Lambert's
Lessee

V.

Paine.

* 105

2. The second point is, that John Lambert, heir at law of George Harmer, is not an alien as to the citizens of this country, and is capable of taking the reversion by descent.

16.

If he is incapable of holding lands in this country, it must be because he is an alien born. Is he such under the legal acceptation of the word alien? A definition of an alien is thus given in Calvin's Case, 7 Co. a. An alien is a subject that is born out of the ligeance of the king, and under the ligeance of another." Wood's Inst. 23. 1. Inst. 198. b. 1 Woodd. 386. John Lambert, the lessor of the plaintiff, was born in England in the year 1750, under the allegiance of the King of Great Britain. At his birth he had inheritable qualities, of which he can be deprived by one mode only, and that is the commission of a crime sufficient to work corruption of blood. 1 Bl. Com. 371.

This is not pretended. Lambert was born within the ligeance of the king, the then common sovereign of this country and England; and, therefore, is not an alien born.

Those born under common allegiance may acquire and hold lands; and, in time of war, they may join the one, but must render service to the other, for the land. Bracton, b. 5. c. 24. fol. 427. b. 1 Hale's P. C. 68. Calvin's Case, 7 Co. 27. b. The words of Bracton are: "Est etiam et alia exceptio quæ tenenti competit ex persona petentis propter defectionem nationis, quæ dilatoria est, et non perimit actionem, ut si quis alienigena qui [non] fuerit ad fidem regis Angliæ, tali non respondeatur, saltem donec terræ fuerint communes, nec etiam sive rex ei concesserit placitare, quia sicut Anglicus non auditur in placitando aliquem de terris et tenementis in Francia, ita nec debet Francigena, et alienigena, qui fuerit ad fidem regis Franciæ, audiri placitando in Anglia. Sed tamen sunt aliqui Francigena in Francia, qui sunt ad fidem utriusque, et semper fuerunt ante Normanniam deperditam, et post, et qui placitant hic et ibi, ea ratione qua sunt ad fidem utriusque, sicut fuit W. comes Marreschallus et manens in Anglia, et M. de Feynes manens in Francia, et alii plures; et ita tamen si contingat guerram moveri inter reges, remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiam, et faciat servitium debitum ei cum quo non steterit in persona. See also Calvin's

Case, 7 Go. a. and b. fol. 25. A man born in the English plantations is a subject. Wood's Inst. 23. He that is born in the mother country must, à fortiori, be a subject, and capable of all the rights of a subject in the colonies. One of these rights is that of acquiring property. "All persons may convey, as well as purchase, except men attainted of treason," &c. “aliens born," &c. Wood's Inst. 233. 1 Inst. 42. b. But it has been proved that the lessor of the plaintiff is not an alien born; he, therefore, may purchase or take. If he once had an inheritable quality, or a capacity to take, and has not forfeited it by any crime, it follows that he has it yet. The separation of the colonies from England could not, in law or *reason, deprive him of this right. Calvin's Case, fol. 27. a. and b. Calvin's Case was shortly this: Calvin was born in Scotland, after the crowns of England and Scotland were united on the head of James I. The question was, whether he could maintain an assise of novel disseisin of lands in En gland. The plea was, "that he was an alien, born at Edinburgh, within the kingdom of Scotland, and within the ligeance of the King of Scotland, and out of the ligeance of the King of England." One of the objections on the part of the defendants was, that, if postnati were, by law, legitimated in England, great inconvenience and confusion would follow, if the king's issue should fail, whereby those kingdoms might again be divided. But to this it was answered by the judges, that "it is less than a dream of a shadow, or a shadow of a dream for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth: For as the antenati remain aliens as to the crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms by descent subsequent, cannot make him a subject to that crown to which he was an alien at the time of his birth, so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert) should by descent be divided, and governed by several kings; yet it was resolved, that 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; for that naturalization, due

VOL. III

:

Lambert's
Lessee

V.

Paine.

*106

Lessee

V.

Paine.

Lambert's and vested by birthright, cannot, by any separation of the crowns afterward, 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. And in that case, upon such an accident, our postnatus may be ad fidem utriusque regis, as Bracton saith, in the aforementioned place, fol. 427." The present case is stronger than Calvin's. There the question was whether he had gained a right; but here it is whether he has lost one. The same rule prevailed when the Saxon heptarchy became united under the King of the West Saxons. Calvin's Case, 23. b. And also with regard to the possessions held by the Kings of England in France at various times, such as the Dukedom of Acquitain, and the Earldoms of Poitiers, Normandy and Anjou. So with regard to the islands of Jersey, Guernsey, Man, Ireland, &c. Calvin's Case, 19. &c. 1 Hale's P. C. 68, 69. Suppose a division of these states, it would follow, from the doctrine contended for by the opposite counsel, that people born in the same country, and under one common allegiance, would be aliens to each other.

