ERROR from the circuit court for the district of N. Jersey, to
reverse a judgment given for the plaintiff below, upon a special
verdict in ejectment.
The material facts of the case are stated in the argument of W.
Tilghman.
W. Tilghman, for plaintiff in error.
The question which arises in this case is of great importance,
and has never been decided in this court, nor in the State of New
Jersey.
It is, in substance, whether a person born in the U.S. while
they were British colonies, and who took no part in favour of the
revolution but joined the British army in an early stage of the
war, and from that time to this, by the whole tenor of his actions
and declarations, has shewn his election not to be a citizen of the
U.S. but to adhere to the British empire, was capable of taking
land in New Jersey by descent in the year 1802.
There is no occasion to dwell minutely on the title. The lessor
of the plaintiff had good title if Daniel Coxe, the younger, was
capable of taking by descent from his aunt Rebecca Coxe who died in
1802, that is to say, he has title to a certain undivided part,
according to the law of descents in New Jersey, concerning which
there is no question.
Family disputes are always unpleasant; yet as laws regulating
descent, are merely of municipal creation, no one has a right to
complain if, by a change of the law, he now receives a less portion
than formerly, or even if he receives no portion at all.
Page 6 U.S.
280, 281
By the law of New Jersey before the revolution, Daniel Coxe
would have taken all the estate of his aunt, Rebecca, not only to
the entire exclusion of his cousins, the children of his uncle
William Coxe, deceased , but of his own sister, Mrs. Kempe. As the
law now stands, we suppose he is entirely excluded.
In tracing the conduct of Daniel Coxe, from the commencement of
the Revolution to the year 1802, which it is necessary to do in
order to decide the cause, nothing more is intended than to bring
into view those facts which the law must arise. It is far from our
minds in doing this, to pass any censure on his conduct.
In revolutions, every man has a right to take his part. He is
excusable, if not bound in duty to take that part which in his
conscience he approves.
I will now proceed to state the facts necessary to be attended
to, in order to decide the cause.
The ejectment is brought for a message and 200 acres of land
situated in Trenton in New Jersey.
Daniel Coxe, the son, conveyed to John Redman Coxe, lessor of
the plaintiff, who had previous notice of the defendant's
claim.
The premises are part of the estate of Rebecca Coxe, deceased,
and are of the value of 5000 dollars.
Rebecca Coxe died at Trenton in 1802, seized in fee of the
premises, intestate and without issue.
In the year 1783, and before that time, she was a citizen of N.
Jersey, and so continued until her death. -She left no brother or
sister, but there were children of her two brothers, Daniel and
William, as follows, viz.
1. Her brother Daniel, who died about 47 years ago, had
issue Daniel Coxe, (under whom the lessor of the plaintiff claims)
and Grace, Kempe ( widow of John Tabor Kempe, deceased) both now
living.
Page 6 U.S.
280, 282
2. Her brother William, who died in 1801 left issue, 5 children,
viz. John, Tench, William, Daniel William, and a daughter Mary, all
now living; also the following grandchildren, viz. children of his
daughter Sarah deceased, (late wife of Andrew Allen) that is to
say, Margaret, wife of George Hammond, Ann, Andrew, Elizabeth,
Maria, John, and Thomas; and of his daughter Rebecca M'Ilvaine,
deceased, named Rebecca Coxe M'Ilvaine.
Daniel Coxe, who conveyed to the lessor of the plaintiff, was
born in New Jersey, where he resided from his birth until some time
in the year 1777, when he removed to the city of Philadelphia while
or shortly before it was in the possession of the British
troops.
From the time they took possession of the city in 1777 he has
never resided in any place within the jurisdiction of the United
States, but has resided in places under the actual jurisdiction and
government of the king of Great Britain, and at the time of Rebecca
Coxe's death he was residing and domiciliated with his wife and
four children at London.
In the year 1775, and long before, he was more than twenty-one
years of age, was a member of the king's council of New Jersey, and
a colonel of the provincial militia.
In the years 1778 and 1779 he exercised a civil office in
Philadelphia under the authority of the king of Great Britain.
When the army evacuated Philadelphia he followed it to New York,
where he remained exercising a civil office under the king, until
the final evacuation of that city by the British troops in 1783;
until which time he remained possessed of his commissions and
offices of member of the counsel and colonel of the militia, nor
does it appear that he has since resigned either of them. He has
never taken an oath of allegiance to the United States or either of
them, or of abjuration of the king of Great Britain, nor has he by
any overt act ever exhibited himself as a citizen of the United
States or either of them. But between the signing of the definitive
treaty of peace, and the death of Rebecca Coxe he has done the
following acts, viz.
Page 6 U.S.
280, 283
1. He has executed diverse writings stating himself to be of
Great Britain or of some other place in the British dominions.
2. He has for several years carried on trade and commerce
as a British and not as an alien merchant, with all the rights and
privileges belonging to a British merchant by the laws of Great
Britain.
3. He has held lands in England as a trustee.
4. Before and since the death of Rebecca Coxe, he has
received a pension from the king of Great Britain, in consideration
of his loyalty and attachment to the British king and government,
and of his losses by reason thereof.
5. He did, soon after the treaty of peace, apply by
petition to the commissioners to enquire into the losses by
loyalists, & c. under certain statutes, viz. 23 Geo. 3, c. 80.
25 Geo, c. 76. 27 Geo. 3, c. 29. 28 Geo. 3, c.40. 29 Geo.3, c. 62.
or some or one of them, and by the same petition he did set forth
that he was a British subject who had suffered for his adherence to
the British government, and prayed compensation therefor, &c.
And he did receive compensation for his losses and sufferings, and
for his estates and possessions, as a loyalist of the 1st and 3d
titles or classes of the statutes, or some or one of them.
6th. He did in 1795, or afterwards, and before the death of the
said Rebecca Coxe, apply as a British subject to the commissioners
under the 6th article of the treaty of amity, &c. of 19th
November, 1794, and in his petition styled himself "Daniel Coxe of
London, in the kingdom "of Great Britain," and stated that "he then
was and "from his birth ever had been, a subject of the king of
"Great Britain, and under the allegiance of the said king."
An inquisition was taken in the county of Hunterdon, and state
of N. Jersey, August 1, 1778, by which it was found that he did,
about the 9th of April, 1778, join the arms of the king of Great
Britain, and did aid and abet them by acting as a magistrate of
police, &c. against the form of his allegiance to the state of
New Jersey, and against the peace of the same. Final judgment was
entered on the said inquisition at October term, 1778, where
Page 6 U.S.
280, 284
by all his real and personal estate in the county of Hunterdon
was forfeited and vested in the state of New Jersey. And at
February term, 1779, process was ordered to be issued to the
commissioners of said county for the sale of the said real
estate.
Some time in 1778 or 1779 he was attainted of treason against
the state of Pennsylvania in consequence of not surrendering
pursuant to a proclamation issued by the supreme executive council
of that state, dated 21st. July 1778, and of the said treason and
attainder was pardoned on the 6th of December 1802, by the governor
of Pennsylvania.
By virtue of the said inquisition, judgment, and process in New
Jersey, his real estate in the county of Hunterdon was seized and
sold, and is not held by the purchasers thereof under that
state.
This case presents three subjects for consideration.
1. What was the situation of Daniel Coxe, with respect to
his citizenship or alienage, from the commencement of the
Revolution to the definitive treaty of peace between the United
States and Great Britain?
2. What was his situation from the time of the treaty to
the death of Rebecca Coxe in 1802?
3. Supposing him to be an alien in 1802, is there
anything in particular in his case to exempt him from the general
incapacity of aliens to inherit land?
First. What was his situation between the commencement of the
Revolution and the treaty of peace?
He was an officer of the king's government, a member of the
council, and colonel of the militia, and without doubt under a
positive oath of allegiance.
He never owed natural allegiance to the state of New Jersey.
When the Revolution was proposed, he had a right to chuse his side.
1 Dall. 53, Chapman's case, which was decided even in the very heat
of the Revolution.
Page 6 U.S.
280, 285
He did chuse to adhere to the British. The record states that he
removed to Philadelphia before or while it was in possession of the
British, and has adhered to them ever since. He never took the oath
of abjuration of the king of Great-Britain, or of allegiance to the
United States, or any of them; nor has he by any overt act
exhibited himself a citizen of the United States or of either of
them. His remaining in New- Jersey until he found a safe
opportunity of joining the British, ought not, on general
principles, to have bound him to any thing more than that local
allegiance to which even foreigners are subject.
But it may be objected that in as much as he remained in
New-Jersey till the year 1777, and the act of 4th of October, 1776,
(2 Wilson's Jersey laws, 4.) declares that all persons then abiding
there, not only owe allegiance, but are members of the then
government, it must be concluded that he was a citizen.
I shall not deny the right of the state of New-Jersey to take
such precautions as they thought proper for the public safety; but
at all events their object was no more than to deter persons from
joining the enemy during the war, under fear of death, and loss of
property.
They who joined the enemy were a class of people whom they did
not wish to receive again, as citizens. They could have no
objection to their being aliens after the war. All such persons
(provided they were convicted of treason, or had forfeited their
estates,) were forever excluded from voting at elections of
representatives, &c. by the act of 11th of December 1778, 2
Wilson's N.J. laws, 75, 23.
All these objects are answered by preventing Daniel Coxe from
chusing his side after the 4th of October, 1776. Accordingly,
Daniel Coxe was proceeded against with a view to the confiscations
of his property, but he was never attained. The same proceedings
might have been had against an inhabitant of New-Jersey who joined
the British between the 19th of April, 1775 and 4th of October,
1776; or even against an inhabitant of another state who
Page 6 U.S.
280, 286
owned property in New-Jersey. Act of 11th December 1778, 2
Wilson's N.J. laws, p. 67, 2. and p. 68, 3.
Granting, then, the most that can be asked, that Daniel Coxe
could not divest himself of his allegiance during the war, we
cannot infer that the same impediment existed after the war.
This brings us to the 2d consideration.
2. What was the situation of Daniel Coxe from the peace
to the year 1802?
The act of 4th October 1776 only declares those persons to be
subjects who were then abiding there. All danger being over by the
treaty of 1783, a new area began, when every man had a right to
leave the country and transfer his allegiance where he pleased.
This is a most important right; and although Daniel Coxe now
disclaims it, he would then have thought its denial cruel and
unjust.
Of all people the Americans are the last who ought to call in
question the right of expatriation. They have derived infinite
advantage from its exercise by others who have left Europe and
settled here. It is denied by the constitution of no state, nor of
the United States.
It is positively affirmed by the constitutions of some of the
states, viz. Pennsylvania, Kentucky and Vermont, and by an act of
assembly of Virginia.
The right is also asserted by the best writers on the laws of
nature and nations. Vattel, b.1, c.19, 218, 223, 224, 225 &c. 1
Wyckefort, ( L'Embassadeur et ses fonctions) 117, 119.
The same right is also asserted by our own authors, 1 Judge
Wilson's works, 311 to 317. 1 Tucker's Bl. appendix, 426, (in a
note) id. Vol. 1, part 2, appendix, 96.
It is also recognized by our courts of justice. 3 Dall. 153,
Talbot v. Janson, And the case of the Charm-
Page 6 U.S.
280, 287
ing Betsy, in the circuit court of Pennsylvania, 26th May
1802.1
It has also been recognized by our government who have received
and accredited in public characters from England, many persons who
resided in the United States, at the time of the revolution, viz.
Sir. John Temple of Massachusetts, Phineas Bond, esq. of
Pennsylvania, T.W. Moore, esq. and T. H. Barclay of New-York.
In the commissions of all these persons, they are said to be of
London, or some other place in the English territories.
It has been also recognized by our legislature, who in their act
of naturalization insist on persons coming from Europe renouncing
their former sovereign.
It is recognized by England where other nations are concerned.
