
    (common LAW )
    Jackson, ex dem. The People of the State of New-York, v. Clarke.
    G. C., born in the colony of New-York, went to England in 1738, where he resided until his decease; and being seized of lands in NewtYork, he, on the 30th of November, 1776, 'in England, devised the same to the defendant, and E.‘C.,as tenants in common; and died so seized on the 10th December, 1776.. The defendant and E. C. having entered, and becoming possessed, E. C. on tile 3d December, 1791 ' bargained and sold to the defendant all bis interest. The defendant and E. C. wore both born in England long before the revolution. On thp twenty-second of March, 1791, the legislature of New-Yoik passed an net to. enable the defendant to purchase lands, and to hold all otlioi . lands which he might then lie entitled to within the stale, by nurchase or descent, in fee simple, and to sell and dispose of the same in the game manner as any natural born citizen might do. The treaty between the United States and Great Britain of 1794, contains the following provision : “Article 9th. It is agreed that British subjects who now hold lands in the territories of the United Slates, and American citizens who now bold lands in the dominions of his majeaty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in"lrl?e manner as if they were natives, and that neiiber they, nor tliei r.heirs, or assigns shall, so far as respects ilia said lands and the legal remedies Incident thereto, be considered as aliens.” The defendant atibe time of the action brought, still continued to be ,a British subject. Held, that he was entitled to hold tho lands so devised to him by G. C., and transferred to him hy E. C.
    Error to the circuit court for the district of New-York.
    This was an action of ejectment commenced in the supreme court of the state of New-York, and (removed thence into the circuit court of the United States, for the New-York district, where, in 'September, 1815, a trial -was had, and a special verdict found, in - the words following, to wit:
    At which day in this same court, at the city of New-York, in the New-York district, came the parties aforesaid, by their attorneys aforesaid, and the jurors aforesaid being called also come, who to say the truth of the above contents, being elected, tried and swprn, say, upon their oath, that long before the above mentioned time, when the trespass and ejectment above mentioned, are supposed to have been committed, namely, on the tenth day of' April,,'1706, Anne, Queen of England, by letters patent under the great s.eal of the then colony of New-York, did grant unto-Sampson Broughton, and divers other persons in the said letters patent named, and their heirs, a certain tract of land, situate in the then colony, now state of New-York,-to have and to hold the-same to them, their heirs and assigns, forever, as tenants in common, and not as joint tenants. And that the lands and tenements, with their appurtenances specified in the foregoing declaration of the said James Jackson, were part and parcel of the said tract of land granted, as aforesaid, by the said letters patent. And the jurors aforesaid, upon their oath aforesaid, further say, that the said Sampson Broughton, and the said other persons to whom the said tract of land was granted as aforesaid by the said letters patent, being so seized in-fee simple, and possessed of the said tract of land by virtue of the said letters pateni; did afterwards, to wit: on the twelfth day of April, in the year last aforesaid, by good and sufficient cqnveyance and assurance in the law, for a valuable consideration, grant, bargain, sell, and convey unto George Clarke, now deceased, (who was formerly lieutenant governor of the said colony, and who was then a subject -of England, and who remained so until the time- of his death,) and- to his heirs, one equal undivided ninth part of the said tract of land granted as aforesaid, in and by the said letters patent, to have and to hold to him, his heirs and assigns, forever. And the jurors aforesaid,-upon their oath afo.resaid, further say, that partition of the said tract of land mentioned in the said letters patent was afterwards; to wit, in the year last aforesaid, made in due form of law, between the last aforesaid George Clarke, and the other proprietors of the said tract of land mentioned and granted in and 'by the said letters patent. And that by virtue, of the said partition, the- last aforesaid George Clarke became, and was sole seized in fee simple, and possessed' of the lands and tenements, with the appurtenances specified in the said declaration of the said James Jackson, and coritinueifI.:to be so seized and .possessed thereof, ^e'time.of