Reed V. Reed. case) to investigate this point at this time; but I beg leave to refer to the new edition of Blackstone, (vol. 1. part 2. note K. p. 90.) where the editor has elaborately discussed the subject, and his conclusions seem fully to sustain my position.(a) I rather choose to refer to the sublime principles contained in the declaration of indepen dence, and in the Virginia bill of rights, consecrating the right of expatriation; to (a) See also the memorable assertion of that right by the American people, who, sword in hand, Vattel, 170. § expatriated themselves from the government which tyrannized over them; to the 220. 172. limited and qualified adoption of the common law, as a part of our code; and to that dignified act of the Virginia legislature which prescribed the mode of effecting an expatriation, but did not presume to bestow the right.(b) 223. (b) See Acts of Oct. 1785, c. 16. While these great authorities destroy some of the main pillars on which the English doctrines on this subject are founded, the Firginia legislature by several acts have declared who shall be deemed citizens, and who aliens. Under those aets, the plaintiffs, at the time of bringing the action in question, must have fallen into the latter class. It has been supposed by some that, inasmuch as the act of May, 1779, c. 55. after declaring who shall be deemed citizens, declares that all others shall be deemed aliens, and as in a subsequent act (October, 1783, c. 16.) on the same subject, this latter declaration is omitted, that the last law is to receive a more enlarged construction in relation to aliens than the former.(c) These answers occur to me, (c) 2 Tuck. however, to this position. 1st. As every man, according to the English doctrines, Bl. App. P. is either" an alien born or a subject born,"(d) and, according to those doctrines, as here received, is either an alien or a citizen, it was perhaps a work of supererogation (d) 7 Co. 601. after declaring who, and who only, should be deemed citizens, to declare, also, who should be deemed aliens; and, 2dly That position proves too much, for it would equally legitimate the subjects of all other countries in the world, as of England, whereas the same authority seems to think that the omission was produced by the intermediate conclusion of the treaty of peace between America and England To say nothing of the absurdity of the legislature's doing away, in the gross, the disabili ties of alienage, when, at the same time, it was granting in detail, the rights of citi zenship, it is contrary to all fair deduction to infer a conclusion, which is very general and extensive, from a cause which is limited and particular. 62. Such is the construction which I deem myself obliged to adopt in the present instance. If the adherence of the British subjects to their own government, on the erection of our government in 1776, has thrown them into the class of aliens by election, a definition I think properly applied to them in the new edition of Blackstone, (see vol. 1. part 2. App. p. 102.) they stand on as good a footing as our own expatriated citizens. Subjects of foreign nations have no reason to complain at receiving the same measure as is dealt out to our own citizens, unless they have ulterior rights secured by treaty Such a treaty would not be natural nor reasonable; but if such a one exists, it must probably have its effect. Whether there be any such treaty rights in the present instance, we shall presently inquire. These Bri tish subjects have, however, less pretensions to sue than our own expatriated citizens; for the latter can say (which the former cannot) that they were once under the allegiance of the Commonwealth of Virginia; nay, in some instances, that they were born under the allegiance of this Commonwealth Why then shall we not consider these British subjects as expatriated, in respect of the Commonwealth of Virginia? expatriated, by having refused to yield to us their allegiance, and to unite their destiny with ours. I have thus chosen to consider the pretensions of the antenati, or in other words the common law doctrines of legitimation, somewhat at large; because those doc. trines have been often pressed upon this court, particularly in the cases of Fuirfar v. The Commonwealth, and have received countenance from the opinion just delivered In all the elaborate discussions which have taken place in this Court upon this subject, there has been heretofore no difference of opinion upon this point, as far as I have understood the Judges: and our late venerable President (who did not sit in those causes) has informed me, since they were determined, that he entirely agreed in opinion with the Court upon this subject. But for the foregoing considerations, I might perhaps have saved myself this trouble, for it appears that both the treaty of peace and the treaty of 1794 have repudiated the pretensions of the (e) See note antenati (e) The latter treaty does not immediately apply to this case, being posteto p. 1. of this rior to the judgment in question, and would not now be mentioned, but as corrobo opinion. rating and explaining the former. That treaty abandons those pretensions by set By Judge TUCKER. Judge PENDLETON. + Since this opinion was delivered, this question has been decided in entire con formity thereto, by the Supreme Court of the United States, in the case of Dawson's Lessee v. Godfrey, 4 Cranch, 321 It was so decided by the unanimous