used in the devising clause, it always carries the whole Lambert's interest of the testator in the thing devised.

An argument has been drawn from the manner in which the two other estates are described; and it is said that because they are not called estates, but tracts of land, the devise clearly gives only a life-estate in those two tracts, and therefore it is to be presumed that the testator only meant to give a life-estate in the Marrowbone tract; because he has coupled them all together by the words "likewise" and "also."

But we say that he meant to give the fee of all the tracts to George Gilmer, and that the words are sufficiently large to carry that intention into effect.

In the case of Cole v. Rawlinson, 1 Salk. 234. the words of the devise were, "I give, ratify and confirm, all my estate, right, title and interest, which I now have, and all the term and terms of, years which I now have, or may have, in my power to dispose of, after my death, in whatever I hold by lease from Sir John Freeman, and also the house called the Bell Tavern, to John Billingsley," and it was adjudged that the fee of the Bell Tavern passed, by force of the words "and also," which caused the preposition "in" to be understood, so as to read "and also in the Bell Tavern." So, in the present case, the three specific objects of the devise are connected by the words "likewise" and "also," and you must apply the first part of the devising clause to each subject, and read it thus: "likewise I give and bequeath unto Doctor George Gilmer, of Albemarle county, all the estate in one other tract of land called Horse-pasture." The word "likewise" shows that he meant to give the same interest in the two other tracts, which he had given in Marrowbone.

Upon the question of alienage, he contended, that by the common law, every man is an alien to that government under whose allegiance he was not born. The capacity to inherit results from the fact that the heir and ancestor both owe allegiance to the sovereign of the country where the lands lie. The right of inheritance is *derived only through one common sovereign. The allegiance due to that sovereign is the commune vinculum which connects the heir with his ancestor as to the tenure of lands. This common allegiance must exist at the time of the birth of the heir, and continue unbroken till the time of the descent. If this allegiance

Lessee

V.

Paine.

* 121

Lessee

V.

Paine.

Lambert's is not to be confined to the sovereign of the country where the lands lie, it would follow, that where the ancestor and heir were both natural born subjects of a foreign state, (for instance, subjects of France,) and the ancestor should be naturalized in this country, and become a purchaser of lands here, the heir, although not naturalized, would still have a right to inherit those lands, because they both owed allegiance to France, their common and natural sovereign.

*122

The American antenati may inherit lands in England, because the ancestor and heir both owed a common allegiance to the sovereign of that country where the lands lie. But the British antenati never owed allegiance to the government of this country, and, therefore, the British heir cannot inherit the American lands of his American ancestor.

If, then, the capacity to inherit depends upon a common allegiance to the sovereign of that country where the lands are, it will follow that when that common allegiance ceases to exist, the capacity to inherit must cease also. The common allegiance to the sovereign of this country ceased by the declaration of independence, or, at least, when that independence was acknowledged by the King of Great Britain, at the treaty of peace, whereby he assented to the withdrawing our allegiance; and the principle of the common law, that natural allegiance must be perpetual, is not so rigid but that it may be shaken off with the assent of the sovereign to whom it was due. For in 1 H. H. P. C. 68. Lord Hale says, "that though there may be due from the same person, subordinate allegiances," " yet there cannot, or, at least, should not, be two or more co-ordinate absolute allegiances by one person to several independent or absolute princes; for that lawful prince that hath the prior obligation of allegiance from his subject, cannot lose that interest without his own consent by his subject's resigning himself to the subjection of another; and hence it is, that the natural born subject of one prince cannot, by swearing allegiance to another prince, put off or discharge him from that natural allegiance; for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed, the subject of a prince, to whom he owes allegiance, may

Lessee

V.

Paine.

entangle himself, by his absolute subjecting himself to Lambert's another prince, which may bring him into great straits; but he cannot, by such a subjection, devest the right of subjection and allegiance that he first owed to his lawful prince."

Hence, it is clearly the opinion of Lord Hale, that natural allegiance may be devested and dissolved, with the concurrent act of that prince to whom it was due; and by a note of the editor, in the same page, it seems that the doctrine of perpetual allegiance refers only to a private subject's swearing allegiance to a foreign prince, and has no relation to a national withdrawing of allegiance.

If the American revolution is to be considered as such a national withdrawing of allegiance, then that withdrawing was complete and perfect, even before the assent of the King of England was obtained, and the American antenati are as totally absolved from all allegiance to the British king, as if they had been natural born aliens.