his death. And that the. last aforesaid George .Clarke died so seized and possessed, in the year-1759. And the jurors aforesaid, upon their oath aforesaid,.further say, that George Clarke, who was late-secretary of the colony of'New-York, was the eldest son, and heir at law of the before mention- • ed George Clarke, formerly lieutenant governor, as aforesaid. And that upon xne death of the- said George Clarke, formerly lieutenant .governor as aforesaid, the said George' Clarke, • late secretary as aforesaid, as.spn and heir, ■ as aloresaidi, entered up:* on, .and was seized in fee simple,- and possessed' the lands and .tenements,'with the appurtenances specified in the said declaration of the said James Jacksdn. .'And being so seized and possessed, did afterwards, to wit, on the thitieth day of November, 1776,' at Hyde, in the county palatine of Chester,, in the kingdom of Great Britain, make and publish, in due form of law to pass real estate, his last will and . testament, and did thereby devisy xxnto his grand' nephews, the said George Clarke, the- defendant in thp -said declaration named, and Edward - Clarke, and to their heirs and assigns, as tenants in common, and not as joint tenants, the lands and tenements in the said declaration specified, with the appurtenances. Arid the jurors aforesaid, upon their oath aforesaid, furthe'r say, that'the said George Clarke, late secretary as aforesaid, afterwards, to wit, on the tenfti day of December, 1776, at Hyde aforesaid, in the said county palatine of Chester, in the said kingdom of Great Britain, died so seized and possessed as aforesaid, and without having altered or revoked his said last will and testament. And .the jurors aforesaid,'upon their oath aforesaid, further say, that upon the death of the said George Clarke, late secretary as aforesaid,- the. said 'George Clarke, the. said defendant, and the said Edward Clarke, claim.ing under the- said last will and testament, entered "upon, and became possessed of, the- said .lands and tenements, with the appurtenances, in the said declaration specified.. And the said George Clarke, .the said defendant, and the said Edwa.rd Glarke,.being actually-possessed.of the said land's and tenements,"with the appurtenances, in the said declaration specified, as under the said last -will and testament, the said Ed\vard Clarke did afterwards, to wit, on the twént-y-third day of December, 1791,.by a deed of bargain and sale, duly executed, grant, bargain, and sell, for a valuable consideration, tó the ' said George Clarke, the said de-. fendant, and his heirs* one equal moiety of the said, lands and tenements, with the appurtenances, in the said declaration specified!, and all the estate and interest of the said Edward Clarke, in and to the said lands pnd tenements last aforesaid, with the appurtenances, to have and to hold the same to the said George piarke, the said defendant, his heirs, and assigns; by reason, whereof, fhe said'George Clarke,.the said defendant,entered upon, and became, ánd was actually possessed of, the said lands and tenements, whh the appurtenances, in the said declaration specified, claiming to-be seized thereof in fee simple, and so continued, until the entry of the .people of the state oí New-York, hereafter mentioned. And the jurors aforesaid upon their oath aforesaid, further say, that the said George Clarke., late secretary as aforesaid, was born in the city of New-York, in the late colony, now state of New-York,. and that in the year 1738 he went to that part of Great Britain called England, and thenceforth continued -to live, and reside there ' on His family estate until and at the time when he made and published his said last will and testament, and ever after, and until and at the time of his death. And the jurors aforesaid, upon their oath aforesaid, further say, that on ttie fourth day of July, in the year 1776, the late colony, of New-York, together with the other colonies of Great Britain in North America, now called the United States of America, declared themselves free and independent states, and that frpm that, day to the first day of September, in the year 1783, the said United States, and the citizens thereof, were at open and public war with the king of Great Britain and his subjects. And the jurors aforesaid, upon their oath aforesaid, further-say, .that the said George Clarke, the said defendant, was born, in England, on the twenty-eighth day of April, inthe-year 1768. And that the said Edward Clarke was bom in'England, on the twenty-eighth day of November, in the year of bur Lord 1770. And that the said George Clarke, the sáid defendant, and the said Edward Clarke, wele both British subjects.
