On 4 October, 1776, the State of New Jersey was completely a
sovereign and independent state, and had a right to compel the
inhabitants of the state to become citizens thereof.
A person born in the Colony of New Jersey before the year 1775
and residing there until the year 1777, but who then joined the
British army and ever since adhered to the British, claiming to be
a British subject and demanding and receiving compensation from
that government for his loyalty and his sufferings as a refugee has
a right to take lands by descent, in the State of New Jersey.
Page 8 U. S. 211
CUSHING, J. delivered the opinion of the Court, as follows:
The Court deems it unnecessary to declare an opinion upon a
point which was much debated in this cause -- whether a real
British subject born before 4 July, 1776, who never from the time
of his birth resided within any of the American colonies or states,
can, upon the principles of the common law, take lands by descent
in the United States, because Daniel Coxe, under whom the lessor of
the plaintiff claims, was born in the province of New Jersey long
before the declaration of independence and resided there until
sometime in the year 1777, when he joined the British forces.
Neither does this case produce the necessity of discriminating
very nicely the precise point of time when
Page 8 U. S. 212
Daniel Coxe lost his right of election to abandon the American
cause and to adhere to his allegiance to the King of Great Britain,
because he remained in the State of New Jersey not only after she
had declared herself a sovereign state, but after she had passed
laws by which she pronounced him to be a member of, and in
allegiance to the new government. The court entertains no doubt
that after 4 October, 1776, he became a member of the new society,
entitled to the protection of its government and bound to that
government by the ties of allegiance.
This opinion is predicated upon a principle which is believed to
be undeniable -- that the several states which composed this union,
so far at least as regarded their municipal regulations, became
entitled, from the time when they declared themselves independent,
to all the rights and powers of sovereign states, and that they did
not derive them from concessions made by the British King. The
treaty of peace contains a recognition of their independence, not a
grant of it. From hence it results that the laws of the several
state governments were the laws of sovereign states, and as such
were obligatory upon the people of such state from the time they
were enacted. We do not mean to intimate an opinion that even the
law of a state whose form of government had been organized prior to
4 July, 1776, and which passed prior to that period, would not have
been obligatory. The present case renders it unnecessary to be more
precise in stating the principle, for although the Constitution of
New Jersey was formed previous to the general declaration of
independence, the laws passed upon the subject now under
consideration were posterior to it.
Having thus ascertained the situation of Daniel Coxe on 4
October, 1776, let us see whether it was in any respect changed by
his subsequent conduct in relation to the new government. Without
expressing an opinion upon the right of expatriation as founded on
the common law or upon the application of that principle to a
person born in the State of New Jersey before its separation from
the mother country, we think it conclusive upon the point that the
legislature of that state,
Page 8 U. S. 213
by the most unequivocal declarations, asserted its right to the
allegiance of such of its citizens as had left the state and had
attempted to return to their former allegiance.
The Act of 5 June, 1777, contains an express declaration that
all such persons were subjects of the state who had been seduced by
the enemy from their allegiance. The law speaks of them as
fugitives, not as aliens, and they are invited not to become
subjects, but to return to their duty, which the legislature
clearly considered as still subsisting and obligatory upon
them.
The inquiry which the jury is directed to make by the Act of 18
April, 1778, in order to lay a foundation for the confiscation of
the personal estates of these fugitives is whether the person had,
between 4 October, 1776, and 5 June, 1777, joined the armies of the
King of Great Britain or otherwise offended against the form of his
allegiance to the state. The 7th section of this law is peculiarly
important, because it provides not only for past cases, which had
occurred since 5 June, 1777, but for all future cases, and in all
of them the inquiry is to be whether the offender has joined the
armies of the King or otherwise offended against the form of his
allegiance to the state.
During all this time, the real estates of these persons remained
vested in them, and when by the law of 11 December, 1778, the
legislature thought proper to act upon this part of their property,
it was declared to be forfeited for their offenses, not escheatable
on the ground of alienage. This last act is particularly entitled
to attention, as it contains a legislative declaration of the point
of time when the right of election to adhere to the old allegiance
ceased and the duties of allegiance to the new government
commenced. Those who joined the enemy between 19 April, 1775, and 4
October, 1776 (when an express declaration upon the subject was
made), and who had not since returned and become subjects in
allegiance to the new government by taking the oaths of abjuration
and allegiance are pronounced guilty of high treason -- not for the
purpose of affecting them personally, which would have
Page 8 U. S. 214
been most unjust, but with a view to the confiscation of their
estates. And consistent with this distinction, the jury is to
inquire in respect to these persons not as in the case of those who
had left the state after 4 October, 1776, whether they had offended
against the form of their allegiance, but whether they are
offenders within this act -- that is, by having joined the enemy
between 19 April, 1775, and 4 October, 1776, and not having
returned and become subjects in allegiance to the state.
Having taken this view of the laws of New Jersey upon this
subject, it may safely be asserted that prior to the treaty of
peace, it would not have been competent even for that state to
allege alienage in Daniel Coxe in the face of repeated declarations
of the legitimate authority of the government that he continued to
owe allegiance to the state notwithstanding all his attempts to
throw it off. If he was an alien, he must have been so by the laws
of New Jersey; but those laws had uniformly asserted that he was an
offender against the form of his allegiance to the state. How then
can this Court, acting upon the laws of New Jersey, declare him an
alien? The conclusion is inevitable that prior to the treaty of
peace, Daniel Coxe was entitled to hold and had a capacity to take
lands in New Jersey by descent.
But it is insisted that the treaty of peace, operating upon his
condition at that time or afterwards, he became an alien to the
State of New Jersey in consequence of his election, then made to
become a subject of the King, and his subsequent conduct confirming
that election. In vain have we searched that instrument for some
clause or expression which by any implication could work this
effect.
It contains an acknowledgment of the independence and
sovereignty of the United States in its political capacities, and a
relinquishment on the part of his Britannic Majesty of all claim to
the government, propriety and territorial rights of the same. These
concessions amounted, no doubt, to a formal renunciation of all
claim to the allegiance of the citizens of the United States. But
the question who were at that period citizens of the United
States
Page 8 U. S. 215
is not decided or in the slightest degree alluded to in this
instrument; it was left necessarily to depend upon the laws of the
respective states, who in their sovereign capacities had acted
authoritatively upon the subject. It left all such persons in the
situation it found them, neither making those citizens who had by
the laws of any of the states been declared aliens nor releasing
from their allegiance any who had become and were claimed as
citizens. It repeals no laws of any of the states which were then
in force and operating upon this subject, but on the contrary it
recognizes their validity by stipulating that Congress should
recommend to the states the reconsideration of such of them as had
worked confiscations. If the laws relating to this subject were at
that period, in the language of one of the counsel, temporary and
functi officio, they certainly were not rendered so by the
terms of the treaty nor by the political situation of the two
nations in consequence of it. A contrary doctrine is not only
inconsistent with the sovereignties of the states anterior to and
independent of the treaty, but its indiscriminate adoption might be
productive of more mischief than it is possible for us to
foresee.
If, then, at the period of the treaty, the laws of New Jersey
which had made Daniel Coxe a subject of that state were in full
force and were not repealed or in any manner affected by that
instrument, if by force of these laws he was incapable of throwing
off his allegiance to the state and derived no right to do so by
virtue of the treaty, it follows that he still retains the capacity
which he possessed before the treaty to take lands by descent in
New Jersey, and consequently that the lessor of the plaintiff is
entitled to recover.
Judgment must be affirmed with costs.