They formerly allowed naturalization in their colonies after seven
years residence. They allowed it to officers serving four years in
the royal American regiments, and they now allow it to persons
serving three years in their navy.
Supposing then that Daniel Coxe possessed this right of
expatriation, does it appear by the record that he exercised
it?
If he did not, it is impossible that any person ever can.
To prove that he did, his conduct during the war is very
natural.
The offices he held at Philadelphia and New-York shew that he
risked his life and fortune with the British. If he was not then a
British subject it was because the act of New-Jersey of 4th October
1776 estopped him from that right. Nothing on his part was wanting.
After the peace he removed with his family, and has remained in
England, openly avowing himself a British subject ever since.
Page 6 U.S.
280, 288
But to be more particular.
1. He has carried on trade and commerce as a British, not
an alien merchant. On this head the British are extremely jealous;
none but bona fide British subjects enjoy this privilege. No
American post-natus is allowed to hold a ship under the British
navigation act; nor to trade to the British colonies, except under
great restrictions; nor to be exempt from alien duties; nor to hold
East-India stock.
2. He has been pensioned not only for his loses, but for
his loyalty and attachment to the British government.
3. He did in 1795, or afterwards, apply as a British
subject tot he commissioners under the 6th article of the treaty of
19th November, 1794, and in his petition asserted that he then was,
and from his birth ever had been a subject of the king of
Great-Britain, under the allegiance of the said king.
This treaty agrees to make compensation on the part of the
United States to British subjects who have lost their debts by
legal impediments.
Daniel Coxe might have returned to New-Jersey after the peace
and become a citizen by taking the oaths, &c. The attainder in
Pennsylvania was no hindrance, for the treaty of peace protected
him from prosecution.
Thirdly. Let us now examine whether the alienage of Daniel Coxe
is attended with any particular circumstances enabling him to take
land by descent, contrary to the general principle of alienage.
On the execution of the definitive treaty of peace, the United
States and Great-Britain were separate, independent governments. In
that treaty ought to have been inserted any stipulation which the
two nations wished to make touching the right of property to be
held by individuals. And they have made some stipulations touching
debts, and property both real and personal, but they were all
confined to the security of property then held.
Page 6 U.S.
280, 289
With regard to lands there was to be no restitution; but
Congress were to recommend restitution without condition. 1st. To
real British subjects. 2nd. To persons resident in districts held
by the king, and who had not borne arms against the United States.
As to all other persons, they were allowed to go to the United
States and remain 12 months to endeavour to get back their
property, and Congress were to recommend restitution, they paying
the possessors the bona fide cost. There were to be no future
confiscations, nor was any person to suffer any future loss or
damage, in his person, liberty or property.
By the treaty of 1794, British subjects who then held lands in
the United States, were, so far as regarded such lands, not to be
considered as aliens; but they, their heirs and assigns, were
permitted to hold, enjoy and dispose of the same, in like manner as
if they were natives.
The general principle, that aliens cannot hold lands, has been
adopted by New-Jersey; but by an act of assembly of 14th November,
1785, they have made an exception in favour of mortgagees.
But it is objected that the constitution of New-Jersey, having
adopted the common law of England, has adopted also the doctrine of
antenati.
The adoption of the common law was to secure the liberty and
property of the citizens of New-Jersey, without regard to foreign
nations, and not with a view of enabling British subjects to hold
lands in that state. It was not meant to adopt those parts which
were inconvenient, or inconsistent with our situation-such as that
the king can do no wrong- personal and perpetual allegiance,
&c. Besides, the constitution of New- Jersey expressly excepts
such parts as are inconsistent with the rights and privileges
contained in that charter.
Now that charter is at variance with the principle of antenati,
which is founded on the basis that natural allegiance cannot be
shaken off; whereas the constitution of New-Jersey declares that
protection and allegiance are reciprocal.
Page 6 U.S.
280, 290
This doctrine of antenati is founded on Calvin's case, which was
determined 6 fac. 1. when the ideas of the royal prerogative were
extravagant and absurd. The authority of that case is much shaken
by the many absurdities it contains. Some of its principles are
ridiculous, some contrary to the present law of England, and some
contrary to our own constitutions. As instances of the ridiculous,
may be cited his 4th union, which is of the three lions of England
and that of Scotland quartered in one escutcheon-that Moses was the
first reporter-that all infidels are devils and perpetual enemies
of christians One of the doctrines contrary to the present law of
England is, that natural allegiance cannot be altered by the law or
constitution of man, but is something celestial-de jure divino.
Witness the English revolution of 1688. The same doctrine is also
contrary to our constitutions. Witness our own revolution;-the
preamble to the constitution of New-Jersey;-and the naturalization
law which requires an oath of abjuration.
Woodeson, vol. 1, lect. 14, p. 382, says, "when the king by
treaty, ratified by act of parliament, cedes a country to another
state, the inhabitants, though born under his protection, become
effectually aliens, or liable to the disabilities of alienage in
respect to their future concerns with this country; and similar to
this I take to be the condition of the revolted Americans, since
the recognition of their independent commonwealth."
An alien may take by purchase or devise, but not by descent; and
this is the case even with a denizen. Vaughan 278, Craw v.
Ramsay.
What is the situation of the people of Louisiana? They have been
transferred from England to Spain-from Spain to France-and from
France to the United States.-To whom do they owe allegiance?
The incapacity of aliens to hold lands is founded in public good
and convenience. By suffering them to hold lands, the revenues will
be transferred to strangers; population is prevented-and the state
is deprived of the personal services of the landholders.
Page 6 U.S.
280, 291
But is is said we should act upon principles of reciprocity.
That the British allow us to hold lands in England upon the
principles of curtesy. If their decisions have proceeded upon those
principles, it is no reason why we should allow the British to hold
lands here. It may be their policy to maintain the principle, but
it is not ours. They had fifteen millions of inhabitants, we had
only three. It was their interest to secure their claims on this
country by mortgages and purchases of lands . But our courts cannot
decide upon such principles. But if their decisions are founded in
law, there was no use in the stipulation of the treaty respecting
the right to hold lands. It is only by admitting that the
inhabitants of the two countries were aliens to each other, that
any effect can be given to the treaty.
The principle of natural allegiance does not apply as to this
country . No antenatus ever owed natural allegiance to the United
States. there can be but one natural allegiance, and that was due
to the king of Great- Britain. American antenati therefore may hold
lands in England, because they were born under the allegiance of
the king of England; but English antenati cannot hold lands in
America, because they were not born under the allegiance of the
United States.
It is said in Tucker's Blackstone, vol. 2, appendix, note C. p
54, that after the declaration of independence, according to the
principles of the laws of England, which we still retained, the
natives of both countries, born before the separation, retained all
the rights of birth, i. e. of inheriting lands, & c. yet the
preamble of the Virginia act concerning escheats, & c. passed
May 1779, 2 Tuck. Bl. append. p. 54, asserts that on the separation
of the United States from the British empire, the inhabitants of
the other parts of the empire became aliens and enemies to the said
states, and as such incapable of holding the real or personal
property which they had before acquired in the United States.
We say then upon the whole, 1st That Daniel Coxe was always a
subject of the king of Great-Britain, and never was a subject or
citizen of the state of New-Jersey; and, 2dly, that if he was by
force a subject of New- Jersey, he had a right, when that force
ceased to
Page 6 U.S.
280, 292
operate, to return to his natural allegiance, and shake off the
compulsory allegiance which had been forced upon him by the state
of New-Jersey, and which he always refused to acknowledge-and that
he has done so. And lastly, that whether he was always an alien as
to the state of New-Jersey, or whether he3 is to be considered as
an expatriated citizen, he is still an alien, and therefore
incapable of taking lands by descent.
Paterson, J. Suppose he expatriated himself since the peace,
what is the consequence? Does he thereby become a complete alien,
so as not to be capable of taking lands by descent afterwards?
W. Tilghman. So I contend.
Rawle, contra. The title of John Rodman Coxe is good, unless
Daniel Coxe his father, was disabled to take by descent from his
aunt Rebecca Coxe.
But he was incapable of taking unless,
1. He was an alien; or
2. Attainted of treason.
The latter is not found by the jury. He was, therefore, not
attainted, nor incapable by reason of any crime.
That he was not an alien, I shall endeavour to demonstrate.
1. Every inhabitant of a state became, at the declaration
of independence, a citizen of such state; so far at least as
relates to the right of holding real estate.
2. He thereby owed allegiance to such state, and acquired
capacity to take and hold lands in it.
3. Of this allegiance he could not divest himself. Of
this capacity he cannot be deprived, except, in the course of
punishment for crimes.
If allegiance be considered as a contract, which requires the
consent of both parties to make, it cannot be dissolved but by the
consent of both.
Page 6 U.S.
280, 293
1. The first position is laid down in a qualified manner,
because, it is unnecessary to take a wider scope than the nature of
the question requires. It is unnecessary to consider the entire
doctrine of allegiance, and its incident, treason.
The fullest extent to which I shall press this first position,
is, that prior to the declaration of independence we were all
British subjects, and as such had the capacity to take and hold
lands throughout the British empire. That the renunciation of
allegiance, the change of government, did not divest of that right,
even those individuals who in no shape recognized or adhered to the
new government. 1. Because it was not implied from the nature of
the revolution, and 2, because it was necessary to its safety or
success.
In the formation of a new government or society, the acts of the
majority (what Rutherford, Vol. 2, p. 18, calls the natural
majority,) bind the whole.
The members comprising the major part, are citizens by
choice-The minority by force. It did not authorise the majority, to
seize the property of the minority. They were all members of the
new state.
But by the opposing argument, the immediate effect of the
revolution was, to commit the grossest injustice on the minority;
to deprive them of their possessions because they differed in
opinion: to render them aliens, and divest them of their lands.
Such intentions were not declared.
The independence of America was a national act. the avowed
object was to throw off the power of a distant country; to destroy
the political subjection; to elevate ourselves from a provincial,
to an equal state in the great community of nations.
It was therefore a political revolution, involving in the change
all the inhabitants of America; rendering them all members of the
new society- citizens of the new states.
Page 6 U.S.
280, 294
The declaration of independence was not an unanimous act. It was
the act of the majority. but the general sentiment of the day, was
that it bound the minority. They were all equally considered as
citizens of the United States. This principle was never questioned.
The minority were never considered as aliens. Hence the penal laws
of that time made by the states, consider some of that minority as
traitors.
Such intentions were not implied.
The people of the colonies were absolved from allegiance to the
British crown. The political connection between the people of
America and the state of Great Britain was dissolved; and in the
language of the declaration of independence, the right "to levy
war, conclude peace, contract alliances, establish commerce, and do
all other acts which independent states may of right do," was
solemnly asserted, and publicly established.
To this distinguished act in the history of man, the assent of
the people was essential. That assent was implied from the assent
of the majority. The assent of the people, could only be known by
the assent of the states. Not a state dissented.
New-Jersey was first. Her independent form of government, was
adopted on the 2d of July 1776. But the division of the people who
composed the states, and the disfranchisement of any part of them,
were not necessary consequences of that assent. Every inhabitant
continued a member of the society. Every inhabitant, therefore,
continued to retain his property, whether real or personal.
But each individual state had to form its own government, and
establish its own rules. We must, therefore, seek for those rules
in the Constitution of New-Jersey.
The 1st, 2d, and 3d articles organize the legislature, (which by
the 7th, is to choose the governor,) the 4th and 13th, expressly
vest the power of choosing officers in the inhabitants, who have
resided in the county for 12 months, and who have property to a
certain value. Thus the inhabitants without distinction, are made
members of the society, citizens of the state. Being citizens, all
the
Page 6 U.S.
280, 295
rights of acquiring and enjoying property, attached to them.
But Daniel Coxe was then an inhabitant. Will it be denied that
he then was a member of the society? that he could then hold
lands?
The legislature of New-Jersey, assembled on the 27th of August,
1776, and on the 4th of October, passed a law which must remove all
doubt on this part of the subject. Every person "abiding" within
the state, and deriving protection from its laws, is declared to
owe allegiance to it, and to be a member of it.