judgment of the Court, contained in a very able and luminous opinion delivered by Judge JOHNSON. ting up a new criterion, viz. the actual holding of the property at the epoch of its date. In setting up this epoch, and establishing a new criterion in relation to British subjects, that treaty goes beyond the common law idea of antenati, which calls merely for the period of our separation from Britain; and by superadding the other requisite, (an actual holding at its date,) it also abridges the pretensions of such antenati, for all the residue of their lives, subsequent to the signature thereof. In thus enlarging and abridging the common law pretensions of the antenati, am I not correct in saying that the treaty of 1794 has set up an entirely new rule, and has abandoned those pretensions altogether? So, with respect to the treaty of peace, the case is precisely the same, if that treaty be considered as relating at all to the laws of alienage of the several states, and the epoch of its signature be resorted to as protecting from the operation of those laws rights aceruing before that time: and this, perhaps, is the most that can be contended for. Whether this construction thereof be correct will presently be considered. At present I will remark that it is entirely incompatible with the before mentioned common law rights of antenati which are commensurate with the duration of their lives. Am I not, therefore, correct in saying that both these treaties have abandoned the pretensions of the antenuti, and taken a new ground (whatever it may be) in favour of British subjects? If that ground of claim exists, therefore, in the case before us, it is not upon the foundation of either of the said treaties. We come next to consider, somewhat more at large, the application and effect of the treaty of peace, in arresting the operation of the laws of alienage of the several states. Under this head, I will consider, for the sake of greater perspicuity, the rights of British subjects, in a fourfold point of view. 1st. In relation to land actually holden by such subjects in this country, at the epoch of our separation, or declaration of independence: a right of this sort not existing in the present case, this topic will be but slightly and incidentally touched; 2dly. In relation to lands purchased by such subjects in this country, since the epoch last mentioned, and which, if they be aliens, enure to the Commonwealth by way of "forfeiture;" 3dly. In relation to such lands as since that epoch have descended to such subjects, and which, if they be aliens, enure by way of "escheat." Every thing said on those two points will apply, a fortiori, to the case now before us, being that of a descent cast, since the date of the treaty; And, 4thly. In relation to the capacity of such subjects to sue for lands so holden, purchased, or descending, as the case may be. In laying down these points, I must be permitted to cling, with equal pleasure and pertinacity, to the epoch of our declaration of independence, rather than that of the treaty of peace, as erecting us into an independent nation; as affording that precise point of time to which alone the treaty applies, (if it applies at all,) in arresting the laws of alienage of the several states: I must cling to this epoch, because the United States, on that day, for the many weighty reasons then declared, dissolved for ever the connection antecedently existing between us and Great Britain; because, in the emphatical language of the Virginia constitution, the many acts of misrule theretofore committed, by the British king, had dissolved his government over us; because the whole fabric of the old government was, in truth, annihilated and destroyed by that king's withdrawing his protection from us, and our abjuring allegiance to him; and because the British nation itself has conceded this point, by admitting in the treaty of peace, (Art. 1.) that it "treats with the United States as free, sovereign and independent states," and not as revolted subjects; thereby clearly relating, in that treaty, to the era of the declaration of independence. Away then with that absurd and slavish doctrine which would derive every thing from the recognition and bounty of the British king; would postpone, for near eight years, our title to rank among the independent nations of the earth; and degrade for the same period, all our laws and resolutions, to the level of usurped and unauthorized acts. We date our independence from this æra on grounds paramount to any thing in the power of that king to grant or to do: we treated with him for peace, but not for independence: we asked him to put an end to the war, but not to sanction a government already established upon the only just basis, the consent of the governed.