to attempt to provide, by law, for an event which the law can never contemplate. The doctrine in question has relation, therefore, only to the connection between an individual member of the community and the government of which he is a subject; but it has nothing to do with the separation of a colony from the mother country.
    If, however, it was really meant, by the doctrine of perpetual allegiance, to render indissoluble the ties between the different sections of an empire, it is ab.surd in. the extreme, and involves principles altogether at variance with the principles of freedom and the idea of a limited government, and leads necessarily to the doctrine of non-resistance. The allegiance which, by the common law, is due from a subject is due to the king or crown. Englishmen are the king’s liege subjects. This principle, originating in the feudal law and the customs of the feudal times, is a fundamental doctrine of the English common law. If resistance to regal power is ever unlawful; if the ties between him and his subjects can never bo dissolved by any violation, on his part, of their rights; by any outrages upon the constitution, then not only were the resistance to Charles I. and the revolution under James II. unlawful and criminal, but,our revolution is founded upon a basis of the same nature. They were equally violations of duty, of law, and of justice.
    The next question is, was the right of tho lessor saved by the treaty of 1783 ? The fifth and sixth articles of this treaty have been referred to, as protecting the rights which had previously accrued. No such design appears in the instrument itself. The object of these articles evidently, was to provide some kind of compensation for those whose estates had been confiscated for adhering to the British government, and to prevent, in future, the infliction of any punishment for such adherence. Tho first is the intent of the fifth article, and the latter of the sixth; and the American government, released, by the termination of hostilities, from that necessity which sometimes compels states to *have recourse to every means in their power, without any very scrupulous regard to the principles of abstract justice, to ensure their own preservation, and recognizing the right of every citizen, at a time when a dissolution of all government occurs, to choose his side, and to adhere to either party, renounces all right to punish criminally those who had not joined them, and relinquishes the right to any futuro confiscations or penalties.
    It never entered into the contemplation of either party to request on the one hand, or to grant upon the other, that the law imposing disabilities upon aliens was to be repealed, and tliat British subjects were to be considered entitled to take lands in this country, without restriction or limitation. We have been told, that the King of Great Britain, vast as is his power, extensive as are his prerogatives, cannot, by treaty, divest his subjects of any rights which might previously have become vested in them. On this ground, it has been urged, that the treaty of .peace .cannot be considered as having a retroactive operation, and recognizing our independence from July 4, 1776, so as to oust British subjects of lands, titles to which had accrued to them at any time subsequent' to that declaration. If this limitation to the treaty making power is conformable to the English law, and consistent with the British constitution, it may, with far more propriety, be urged, as limiting the power of the government of the United States, particularly at the date of the treaty in 1783, previous to the adoption of the present constitution. If the declaration of independence severed the connection with Great Britain, and made all the subjects of that crown aliens in their relations with us, a devise to a British subject, on the descent of lands to him, was a mere nullity, and the heir in this country takes the . land free from any incumbrance. Here is a positive right, founded upon the law of this country, vested in an American citizen, of which the government cannot deprive him, for the purpose of vesting it in another, or of bestowing it, for an equivalent, on a foreign power or its subjects. This limitation of executive power is, at least, as consistent with the principles of our government, and the foundations of our constitution as with those of England.
    The same observations m.ay be applied to Jay’s treaty of 1794, which secures to British subjects rights subsisting at that time, but confers no new privileges., •
    The act of 1794, which has been referred to as shewing Conclusively the legislative construction, is not to have a retroactive operation, so as to confer estates upon British subjects, which, for want of inheritable blood in them, had already vested in American citizens. But, whatever meaning or operation may be given to this act, it cannot, with any shew of reason, be held to embrace the present ease; the plaintiff is bound to prove a title equal and commensurate with that laid in his declaration, and here the demise was antecedent to the date of the act of assembly which is now referred to as giving it validity.
    Wo are told, however, that supposing the lessor of the plaintiff to be an alien, it cannot operate to his prejudice in the present case, or present any impediment to his recovery. An alien may acquire real property, though the title thereby vests in the king; ho may take, but he cannot hold. This is a vague dictum, at best, and contradicted by Lord Chief Liaron Gilbert, a writer of the most acknowledged authority in the law. .
    Waiving, however, the consideration of this question, it is at least true that an alien cannot maintain a real action in our courts. The principle which has been contended for has not been extended by any authority to which reference has been made, further than to secure to an alien the title to land of which he was in possession, until his right is transferred to the crown, by inquisition found. Independent, however, of any disabilities which may lie in the way of his obtaining a title to real property, it is a bar to any action real that the plaintiff is an alien.
    