But every man who abode within the state, received protection
from its laws. It is found by the special verdict, that Daniel Coxe
did at that time abide within the state; he therefore owed
allegiance to it, and was a member of it.
The inquisitions found by the jury, were founded on two acts of
assembly of New-Jersey. By those acts it will appear, that the
objects of such proceedings were, and only could be, persons owing
allegiance to the state. The act of 5th June 1777. (Wilson's
Edition of New-Jersey Laws, appendix p. 5,) offers a pardon to
"such "subjects" of the state as had been seduced from their
allegiance to it, and had joined the enemy; and enacts that if they
did not return by the first of August, their personal estate should
be forfeited, and that if perishable, or likely to fall into the
hands of the enemy, it should be sold. The alienation of it by such
persons, was declared to be void. But it did not forfeit the real
estate.
This law speaks of their returning to their allegiance, not as
alien enemies, but as offending subjects.
The first of the two oaths, required by that act, is in these
words. " I A.B. do sincerely profess and swear, that I do not hold
myself bound to bear allegiance to the King of Great Britain. So
help me God."-The second oath is "I A.B. do sincerely profess and
swear, that I do and will bear true faith and allegiance
Page 6 U.S.
280, 296
to the government established in this state, under the authority
of the people. So help me God."
The effect of taking these oaths was a pardon, and restoration
to the rights of a subject; not a naturalization as new subjects,
but restoration "to all the rights of other the good subjects of
this state."
The subsequent acts, prescribing the form of inquest, & c.
refer to this act, and are founded upon the delinquency or treason
of the offenders.
Many of the objects of that law, having failed to avail
themselves of its offered clemency, the act of 18th of April 1778,
was passed. ( Wilson's Law of New-Jersey, p. 43.) This law was
founded on the last, and expressly refers to it. By this act the
real and personal estates of such persons, are to be taken into
possession; the personal to be sold, and the real to be rented
out.
The preamble is in these words:
"Whereas many of the offenders
mentioned and described in an act of free and general pardon, and
for other purposes therein mentioned, have neglected to avail
themselves of the benefit thereof. Therefore, be it enacted," &
c.
the next act of assembly is that of 11th December, 1778. By this
act the estates of such "fugitives and offenders" as are in the
other acts described, are forfeited.
The first section relates to such fugitives and offenders, i.e.
to inhabitants owing allegiance, & c.
The second section that every inhabitant of the state, who
between the 19th of April, 1775, and the 4th of October, 1776,
joined the enemy's army, or took refuge, or continued with them, or
endeavored to aid them by counsel or otherwise, and hath not since
returned and become a subject in allegiance to the present
government, by taking the oaths, & c. of allegiance, is
declared guilty of high treason.
Page 6 U.S.
280, 297
This, however, does not reach the case of Daniel Coxe, who did
not join the British army until the year 1777.
By the third section every person, not an inhabitant of this
state, but of some other of the United States, seized of real
estate, who since the 19th of April, 1775, aided or assisted, &
c. as before stated, is declared guilty of high treason against the
state of New-Jersey.
In both cases an inquisition finding the facts is declared to
amount to a forfeiture of the offender's real and personal estate;
and in both cases it is declared that such conviction shall not in
any instance affect the person of any such offender.
It is therefore only and uniformly in respect to allegiance, to
a breach of the duties of a citizen, to the state of New-Jersey or
other of the United States, that the real estates are forfeited;
and no authority can be collected from any of the laws, to proceed
against real estate held by an alien; at least it is obvious that
no such proceedings as are directed by these laws could be
supported against an alien, merely as such.
2. That as a recognized inhabitant, as a member of the
civil society, and a person owing (and permanently owing)
allegiance to the state, he could hold lands within it, is a
position too plain to be disputed.
The rule of the common law is that all persons may hold lands,
except aliens. 1 Bl.Com. 371.-2 Bl.Com. 249. But Daniel Coxe was
not an alien. Daniel Coxe, therefore, may hold lands.
These two positions are supported by the collateral effect of
the treaty of 1783. The 5th article recognizes the capacity of all
persons, who have been the subject of judicial proceedings, to hold
lands. Congress are to recommend to the legislatures of the several
states, to pass laws authorizing those persons who had adhered to
the British cause to return to America, and there remain for 12
months, to obtain restitution of their estates.
In each case, therefore, the right to receive, and with it the
right to retain and hold lands, are recognized; for
Page 6 U.S.
280, 298
it would be absurd to suppose that he who is to receive it by
virtue of the treaty, is immediately afterwards to have it wrested
from him, as an alien.
On the subject of restitution, Congress were only to recommend,
but on another, the treaty is peremptory.-By the 6th article there
were to be no future confiscations. As a part of the former
proceedings, or connected with them, the treaty removes that
obstacle to the plaintiff's recovery; for the inquisition could
only operate on what Daniel Coxe was then seized of or entitled
to.
It is contended by the opposite counsel that the treaty
authorises to hold only such lands as could be restored, not to
hold new acquisitions.
But if our own laws could recognize a person as a citizen in
part, and an alien in part, yet the 6th article gives them the
right to hold new acquisitions as well as to retain what they held
before. But the effect of the 9th article of the treaty of 1794, is
still more extensive. It goes to exclude excheats pro defectu
sanguinis. Neither they, nor their heirs, or assigns shall be
considered as aliens. If Rebecca Coxe had been a British subject,
the plaintiff below could have claimed under her by virtue of the
treaty. Shall he not then inherit because she was a citizen of the
United States? By the treaty of 1783, antenati could retain lands
in both countries. That of 1794 provides also for postnati.
Antenati may not only hold, but pass lands to postnati.
3. The third position embraces two divisions.
1. Allegiance.
2. Capacity to hold and transmit laws.
1. Daniel Coxe could not by his own act get rid of the
allegiance he owed to New-Jersey.
2. He could not, except in the case of punishment for
crimes, be deprived of his capacity to hold.
This point might be carried still further; and it may be
contended that if he had expressly endeavoured to divest
Page 6 U.S.
280, 299
himself of a capacity to take and hold lands, yet his heirs,
being citizens of the United States, might claim under him. But
this is not now necessary. It is sufficient to shew that as he
denies any disclaimer of his capacity, so he cannot, by the
interested views of his present opponents, be deprived of it; for
the opposition is not now made by the state, but by private
individuals who endeavor to blot him out of legal existence that
they may double their portion of the inheritance.
It is a principle of the common law (which law is expressly
adopted by the 22d section of the constitution of New-Jersey ) that
no man can put off his allegiance-Hale, H.P.C. 68 1 Bl.Com. 369
Forster's cr. law, 59. McDonald's case.
It is true that Blackstone speaks of that allegiance which is
coeval with birth; distinguishing it from local allegiance, arising
from temporary residence.
But the allegiance due from Daniel Coxe was not of the latter
kind; it did not arise and terminate with his residence in
New-Jersey. It sprung from his inhabitancy in New-Jersey, when it
created itself a state; from his being then, in common with all
around him, a subject of the king; from the change which those
around him, in the course of successful resistance, made in the
form of their political society; by acts in which the majority must
compel the acquiescence of the smaller number. That the minority
were bound by the acts of the majority, was decided by Ch. J.
Ellsworth in the circuit court in North-Carolina, in the case of
Hamilton v. Eden.
Birth is but evidence of allegiance. At the time of a revolution
residence is equally evidence of allegiance to the new government.
Indeed it is stronger if the person be of mature age. It may at
least be considered as a new birth.
It was natural allegiance; as society is natural to man, and
allegiance is natural to society.
But without playing on the word, it may be characterized as
permanent allegiance; the opposite of temporary.
Page 6 U.S.
280, 300
It is said that he never was to be considered as a citizen of
New- Jersey, or if he was, that he expatriated himself.
1. That like Chapman he made his election before any new
government was formed, and on the dissolution of the old one; and
therefore never was a subject of the state of New-Jersey. But the
distinction between these two cases will be wide and glaring.
Chapman left Pennsylvania the 26th of December, 1776; Coxe not
till September, 1777. Chapman was acquitted because he had left the
state before the 11th of February, 1777, on which day the laws of
the then late province were to be revived, according to an act
passed on the 28th of January, 1777; and on which day the act
passed declaring what should be treason, and that all persons now
"inhabiting, & c. within the limits of the state of
Penn"sylvania, do owe allegiance," & c. It was therefore
declared that he was not a subject at the time of his quitting the
state of Pennsylvania; and the attorney-general having averred that
he was a subject and inhabitant of the commonwealth, it was held
that the issue was not maintained on his part. If Chapman had
resided in the state on the 11 th of February, 1777, he would on
the very principles of his own defense, have been been liable to
indictment.
But Coxe was an inhabitant of the state of New-Jersey on the 4th
of October, 1776, when a declaratory law, similar to that of
Pennsylvania was passed. After which it was too late for him to
attempt to change sides. He was then fixed as a subject, and liable
to indictment for treason. Being thus, on the one hand, subject to
the penalties resulting from his civil relation to the
commonwealth, he is, on the other, entitled by natural and equal
justice to the benefits of that relation.
[W. Tilghman admitted that by the law of New-jersey, Daniel Coxe
was to be considered as a subject of New-Jersey by force; and that
the state had a right to make such a law. He had argued only upon
the general ground, independent of the law of New-Jersey.]
Rawle. It is admitted then that he could not make his election
until the peace of 1783. it was the first time he
Page 6 U.S.
280, 301
ever heard that after an arduous conflict has successfully
terminated by means of the energy and exertions of a majority of
the people, each individual of the minority had a right of election
which should look back and give a new aspect to his conduct through
the period of the struggle.
[W. Tilghman stated that he did not contend for such an
election, but that all the citizens of the United States, after the
peace of 1783, had a right of expatriation, and Daniel Coxe among
the rest.]
Rawle. Let us then consider this supposed expatriation, this
imaginary dereliction of his country and his rights, this
abjuration not only of allegiance, but capacity to inherit, which
is to operate against him as a political estoppel; or like the
ancient confession of villenage, is to deprive him at once of all
power to take by descent or purchase.
It is perhaps a sufficient answer to say that expatriation is a
fact which out to be found.
Our opponents have piled together a confused and shapeless mass
of evidence, on which this court cannot act.-Since even if
expatriation had been allowed by the constitution or laws of
New-Jersey, all the different facts put together would not amount
to the technical fact of expartiation; and since if expatriation be
not allowed, they are of no more importance than finding whether
Mr. Coxe wore a blue coat or a brown one.
The circumstance most relied upon to prove Daniel Coxe's
expatriation, is his carrying on commerce as a British subject. In
this respect there has been a liberal construction of the right of
citizens of the United States in the British courts, even as to
their navigation act.-They have, for the purposes of commerce, held
that a person might be a British subject as to his duty of
allegiance, and a citizen of the United States as to his commercial
character. Thus in the case of Marryat v. Wilson, 1 Bos. and Pul.
430, 444, it was held that "both characters may stand together,"
and so in all cases so far as there are not conflicting duties, a
man may be a subject of many different governments, and may enjoy
the benefits conferred upon him by all. The right of Daniel Coxe to
hold land
Page 6 U.S.
280, 302
in New-Jersey does not conflict with any duty which he owes as a
British subject. His becoming a subject of Great-Britain therefore,
as to purposes of commerce, is not evidence that he had renounced
his rights as a citizen or subject of New-Jersey. Nor does it
follow, because he is a British subject that he is not also an
American citizen. 1 Bl.Com. 369, 376.-3 Dall. 169, Talbot v.
Janson.
What then is expatriation? It is said to be an operation by
which a citizen is made an alien. And it is contended that although
Daniel Coxe was once a citizen of New-Jersey, it was against his
will, and that the moment he had it in his power by the peace to
throw off that character, he did it, and by becoming a subject of
the king of Great-Britain, he became an alien to New-Jersey, and
therefore not capable of taking lands by descent, in that
state.