* 107

*

The Kings of England themselves did homage to the Kings of France for provinces which they held, such as Normandy, Guienne, Brittany, &c. This was also the case with many of their subjects; as in the case of the Duke of Richmond, Duke D'Aubigny, &c. Hale's P. C. 68. Calvin's Case, 27. b. In this country the personal services are dispensed with, but the land pays the common tax or duty.

Alienage is incident to birth only. 4 T. R. 308. Doe, ex dem. Duroure, v. Jones.

It is not just or reasonable that a man should be punished without committing a crime, or for an act committed by a superior power which he could not control. Suppose a secession of one of these states; would it be just that the citizens of the other states, holding property in that state, should forfeit it or lose their rights?

The reasons of policy for prohibiting aliens from holding lands are stated in Calvin's Case, 18. b. to be three: 1. The secrets of the realm might thereby be discovered; 2. The revenues of the realm should be taken and enjoyed by strangers born; 3. It should tend to the destruction of the realm. But none of these apply to the present case. Lambert lives out of the realm,

and, therefore, cannot betray its secrets. The land will continue to pay the taxes, which, being the sinews of war, will preserve the realm. Besides, the case applying only to the antenati, is limited in extent, and its operation will be constantly diminishing by failure of heirs, by alienations, by naturalization, &c. The English, who understand the principles of the common law at least as well as we do, have allowed our citizens to inherit in similar cases. The cases of the Chichester estate, and an estate recovered by Mr. Boyd, and the Earl of Cassel's estate, are examples. A liberal policy should dictate a reciprocation of the same principle.

*The third point, viz. that the will of 12th Sept. 1786, is only a partial, and not a total, revocation of the will of 25th June, 1782; and that this will passes and dis poses of the reversionary interest of the testator's estate, according to the legal import of that will, was admitted by the opposite counsel, in case the second will devised a life-estate only.

The fourth point, that by virtue of the Virginia statute transferring trusts into possession, the devise of 1782 transferred the legal estate to John Lambert, was also admitted, if he is not to be considered as an alien.

The fifth point is, that John Lambert, if an alien, is yet capable of taking by devise, and is protected by the treaty of 1794, between the United States and Great Britain.

By the 9th article of the treaty "it is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, 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 like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens."

The only doubt which can be raised upon this article arises from the word hold. But treaties ought to be liberally expounded, so as to meet the full intention of the contracting parties. There can be no doubt but the intention was to secure, not only actual possession, but rights which would have vested but for the alienage of

Lambert's

Lessee

V.

Paine.

*108

the parties. This is apparent from the provision made for legal remedies, which would be wholly useless if the former expressions were meant to comprehend only lands in actual possession. If, therefore, Lambert is to be considered as an alien, yet the treaty destroys that bar to his recovery.

*The sixth point is, that although Lambert should be considered as an alien, and is not protected by the treaty, yet he is capable of taking by devise, and of holding the land until office found for the commonwealth.

He certainly has a good right against all the world, except the sovereign. In England, land purchased by an alien does not vest in the king until office found. Co. Lit. 2. b. Hargrave's note (3). 5 Co. 52. b.. Page's Case. 1 Jones, 78, 79. More, 325. Englefield's Case. 2 Bl. Com. 293. If he had been tenant in tail, he might have barred the remainder. Gouldsb. 102. 4 Leon. 84. An alien may take by devise, Powell on Devises, 316, 317, 318. 2 Vez. 362. Knight v. Duplessis, and may hold until office found. "For," says Powell, "when an alien takes by will, the estate, on the will's being consummate, vests in him, and he is in to all intents and purposes, as any other devisee would have been, until something further be done to take the estate devised out of him again; for as long as the alien lives, the inheritance is not vested in the king, nor shall he have the land until office found; but if he die before office, the law casts the freehold and inheritance upon the king for want of heirs, an alien having none. So that the title of the crown is collateral to the title by the devise, has no retrospect to the time of its being consummate, nor does it affect the land in the hands of the devisee, until another thing is done to entitle the king, not under the devise, but by right of his prerogative, viz. office found; the tenant being an alien, and, consequently, though of capacity to take lands in his own right, yet not of ca pacity to hold them."

Key, contra, contended,

1st. That George Harmer, by the will of 1786, des vised a fee to Gilmer.