Jackson the People of the State of New-York v. Clarke/Opinion of the Court

by John Marshall

Judgment affirmed, with costs. ^[1] Dawson's lessee v. Godfrey, 4 Cranch, 321, it was held that a person born in England before the declaration of independence, and who always resided there, and never was in the United States, could not take lands in Maryland by descent.

And in the case of Smith v. the State of Maryland, (4 Cranch, 286), it was determined that by the acts of Maryland, 1780, ch. 45 and 49, the equitable interests of British subjects in lands were confiscated, and vested in the state, without office found, prior to the treaty of peace of 1783, so that the British cestui que trust was not protected by the stipulation in that treaty, against future confiscations, nor by the stipulation in the 9th article of the treaty of 1794, securing the British subjects, who then held lands in this country, the right to continue to hold them.

In the supreme court of N. York it has been held, that where a married woman was a subject of Great Britain before the revolution, and always continued such, but her husband resided in this country both before and after that period she was entitled to dower out of those lands of which he was seised before the revolution, but not of those of which he was subsequently seised. Kelly v. Harrison, 2 Johns. Cas. 29. The same court has also determined, that where a British subject died seized of lands in the state in 1752, leaving daughters in England who married British subjects, and neither they nor their wives were citizens of the United States; even if the marriages were subsequent to the revolution, such marriages would not impair the rights of the wives, nor prevent the full enjoyment of the property according to the laws of the marriage state, especially after the 5th provision in the 9th article of the treaty of 1794.

The court seemed also to think that where the title to land in the state was acquired by a British subject prior to the revolution, the right of such British subject to transmit the same by descent, to an heir in esse at the time of the revolution, continued unaltered and unimpaired; the case of a revolution or division of an empire being an exception to the general rule of law, that an alien cannot take by descent. Jackson v. Lunn. 3 Johns. Cas. 109. See also Jackson v. Wright, 4 Johns. R. 75. The treaty of 1704, relates only to lands then held by British subjects, and not to any after acquired lands. Jackson v. Decker, 11 Johns. R. 418, 422.

In the case of Fairfax's devisee v. Hunter's lessee, 7 Cranch, 603, and ante, vol. I. p. 304. it was adjudged. 1st. That an alien enemy may take by purchase though not by descent; and that, whether the purchase be by grant or by devise. 2d. That the title thus acquired by an alien enemy is no devested until office found. 3d. That whether the treaty of peace of 1783, declaring that no future confiscations should be made, protects from forfeiture, under the municipal laws respecting alienage, lands held by British subjects at the time of its ratification, or not, yet that the 9th article of the treaty of 1794 completely protected the title of a British devisee, whose estate had not been previously devested by an inquest of office, or some eqivalent proceeding.

Notes

1. In the case of M'llvaine v. Coxe's lessee, (4 Cranch, 209), the court determined that a personborn in the colony of New-Jersey, before the declaration of independence, and residing there until 1777, but who then joined the British army, and ever since adhered to the British government, has a right to take lands by descent in the state of New-Jersey. But in