Many of the writers upon this subject have confounded
expatriation with emigration; and hence has resulted great
confusion. But the ideas are very different and distinct.
Expatriation is a matter of municipal regulation.
Emigration is of right. It cannot be restrained without
injustice and even violence. Expatriation cannot be effected
without public consent.
Expatriation dissolves the original obligation of the
citizen.
Emigration only suspends its activity.
Expatriation incapacitates from taking lands in future.
Emigration retains that capacity.
Expatriation renders the future issue aliens. Emigration does
not impair the right to be received as citizens.
Expatriation is an inconvenient and inflexible deprivation.
Page 6 U.S.
280, 303
Emigration destroys no rights, but facilitates the commerce and
improvement of man.
Hence in no states, not depressed by the severest despotism, is
emigration prevented. In very few is expatriation even known.
Of the 17 United States, one only (Virginia) has recognized or
provided for it by law. In the constitutions of the other states,
which have been cited, it is the right of emigration only which is
protected, and not a word is said of expatriation. In the laws of
Great-Britain there is no such term, or idea, as expatriation. It
is altogether unknown.
As soon as a man has expatriated himfelf, his lands would
escheat, and he would be divested of all the rights of a citizen.
There has been yet no case in practice where the lands of an
expatriated citizen have been escheated.
It is inconsistent with the nature of expatriation, that the
party be permitted to retire from the community for purposes
hostile to its welfare. No citizen can expatriate himself for the
purpose of committing an act which would be treason, without such
expatriation.
There ought also to be some municipal regulation defining the
evidence and the mode, and declaring the assent of the government.
3 Dal. 133, Talbot v. Janson.
If Daniel Coxe had set up this defense on an indictment for
treason, it would not have availed him.
If then his liabilities, on the one hand, and his rights on the
other remained in full force at the time of his departure; if he
took with him the capacity, as well as the responsibility of a
citizen; are the subsequent events of his life to act
retrospectively on his departure, and tear asunder the ties which
bound him in 1777?
If such an effect can arise from these causes, the quo animo,
the intention, ought to have been found, especially as it is a
recognized principle that a man may owe allegiance to two countries
at the same time, and therefore
Page 6 U.S.
280, 304
may lawfully have the intention of owing allegiance to both
Great-Britain and New-Jersey. The court cannot decide that it was
with intent to expatriate. 7 Co. Calvin's case, 27, (a and b.) 2
Tucker's Blackstone, appendix, 53. Kirby's Reports of cases Sup.
Court, Connecticut, p. 407. Apthorp v. Backus.
The counsel for the plaintiff in error have divided their case
into three questions, according to three periods of time, in the
solution of which they have employed much ingenuity.
1. From the beginning of the revolution to the peace of
1783.
This period seems to be nearly conceded; at least it is admitted
that the state had a right to compel the inhabitants to become
members of the new state or society. It seems to be admitted also
that there is a sufficient finding of his residence in New-Jersey
till 1777, to bring him within all the laws of that state. The test
laws of 1778 could not have influenced his departure in 1777; nor
did they give him any right to dissolve the connection; because the
penalties imposed were the consequences of political offence; the
punishment of treasonable flight. And to suppose that a man, by
staying away to avoid the punishment of the law, had a right to
dissolve the obligations of the citizen, is to lay down a principle
tending to shelter every fugitive from justice.
It may be noticed that incapacity to hold lands is not among the
penalties annexed to his disaffection. There are two legislative
declarations:-1. By making him a citizen and thereby giving him the
capacity. 2. By imposing other penalties on the offense, but
reserving this capacity.
It has been said that the object of the New-Jersey laws was
merely fiscal. But the citizenship of Daniel Coxe does not depend
on the inquisition, but on the act of 1776; i.e. he would have been
a citizen by virtue of that law, although no inquest had been taken
against him.
Page 6 U.S.
280, 305
It has also been said that the act of 1778 includes those who
had offended against other states, and had never been inhabitants
of New- Jersey, and therefore the legislature did not mean to
compel them to become citizens. The answer to this objection is
found in the case of Camp v. Lockwood, 1 Dall. 393, in which the
offence was decided to be an offence not only against the
particular state, but against all the states.
2. The 2d period is from the peace to the time of descent
cast in 1802. And it is contended that in 1783 Coxe had a right to
make his election and choose his country.
But this position is attempted to be supported on a false basis.
No such right is mentioned in the treaty. On the contrary the 5th
and 6th articles manifest a mutual understanding that the loyalist
were to return home, to obtain restitution of their estates,
intimating plainly that if they could obtain restitution they would
be entitled to hold.
3. The provision of the treaty, "that there shall be no
future confiscations," settles the point of a capacity to take at
present, and not in future. It was the universal understanding that
a sale after the treaty, of property before confiscated, was no
breach of the treaty. How then can there be a future confiscation
but in consequence of a future taking? And he who can take in
future is not an alien.
Daniel Coxe, who ought to know the quo animo of all the acts
charged against him, declares by his counsel, that he never meant
to give up his capacity to take and hold lands by descent or
purchase: and his counsel declare that if such was his intention,
he could not do it. These are two distinct propositions, both of
which must be established by our opponents. They must prove not
only the will but the power.
But it is said to be a hardship to deny the right of
expatriation.
Page 6 U.S.
280, 306
The observations made upon this point apply only to emigration,
and the right to emigrate is not denied.
But when a man turns his arms against his native country and
ungratefully endeavours to destroy the hand which fostered and fed
him, the arm of justice, though severe, is not misdirected.
And if in the decline of life he wishes to return to the bosom
of his surviving friends, and be buried in the tomb of his
ancestors, is he to be received only as an alien and an outcast-as
a modern citizen of the world- a detached, rotatory, irresponsible
and useless being?
Inconsistency runs through the whole of the argument for the
plaintiff in error. The counsel contend for the rigid doctrine,
peculiar to feudal tenures, that an alien cannot hold land, and yet
discard the more rational concomitant feudal principle, which has
been engrafted into the common law, that nemo potest exuere
patriam.
The authorities which have been cited do not support the
principles contended for by the plaintiff's counsel.
All the American constitutions which have been referred to,
speak only of emigration. Virginia alone has provided by law for
the case of expatriation; but that law cannot affect lands in
New-Jersey.
Vattel speaks only of emigration.
Judge Wilson uses only the same expression, and gives his
opinion of what the law ought to be, not what it is. It is said too
that he decided a case in Virginia, of a claim under Lord Fairfax,
upon principles contrary to those contended for by our opponents.
[
Footnote 2] So in the case of
Apthorp v. Backus, Kirby's Reports 407, the
Page 6 U.S.
280, 307
plaintiff was a British subject before the revolution, and yet
recovered the land in the year 1788.3
Wyckefort, reasons upon general principles, on the subject of
expatriation; but expressly recognizes the law to be otherwise in
England.
Page 6 U.S.
280, 308
In the case of Talbot & Janson, the court was of opinion,
that the right could not be exercised without an act of the
legislature.
The case of the Charming Betsy, in this court at the last term,
did not decide the present question. For the question now is,
whether, by becoming a subject of another sovereign, he is to all
intents and purposes an alien.
Woodeson, probably means only postnati of America, if he had any
clear idea at all upon the subject.
February 18. Stockton on the same side.
There is but a single objection to the title of the lessor of
the plaintiff, which is that D.C. under whom he claims, was, before
and at the time of the descent and conveyance, an alien, and
therefore could neither receive nor transmit any estate in the
premises in question.-This I shall deny: 1st. Because D.C. was born
under the same ligeance with the other subjects of N. Jersey.
2ndly. Because the legislature of N. Jersey, after the organization
of their independent government in the exercise of constitutional
powers, derived from the people, by statute declared him a subject
of the new government; exacted from him the duty and submission of
a subject, and punished him for a breach of his allegiance-but
never deprived him of his capacity to inherit real estate. 3dly.
Being thus once a subject of N. Jersey, by the constitution and law
of that state it was not in his power to make himself an alien, and
if it had been in his power he did not exercise the right.
1. Lit. sec. 198, defines an alien to be "one born out of
the ligeance of the king," and he adds, "if he sues an action real,
the tenant may say that that he was born in a country out of the
king's ligeance." This is the universal form of pleading alienage.
The defendant must shew that the plaintiff was born out of the
king's ligeance and where. The definition of Littleton, taken from
writers still older than himself, has been adopted by Vaughan,
Hale, Foster, and Blackstone, indeed by all the English lawyers,
and has never been questioned. The form of pleading is equally
ancient, and both together, present a complete criterion of the
law. That the place of
Page 6 U.S.
280, 309
birth, should determine the condition of the subject, is both
reasonable and natural. It is reasonable, because he there receives
the protection necessary to the preservation of life, during the
helpless years of infancy-an obligation which can be conferred on
him by no other country- because, there it is that he is
immediately invested with all the privileges derived from society
and government-giving him the force of the community to protect him
in his rights of personal liberty, reputation and property, and at
a time when he could make no return. How reasonable is it then that
he should owe to such a country, the corresponding duty of
allegiance? It is natural, because there exists in every good man,
a virtuous principle of preference for that country, nay, for that
spot, where he first drew his breath-where he passed his
childhood-where his mind first opened to the endearing
relationships of life, which nothing but the hand of death can
extinguish-an amor patrice, which remains in spite of rejection,
persecution and punishment, and which, even amidst the conflict of
the passions produced by a sense of injury, still secretly leads
him to his native country as his resting place. The common law,
founded in reason and nature, therefore, proclaims that no man born
a subject can be an alien. But it is said, that D.C. was not at the
time of his birth, a subject of the state of New-Jersey, and
therefore may be an alien.-Answer. At the time of his birth the
king of England was the common sovereign of D.C. and the other
citizens of New-Jersey; and by the principles and express rule of
the commonlaw, such persons never can be aliens, though a change of
sovereigns should take place, and distinct governments be formed;
for as on the one hand, the duty of natural allegiance accruing at
birth, adheres to him though life-so on the other, the
corresponding privileges, among which is the capacity to take and
hold lands, must remain, unless forfeited by crime. The very point
of Calvin's case, independently of the reasoning of Lord Coke
proves this. There the antenati of Scotland were held aliens in
England, and though James was sovereign of both countries, because,
at the time of their birth they were aliens. So on the other hand,
the postnati were declared subjects, and it was held that they
always must be considered subjects, because they were subjects at
the time of
Page 6 U.S.
280, 310
their birth. In 7 Coke, 27, b. Lord Coke puts the very case:
"Wherefore, to conclude this point (and to exclude all that hath
been or could be objected against it) if the obedience and ligeance
of the subject to his sovereign, be due by the law of nature, if
that law be parcel of the laws as well of England as of all other
nations, and is immutable, and that postnat and we of England are
united by birth-right, in obedience and ligeance (which is the true
cause of natural subjection) by the law of nature; it followeth,
that Calvin, the plaintiff, being born under one ligeance to one
king, cannot be an alien born."
This is not then to be considered as one of the extrajudicial
and fanciful reasons of Lord Coke, of which so much has been said,
but a consequence not only clearly flowing from undoubted
principles, but adopted by ancient practice, and proved by the
history and law of England. Such was the condition of those
provinces of France, claimed and held by the kings of England.
These were subject to continual revolutions and change of
sovereigns, as the arms of either king prevailed; but Frenchmen,
born while the kings of England were in possession, were held not
to be aliens when that possession ceased, and might hold lands in
England. 7 Coke 20 b. is express to this purpose, and in 2 Viner.