* * Since this opinion was delivered it has been decided by the Supreme Court of the United States, in the case of M'Ilvain v. Cox, à Cranch, 211. that the "treaty of peace contains a recognition of our independence, not a grant of it;" that the laws of the several states were, after the 4th of July, 1776, the acts of sovereign states; and that this was not derived from the concessions of the British king. This AI VOL. I. Reed V. Reed. Reed V. Reed. I would construe the general words of the treaty to relate to this epoch, not only for the abovementioned reasons, but because, in truth, that great event, in connection with the laws of alienage of the several states, drew a prominent line of distinction, in relation to lands acquired in this country by British subjects. While it exhibits all lands previously acquired, and then holden in this country, as being law. fully acquired, under the faith of existing laws, and entitled to the attention of the contracting parties, it throws into the class of nullities, and illegal and unauthorized acts, all posterior acquisitions of lands by British subjects. Powerful reasons existed, therefore, on this ground, for embracing the epoch of our independence, rather than that of the treaty, in applying that instrument to the arrestation of the laws of alienage of the several states, admitting, for the present, that it at all relates to such laws. On the part of the United States the great considerations just stated, (to say nothing of others which will be presently noticed,) must have had great weight; and the British king might, on his part, while he admitted himself bound to treat for a guaranty of lands fairly acquired by his subjects in this country before that epoch, have justly considered himself absolved from any obligation to create, or at least enlarge titles in favour of his subjects; to support and extend that nullity of an interest acquired here, by them, after the commune vinculum was broken. In contemplating the effect of the treaty of peace upon the case before us, I will first consider, as being a stronger case for the plaintiffs, than that of a right accruing by "escheat," the right of the Commonwealth, by way of " forfeiture," to lands purchased by British subjects, since the era of our independence. The words of the treaty, which are supposed to have an effect on the present question, are, that "there shall be no future confiscations made.” (Art 6.)` What is the import and extent of the term "confiscations" here used? The right of the Commonwealth to lands purchased by an alien, is an ordinary right derived from the common law. It exists at all times. It is independent of, and does not arise out of a state of war. In the present case it resulted to the Commonwealth from the establishment of a new government here, and the nonaccession of the plaintiffs to that government, prior to the commencement of their claim. Although in fact, the plaintiffs were enemies to their country, from the Commencement of our hostilities with Britain, they were not, legally speaking, aliens, until the erection of our new government. Anterior to that event, the right now in question could not have resulted to the Commonwealth. So, on the other hand, if the erection of our new government had preceded or been unaccompanied by a state of war, the right in question would have resulted, as well prior as subsequent, to the existence of hostilities. Therefore it is that I say this right does not arise out of a state of war: it results from a mere municipal regulation. It accrues not because the person purchasing is an enemy, but because he is an alien. It is not a right pointed against the subjects of a particular power with whom we may chance to be at war, but against the subjects of all foreign nations whatsoever. This right is, by the common lawyers, technically denominated a "forfeiture."* "Forfeitures of lands and goods for offences," (and this right is founded on the offence of an alien in presuming to purchase lands contrary to law,) (a) says Sir Wil(a) 1 Bl. liam Blackstone, "are called by the Civilians bona confiscata, because they belonged Com. 872. 2 to the Fiscus or imperial treasury, or, as our common lawyers term them, bona Bl. Com 274. foris facta."(b) Indeed, Lord Coke seems, in one passage, to consider "confisca (b) 1 Bl. 299. tion" and "forfeiture" as synonymous terms; (c) and the author of the Commen(c)3 Inst. 227. taries appears also, in a few passages of his work, to have used the term "confisca tion" as 'descriptive of a forfeiture into the treasury; but keeping in view the dis doctrine had before been agreed to even by the English courts themselves, as may be seen in Black. Rep. 149. Wright v. Autt, and ibid. 135. Folliott v. Ogden, by Lord Loughborough and Judge CHASE had, in his very able opinion in the case of Ware v. Hylton, (3 Dallas, 255.) laid it down as an established doctrine "that the independence of the United States commenced with the declaration of congress of July 4th, 1776; that no other period could be fixed for the commencement of it; and that all laws passed by the legislatures of the several states after that epoch were the laws of sovereign and independent governments." I might here observe that in 4 Bro. Parl Cas. and Parker's Rep. p. 163. it is zaid to have been holden by the house of lords that the disability of an alien to purchase lands was not a penalty or forfeiture, but arose from the policy of the law; and on this ground a demurrer to a bill, praying a discovery in this particular, was overruled, to which I will add that, if it is not considered as a penalty or forfeiture under the construction of the English laws, much less can it be considered in the stronger light of a confiscation jure velli. In giving my opinion, however, I will admit the most, that it is a forfeiture under the provisions of the common law. Reed V. Reed. tinetion, which this elegant and accurate writer has taken, between the terms as above stated; (the one being a civil law, and the other a common law term;) and finding that he has expressly treated of the right now in question in a chapter headed "title by forfeiture,"(a) I must conclude that the technical and appropri ate term, descriptive of this right, is forfeiture, and not confiscation. At least, it must be granted, and that is sufficient for my purpose, that the former is a much (a)2 Bl. Com. more usual and proper term than the latter, to designate the right in question. I 267. urge it as a very respectable authority in favour of this opinion, that the constitution of Virginia, in transferring this, among other rights, from the king to the Commonwealth, uses the terms "escheats, penalties and forfeitures,"(b) without making (b) Art. 20. any mention of "confiscations." admit that, where the term "confiscation" shall occur in a treatise or instrument relating only to the common law, it shall there, from obvious necessity, be taken as synonymous with " forfeiture ;" and, indeed, in any other treatise or instrument, where the term may not otherwise be satisfied, or where it appears evident it was intended to have that extensive signification. But on the other hand, in instruments which concern the civil law, or the jus belli, it is reasonable to tie up the meaning of the term confiscation to forfeitures of that kind; or rather to understand the word in its proper and legitimate signification; it would be unnatural and unnecessary, in that case, to extend it so as to comprehend forfeitures arising only from the common law. Besides this ordinary and municipal right of forfeiture, there is, as I have before said, an extraordinary one accruing to belligerent nations, of confiscating the property of their enemies. This right does not await and attend on the contingent event of a purchase by, or descent to, an alien; it effects property then actually holden by the enemy; it is not carried into effect by the ordinary course of the municipal laws; the property is seized and confiscated by an extraordinary act of the government of the belligerent nation. It is seized, not because it is the property of an alien, but of an enemy. This right is technically and properly denominated a right of confiscation; I know of no other term which will properly designate it. Here, then, are two senses, in which thet erm "confiscation" may be used. The one, (to omit its civil law signification,) a restricted sense, going merely to a seizure by a belligerent nation in right of war; the other an extensive sense, meaning not only what is just mentioned, but, further, a mode of acquiring property by the Commonwealth under a permanent municipal regulation: a sense extensive enough, not only to repeal the general laws of alienage of this Commonwealth, in cases like the present, but also, (if not restrained by other considerations,) to remit perhaps, ail forfeitures whatsoever incurred, in this country, by British subjects or refugees, by crimes or otherwise! Let us inquire in which sense this term was intended to be used in the article in question. This article is contained in a treaty of peace. "A treaty of peace," says Vattel, "naturally and of itself relates only to the war which it puts an end to, and therefore it is only in such relation that it is to be understood."(c) Such a treaty, therefore, (c) Tattel, p. does not naturally relate to a mere municipal forfeiture or regulation, no way de- 34. pendent on, or produced by a war. This construction is much strengthened, in the present case, by the consideration that the American government, which formed the treaty in question, was much limited in its powers by the articles of confedera tion. That compact had emphatically reserved to the several states "their sovereignty, freedom and independence, and every power, jurisdiction and right not thereby expressly delegated to the United States in congress assembled.” (Art. 2.) Such stipulations in treaties, therefore, and such only as were warranted by the express grant of power to the United States, were binding on the several states when opposed by their laws. This construction of that compact is admitted by the circular letter of congress of April 13th, 1787, (d) requesting the several states to (d) See it repeal all acts contrary to the treaty of peace; is asserted by the legislature of quoted in Jef Virginia in their two acts of 27th June, 1784, and 12th December, 1787, which ferson's letter have only made such repeal in relation to British debts, on the conditions therein con- to Hammond, tained; it is expressly maintained and acted upon by our commissioners who negotia- p. 48. § 58. In the same opinion of Judge CHASE, (mentioned in the note before the last,) these sentiments are contained: "I entertain this general idea that the several states retained all their internal sovereignty, and that congress properly possessed the great rights of external sovereignty. That congress did not possess all the powers of war is evident from this consideration alone, that she never attempted to lay any tax on the people of the United States, but relied on the several state legisla tures to impose taxes, &c. and that after the confederacy was completed, the powers of congress rested on the authorities of the state legislatures, and the implied ratifications of the people, and was a government over governments." Reed V. Reed. ted that treaty, (a) and is admitted by the British commissioners, who acceded to a recommendation only, in relation to the restitution of the confiscated estates. (See art. 5.) In short, the limited government of the confederation