      Galvins case, which has been referred to, as containing the leading doctrines applicable to this question, is entitled to hut little regard. It occurred at a time when the most slavish tenets were fashionable in England, and when, from the humble devotedness of tlie judges to the doctrines of the crown, the decisions of the court were rather framed in correspondence with the wishes of the king than with the maxims of the law. The feelings and prejudices of James evidently swayed the minds of the court, in their decision in that case, and occasioned some relaxation in the strictness of the doctrines of the common law. The groundwork of the case is. the idea of allegiance to the person of the king, wholly unconnected with his official character, as the representative of a nation ; and involving, in the extent to which it was carried on that occasion, a clear recognition of the jure divino doctrine.
    * Calvin’s case was totally different from this, and the extra-judicial dicta thrown out by the judges on supposititious cases are entitled to but little regard. The case put by them is also one in w'hich the realm is supposed to be separated by descending upon two distinct sovereigns : a legal descent of the-crown cannot operate to divest rights, or to expatriate the inhabitants of one section of the country in the territory of the sovereign of the other. But in this case the ties between -the two parts of the empire were severed by war, the connection of government was destroyed by.means which terminated all the legal bonds between the members of .them.-
    
      Ogden, on the same side. — The first question is, when did the title of the lessor accrue, if it ever had any legal existence, under the words.of this devise: - whether is the condition annexed, to it by testator precedent or subsequent ?
    ■ It is contended, that unless these words are considered as creating a condition subsequent, the intention of the 'testator, that at-any rate the defendant should not have it, would be defeated. But the defendant claims as heir at law; her right is clear, is positive, sanctioned by the law until it is destroyed by express devise, or necessary implication from the words employed by the testator. Finch’s Free. 473 ; Cowp. 99.
    There is nothing in this will which shews that the testator did not design that, under any circumstances, Mary should have this property. Whenever the testator devises an estate to commence at some future period, it descends, during the interim, to the heir at law. The objection in this case founded upon a petitio principii, and demands that this clause in the will should be held to give a present interest before it can exist. Independent of this, no intent of the testator appears. Conditions are construed to be precedent or subsequent, according to the intent. Powell 347; Oa. temp. Talb. 164. But when the intent cannot be ascertained from the Avords of the instrument, ex viseeribus, the law will lean in favor of the heir at law, and construe it so as to subserve his interests.
    Upon the principle, that the estate vested immediately upon the death of the testator, there was no necessity for the lessor to have come to this country, or “ make it appear that he Avas the eldest son of Matthewthese words are wholly inoperative, and *a power of attorney would have enabled him to have recovered the property, without stirring from Ireland. Whether the testator has required, as indispensable, what may appear to the learned counsel of the plaintiff superfluous or ridiculous, is immaterial; but he certainly, when he inserted these words in the Avill, considered them as having some meaning, but the construction contended for Avould render them Avholly nugatory.
    The same form of words is contained in the devise to John as is in that to the lessor : if the intent of the testator was, that the one should create a condition precedent, he must have intended the same for the other. It cannot, with any show of reason, be urged, that John might put in a claim to the property without previously returning; that ho might recover under the devise, through the medium of a power of attorney; and it is difficult to conceive upon what grounds ho can he presumed to have intended different things by the same form of phraseology.
    But, allowing that his interest vested at the demise of the testator, in 1778, the difficulty is not removed. No court, deriving its authority under the constitution of this state, can hold, in direct repugnance to the terms and spirit of that instrument, that the duties of allegiance to the British crown continued in a citizen of this state subsequent to its date. This constitution expressly declares, that the duties of protection, on the part of the sovereign, and of allegiance, on the part of the subject, are reciprocal, and. founded on compact; that the compact between us and the king of England was dissolved by him, and his right of control over us terminated by his own abandonment of his duties. The declaration of independence, on the 4th of July, 1776, is to the same effect.
    The question then is, whether we did actually become absolved from all the ties of connection at this period, and by virtue of these state acts; or whether they merely constituted the first step, and were wholly dependent for their effect upon their recognition by the British crown ?