261, pl. 11, it will be seen, that this doctrine was considered as
law by other judges. it has indeed been said, that Calvin's case is
not law, and his reasoning has been stated to be servile and
ridiculous. That it partakes a largely of the quaint pedantry of
the times, is not to be denied; but that my Lord Coke would lay
down, and take such pais to prove a false position of common law,
comports not with his character, either as a lawyer or a man; and
the case of the commendams is of itself enough, to rescue his
character from the imputation of undue servility. Besides, the
determination in Calvin's case, has never been overruled or
questioned; it is supported by the names of the venerable Fleta,
Bracton, & Britton. it received the sanction of Lord Chief
Justice Vaughan, (Vaughan's Rep. 285,) of Lord Hale, as may be seen
in his history of the pleas of the Crown; and in 4 Term Rep. 308,
the same doctrine is laid down as the modern law of
Westminster-
Page 6 U.S.
280, 311
Hall, by Lord Kenyon. This doctrine that the antenati should be
capable of inheriting is founded in justice; a right once vested,
ought never to be divested, unless it be for a crime. An empire is
rent asunder by a revolution; the individuals of each territory may
be innocent; if guilty, they can only suffer the punishment,
annexed by law to the crime; it was impossible for Daniel Coxe to
commit a crime against New-Jersey, which could destroy his
inheritable blood, that being saved even on conviction of
treason.
The opinion of the most celebrated jurist of our country, is,
expressly in favour of my position. Judge Tucker, in his notes on
Blackstone, not only considers the rule in Calvin's case to be law,
but applies it to the antendi Americans, who he says may hold lands
in both countries. 2 Tucker's Black. Appen. 53, Note c. But it is
again said by our learned adversary, that this doctrine of the
common law, is derogatory to the feelings and character of freemen,
and altogether inconsistent with our present forms of government,
and political institutions; it is, however, conceived that this
doctrine contains in it no principle of the nature ascribed to it,
and that its results are especially applicable to our political
system. What is the injunction of the common law? not that a man
shall, like the trees of our forests, be planted and affixed to the
place where he was born; not that he shall be prohibited from
bettering his condition elsewhere; it restrains not the right of
emigration under proper restraints and limitations: on the
contrary, the subjects of this law, enjoy more liberty in this
respect than all the rest of Europe. It only says to them, if you
do emigrate, you shall still retain the privileges and be under the
restraints of your natural allegiance.-What can be discovered in
this derogatory to a freeman? No; it should rather be considered as
an invaluable privilege; the price of a reasonable and prudent
restraint. In it is only heard the voice of exalted Patriotism
saying to her children, go gain your support, seek your happiness
in fairer fields, in a more genial clime; but remember (and it is
the only restraint I plan you under) raise not a parricidal hand
against your native land. The results of this doctrine appear to me
peculiarly applicable to our political position. We are not a
confederated re-
Page 6 U.S.
280, 312
public.-Our general government is composed of a number of
distinct and independent states, uniting under one head by mutual
consent for common benefit. But an event may happen (which every
good man should join with my Lord Coke in his devout prayer, "that
God of his infinite goodness and mercy may prevent,")-time may come
when this bond of union may be broken, this confederacy dissolved,
and these sovereignties become altogether and completely
independent. In this event what security would a citizen of one
state have for his lands held in another, but this much reprobated
maxim of the common law? With it all would be safe-we were once
fellow citizens-we owed allegiance to a common head-we never can be
aliens. Without it our lands held out of the state in which we
live, would be liable to; escheat on the ground of alienage.
Let us not, affect to be wiser than the law. Let us not, for
idle theories, absurd as well as impracticable, depart from those
principles which have secured to our ancestors the complete
enjoyment of their liberty and property.
2. But supposing that this doctrine of the common law
that the place of birth does conclusively fix the character of a
subject, should be considered as not applicable to the case of a
revolution by which one part of a nation is served from the other,
becomes independent, and forms a separate government. We must then
search ex necessitate for some other principle, as a substitute for
the common law principle, and which shall denote who are and who
are not members of the new community. Now, the natural, the only
practicable substitute is this, that those residing at the time of
the revolution in the territory separating itself from the parent
country, are subject to the new government, and become members of
the new community, on the ground either of tacit consent, evidenced
by their abiding in such territory; or on the principle that every
individual is bound by the act of the majority. Hence, as birth at
the common law denotes the subject, so residence at the time of the
revolution will draw with it the same consequence. The great men
who conducted the revolution in New-Jersey were at no loss to
discover this principle.-They recognized it by their constitution
and first acts of legislative power. By law they claimed all men in
the situation of D.C. to be their subjects. This brings me
Page 6 U.S.
280, 313
to the second point which was, that D.C. could be no alien
because the legislature of New-Jersey proclaimed him a subject,
claimed his allegiance as one, and punished him as one for a breach
of it, without, however, taking from him his inheritable rights.
The new constitution was adopted in New-Jersey, July 2d, 1776.
October 4th, Wilson N.F.L. 4. The legislature then first convened
under it passed their treason act, in which it is declared "that
all persons abiding within the state, and deriving protection from
the laws thereof, do owe allegiance to the government of this
state, established under the authority of the people, and are to be
deemed members thereof." Then they go on and declare all such
guilty of treason who shall adhere to the king of G. Britain-saving
the corruption of blood. D.C. as the jury have found, was born in
New- Jersey, was living and abiding in the state at that time, and
adhered to the British by joining their army more than one year
afterwards.
This description of who were subjects of the state of
New-Jersey, was always closely pursued by the legislature and ended
in the seizing and forfeiting the estates of all those who had
withdrawn within the British lines, and so could not be attainted
on trial, according to the course of the common law.
Wilson, N.F.L. Appen. 5, contains the next act-it is an act of
free and general pardon. The former act had declared who were
subjects, who could offend-this offers conditional pardon on their
return to their allegiance, and forfeits the personal estate of
those who did not accept proffered grace. Then follow the several
acts of Dec. 8th, 1778, Appendix 8; of April 18th, 1778, Wilson,
N.F.L. 43; of 11th Dec. 1778, in which the same description of
subjects given in the first act is confirmed- provisions made to
punish them if they persist in their rebellion to the state, which
ends, and in this case did end, in the entire confiscation of the
real and personal estate of the offending subject. It was observed
on these acts, that they appeared to be rather of a fiscal nature
than any other, and were not so much designed to prescribe duties,
and punish transgressions, as to bring money into the treasury.
Such an object would have been unjust and pitiful, and was never
contemplated at the time they were enacted. No; the patriots of
that day had a more sublime object.
Page 6 U.S.
280, 314
Their great object was independence. By these acts they meant to
legitimate the revolution by the supreme power of the people. They
proclaim their new and republican government. They declare whom
they consider as the members composing this new community. They
proceed to impose the duties arising out of their new condition,
and to enforce the performance of these duties by the sanction of
adequate punishment for their violation. They did not, it is true,
pass attainder acts affecting the person of the offender, because
such acts were deemed inconsistent with their avowed principles.
Such acts go to take the life of a man without trial by jury-to
convict him of personal offences in his absence, against a maxim of
the law. These obstacles did not exist in so strong a degree in
proceedings in rem, which ended in punishment by loss of property.
Fiscal considerations then had nothing more to do with this subject
than they have with all other cases of crimes punished by
forfeiture or pecuniary mulct.-They are but consequences of the
crime, not objects of the law. The 2d. section of the last act
which punishes treasonable acts between the 19th of April, 1775,
when the civil war first broke out, and the 4th of Oct. 1776, when
the treason act passed, it was said, was particularly subject to
this objection; for it was urged, as this related to a period prior
to the establishment of the new government, and before there was a
treason act, there could be no other ground for the provision. I
conceive the learned gentleman equally mistaken in this suggestion.
It is well known in New-Jersey that government did not cease
between these days. The people governed themselves in their
primitive capacity by committees of safety in each county, and by a
provincial congress. This congress did, in fact, pass an ordinance
of treason soon after the war commenced, containing the same
provisions with the treason act of 4th Oct. 1776. This section then
referred to this notorious fact, and was designed to give the
sanction of the legislature to the provisions of that
ordinance.-And both this ordinance and this section of the act,
contained in them nothing more than the principle acted on
throughout the war, that Americans could at no period legally act
against this country, but were bound to take its part from the
first hour the sword was drawn. What then is the fair result of all
these provisions? We see an old government dissolved and a new one
created. The people at first, and their representatives afterwards,
de-
Page 6 U.S.
280, 315
clare by law all men abiding within their territory, subjects of
the new government. They pass treason acts, define allegiance, and
enforce its duties by the accustomed sanctions of the law. These
laws operated on D.C. He was an abider within their territory. They
claim him as a subject, and punish him for refusing to yield
obedience. Shall, then, this same government, which with a voice of
thunder proclaimed him a subject and punished him as one, or shall
an individual under its law now say to him, you are an alien ?
Shall he be declared a subject to punish him and an alien to punish
him? A subject to take all he has, and an alien to prevent his
acquiring any in future? Shall he be made poor by citizenship, and
be kept poor for want of it? No, I apprehend not. The government,
and all claiming through its laws, are estopped to say he is an
alien, and no act of his, as I shall directly shew, would alter his
condition. The legislature never meant to adopt such inconsistent
and repugnant principles. They carried through their work correctly
on their own plan. It is by pursuing now an opposite one on a
scheme of private interest that the incongruity is produced. They
had a right to declare the colonists members of the new government
on the clear republican principle that the minority must yield to
the majority. But they had no intention of going further by
illegally taking from them their birth right-their capacity to
inherit lands. These laws also destroy at once the fanciful
doctrine of election in case of civil wars. It may, for aught I
know, be just enough to give men a free election in such cases to
adhere to the old, or to join the new government. But then was the
time to have acted on this magnanimous principle. The legislature
adjured it; they declared by their treason act that no Jerseyman
had an election to join against his country.
The learned counsel seemed to yield to the force of this
conclusion so far as respected the period from the commencement of
the war to the treaty of peace; but at the aera of the peace he
says, Mr. C. had a right to continue a British subject, which he
did, and so has become an alien. But we have shewn him t o have
once been a subject of the state of New- Jersey by their own
concession; that is to say, from the commencement of the war to the
treaty of 1783. This, then, opens to me the last point I propose to
treat.
Page 6 U.S.
280, 316
D.C. having once been a subject of New-Jersey, it was not in his
power, without the concurrence of New-Jersey, expressed by
legislative act, to become an alien. And if he possessed the power
he never exercised it.
The modern theory of expatriation has been relied on-nay, our
adversaries seem to place their cause on it-a narrow point indeed
whereon, in a common law court, to defend an ejectment! and what
becomes of it when we reflect that the common law expressly
prohibits this supposed right of expatriation-that the constitution
of New-Jersey expressly adopts this common law, and that the
legislature have, by particular act, enacted and incorporated into
their system the common law doctrine of allegiance?
1. By the common law, expatriation is not barely not
permitted, but it is distinctly prohibited. The maxim of that law
is nemo potest exuere patriam. By the common law, allegiance is
perpetual. Bracton, Coke, Hale, Foster, and Blackstone consider
this as a fundamental principle of that law. Mr. Swift, 1 vol. L.C.
164, very properly observes, that this is the law of such of the
United STates as have adopted the common law without altering this
principle.
2. The 22d section of the constitution of New-Jersey
adopts the common law of England generally, except such parts as
are inconsistent with the rights and privileges of that charter.
The gentlemen have relied on this exception; and the only question
must be, whether this doctrine of the common law is inconsistent
with the rights and privileges of that constitution. Now, I am at a
loss to discover, how perpetual allegiance to the government
established in New-Jersey under the authority of the people, can be
inconsistent with the rights of that charter which created and set
in motion that very government. What is the true meaning of this
exception in the 22d section? what are the rights secured by that
charter? The principal are, a republican form of government;
legislative council and general assembly; annual election; freedom
of conscience in matters of religion; trial by jury, & c. These
are the rights alluded to; and it is easy to see that all those
parts of the common law which grow out of the monarchy of England
were inconsistent with these rights. But not so is that principle
which would transfer the sacred duty of
Page 6 U.S.