    And the jurors aforesaid, on their oath aforesaid, further say that the said George Clarké,.late secietáry as aforesaid, died without issue, and that at the time of his death one George Hyde Clarke was his nephew; and that-the said George Hyde Clarke, if he is capable pf inheriting the real -estate of the said George Clarke, late secretary as aforesaid, within the state of New* York, is the heir at law of the said George Clarke, late secretary as aforesaid ; and that the said George Hyde Clarke was born in Great Britain, before the fourth day of July, inthe year 1776. and hath ever since resided, and still doth reside in Great Britain, and is still living; and that no. other person than - the said George Hyde Clarke is, or can be, the .heir at law of the said George Clarke, late secretary as aforesaid ; and that the said George Hyde Clarke, is capable, of inheriting the real estate of the said George Clarke, late secretary as aforesaid, within .the state of New-York, unless he is incapable of inheriting such real estate, by reason of his having been born,-and having resided in, Great Britain as afopesaid- And the jurors aforesaid-, on their oath aforesaid, further say, that on', the eighth-day of February, in the year 1791, the said George Clarke, the said defendant, caused to be presented to the legislature of the state of New-York, a petition, in the words following, to wit:
    To the honourable the senate and assembly of the' state of New-York, in legislature convened : The petition of George Clarke humbly showeth, that your petitioner was born in England, and is great grandson of George Clarke, formerly lieutenant governor of NéwYork; that he resided in the city of New-York: for about a year preceding the month of October last, with intention, at the end of two years, to have been naturalized under the statute of the United States; that he was unexpectedly called abroad on important business, but expects to return in the course of the ensuing sumraer; and as his naturalization must now be unavoidably suspended, to the great embarrassment erf his affairs, your petitioner humbly prays that his name may be inserted in the bill now before the honourable the legislature, to grant a similar privilege of holding lands within this state, notwithstanding the want of naturalization, and your petitioner shall pray, &c. ■
    GEORGE CLARKE,
    By Goldsb. Baiíyar, and Jas. Duane, his Attorneys.
    And the jurors aforesaid, upon their oath aforesaid, further say, that on the twenty-second day of. March, in the year 1791',' an act was passed by the legislature, of the state of New-York, in the words following, to wit: “An act to enable Francois Christo.phe Mantel, and the several other persons therein named, to purchase and hold real estates within this state. Be it enacted by the people of-the state of New-York, represented in senate and assembly, and it is hereby enacted -by the authority of thé same, that it sha.Jf and may be lawful for Francois Chfistophe Mantel, Samuel Clows, junior, Srmuel Riehardet, William Robert 0‘Hara, Erick Glad, George Turnbull, Thomas Mounsey, and Jan Barnhard, respectively, .to purchase lands, • tenements and hereditaments within this state, and to haye and to hold the same to them1 respectively, and their respective heirs and assigns, forever, as fully to all intents and purposes as any natural born citizen' may or can do, any law, usage, or custom, to the contrary notwithstanding. And bb it further enacted by the authority aforesaid, that it .shall and may be lawful for Georgs Clarke, who is great.grandson of Qeorge Clarke, formerly lieutenant governor of Ne.w-York, to purchase any lands, tenements or hereditaments within this state, and to have and to hold the same, and all other lands, tenements. and hereditaments which he may now be entitled to within this state, by purchase or descent, to him the said George Clarke first abo ve nam.ed, his ■ heirs and assigns, to his and their own proper use and behoof forever, and to sell and dispose of the same, or any part thereof, as fully, to all intents and purposes, as-any natural born citizen may or can do, any law, usage or custom to the contrary notwithstanding.” And the jurors aforesaid, on. their oath aforesaid, farther say, ;that the said George Clarke, the said defendant, and the said George Clarke, great-' .grandson of George Clarke, former lieutenant- governor of New-York. mentioned' in-the said act, is one and the same'person. And the jurors aforesaid, on their oath aforesaid, further say, that on the first day of May, in the year 1810, the said George Clarke, the