There being, then, no common allegiance between the British and the American antenati at the time of the descent cast, there can be no capacity to inherit the one to the other, even were it not necessary that the common allegiance should be to the sovereign of the country where the lands lie.

Lord Hale, also, in the same page, shows in what sense Lord Coke, in Calvin's Case, and Bracton, before him, have used the expression, "ad fidem utriusque regis." He says, "it appears by Bracton, that there were very many that had been anciently ad fidem regis *Angliæ et Francia, especially before the loss of Nor mandy; such were the comes mareschallus that usually lived in England, and M. de Faynes, manens in Francia, who were ad fidem utriusque regis, but they ever ordered their homages and fealties, so that they swore or professed ligeance, or lige homage only to one; and the homage they performed to the other, was not purely lige homage, but rather feudal, as shall be shown more hereafter; and, therefore, when war happened between. the two crowns, remaneat personaliter quilibet eorum cum ei, cui fecerat ligeantiam, et faciat servitium debitum ei cum quo non steterat in persona, namely the service due from the feud or fee he holds."

*123

Lambert s
Lessee

V.

Paine.

* 124

The opinion of the court in Calvin's Case, 27. that if the kingdoms of England and Scotland "should be, by descent, again divided and governed by several kings," "" those born under one natural obedience, while the realms were united under one sovereign, would remain natural born subjects, and not aliens,” was at least an extrajudicial opinion; and it is not very clear what is the meaning of it. Does it mean that they would be natural born subjects of both kingdoms, or only of that which should remain governed by the same king? If the former, yet the case is not parallel to ours. Ours is a case where a new sovereignty has sprung up, and no person could be born under its allegiance before its existence. According to Calvin's Case, allegiance does not depend upon the country in which the person is born, but upon the obedience and subjection of that country at the time of the birth. A person, therefore, born before the independence of the United States, cannot be called a natural born subject of the United States; and if he was not here at the time of the revolution, he cannot maintain a suit, as to lands in this country, but by virtue of some express stipulation in a treaty.

Mason, in reply. If the declaration of independence, and the treaty, totally devested all allegiance, so that the British antenati are aliens to us, it would equally make American antenati aliens to the British. But we all know that cases have happened, in which American antenati have been adjudged capable of inheriting #lands in Great Britain; and if those British decisions were correct, they must have been grounded upon the principle that our antenati were not aliens to the King of Great Britain; and if the declaration of independence did not make us aliens to them, it could not make them aliens

to us.

The American revolution only discharged the political relation which subsisted between us and the crown of England. It did not destroy individual rights or capacities. The revolution was to accomplish a great national object. No one individual can be charged with it. It was a national act to maintain national rights, and only such rights were affected by it. It only absolved our allegiance, but did not ex necessitate take away the capacity to inherit.

CUSHING, J. Are not allegiance, and the capacity to inherit, connected together?

Mason. Yes; and therefore the common law will not consider the allegiance so totally absolved as to make him an alien who was born a subject, and thereby deprive him of the right of inheritance.

Although, by the act of Virginia, in 1779, Lambert was to be considered as an alien, and incapable to sue, &c. yet that act was repealed by the treaties, and therefore he stands just where he did before the revolution.

The private rights of individuals were not affected by the revolution, except by the laws of the several states.

The object of the treaties was to put individuals as nearly as possible on the same footing as before the revolution; and the words of the treaties are sufficiently large to accomplish that purpose. They are, "and that no person shall, on that account, suffer any future loss or damage." If Lambert is on that account to be depri ved of his right of inheritance, it will be such a loss and damage as will be a violation of the treaty of 1783. *What is common law in England is common law in Virginia; what is law and justice there is law and justice here.

Policy, justice, and magnanimity require that we should apply the same beneficial rule to them which they have extended to us.

PATERSON, J. Would not the decisions have been the same in England, if there had been no such article in the treaty ?

Mason. Yes, if there are no British statutes to prevent it; and the decisions would have been similar in Virginia, if there were no act of assembly on the subject.

In this position, I am supported by a very learned judge in Virginia, (Judge Tucker,) who is not suspected of any improper partiality to Great Britain, or her subjects. In his notes to Blackstone's Commentaries, vol. 2. Appendix, p. 53. & 54. he says, "all persons born within the United States, whilst colonies of Great Britain, were natural born subjects of the crown of Great Britain." "The natives of the colonies, and