was principally a government of requisition. In some cases a recommendation, or request to the several states, to repeal their conflicting laws, is expressly contained in the treaties them(a) See docu- selves. In other cases, such request is inferrable from the insertion in treaties of such ments 7, 8, 9, stipulations as congress deemed necessary for the public good, but which yet required 10 and 11. P. the sanction of the state legislatures. The 5th article of the treaty in question, 70. attached to just noticed, furnishes an instance of the former kind; and instances of the latter Jefferson'sletare to be seen in several of our foreign treaties which expressly waive the disabilities ter aforesaid. of alienage, in favour of the subjects of certain friendly powers. The documents just referred to entirely shew that the American commissioners who negotiated the treaty in question strenuously disclaimed a power in congress to "interfere in matters appertaining to the internal polity of the several states;" and even declared that their power did not extend to stipulate for a restitution of confiscated estates, because those confiscations had been made under the authority of the several states; and hence a mere recommendation was proposed by them, and acceded to by the British commissioners. Congress did possess the power, and did exercise it, to prohibit confiscations (i. e. jure belli confiscations) in future: but they disclaimed the power to restore such property as confiscations, even of this class, had brought into the treasuries of the several states. This last case is much stronger than the one before us. As congress had the power of peace and war, it might well have been argued that a right arising only out of the war appertained to them, rather than to the several states, and that their power would reach even the case of a restitution; yet the several states having actually exercised this right, by seizures and sales, congress disclaimed the power to interfere otherwise than by recommendation. But the right of escheat and forfeiture now in question could on no construction appertain to congress; it strictly "appertained to the internal polity of the several states," and was, emphatically, beyond the power of congress. Congress had a right, by treaty, to convert enemies into friends, and to release the disabilities attached to the former character; but they had no power to invade the or dinary rights of the several states, and to invest with the privileges of citizens of Virginia, those whom the policy of her laws had thrown into the class of aliens. If congress, by the confederation, could not draw a shilling of money from the several states, but by requisition, it would seem to follow, that the assent of the states was equally necessary to pass their right to property, which needed only the formality of an inquisition and sale to bring it into their treasuries. If congress, by the 8th article of the confederation, were bound to defray "all charges of war and other expenses to be incurred for the common defence and general welfare, out of a common treasury, to be supplied equally," (by a given rule,) "by all the states," shall we make a construction, in the case before us, which would throw the price of peace, in the present instance, on some of the states, in ease of others? upon the states' keeping up the laws of alienage, as incidental sources of revenue, in favour of such states wherein no such laws existed? If by the 9th article of the compact aforesaid, the powers expressly specified, and delegated to congress, are only those of peace and war, and other powers of an external nature, relating chiefly to our intercourse with foreign nations, shall we adopt a construction in the present instance, which will depart from the general character of those powers, and invade a right of the several states, entirely of an internal and municipal nature? But, independently of these considerations, I have supposed the word "forfeiture" to be a more proper term than "confiscation," to extinguish the right now claimed. The English law and ours are precisely the same on this subject : nay, I have even taken my ideas upon the subject entirely from the English authorities. As the English commissioners are not to be supposed ignorant of the real powers of our government, neither can they plead ignorance in relation to their own laws or technical terms, in forming the treaty. If the right now in question had been intended to be extinguished, would not the most appropriate terms have been used, especially in an instrument which, of itself, does not naturally reach that right? As these commissioners must have known, and were even warned, (as the aforesaid documents shew us,) of the incompetency of congress to affect the municipal polity of the several states, would they not at least have used the strongest and most unequivocal terms to effect that purpose, had it been contemplated or intended? Is it not an established principle of the law of nations, "that the state in which things are found at the moment of the treaty shall be considered as lawful; and, if it is meant to make any change in it, the treaty must expressly mention it; and that, consequently, all things about which the treaty is silent re(b) Fattel, b. main as they were found at its conclusion "(b) and does not the sound sense of this rule equally extend to cases where terms are used, which, to say the least, 4. s. 21. |