said defendant, was in actual possession and occu pation of the said lands and tenements, in the said die jaraiion specified, with the appurtenances, and that bn the day and year last aforesaid, theAaid people of the State of New-York, lessois of the said James Jackson entered into the said tenements, with .the appurtenances, and from thence put out and removed the last aforesaid George- Clarke, and' were seized thereof as the law requires ; and .being so seized thereof, the said people, on the day and year last .aforesaid, demised to the said James Jackson, the tenements afdresaid, with the appurtenances, to have and to hold to the said ^atíies Jackson, and his assigns, from the skidfirstday of May then last past, until the full end and term of twenty-one years from thence next.ensuing, and fully tobe complete and • ended, in the manner in which the said demise is set forth in the said declaration of the said James Jackson.' By virtue, of which said demise, the said James Jackson .entered into the said lands and ténements, with the appurtenances, and was thereof possessed ; and he being so possessed thereof, the said George Clarke, the said defendant, afterwards, ■ to wit, on the tenth day of May, in the year last aforesaid, with 'force and arms, &c, entered into the said tenements, with the appurtenances, which had been demised to. the said James Jackson as aforesaid, and ejected, expelled and amoved the said James Jackson from his, said possession, as the said James Jackson hath above complained against the last aforesaid George Clarke.
    And the jurors áforesaid, upon their oath aforesaid, further say, that at the time of the commencement of this action, the tenements aforesaid, in the said declaration specified, were, and' ever since have been, and yet are, of a valué exceeding the sum of five hundred dollars, exclusive of all costs and expenses. And the jurors aforesaid, on their oath aforesaid, further say, .that the said James Jackson, at the time of the commencement of this action, was and yet is a citizen of the state of New-York, in the United States of America. And that at the time of the commencement of this action, the said George Clarke, the said defendant; in the said declaration named, was -and yet is a subject of the king of the united kingdom of Great Britain and Ireland. But whether upon the whole matter aforesaid, by the jurors aforesaid, in manner aforesaid found, the said George Clarke, the .said defendant, is guilty of the trespass and ejectment above mentioned, the said j.iirors, are ■ entirely ignorant, and pray the ■ advicfe of the court thereon. And if it shall appear to this court, that the lasx aforesaid George Clarke, in construction of law, is . guilty ' of the trespass and ejectment above mentioned, then the said jurors say upon their oath, that the last aforesaid George Clarke is guilty of the trespass- and ejectment in the said declaration of the said James Jackson mentioned, in manner and form, as the said James Jackson hath above in his said, declaration complained. And they assess the damages which the said James Jackson hath sustained, by reason of the said trespass and ejectment, besides his costs and charges by him about his suit in this behalf expended, at six cents, and for his said costs and' charges at six cents. And if it shall appear to the court, that the last aforesaid George Clarke is not guilty of th.e said trespass and ejectment, then the said jurors say upon-their oatht • that the last aforesaid George Clarke is not guilty thereof, in manner and form as he hath above in his plea alleged.
    On .the foregojng special Verdict, judgment was rendered for tne: defendant, George Clarke, by the . circuit court, to reverse which, this writ of error was brough
    Mr. Champlin, for the plaintiff -in error,
    made the following points, and cited the authorities'.in the mar-
    Feb. 5.
    
    
      gin. 1.. That Secretary George Clarke, at the time of his death, was an alien enemy, and there being at that time no statute of wills in force in tbe state of New-York, the people of tbe state, at his death, became seized of the premises. 2. .That Secretary George Clarke, being an alien enemy,had-no power to make a valid will, or alien his estate in any manner whatever. 3. His will being void, and George Hyde- Clarke being an alien enemy, took nothing by descent. 4. That, after the death of Secretary George Clarke, there was no person competent to take the premises by inheritance or devise, whereby the people o’f the .state of New York at his death, became ipso facto possessed thereof, without office found.