280, 317
allegiance, formerly due to the king, with equal force and
effect to the new sovereign, the people themselves.
It was further stated that the preamble of the constitution
asserts fundamental principles which are inconsistent with this
common law notion of allegiance: Such as that all power is derived
from the people-that protection and allegiance are reciprocal-that
when a prince violates the fundamental laws he abdicates and
dissolves the government, and remits the people to their primitive
rights.-This is all very true; but it is equally true in England by
the common law as here: it leaves the doctrine of allegiance where
it was; but on great occasions transfers the duty of that
allegiance from one man to another-or from one form of government
to another. These principles were all recognized and acted upon in
England in the revolution of 1688. But did that revolution change
the doctrine of perpetual allegiance? No! it transferred it from
James to William, but the law remained the same. The same turn was
attempted to be given to this event in McDonald's case, Foster,
C.L. 60, but it was repelled by the court, not only as unfounded in
law, but even as bringing a reproach on that glorious revolution.
Then not being within the exception, it stands on the broad basis
of the common law, which the people of New-Jersey have thought
proper to adopt, and which, I trust, they will not be soon
persuaded to throw away.
3. But the common law doctrine of allegiance has been
expressly enacted into our code by the legislature of New-Jersey.
Wilson's N.F.L. 4 . The treason act adopts the common law
definition and division of allegiance in its very language and
terms: "whereas, all persons abiding within this state, & c. do
owe allegiance to the government of this state and are to be deemed
members thereof," and "all persons passing through, & c. owe
temporary allegiance." Here then we have an exact common law
description of permanent and local allegiance. Afterwards the act
proceeds to define the crime of treason, in which it pursues the
provision and uses the very words (mutatis mutandis) of the statute
of Edward 3d. Now, what is the conclusion? The people, in their
very constitution, adopt the common law-the legislature take up the
common law idea and division of allegiance, and pursue even the
English statute of treasons as far as it was in any manner ap-
Page 6 U.S.
280, 318
plicable. The common law import of the term allegiance being
settled, it follows conclusively that the words must receive the
same interpretation when introduced into the statute. That common
law expressions must receive the common law exposition, is too
clear to admit of doubt. Hence, we find that the advocates of the
doctrine of expatriation have endeavoured, by all means, to get rid
of them. It is matter of curiosity to look into 3 Dallas, 141, to
see the pains the learned gentlemen who then first broached this
doctrine, took to get rid of expressions having a fixed meaning by
the common law. The terms allegiance and subject were though to
contain sounds discordant to the ears of a freeman: Obedience and
citizenship were to be substituted. Allegiance was feudal-it
denoted only the submission of a slave to his master. It was
monarchical-unworthy a republican, who ought not to owe allegiance
even to the people themselves-In short, it could not exist in a
free country. The term subject was also disgraceful: A subject must
have a master; that master must be a tyrant, and of course the
appellation was only fit for slaves. But citizen was a name worthy
of a freeman, and the true name by which a republican was to be
known. The gentlemen shew their discretion in trying to get rid of
terms of known signification and import, and substitute in their
stead the most uncertain and vague. But, unfortunately for the
argument in this case, the plain men who formed the constitution of
New- Jersey were not carried away by such refinements. They
supposed (perhaps weakly) that allegiance might be due to the
people as well as to the king, and that even a republican might be
called, without offence, a subject, provided his master was the
law. Therefore, they adopted these terms of known signification;
and these expressions must be explained according to their known
and established legal import at the common law. But even if the
common law and the constitution and law of New-Jersey did admit
this idea of expatriation, it might be safely contended that Daniel
Coxe never exercised the supposed right. An act of this kind to
work such important consequences should be unequivocal, and
certainly intended by the person to produce the effect. If it might
exist consistently with the continuance of his former connections
it shall not be construed to dissolve them. Now, his removal to
England and remaining there ever since, is no act of expatriation.
Having traded as a British merchant is not inconsistent with our
position.
Page 6 U.S.
280, 319
It has been determined in Westminster-Hall that a British
subject naturalized here, is an American merchant within the treaty
of 1794, and may, as such, trade to the East-Indies against the
charter to that company . Neither can the fact of receiving
compensation from the British government for losses during the war,
be considered an an expatriation. That was common to all the
royalists; yet those who returned have always been received as
subjects on taking the oaths of allegiance. Much less can the
circumstance of his calling himself a British subject after his
condition. If he had called himself an American citizen without
right it would not make him such; so if he is really a subject of
New-Jersey in the contemplation of the law of the state, his
calling himself a subject of Great-Britain would not make him an
alien to New-Jersey. But Mr. Coxe was correct in calling himself
so; he was born such and is such; but the state of New-Jersey, by
declaring him a subject, and punishing him as such, have also taken
him as their subject; and by law have only done what is commonly
produced by the act of the party; that is to say, created a kind of
double allegiance; a matter which happens here every day in the
case of the naturalized Englishmen.
The course I have pursued relieves me from the task of following
the gentlemen through the general research they have made to
support the right of expatriation. If the common law prohibits it;
if the people of New- Jersey have adopted that common law, and the
legislature enacted its provisions, it matters little what foreign
jurists think of this question.
I will make but a few very general remarks.
1st. If the known maxims of the common law are to be disregarded
and titles to land tested by the reasoning of modern writers, and
by general principles of abstract right, the learned counsel
against us have overlooked a very important point. They should have
examined their own objection and tried how that would comport with
the theory of modern times . The reasons on which the disability of
an alien to hold lands is founded may be truly said to be more
unsatisfactory than those on which the doctrine of allegiance is
founded; and the policy of the United States, with such an immense
wilderness to subdue, seems to
Page 6 U.S.
280, 320
point out the propriety of inviting foreigners, by all the
inducements which a clear right to hold lands brings with it, to
populate that wilderness. The reasons for the exclusion were partly
feudal, and all such have ceased to exist with that system; and
partly political, and those rendered by my lord Coke are of little
weight, and doubtful policy, since he extension of trade and the
increase of money. But the gentlemen are reduced to the necessity
again of being inconsistent; they adhere with inflexibility to one
maxim to exclude our title,and repudiate another more important,
clear, and settled, to effect the same purpose.
2d. If this thing called expatriation really exists as a right,
it can only be founded on mutual consent. Not only the party who
gives up his allegiance but the state must accede to it. This
public consent can be expressed only in one way by law: Hence it
follows that if the right, strictly speaking, exists, it must be
dormant until put in motion by a law . This law will regulate the
forms, settle the terms, and determine the consequences of
expatriation. As it is now contended for, it is without any such
restrictions. A man may shake off his allegiance one year and put
it on again he next; it may go and come as often as whim and
caprice shall dictate. The state of New-Jersey have never
recognized by law this right; much less have they regulated it:
until they have, it must remain useless and inoperative. No state
in the union but Virginia has passed an act recognizing and
regulating the right of expatriation.
3d. and lastly. The treaties between the United States and
Great- Britain which have also been used against us, so far from
aiding the gentlemen are against them. hat of 1783, stipulates that
no future loss shall happen on account of the part taken by those
in the situation of Mr. Coxe, during the war. But if his right to
inherit lands is taken from him for that reason, he has sustained a
future loss. The only fair and liberal construction of this treaty
is, that the royalists were by it restored to all rights which they
possessed before, not actually divested and gone at the time of
that treaty. The treaty of 1794 recognizes the idea that the
antenati might hold lands and stipulates that their heirs may do
the same. Both together, we apprehend, fully protect the right of
Mr. Coxe. It could not be denied but that if Miss Coxe, the
intestate, had been her-
Page 6 U.S.
280, 321
self a British subject, that Mr. Coxe might, within the very
letter of that treaty, have claimed as her heir. It would be harsh
indeed, to put him in a worse condition, because she was a subject.
On the whole, it is submitted that the judgment below ought to be
affirmed.
Ingersoll in reply. The doctrines advanced upon the present
occasion are, to me, novel, strange, and alarming.
That the postnati, against whom we have not cause of complaint,
should be excluded, while the antenati are preferred who injured
us. That the French who aided us are called aliens, while the
British royalist refugee may hold lands as a citizen, is a language
I do not understand. If the law is so, it is strange, and I must
abandon an idea I have always cherished, that the rules of law were
founded in sound sense.
Daniel Coxe being more than twenty-one years of age at the
commencement of the revolution, adheres uniformly to the British
interest in attempting to reduce the United States to submission to
British claims. The attempt failing, at the conclusion of the war
he quits this country, settles in England, claims to be a British
subject, and is so acknowledged by that government from 1777, to
1805.
In 1802, a relative dies in New-Jersey, to whom Daniel Coxe is
next of blood, and claims to succeed by right of descent as an
American citizen . The next of blood, who is a citizen of the
United States, excepts to him as an alien, and claims in her own
right.
I make two questions in this cause.
1. Did Daniel Coxe expatriate himself? This question is
naturally subdivided into two others; viz. Had he a right so to do?
and has he exercised that right?
2. Did such expatriation incur the disability of
alienage? and is he thereby prevented from taking lands by descent
in the United States?
I ask, (and it is a question of magnitude) could Daniel Coxe,
and has he expatriated himself and become a subject of the king of
Great Britain?
Page 6 U.S.
280, 322
This is a new case in the history of nations, to which the
little case of Calvin, the Scotchman, bears no proportion.
The revolution which dismembered the mighty empire of Britain,
is a subject of eurious, of interesting-and as introductory on this
occasion-of profitable contemplation. Its leading principle was the
reverse of what has been stated by the opposite counsel, or I am
ignorant of its origin and design.
I insist that when the authority of the mother country, as it
was called, was rejected, the inhabitants of the former colonies
were so far in a state of nature, that each man was at liberty to
choose his side- remain a subject, or become a citizen. This
interval of election continued until new systems of government were
formed, adopted, and organized, after which period, (not
previously) residence was an implied assent to share the fortunes
and the destinies of the United States. In Pennsylvania the rule
was practically exemplified in the memorable case of Chapman, the
British light-horseman, charged with treason. 1 Dal. 53.
When government is regularly established, a majority with
propriety governs the minority; to institute it legally, individual
assent is necessary, or it deserves the name of usurpation, and
ought to be execrated as tyranny. 1 Wilson's works, 316, 317.
New-Jersey proceeds in a temperate, mild and correct course. The
constitution of the 2d of July, 1776, offers the right of suffrage
without imposing its exercise on all the inhabitants. Constitution
of New-Jersey, section 2, 3, 4, 13.
In perfect conformity to the principle for which I contend,
treason could not be committed, even by joining an invading army,
until after the 4th of October, 1776, Wilson's New-Jersey Laws, p.
4. The period is, in effect, extended by the provisions of the act
of the 5th of June, 1777, offering to restore to the rights of
freemen all who would return and comply with certain conditions by
the 1st of August, then next.
Page 6 U.S.
280, 323
In 1777, Daniel Coxe joins the enemy as a fugitive and offender;
and in August of the same year, an inquisition is held to forfeit
his real estate for treason supposed to be committed about the 9th
of April preceding, and judgment was rendered thereon in February,
1779.
The counsel opposed to us exultingly say Daniel Coxe is by this
means recognized as a citizen, charged with the crimes incident to
that character only, and entitled in return to the privilege of
holding land, and cite authorities in support of the position.-1
Bl. Com. 371. 2 Bl. Com. 249.
We admit that he could take lands-so might an alien-but he could
not hold in either capacity. In high treason the forfeiture of
lands accrues not from the time of conviction, but from the date of
the offence.
If the right of election has passed, the right of expatriation
succeeded.
I am told at the commencement of the argument that I
misunderstand and misapply terms, and consider as synonimous, what
are entirely distinct, if not of opposite meaning, Expatriation and
Emigration. That the last is of natural right, the former of
municipal regulation. That emigration cannot be restrained, but
expatriation requires the consent of the government. Emigration
only suspends the activity of allegiance; expatriation dissolves
it, precludes from taking lands, and renders the issue aliens.
