Reed V. Reed. meaning of the latter term than the former, to make it synonymous with confisca tion. I have also viewed it, in general, as if the descent in question had fallen prior to the date of the treaty of peace; whereas it was cast long after. Ours, therefore, is a much stronger case than that; for with respect to antecedent descents and purchases, there was some ground, or semblance of ground, for the treaty to operate upon; but, in this case, as the antenati pretension is entirely exploded, the present plaintiffs cannot recover, unless we are prepared to say that, (bating the treaty of 1794,) through all time, all British subjects, in cases like the present, are entitled to recover!! The 4th inquiry I proposed to make under the head of the treaty, is in a great measure anticipated; I mean respecting the capacity of British subjects to sustain real actions. This right is, I think, incidental to the right to the subject. In all cases in which lands are preserved to British subjects, (for example, under the treaty of 1794,) their right to sue for them is also preserved; and this right forms, in that case, an exception to the general doctrine of alienage: but, on the other hand, where the principal does not exist, neither does the incident; they stand, or fall, together. While, therefore, Ican never subscribe to the position, I had almostsaid the absurd position, taken by the plaintiffs, that all those are entitled to sue for lands here, who were so entitled at the time of their birth, under another government, of which they were then members, I can readily admit those to sue, in derogation from the general principle attaching a disability to aliens in this respect, to whom our laws or trea ties have yielded a right to the subject sued for. I have thus given to the treaty of peace a construction which outstrips and goes beyond the actual case before us. I have done this, not only because all the aspects of the case seem much involved with each other, but also for the reasons before assigned for discussing somewhat at large the pretensions of the antenati. My observations are so multifarious and desultory, that I fear I shall not be fully understood; but I have not time to reduce them to order, nor even to recapitulate. The construction of the treaty, which I now contend for, has been impeached, loudly impeached,as gaining nothing for the other contracting party, by merely inhibiting legislative confiscations, while it leaves free the ordinary laws of alienage. To this objection I would answer, 1st. That that construction fully satisfies the words of the treaty, and goes the full length of the actual powers of the government of the confederation on the subject; 2dly. That it secures every thing for the refugees, whose interests were anxiously attended to by the British government in the formation of the treaty; 3dly. That it secures money and personal property to whomsoever belonging; there being no ordinary laws in any of the states to work a forfeiture of such property; and, 4thly. That if the ordinary laws of alienage cannot devest land actually holden here by British subjects at the time of our separation, (on which, however, I give no conclusive opinion,) my construction of the treaty abandons no claims of British subjects to lands in this country, but eventual, contingent and unlawful ones; unlawful, as being acquired at a time when they were equally interdicted by the laws, and by the actual state of things between the two countries; and that if our ordinary laws can devest such lands, (lands holden here in 1776,) it is meet that the British subjects should lose something by the war, when the Americans lost every thing. While we argue from what was incumbent upon the British king to do, on behalf of his people, we ought not to lose sight of a construction which respects the rights of the sovereign states of America, and the actual temper and situation of the times; we ought not to stickle for liberalities in favour of British subjects, when such were not the order of the day, and have not, in fact, been dealt out to us by them. It ought not, however, to be lost sight of as abridging the extent of this evil, (if it be one, and is not otherwise cured,) that in several of the states, (Pennsylvania, I am informed, for example,) no laws imposing forfeitures on account of alienage do exist, and that, therefore, as to those states, every possible end, to be desired in favour of British subjects, will be attained by confining the confications intended by the 6th article of the treaty to mean legislative confiscations merely.* I cannot dismiss this very important subject, without declaring my satisfaction to find the result of my inquiries entirely corroborated by a great authority. A production truly worthy of the pen of the author of the declaration of independence; a production which must ever rank high among the most distinguished of diploma *As the Supreme Court of the United States, in the before mentioned case of Dawson v. Godfrey, seems to have disregarded the treaty of 1794, as applying to a descent to a British alien in 1793, possibly the construction of that instrument in favour of persons then "holding" lands, is to be restricted to cases in which a beneficial holding was permitted by the laws of some of the states: and if so, the ground of that construction equally applies to the treaty of peace, which has no words to shew that interests other than beneficial interests were intended, and may be satisfied, pro tanto, in such states as allow aliens to hold lands. tic dissertations: which bears the most evident marks