    Mr.' I). B. Ogden, contra,
    was stopped by the court.
    
      
       Dawson v. Godfrey, 4 Campbell v. Hall, Cowp. 208. Cranch, 321. Gardner v. Vattel, L. 3, ch. 5. s. 7. Wade, 2 Mass. Rep. 244.
    
    
      
      
         5 Bac. Abr. Tit. Will. B. 499. 7 Co. Rep. 33. 1 Bl. Com. 372.
    
   Mr. Chief Justice Marshall

Judgment affirmed, with costs. 
      
       In the. case of M‘Ilvaine v. Coxe’s lessee, 3 Cranch, 209, the court determined that a personborn in the colony otNewJersey, before the declaration of independence, and residing there until 1777, hut who then joined the. British army, and ever sineeadheredtotheBritish government, has a right tó lakelands by descent in the state of New-Jersey. But in Dawson’s lessee v. Godfrey, 4 Cranch, 321, it was held that a person born in England before the declaration of independence,and who always resided there, and never was in the United Stupes, could not take lands in Maryland by descent.
      And in the case of Smith v. the State of Maryland, 4 Cranch, 286, it was determined that by the acts of Maryland, 1780,ch, 45 and 49, the equitable interests of British subjects in lands were confiscated; and vested in the state, without office found, prior to the treaty of peace of 1783, so that the British ceslúi que trust was not protected by the stipulation in that treaty, against future confiscations, nor by the stipulation in the 9tb article of the treaty of. 1794, securing to British subjects, who then held lands in this country, the right to continue to hold them.
      In the supreme court of N. York it has been held, that where a married woman was a subject of Great Britain before the revolution, arid always continued such, but her husband, resided in this country both before and after, that period she was entitled to dower out of those lands of which he was seised befere -the revolution, but not of those of which he was subsequently seised. Kelly v. Harrison, 2 Johns. Cas. 29. The sarhe court has also determined, that where a British subject died seized of lands in file state in 1752, . leaving ■daughters in England who married British subjects, and nei. ther they nor their wives were citizens of the Unitted States! even if the marriages were subsequent to the revolution, such marriages would notimpair the rights of the wives, nor prevent the full enjoyment of the property according, to the laws of the marriage state, especially after the 5th provision in the 9th article of the treaty ofl794 The court seemed also to think that where the title to land in the state was acquired by a British subjeetprior to the revolution; the right of such British subject to transmit the same by descent, to an heir in esse at the time of the revolution, continued unaltered and unimpaired,- the case of a revolution or division of an empire being an exception to the gen-rule of law,' that an alien cannot take bv descent. Jackson v. Lunn. 3 Johns. Cas. 109. also Jackson v. Wright, 4 Johns. R. 75. The treaty of 1704, relates only to landa'//ierc held by British subjects, and not to any after acquired lands. Jackson v. Decker, 11 Johns. R. 418, 422.
      In the case of Fairfax’s devisee v. Hunter’s lessee, 7 Cranch, 603, and ante, vol. I. p. 304. it was adjudged, 1st. That an alien enemy may' take by purchase though not by descent; and that, vWiether the purchase be by grant or'by devise. 2d. That the title thus acquired by an alien enemy is no devested until office found-3d. That whether the treaty of peace of- 1783, declaring that no future confiscations should be made, protects from forfeiture, under the municipal laws respecting alienage, lands held by British subjects at the time of its ratification, or not, yet that the 9th article of the •treaty of 1794 completely protected the title of.a British devisee, whose estate had pot been preyiously devested .by an inquest-of office, or some eqivalent proceeding
     