    We are not sitting in Westminster Hall, or bound to accommodate our views of law to the opinions and prejudices of the king: we are acting under the constitution of New Jersey; we recognize, by every judicial act, the authority of the declaration of independence: we are bound to consider the acts of our' own government as valid, as wholly independent of any direct or indirect *foreign control. Our legislature has demanded an abjuration of all allegiance to the king of England; it has declared an adherence to his troops a treasonable act; it has passed numerous laws expressly recognizing the completeness of this separation, which in fact is implied by every act of the government or the legislature. Are our courts to be bound by these acts, or the dicta of a British judge, whose anxiety to support the authority of his own government rather affords a precedent for our imitation.
    The government of the state was the sovereign power, de jure as well as de facto. All the legislative acts passed in the interim between the dissolution of the old government and the treaty of 1783, were otherwise without authority in their origin, and in’their consequences can have no legitimate effect. The government must either have been legitimate, so as to legalize its legislative, judicial, and executive acts, or all its proceedings, of every description, must be invalid. There is no middle ground; and between the branches of this dilemma it is impossible for this court, deriving its authority and its power from this government, to hesitate.
    But the case that has been cited is inapplicable. It appeared there, on the pleadings, that the colonies were in a state of actual rebellion against the legal power of the mother country; of that country under whose authority, and within whose dominions the court sat which gave the judgment. Any inquiry into the legality of this resistance was going out of the record ; and the simple question decided was, that tho acts of a government founded on usurpation were void.
    Nor did tho judgment go farther than to declare them void, so far as they affected the subjects of another power, which wholly disclaims the authority from which they emanated. Tho parties were both subjects of Great Britain, who wore not bound by the acts of the American government.
    The doctrines that have been urged as those of the law of England, if ever they obtained the sanction of courts of justice in that country, are now wholly exploded. Instead of referring to the remote cases of Normandy and Brittany, and others which may be found in Calvins case, the proper mode of ascertaining rhe present doctrine of the law is to examine modern cases, and *it will be impossible to discover one in which a Hanoverian, though born within the allegiance of tho king, has ever been considered as entitled to the privileges and immunities of a British subject.
    If we admit, for the sake of argument, that an alien may take, and that he is only incapacitated to hold, the difficulties in the way of the present claimant are not removed. Still the question recurs — can he bring an action on the strength of a devise to him to oust the heir at law ? can ho enter and lease, so as to bring an ejectment? These are the real questions in the case, which are not answered by shewing that a devise to him, or a conveyance to him, is not absolutely void and nugatory.
    If he is disabled to perform these acts, any reference to Jay’s treaty is superfluous, and that instrument will not remove the disability. That treaty guaranteed rights then in existence, but' conferred no capacity to acquire any in future. The plaintiff, also, must recover upon the strength of his title, as it appears to the court; but the demise laid in the declaration is anterior, in point of date, to the treaty which has been referred to as giving it a sanction. That instrument pannot, also, have a retroactive operation, and give validity, to measures prior, in point of time, and void when performed.
    The act of the legislature of 1794, is also subsequent to the demise, and cannot be construed to legalize previous acts. There are no retrospective words in it which can affect ■ a title upon which an action was then depending. Independent, however, of this objection, which is wholly unanswerable, that statute can be made to apply to this case only by attaching a signification to the word purchase which the legislature never had in contemplation, and which could only exist in the mind of a technical lawyer. The object of the law was to prevent those who had paid a valuable consideration for land from losing it; the legislature had no idea of the technical distinetion-between purchase and inheritance, and the broad signification which lawyers attach to the former -word. In the construction of statutes, the intent of the legislature is principally to be kept in view, and when the statute is derogatory of the common law, its language ought not, unless in a plain case, to be extended beyond the ordinary import of the words.
    *The opinion of the court was delivered at this term, by
    
      
       See the case of Touteny et al. v. Hubbard, 3 Bos. & Pull. 291, 302; Lord Alvanley’s opinion, and Lord Ellenborough's opinion, in Conway et al. v. Gray, and Maury v. Shedden, 10 East. 536, 545.
    
