Jackson ex Dem. People of State of New York v. Clarke
16 U.S. 1 (1818)

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U.S. Supreme Court

Jackson ex Dem. People of State of New York v. Clarke, 16 U.S. 3 Wheat. 1 1 (1818)

Jackson ex Dem. People of State of New York v. Clarke

16 U.S. (3 Wheat.) 1

ERROR TO THE CIRCUIT COURT

FOR THE DISTRICT OF NEW YORK

Syllabus

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 New York, he, on 30 November, 1776, in England, devised the same to the defendant and E.C., as tenants in common, and died so seized on 10 December, 1776. The defendant and E.C. having entered and becoming possessed, E.C., on 3 December, 1791, bargained and sold to the defendant all his interest. The defendant and E.C. were both born in England long before the Revolution. On 22 March, 1791, the Legislature of New York passed an act to enable the defendant to purchase lads and to hold all other lands which he might then be entitled to within the state by purchase or descent in fee simple, and to sell and dispose of the same in the same 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 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 respects the said lands and the legal remedies incident thereto, be considered as aliens."

The defendant, at the time of the action brought, still continued to be a British subject. Held that he was entitled to hold the lands so devised to him by C.G. and transferred to him by E.C.

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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 sworn, 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 10 April, 1706 -- Anne, Queen of England, by letters patent under the great seal 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,

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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 patent, did afterwards, to-wit, on 12 April in the year last aforesaid, by good and sufficient conveyance 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 aforesaid, 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,

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and continued to be so seized and possessed thereof until the 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 mentioned George Clarke, formerly lieutenant governor, as aforesaid. And that upon the death of the said George Clarke, formerly lieutenant governor as aforesaid, the said George Clarke, late secretary as aforesaid, as son and heir, as aforesaid, entered upon, and was seized in fee simple, and possessed the lands and tenements, with the appurtenances specified in the said declaration of the said James Jackson. And being so seized and possessed, did afterwards, to-wit, on 30 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 devise unto his grand nephews, the said George Clarke, the defendant in the 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. And the jurors aforesaid, upon their oath aforesaid, further say, that the said George Clarke, late secretary as aforesaid, afterwards, to-wit, on 10 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

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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, claiming 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 Edward Clarke, being actually possessed of the said lands and tenements, with the appurtenances, in the said declaration specified, as under the said last will and testament, the said Edward Clarke did afterwards, to-wit, on 23 December, 1791, by a deed of bargain and sale, duly executed, grant, bargain and sell, for a valuable consideration, to the said George Clarke, the said defendant, 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 and tenements last aforesaid, with the appurtenances, to have and to hold the same to the said George Clarke, the said defendant, his heirs, and assigns, by reason whereof the said George Clarke, the said defendant, entered upon and became and was actually possessed of the said lands and tenements, with 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 of New York, hereafter mentioned. And the jurors aforesaid upon their oath aforesaid further say that the said George Clarke,

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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 the 4 July, 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 from that day to 1 September, 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 28 April, 1768. And that the said Edward Clarke was born in England, on the 28 November, 1770. And that the said George Clarke, the said defendant, and the said Edward Clarke, were both British subjects."

"And the jurors aforesaid on their oath aforesaid further say that the said George Clarke, late secretary 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 of inheriting the real estate of the said George Clarke,

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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 4 July, 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 aforesaid. And the jurors aforesaid on their oath aforesaid further say that on 8 February, 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 honorable 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 New York; 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 summer,

Page 16 U. S. 8

and as his naturalization must now be unavoidably suspended, to the great embarrassment of his affairs, your petitioner humbly prays that his name may be inserted in the bill now before the honorable 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. BANYAR, and JAS. DUANE, his Attorneys"

"And the jurors aforesaid, upon their oath aforesaid, further say that on 22 March, 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 Christophe 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 the same, that it shall and may be lawful for Francois Christophe Mantel, Samuel Clows, Jr., Samuel Richardet, William Robert O'Hara, Erick Glad, George Turnbull, Thomas Mounsey, and Jan Barnhard, respectively, to purchase lands, tenements and hereditaments within this state and to have and to hold the same to them 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 be it further enacted by the authority aforesaid, that it shall and may be lawful for George

Page 16 U. S. 9

Clarke, who is great grandson of George Clarke, formerly Lieutenant Governor of New 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 above named, 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 further 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 1 May, 1810, the said George Clarke, the said defendant, was in actual possession and occupation of the said lands and tenements in the said declaration specified, with the appurtenances, and that on the day and year last aforesaid the said people of the State of New York, lessors 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 aforesaid, with

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the appurtenances, to have and to hold to the said James Jackson and his assigns from the said first day of May then last past until the full end and term of twenty-one years from thence next ensuing, and fully to be 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 tenements, with the appurtenances, and was thereof possessed; and he being so possessed thereof, the said George Clarke, the said defendant, afterwards, to-wit, on 10 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 removed 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 aforesaid, 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 value exceeding the sum of $500, 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

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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 jurors are entirely ignorant, and pray the advice of the court thereon. And if it shall appear to this court that the last 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 the said trespass and ejectment, then the said jurors say upon their oath that the last aforesaid George Clarke is not guilty thereof in manner and form as he hath above in his plea alleged."

On the foregoing special verdict, judgment was rendered for the defendant, George Clarke, by the circuit court, to reverse which this writ of error was brought.

Page 16 U. S. 12

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court that every question arising in the cause had been settled by former decisions.

Judgment affirmed with costs.

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