This suggestion accords perfectly well with the views of my
learned antagonist; but does he shew any authority in support of
his explanation? None-it is the offspring of his own creative
imagination.
Is it credible that the conventions of Pennsylvania, Kentucky,
and Vermont though it necessary to restrain their legislatures from
preventing temporary absences of their citizens retaining their
political connections within their respective states?
Page 6 U.S.
280, 324
A train of reasoning is unnecessary on this point; I find the
text and the comment together. 1 Wilson's works, 311. Tucker's
Blackstone, vol. 1. part 2. Appendix, p. 96. Has a state the right
to prohibit the emigration of its members? May a citizen dissolve
the connection between him and his country? Judge Tucker considers
expatriation and emigration of the same import. In Judge Wilson's
works the word expatriation is not used in the whole lecture. The
9th article and 25th section of the constitution of Pennsylvania is
introduced, and the whole course of argument shows the word
emigration is to be understood as co-extensive with
expatriation.
Taking the word emigration then in its most extensive sense, is
the right of expatriation, as has been represented, the mere whim
of modern, fanciful, theoretical writers?-I say it is as ancient as
the society of man.
It is only by establishing the converse of the proposition, the
common law idea that the natural born subject of one prince cannot,
by swearing allegiance to another, or by any other act, discharge
himself from his allegiance to the former, that the principle of
emigration can be made a matter of doubt. 1 Tuck. Bl. part 2d.
Appendix, p. 90. I deny that this common law principle is founded
in, or consonant to the divine law, the law of nature, the law of
nations, or the constitution of the state of New-Jersey. The bible
is the most venerable book of antiquity; there we find expatriation
practised, approved, and never restrained. The family of Jacob
became subjects to the Egyptian monarch. Moses abandoned Egypt, his
native land, and David left Saul, his prince.
The law of nature, abstractedly considered, knows neither prince
nor subject. From this source, therefore, the common law principle
cannot be derived.
Particular nations have prohibited their people from migrating
to another country, but the prohibition did not arise from the
practice of nations towards each other. At Athens, after a man
examined the laws of
Page 6 U.S.
280, 325
the republic, if he did not approve of them, he was at liberty
to quit the country with his effects. By the constitution of the
Roman commonwealth, no citizen could be forced to leave it, or not
to leave it, when made a member of another which he preferred. Even
under the emperors, as long as any remains of liberty continued, it
was a rule that each one might chuse the state of which he wished
to be a subject or citizen. Where did the Romans get their laws?
From the Grecians. Where did the Grecians get their laws? From the
eastern nations-the Aborigines of the earth. The right of
expatriation, therefore, as far as we can trace it, has been
recognized in the most remote antiquity. Among modern nations the
practice is various; the Muscovites forbid it; in Switzerland it is
permitted: some princes consider their subjects as riches-as flocks
and herds, and their edicts correspond to these false notions.
Vattel b. 1, c. 19, 225. Consult jurists, Grotius, Puffendorff,
Burlamaqui, Vattel, they are of opinion, that every man has a
natural right to migrate, unless restrained by laws, and that these
cannot restrain the right but under special circumstances, and to a
limited degree. The strong and masculine understanding of Mr. Locke
revolted at the illiberal ideas of English jurisprudence in this
particular; he examined the right claimed to prohibit emigration,
and declares that examples of emigration are frequent in history
profane and sacred, and that it has been the practice from the
beginning of the world to the time he wrote. Wyckefort has a
section, the title of which is, the prince may employ foreigners in
his embassies, even in their own country. Wyckefort, p. 116, 119.
After a narrative in which he shows, that this had been the
practice of Europe, he proceeds to consider its propriety, which he
infers from the right of expatriation. Mr. Rawle has read as cited,
that passage to which Mr. Tilghman did not refer, and omitted to
answer what Mr. Tilghman did read.
Lastly the constitution of New-Jersey, is founded on sentiments
which repel the idea of perpetual allegiance, and imply and include
the right of expatriation.
Whatever diversity there may have been in the sen-
Page 6 U.S.
280, 326
timents of writers, and in the laws and practices of states on
the subject of emigration in general, there never has been a doubt
in this country, but that when a civil war takes place, each member
of the society has a right to choose his side.
The first view we have of New-Jersey and Daniel Coxe, is in a
state of enmity, the state treating him as a refugee; Daniel Coxe
declaring himself a British subject, acting in concert with an
invading army.
Trace the circumstances distinctly, and we shall find the right
of election between the two governments restored to him, and that
he expatriates himself with the consent of, if not propelled
thereto by the state of New-Jersey.
On the 11th of December 1778, the legislature of New-Jersey
passed an act whereby they disfranchise all persons who were of the
character and had pursued the conduct of Daniel Coxe. At the treaty
of peace, his treason was cancelled, forgiven, buried in oblivion,
or at least remembered only to prevent restitution of his forfeited
estates. The disfranchising act continued in full operation,
unrepealed, and unaffected by the restoration of harmony between
the two countries. Under these circumstances he had his choice; he
might have returned to New-Jersey, or to any other state. The
principles of the constitution justified him in becoming a British
subject, within the rules of expatriation, as stated by the
opposite counsel. That he made his choice is proved by unequivocal
evidence, that leaves no room for doubt or controversy as to the
fact.
Mr. Rawle has himself enumerated eight heads, under which the
evidence of his expatriating himself, and becoming a British
subject may be classed. 1. Joining the British army in 1777. 2.
Voluntary residence with them at Philadelphia and New-York. 3.
Holding civil offices under the king. 4.Trading as a British
merchant. 5. Holding lands as a trustee . 6. Receiving pensions and
rewards as a British subject. 7. Describing himself as such. 8.
Having never taken an oath of allegiance to the state of
New-Jersey.
Page 6 U.S.
280, 327
A case was cited (Wilson v. Marryat, 1 Bos. & Pul. 430) to
shew that the exercise of trade as a citizen of one country, is
compatible with a continuance of allegiance to another. It was the
case of John Collet, who was under the supposed tie not only of
permanent, but perpetual allegiance from birth. But Daniel Coxe was
not born in the allegiance of the state of New-Jersey, nor ever
voluntarily took upon himself that obligation. The principle of
that decision is consonant to British ideas, but in direct
hostility with those which led to the American revolution, gave
birth to our constitutions, and without which our brightest
patriots were rebels.
It is impossible to doubt from what appears on the record, that
he is under repeated positive oaths of allegiance to the king of
Great Britain. According to the sound reasoning of Wyckefort, these
were sufficient to sever the strongest connection between the
United States and a citizen, much more such a relation as was
subsisting (if any) between the state of New-Jersey and Daniel
Coxe; involuntary, disclaimed, and inconsistent with the duties
imposed upon him by his engagements to another country.
The naturalization law of congress is full proof that in the
estimation of the people of the United STates, an oath of
allegiance to one country is an expatriation from a former; and
that whoever becomes a citizen here, ceases ipso facto, to be a
subject elsewhere. If this is not the meaning of our law, we
encourage the unhappy victims to sacrifice themselves at the shrine
of perjury. Characters, such as Mr. Coxe are considered by the same
law, as expatriated, as aliens, and being no longer citizens; he
having been attainted of treason by the state of Pennsylvania in
the year 1778.
By the naturalization act of April 14th, 1802, 6 vol. Laws of
United States, p. 74, 80, 4, attainted loyalists, and such as have
been legally convicted of having joined the army of Great Britain
during the late war, cannot be naturalized without the consent of
the legislature of the state, in which such persons were
proscribed. All the courts of the United States, therefore,
Page 6 U.S.
280, 328
could not naturalize Daniel Coxe, without the consent of the
states of New- Jersey and Pennsylvania, in both of which he has
been proscribed.
From all these considerations, it is inferred that Daniel Coxe
did expatriate himself; that he had a right so to do;-that he has
legally exercised that right, and has thereby become a British
subject, and is not an American citizen.
Did such expatriation induce the disability of alienage, and is
Daniel Coxe thereby incapacitated from taking lands in the United
States by descent?
We are charged with inconsistency, that while we endeavour to
exclude the liberal sentiments of the common law as applied to
antenati, we insist on the rigid rule of the same law, in
preventing aliens from holding lands in the United States.
This charge will be effectually repelled by a single passage,
from an authority cited by the opposite counsel for a different
purpose. 1. Tucker's Bl. part 2d. p. 371. If an alien could acquire
a permanent property in lands, he must owe an allegiance, equally
permanent with that property, to the king of England, inconsistent
perhaps with former allegiance, and productive of many other
inconveniences. By the civil law a contract for land by an alien is
void. The forfeiture to the prince is peculiar to England, or at
least to countries where the feudal system has prevailed. 1 Bl.Com.
371. Cod. l. 11, tit. 55.
Was it from deference to the common law, that the objections
urged against the treaty of London were, that it paved the way for
British influence, by enabling aliens of that country to hold lands
in the United States?
If the natural and primitive allegiance may be put off without
the consent or concurrent acts of the prince to whom it was first
due, expatriation must induce alienage.
Virginia has recognized the right, and considers the
Page 6 U.S.
280, 329
person who has exercised it, as no longer a citizen. 1 Tuck.Bl.
part 2, p. 360, 361.
If expatriation be a right when legally exercised, it must
induce alienage, and the revolution is a case in point, to show
that a man is not obliged to continue the subject of that prince
under whose dominion he was born; otherwise, contrary to a position
contented for by Mr. Rawle, we must admit that America was not
independent until the king of Great Britain acknowledged her
independence; and that it was the consequence of, and not
antecedent to, the treaty of peace.
Expatriation is substantially a putting off or change of
allegiance. As to the removal from one country to another, it is a
mere immaterial, accidental circumstance. It will be agreed that if
it can be done in the country, it can by going out of the
country.
Nations may shake off their allegiance, says Mr. Rawle, but
individuals may not. Grotius said just the contrary; and surely, as
Judge Tucker observes, if all might, anyone might, with the same
reason.
Granting for a moment that the common law of England is as
barbarous as the case of M'Donald, (Foster 59) would induce us to
suppose, how has it been translated to the United States, to be in
active operation, slandering the principles of our revolution. I
consider the case of Talbot v. Janson as establishing the
proposition that expatriation was aright, the fair exercise of
which produced alienage with its respective rights and
disabilities.-3 Dall. 133, 152, 164.
Of Hamilton and Eden I know nothing. Lord Fairfax's case is not
in print, but from what fell from his honor Judge Washington, I
presume it went upon similar grounds to that of Calvin. I throw
into the opposite scale, as at least an equal weight, the decision
in the case of the Charming Betsy, where expatriation was expressly
recognized, and as operating the extinguishment of the previous
character of citizen of the United States. It is in point as to
both particulars.
Page 6 U.S.
280, 330
I conceive the general rule, at least so far as it is necessary
in the instance of Daniel Coxe, is fully established, and that
expatriation is a right, which, when fairly exercised, changes the
allegiance; and that it has been so exercised, by which he ceased
to be an American citizen, became an alien, and as such incapable
of holding lands by purchase, or taking by consent, unless there be
an exception out of the rule in his favor, as an antenatus.
The burden of the argument devolves upon our antagonists. Let
them show when, and by what means, the exception in favor of the
antenatus, derived from the principle of perpetual allegiance by
birth, has been adopted among us.
Because, say the counsel for the defendant in error, the
constitution of New-Jersey adopted the common law, of which this is
a part, therefore the rule is imperative on this occasion. What!
all the common law of England? that which respects the royal
prerogative, the hierarchy, the idea that allegiance is personal to
the king from the subject, not duty on the part of the citizen to
the state.
The common law of England, say Judge Tucker and Judge Wilson,
was only so far adopted in the states, as it was proper and
applicable to the situation and the circumstances of the colonies;
and was different in different colonies.
The adoption by New-Jersey is guardedly expressed. "The common
law and statute law of England, as have been heretofore practised
in this colony, not repugnant to the rights contained in this
charter, shall be in force."