   Ktysey, O. J.

This case comes before the court on a motion for a non-suit on a case stated, and the question reserved at the trial.

¡ His honor here detailed the circumstances, which have been before stated.]

If I have formed a correct idea of the questions that are really involved in this statement of the facts, a much wider field has been taken in the argument than was required. But as the points which have been examined by the counsel are, in themselves, highly important, and entitled to our serious consideration, the court have deemed it advisable to express upon them the opinion they have formed, that the questions may be considered as settled by a solemn adjudication, after a most elaborate and ingenious argument.

It has been contended, by the counsel for the plaintiff, that the independency of the United States was inchoate and incomplete, until recognized by the treaty of peace, and acknowledged by Great Britain. This question has been argued with much ingenuity, and the opinion which the court has formed recognizes, to a certain extent, the weight of the arguments which have been urged on each side.

To establish the doctrine for which the plaintiff contends, reference has been made to some of the writers upon national law. .Puffend. 1. 7, e. 7, sec. 5: Grot. 1. 2, c. 9, sec. 10; Vattel b. 1 c. 17, p. 878. The opinions of public jurists can have but a remote bearing upon a question which is to be governed wholly by our own municipal laws; and however great may bo the respect duo to them, within the sphere to which they intended to confine themselves, they cannot be regarded as authoritative in our courts. Puffendorf seems to think, that when a people are driven by oppression to have recourse to arms to protect their rights, and to remove themselves from under the tyranny of a master who has violated their immuties, they do not require any recognition of their claims to give them a title to liberty. This is also the idea of Vattel, whose authority is, perhaps, entitled to even more weight: This doctrine is only applicable when the attempt is bottomed on justice, and the resistance to power is sanctioned by abstract right.

*General expressions of this description, cannot answer any valuable purpose, or be referred to as conferring a sanction upon any doctrine. The question still remains untouched, whether the attempt is, or is not a legal one ? Those who make it will always consider it as authorized ; those whose authority is opposed will always pronounce it as rebellious; and with regard to third parties, who may be supposed impartial, the right will ever depend upon the result of the contest. Success will legalize any rebellion or any tyranny.

Still, however, without referring to difficulties of this kind the language that has been cited does not touch the question which this case involves. Nothing is said with regard to the fate of former rights existing in the individual members of the communities thus separated; it is not said how the separation, whenever complete, is to affect private rights.

That the state of New Jersey was wholly absolved from the authority of the British government antecedent to, and independent of any recognition of it by Great Britain, so far as regards the power and the right of self-government, cannot admit of a question in a court of this state, where all authority, of every description, is derived from, and continues to be exercised under a constitution, established by the people, not only prior to the treaty of peace, but even antecedent to the congressional declaration of independence.

The principle upon which we professed to act, and really did act, was, that whenever a prince neglects or abandons his duty as the protector and guardian of his subjects— whenever he endeavors, by the terror of his power, the weight of his authority, or the force of arms, to compel them to a surrender of their essential privileges, instead of protecting them in the exercise of their immunities, a people have a right, by their own strength, to protect these rights, and to adopt every measure which may be necessary to effect this purpose. This is the fundamental principle of American law; it lays at the foundation of our government; it is the corner-stone of our political existence and sovereignty; and on this ground were our constitution and the congressional declaration of independence founded.