of the most patient and laborious investigation; an essay which confounded the British minister, and put him to silence, cannot but be considered by me as a great authority. Americans can never be indifferent to a work written by Jefferson, and sanctioned by Washington. I will even bring this work into a Court of justice, infinitely sooner than the obiter dicta of judges, pronounced without necessity, and founded on no deliberation. There is no magic in the name or character of judges, which will induce me to repel the ablest opinions, of the greatest men, on the most important subjects. Truth and right are my objects; and I will avail myself of all practicable means to endeavour to attain them. Mr. Hammond, the British minister in this country, had made complaints on the very subject now before us; that is, the subject of infractions of the treaty of peace, and had invited the then secretary of state (Mr. Jefferson) to a discussion. He had complained, inter alia, of a decision, in the state of Maryland, on the subject of alienage, in the case of Harrison's representatives. He had complained of this decision; but although he was conjuring up all the infractions of the treaty which the wit of man could invent or suggest, he did not urge it as an infraction of the 6th article, nor even, in itself, of any article of that treaty. He did not urge this decision, or any other decision, as an infraction of that article interdicting "future confiscations," although he undoubtedly would have done so, had he concurred with the plaintiffs' counsel in the construction they now contend for. He has come into my construction of the treaty in this instance, by confining his list of infractions of the 6th article to legislative violations only; (see his letter, p. 15. of the correspondence;) he merely complained of the decision in Harrison's case, as establishing a principle which, taken in connection with the laws of some of the states compelling creditors to receive lands in payment of their debts, infringed the fourth article of the treaty guarantying the bona fide payment of British debts. He complained that the fourth article of the treaty was infringed, or eluded, by compelling British subjects to receive lands in payment, while the decisions on the laws of alienage, did not permit them to hold such lands. (Ibid. p. 12.) This, then, seems to be the extent of his complaint on this head. Be that matter, however, as it may, the secretary of state obtained from the senators and delegates of the state of Maryland, in congress, the following statement in relation to that case of Harrison's representatives, viz. "on the disclosure of facts made by the trustees of the will of Harrison, upon oath, in chancery, in consequence of the claim made by the Attorney-General in behalf of the state, the Chancery Court determined it, in behalf of the state, it is believed, on this principle, that however Great Britain might consider the antenati as subjects born, and that they could not devest themselves of inheritable qualities, yet that the principle did not reciprocate on America, as those antenati of Great Britain could never be considered as subjects born of Maryland. The legislature, however, took the matter up, and passed an act relinquishing any right of the state, and directing the intention of the testator to take effect, notwithstanding such right. It is conceived that this was a liberal and voluntary act, on the part of the legislature, in behalf of Harrison's representatives, who are at liberty to pursue their claim."(a) Reed V. Reed. Docu (a) Mr. Jefferson, the secretary, taking up this case, upon the above report, observes; "The case of Harrison's representatives, in the Court of Chancery of Maryland, is in the list of infractions. These representatives being British subjects, and the laws of this country, like those of England, not permitting aliens to hold lands, the question was, whether British subjects were aliens. They declared that they were; consequently, that they could not take lands; and, consequently, also, that the lands in this case escheated to the state. Whereupon the legislature immediately interposed, and passed a special act, allowing the benefits of succession to the representatives. But had they not relieved them, the case would not have come der the treaty, as there is no stipulation, in that, doing away the laws of alienage, and enabling the members of each nation to inherit or hold lands in the other." (b) (b) I conclude, sir, as the best result of my judgment, that the law of this case is in favour of the defendant, and that the judgment of the District Court should be AFFIRMED. un Jeffer son's letter, P. 36. AN INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. A 119 6. 1. When an account of an executorship or admi- 150 just, though not supported by proof. Fitzge ib. ib. ib. Under circumstances a commission of 71-2 per 447 ACTION. 2. By virtue of the 24th section of the District 1. Cannot be maintained on an administration bond, 4. See DEBT, No. 1. Meredith's Adm'x v. Duval, 4. 76 5. If a prisoner depart from the prison rules by an ib. 6. ib. 98 7. 175 8. Hull v. 9. 330 10. Same point decided as in Leftwich v. Berke- 10. 14. See ESCAPE, No. 1. 501 ib. ib. 15. It seems, that a prison-bounds bond, taken pay- As to the construction of the acts of descents 183 See DESCENTS, No. 5, 6, 7. ADJOURNMENT. 510 See DEPOSITIONS, No. 3, 4. Marshall v. ADMINISTRATION. See EXECUTORS AND ADMINISTRATORS AD QUOD DAMNUM. See MILLS. 16. Quære, whether it be not also good under the 1. If a court give a right judgment for a wrong |