Two questions arise for the consideration of the opposite
counsel. Was the principle for which they contend in previous
practice in New- Jersey? Is it not repugnant to the privileges
contained in that charter?
A double task devolves on our opponents. They must shew that
what they ask, was in practice in the
Page 6 U.S.
280, 331
colony of New-Jersey before the formation of the constitution.
This is impossible; the case could not occur; it could not, in the
nature of things, be in contemplation of the convention. The
expression had reference to the mere detail of municipal law. Here
then our antagonists must fail.
Can they succeed better in the other part of the proposition? Is
not a claim, founded on the idea of perpetual allegiance by birth,
repugnant to the rights and privileges contained in that
charter?
They say, on the contrary, that allegiance and protection are
reciprocal ties, and claim, as a right and privilege, to refuse the
former when the latter is withdrawn.
Three, out of seventeen states, says Mr. Rawle, have declared
emigration a right not to be restrained by the legislatures. I say
it is the principle of the revolution; it pervades each and every
constitution, without which the whole proceeding is crime,
rebellion, and treason.
If the common law, introduced through the constitution, fails,
what is the next prop by which it is attempted to support a claim
in opposition to the language of our revolution?
We are told that the capacity of British subjects to hold lands
in the United States is recognized by the treaties of 1783 and
1794, and that surely it was not meant to encourage them to
purchase that we might escheat. This part of the argument is
introduced by a reference to Judge Tucker for the distinction
between aliens by birth and aliens by election. 1 Tuck.Bl. part 2,
page 102, s. 1.-I acknowledge that Judge Tucker does state, that,
by the treaty of peace, the common-law principle that the antenati
of both countries were natural born to both, and as such, capable
of holding, or inheriting, seems to be revived.-As far as respects
authority, I oppose to Judge Tucker, the Virginia assembly, who
expressly declare that all persons not being citizens of the United
States are aliens. 1 Tuck.Bl. part 2, page 55. Judge Tucker founds
himself, as to the common-law principle, upon Bracton and Calvins
case, not adverting to the difference in point of fact, that the
British who claim, as in this instance, never were in allegiance to
our states.
Page 6 U.S.
280, 332
Further, he does not observe that the whole reasoning is founded
upon the false hypothesis that allegiance by birth is perpetual. He
acknowledges that by the declaration of independence the colonies
became a separate nation from Great Britain; yet, according to the
laws of England which we still retained, the natives of both
countries, born before the separation, retained all the rights of
birth. War makes aliens enemies. They were enemies-then aliens.
With the New-Jersey convention I understand the matter
differently; and that the law of England ceased until revived; and
was revived only as heretofore practised.
On this mistaken ground it is, as I shall endeavor to shew, that
he infers that American natives were capable of inheriting lands in
England, and the natives of England of inheriting lands in
America.
If this doctrine is founded upon the idea of perpetual
allegiance by birth, it must stand of fall with its principal.
Commentators, it is said, often find in Homer, what Homer never
thought. It appears to me that the same observation applies to the
commentaries we have heard upon the treaties of 1783 and 1794.
Let it be recollected that congress on the 27th of November,
1777, earnestly recommended it to the several states to confiscate
and make sale of all the real and personal estate of such of their
inhabitants, and other persons, as had forfeited the same.
The legislatures did confiscate the lands of antenati as
escheated, and it was never suggested to be a violation of the
common-law of the land . In order, however, to vest the property in
lands of an alien in the commonwealth, offices of initiating, and
of instruction, were necessary in some states.
In some states acts of assembly declared that the estates of the
persons proceeded against should be vested and adjudged to be in
the actual possession of the commonwealth without any other office
of inquisition. In others, real property belonging to British
subjects, loyalists, and others, had been only sequestered, not
con-
Page 6 U.S.
280, 333
fiscated, and the profits appropriated during the war; the
estate to wait the disposal of the legislative provision on the
return of peace. In some instances the lands of loyalists and
others had not been actually seized and taken into the possession
of the states respectively where situated, and therefore the
forfeitures and confiscations were not considered as completed. In
these several ways real property remained to loyalists and others
which was considered as not yet confiscated. This is the key to
unlock the secrets of the provision in the treaty.
I contend, therefore, that the 6th article of the treaty, of 3d
September, 1783, as far as respects property, is confined in its
letter, spirit, and meaning, to the preservation of estates owned
antecedently to the war, which had not been actually confiscated
and seized; and to the consequences of an active part taken during
that period.
This construction is perfectly warranted by the case decided in
Connecticut, (Kirby's Reports) and by the principles as laid down
by that very eminent English lawyer, Woodeson.
The distinction of antenati and postnati, the security of future
acquisition, or the operation of general principles arising from
political situations not the penal consequences of an active part
taken in the war, were not then in contemplation.
Twelve millions of rich aliens allowed to purchase lands in a
country owned by two or three millions of people comparatively
poor: would it not have been thought madness! I conceive that this
cause is precisely co- extensive as to its objects in guarding
against injury to the person and to the property. It preserves from
injury to their property the same persons who were to be secured in
their personal liberty.
In the first place, this comprehended many who were considered
as citizens of the United-States, but who had committed crimes
against their country.
Page 6 U.S.
280, 334
Was the property to be restored to them at one moment, says Mr.
Rawle, for the purpose of being taken from them the next?-By no
means. The stipulations extend to preclude any criminal proceedings
for what had been done during the war. The effect of alienage was
left to considerations of policy. Our commissioners, I trust, would
not have suffered any interferences by the British on that
head.
This article was intended to prevent punishment, not to secure
reward . If the loyalist is put upon the same footing as the ally
in the war, he has no cause of complaint.
There must be no future loss; no damage by reason of the part
which any have taken during the war. It is not asked. If Daniel
Coxe had fought under general Washington and at the peace
expatriated himself, and become a British subject, the rule for
which we contend would have been equally applicable. Many of the
people came back, and were naturalized under acts of assembly, and
of course hold their lands; such as Mr. Gordon in Pennsylvania, and
others.
The construction of the treaty attempted by our opponents, can
only be maintained by reference to the common law doctrine, that
natives of Great Britain were constructively born in America.
The 5th article assists in the construction of the 6th, and is
recommendatory where the confiscation laws had been actually
carried into effect. The 9th article of the treaty of the 19th of
November, 1794, is in perfect unison with the ideas I submitted to
the consideration of the court. Different ideas had been
entertained in the different states as to the policy of permitting
aliens to hold lands. It was always a matter of state regulation.
In Pennsylvania they might purchase;-now they may take by
descent.
The treaty, therefore, so far from looking to future
acquisitions by purchase, is confined to those who now hold.
Page 6 U.S.
280, 335
It is observable that Judge Tucker does not express himself
decidedly . He uses the qualified and guarded expression that the
treaty seems to have revived the common law principle that the
antenati of both countries were natural born to both. He qualifies
his argument still further, by saying, British subjects born since
the separation are aliens; but such of them as were born before the
definitive treaty of peace took place seem to be entitled to the
benefits thereof, so far as they had, or might be presumed to have,
any interest in lands in the United States. All others appear to be
aliens in the strictest sense of the word, except as their cases
may have been remedied by the late treaty of the 19th Nov.
1794.
Daniel Coxe had no interest in the lands in the United States,
and could not be presumed to have, on the 3d of September,
1783.
It is curious to observe the unreasonable consequences to which
this doctrine of antenatus leads.
If the loyalist died and left an une?ending infant, his lands
escheat.
If he leaves an antenatus who had waged war against us, he
succeeds to the possession.
Say with Judge Tucker that under the equity of the treaty of
peace, giving it the most liberal construction, all rights of
British subjects, actually vested, not divested, were protected;
and that when such rights relate to lands, the persons having such
right, if not then citizens, had their whole life time to become
citizens; which, if they neglected to do, their lands at their
deaths would be equally subject to escheat as those of any alien
naturalized, and dying without heirs other than aliens. How is this
reconcileable with his doctrine of antenati being entitled to
purchase, take by descent, and every other mode of acquisition? Or,
with his argument that the common law principle from which this
doctrine of antenati flows, that of perpetual allegiance by birth,
has never been translated as a part of the common law into the
United States? How can he reconcile it to his cen-
Page 6 U.S.
280, 336
sure and strictures upon the determination of Judge Ellsworth in
Willaims's case? He himself acknowledges that after the 28th of
October, 1795, no British subject can purchase lands within the
United States, so as to be protected by that treaty.
If once this whimsical doctrine of antenatus be admitted it will
give rise to an infinity of perplexing questions.
An attainted loyalist, if he retains his citizenship may return
and be immediately eligible as a member of the house of
representatives or the senate. After 14 years residence, though he
cannot be naturalized without the consent of the state in which he
was proscribed, yet he may be president of the United States.
I infer from all these considerations that the expatriation of
Daniel Coxe induced the forfeiture of alienage, and that he is
thereby precluded from taking lands by descent in the United States
of America. [
Footnote 4]
Footnotes
[
Footnote *] Present, Cushing,
Patterson, Washington, and Johnson, Justices.-The Chief Justice did
not sit in this cause, having formed a decided opinion on the
principal question, while his interest was concerned.
The importance and interesting nature of the questions involved
in this case, it is hoped, will apologize for publishing the
arguments of counsel before the ultimate decision of the
clause.
Footnote 1 S.C. in this
court, see ante p.
Footnote 2 Washington J.
said that there was an appeal in that case to the supreme court,
which was not decided, the state of Virginia having compromised the
cause.
Footnote 3 This case was
decided by the Supreme Court of Connecticut, before Richard Law,
Ch. J. Oliver Elsworth, Roger Sherman, and William Pitkin,
Justices, and was as follows:
An estate was mortgaged by Fitch to Stephen Apthorp, then of
Bristol in England, who died January 1st, 1773, leaving plaintiff
his only heir. It was moved in arrest of judgment, that it appears
by the declaration that the plaintiff is an alien, and therefore,
cannot by law, hold any real estate.
By the Court.
A state may exclude aliens from acquiring property within it of
any kind, as its safety or policy may direct; as England has done
with regard to real property, saving, that in favour of commerce,
alien merchants may hold leases of houses and stores, and may, for
recovery of their debts, extend lands, and hold them, and upon
ouster have an assize. Dyer 2.6, Bac.Ab. 84. But it would be
against right that a division of a state or kingdom, should work a
forfeiture of property previously acquired under its laws, and that
by its own citizens; which is the case here.
The plaintiff's title to the land accrued while she was not an
alien, nor could she be affected by the disability of an alien, but
was as much a citizen of the now state of Connecticut, as any
person at present within it, and her descent was cast under its
laws.
Her title is also secured by the treaty of peace, which
stipulates that there shall be no further forfeitures or
confiscations on account of the war, upon either side. the
subsequent statute of this state, declaring aliens incapable of
purchasing or holding lands in this state, does not affect the
plaintiff's title, otherwise than by recognizing and enforcing it,
for it hath a proviso that "the act shall not be construed to work
a "forfeiture of any lands, which belonged to any subjects of the
king of "Great Britain before the late war, or to prevent
proprietors of such "lands, from selling and disposing of the same
to any inhabitant of any "of the United States." It is not indeed
expressly said, that the proprietors of such lands may maintain
actions for the possession of them, but this is clearly implied;
for lands without the possession are of no use; and whenever the
law gives or admits a right, it gives or admits also everything
incident thereto, as necessary to the enjoyment and exercise of
that right; and besides, they cannot sell their lands till they
first get possession of them; for all sales of land in this state,
whereof the grantor is dispossessed, except to the person in
possession, are, by express statute, void: so that the plaintiff is
not barred of her title, or right of action, either at common law
or by statute.
Footnote 4 The case of
M'Ilvaine v. Coxe's Lessee, by mistake dated February, 1804, was
the first case decided in February Term, 1805.
Cur. ad. vult.