Prior to the organization of our present system of government, all authority emanated from, and all power was exercised under the King of England. Congress disclaimed this authority by their *deelaration of independence, on July 4, 1776, and perceiving the absurdity of continuing a mode of government, after having disclaimed the authority from which it was derived, they recommended to the several states the adoption of another, deriving its authority from the people. This had been done in this state, previous to this recommendation. It appears, however, perfectly clear to me, that neither the convention of New Jersey nor the congress had any other object in view than the establishment of an internal and independent government, which might claim and exercise the sovereignty of the people, now called upon to defend those rights of which their king and lawful protector had endeavored to- despoil them. The rights of individuals, or the manner in which they might be affected by this abandonment of the former government, or the establishment of a new one, did not come under their consideration or enter into their views. The common law of England extended to this country, and was operative here; if that law had made provision for a case of this kind, and had prescribed a rule by which the rights of individuals were to be ascertained and governed, it was wholly unnecessary that any constitutional provision should be made.

The question then occurs, does the common law furnish us with any such rule ? If it does, and if the lessor of the plaintiff has a right under it, we cannot presume that our government, in 1776, intended to deprive British subjects of rights and privileges for their adherence to a king, who, however he may have acted towards us, had given them no cause of offence. Unless there is some plain and unequivocal act to shew that such was the intention of the congress or state convention, it would be greatly transcending our legitimate functions to declare, that the effect of their acts was to abrogate a previously existing law. The constitution of this state acknowledges and confirms the authority of the common law, and whether this was or was not necessary to give it validity under this new government, it, at least, shews that no intention to abolish it was entertained.

Every writer on the common law states two circumr stances, which must concur, in order to make a man an alien in England: — 1. He must be born out of the alle.giance of the crown. *2. He must be born of parents who are not entitled to the privileges of natural born-subjects. 1 Bac. Abr. 125, &c. This is declared to be the law in the statute 25 Ed. 3, st. 2. Neither of these descriptions apply to the lessor of the plaintiff. At the time of his birth he was as capable of taking lands in New Jersey, either by descent or purchase, as any one born within our own limits. If he was at one time capable of taking this estate, the next question is, have any circumstances since occurred depriving him of this capacity ?

Calvin’s case, which received the solemn decision of all the judges, is the leading case upon this subject. One of the resolutions there was (7 Co. 54), that “ if the kingdom should, by descent, be divided and governed by different kings, yet all those that were born under one natural obedience, while the realms were united under one sovereign, should remain natural born subjects, and no aliens.” It has been attempted to shew that this law was, inapplicable to the present case, because here the division was effected by arms, there by descent. To this it might be sufficient to reply, that oar separation was, in fact, effected by force, but the right to separate was given us by law; the compact and the ties of connection were founded on right, and recognized by law; the violation of our rights, by the king, dissolved the compact, according to the principle which has been previously laid down. The contest between our armies and those of England was the means by which we secured a right that belonged to us, previous to our forcible maintenance of it; but the separation was legally made by the non-fulfillment of the duties which the king was bound to perform.

This answer may be deemed too refined and metaphysical, but another is furnished, perfectly conclusive, by Lord Coke-He assigns reasons for the law which has been cited, which clearly shew the distinction to be wholly in imagination; “for that naturalization due and vested by birthright cannot, by any separation of the crowns afterwards, be taken away; nor he that was, by judgment of law, a natural subject at the time of his birth, become an alien by such a matter ex post facto.” These reasons shew that the rule is not to be narrowed down, in its application, to cases where the separation has occurred by a descent of the crown, but that it applies to every imaginable case *of separation, from whatever causes it may have originated, or in whatever manner it may have been accomplished.

Nor did this opinion originate, as appears to be supposed, in any slavish subserviency to the monarch of the day. The doctrine had been laid down at a much earlier period by Braeton, and had become firmly incorporated into the law of the realm. It has been sanctioned by other cases, and it is founded in reason and good sense; and so far as it applies to the circumstances of the case under consideration, it cannot be contradicted without setting at defiance well established principles of law, and violating the plainest dictates of reason and of justice. With the exception of a single doctrine, originating as much in religious intolerance and bigoted ignorance as in political sycophancy, and which proscribed infidels as perpetual enemies, outlawed from the rights and obligations of humanity, Calvin’s case has been considered as establishing legal principles, which have been uniformly recognized and approved of whenever occasion offered.

So far as respects the question, now under discussion, it has received the assent of the judges, in the case of Apthorp v. Backus, which has been cited from Kirby, who say, that “ it would be against right, that a division of a state or kingdom should work a forfeiture of property previously acquired under its laws.” This sentiment needs but to be expressed to receive the acquiescence of all. The obvious inference from this doctrine is, that if a British subject^ born antecedent to the declaration of independence, while America and England were under the authority of the same government, and owed allegiance to one monarch, was considered as a natural born subject of that crown, and entitled, in every part of his dominions, to the rights and immunities which belong to that character, nothing has occurred subsequent to that period, which can deprive him of these privileges. Is there any statute law or adjudged case which shews him to have forfeited, or in any manner lost them? Lord Coke, and all the judges in Calvin's case say, that he cannot be deprived of them by any matter ex post facto.

If.any stronger authority is required to establish this doctrine, it is furnished by the act of the legislature of New Jersey, of the *29th December, 1781. This statute, passed more than five years subsequent to the declaration of independence, recognizes the fact, that lands were at that time legally owned by British subjects, which had never been .confiscated, or transferred to the state.

A question may here be raised, which has been ingeniously argued by the counsel, viz. from what period are British subjects to be considered as aliens in these states ? It is not, perhaps, necessary to give any decisive answer to this question at present. Woodeson has been cited in the argument, but his language is indefinite, and not perfectly free from ambiguity ; he says, from the cession or treaty in 1783, “ the revolted Americans become aliens, in respect to their future concerns with England.” If by the expression, “ future concerns,” he means the capacity to make future acquisitions, and by “ the - revolted Americans,” those who were born previous to the commencement of the revolutionary struggle, his opinion is not law ; it is unwarranted by any precedent, and is directly contradictory to the opinions of lawyers of far more weight of character and authority than can possibly be attached to that gentleman. At the same timo, I am unable, satisfactorily to my own mind, to fix upon any period at which the separation can be said to bo completed, except that of the date of the treaty of peace. It was at that time, and by that measure, that the struggle for our liberties was terminated; that we became, to all essential purposes, distinct nations. Before that event the question was in suspense, the right was claimed and denied; the enemy had possession of some districts of our country, and of some of our principal cities, from which we were utterly unable to expel them. The event rested upon our success, and until that success became certain, until the contest was forever terminated by the treaty, our independency was questionable; there was no tribunal to determine the question but God, and the appeal had been made to him by arms.

The acceptance, by our government, of the cession and acknowledgment of the British crown in the provisional treaty, much more the making that acknowledgment a preliminary, and the refusal to treat until that was settled, corroborate the doctrines that have been stated, and shew how important a circumstance this was in the eye of both governments, and how essential *to make the separation complete. The word independency is a term of vague and indefinite signification. We created a government deriving its authority wholly from the people ; we overturned that which emanated from the king; we raised armies, and contended with the troops sent by him to conquer us ; so far we were, in fact, beyond his control, and independent of his authority. For all the essential acts of government, this independency was complete from 1776, or else we were rebels; there can be no other alternative, and there can be- no difficulty in determining between the two to which we are confined. There is, however, no motive of policy, no argument furnished by reason, to induce us to determine that this complete separation or independency, which the treaty consummated, ought to refer back to 1776, in order to forfeit rights which had been acquired under the faith of the law. Such a construction would be equally unjust and unreasonable.

In some cases, however, the act of a government is considered the act of every individual in the nation, who are supposed either actually or virtually to recognize as then-own, every measure adopted by the rulers to whom then-constitution of government has delegated all political power.

It would, we think, be extending this doctrine to an unprecedented and unreasonable length, to consider it as creating an offence in every individual of the nation, so as to incur the forfeiture of rights which were previously vested in him by law. Still more unreasonable,- and still more unjust would it be, to consider the present lessor, an Irishman, as by any fiction or in any manner concurring in, and answerable for the acts of the British nation. Ireland is considered as a conquered country. 1 Bl. Com. 100. The British parliament claimed an equal right to make laws for them and for ús. We disclaimed the right, took up arms to defend our liberties, and finally succeeded in throwing off altogether the yoke of British supremacy. America and Ireland were equally under English dominion, and with the same color and show of.reason, might it have been contended, *that every American has concurred in the acts of parliament imposing unlawful taxes upon us, as that the inhabitants of Ireland assented to the measures of the British crown, or should be answerable for them. The British king and parliament acted unjustly, in violating our rights, but it would be infinitely more indefensible for us to deprive the inhabitants of Ireland of their rights in consequence of these measures, by persons over whom they had no actual or virtual control.

Another point has been argued, that whether the disability of the plaintiff to take the benefit of this devise was created by the treaty of peace, or by the declaration of independence, is immaterial, provided the rights conveyed by that devise did not vest in him previous to the treaty of peace. It has therefore been urged, on behalf of the defendant, that, bv the words of the will, no estate could vest in the lessor previously to his arrival in this country, and proving himself to be the person entitled to the benefit of the devise. This has been argued at the bar with much ingenuity, and the point lias been labored as if it wore in reality the important question in the case.

1. It appears clearly to have been the design of the testator, that in case his son returned, lie should receive the whole of his real and personal estate, with the exception of ¿B700, which he bequeathed, at all events, as a legacy to his granddaughter.

2. It is equally evident, that the testator looked forward to no event or combination of circumstances, which should entitle the granddaughter to the estate in controversy. If the son returned, she was to have ¿0700; if he did not, some other property in addition.

This may therefore be considered as the general intent of the testator, and the will as merely the language or mode in which this intent was to be expressed; and all courts are bound to keep this general design in view, to construe the language of the will in reference to it, and to effectuate it in preference to any particular intent with which it may happen to be inconsistent.

It has been argued, that the coming over to America, and making himself appear the eldest son of Matthew, were conditions precedent, to be performed by the lessor before any estate or interest whatever in the premises could vest in him. We entertain an opinion directly opposite to this. Consideration has satisfied us that the words are altogether idle and nugatory, and *of too insignificant an import to create a condition. In what manner and at what time, could a condition of this kind be performed ? The son was absent, the executor who had the care of the estate was satisfied, and surrendered the possession; if, therefore, this was a precedent condition, it appears to me to have been fully complied with.

My own opinion is, that if this is to be considered, in any respects, as-a condition, it must operate rather as a condition subsequent than precedent; the estate vests in the lessor of the plaintiff immediately, by the demise of the testator, and the right continues until, by the return of the son, it becomes divested. This appears manifestly to have been the intent of the testator; and if the words employed can have any legal operation, this intent must govern in the construction of the will.

This is, however, a mere matter of speculation. In the eye of the law, an intention of this kind is altogether nugatory. So far as respects the coming over to this country, there is nothing in the will which points to such an event; with regard to his proving himself the person to whom the devise is made, the language is'* insignificant and useless. No one can ever take the benefit of a will without proving that he is the person entitled to it; the law requires such proof invariably, and as verba quae taeite insuni nihil operantur, these being clearly implied in every devise, are not to control and defeat the intention of the devisor.

In the case of Pigg v. Caldwell and Edwards, Finch’s Rep. 278; 8 Vin. Abr. 332, one seized of lands, part of which were copyhold and part freehold, the former of which were under mortgage, devised all her lands, together with all her personal estate, to one Edwards, for seven years, on condition, within that time to pay her debts. She then gave the inheritance of the freehold lands to the complainant, he proving himself to be the sou of her son Thomas Pigg; after his decease, without issue, she devised the fee to Edwards. Edwards entered, and proved the will, but never paid the debts. The grandson exhibited his bill, praying for a discovery of the debts and of the real and personal estate of the grandmother; and lastly, that the debts in general might be paid, and the mortgage in particular, alleging, that otherwise he was likely to lose the estate; that, as an infant, he required funds for his maintenance. The chancellor decreed accordingly, without even an averment in the bill that the complainant *was the son of Thomas Pigg, or that he had ever proved himself to be so. The words requiring this proof are repeated three or four times in the will, and indeed the idea is never lost sight of when any interest is given to her supposed grandchild, of whose title to that character she appears to entertain some doubts.

This case satisfies me that words of this description cannot be construed as creating a condition by which the devise may possibly be defeated; they are nugatory and senseless.

The nephew, therefore, in this case, took a present vested interest under the wil'1. His estate could not be a remainder, because the whole was given to the son, if he returned, and nothing if he did not. If any interest vested in the son it must have been a fee, for no other estate is spoken of; and if a fee, no remainder could have been limited to take effect afterwards.

But cases innumerable may be cited, to prove that the interest of the lessor was vested. When the testator devised to A. and his heirs, and -if he die before twenty-one, then to' B. and his heirs. A. died before twenty-one, but B. died before him; the question was, whether B’s. heirs should take? and the court held clearly, that though B. died in the life of A. yet his heirs might well take under the executory devise, for that such a dévise is not to be considered as a mere possibility, but as an interest vested, though not in possession, and consequently transmissible. Gurnel v. Wood, 2 Eq. Ca. Ab. 342, pl. 21; 8 Vin. Ab. 112, pl. 38.

The case of Selwin v. Selwin, decided by Lord Mansfield, and that of Moor et Rex v. Hawkins, by Lord Northington, in Chancery, cited in Roe v. Jones, (1 H. Bl. 30) shew that the law so far regards a mere possibility as to consider it as devisable and descendible. If so, there must be a vested interest, though whether it will ever be vested in possession is uncertain.

Under this view of the case, it is perfectly immaterial whether the treaty of peace did or did not render the lessor so far an alien as to be incapable of taking real estate in this country for his own benefit; the right had vested in him previously, and there is no question but that, being an existing and vested right, it is secured by that instrument.

Another difficulty still occurs, and presents a further barrier to the plaintiffs recovery in the present action. It has been *urged, that even if the right to the property is vested in him, still, being an alien at this time, he is incapacitated from suing in our courts in a real action. Even in England, and under the ordinary circumstances in which aliens are placed, the doctrine does not extend to this extreme. In the case of Fowler v. Down, (1 Bos. & Pull. 44, 48) Heath J., in delivering his opinion, considers the situation of the plaintiff as similar to that .of “ an alien, who may purchase lands, and maintain an action for them, unless the crown interposes.” The illustration is cited as accurate, by Grose J., (7 Term Rep. 394) in the case of Webb v. Fox. Except so far as respects the king, the title of an alien is good against the whole world : but the king has no right to the land until office found. If this objection might be interposed by any one to prevent a recovery of legal rights, it would, in ordinary cases, be, to use the language of Lord Kenyon, (7 Term Rep. 393) “ an invitation to all the world to scramble for them.” Situated as the plaintiff in this case is, the provisions of the treaty, guaranteeing his rights, would be a mere mockery; for nothing can be imagined more preposterous than to secure rights, and yet say, that the owner shall not recover them them when withheld : to acknowledge their validity, but refuse to give them efficacy.

On the whole case, then, we think that the devise to the son of Matthew carried a vested interest; that the lessor was not subject to the disabilities of alienage at the time of the death of testator; that his rights were secured to him by the conventions between the two governments, and that he is not disabled to prosecute these rights on the ground of being an alien. The opinion of the court, therefore, is, that the motion far a non-suit be overruled, and judgment entered on the verdict, for the plaintiff.

Judgment for the plaintiff. 
      
      In the case of Livingston v. Jefferson (4 Hall’s Amer. Law Jour., 78, 86), Marshall, C. J. expressed an opinion, that the common law would have been in force independent of any constitutional or legislative adoption.
     
      
       See 4 Oi'anch. 210, and the authorities there cited.
     
      
      The treaty of peace contains a recognition of our independence, not a grant of it. 4 Cranch 212. 3 Dall. 255. 1 Munf. 617.
     
      
      The statute 23 Geo. 3, c. 28, expressly declared, that, in all cases whatever, the people of Ireland should be bound only by laws enacted by his majesty and the parliament of that kingdom; since that period, however, the two countries have been incorporated by the union.
     
      
       See the opinion of Roane J. in Reed v. Reed, 1 Munf. 611, Appendix, and the case of Hunter v. Fairfax's devisee, 1 Munf. 218. Also 7 Crunch 603, where it is decided, that an alien may take lands, by purchase, in Virginia, and hold the same until office found. See, also, same point, 3 Wheat. Rep. 14, note. Ib. 539. Ib. 460.
     