shall and may be lawful for George Clarke, who is great grandson of George Clarke, formerly lieutenant governor of New-York, to purchase any lands, tenements or hereditaments within this state, and to have and to hold the same, and all other lands, tenements and hereditaments which he may now be entitled to within this state, by purchase or descent, to him the said George Clarke first above named, his heirs and assigns, to his and their own proper use and behoof forever, and to sell and dispose of the same, or any part thereof, as fully, to all intents and purposes, as any natural born citizen may or can do, any law, usage or custom to the contrary notwithstanding." And he jurors aforesaid, on their oath aforesaid, farter say, that the said George Clarke, the said defendant, and the said George Clarke, greatgrandson of George Clarke, formerly lieutenant governor of New-York, mentioned in the said act, one and the same person. And the jurors aforesaid, on their oath aforesaid, further say, that on the first day of May, in the year 1810, the said George Clarke, the said defendant, was in the actual possession and occupation of the said lands and tenements, in the said declaration specified, with the appurtenances, and that on the day and year last aforesaid, the said. people of the state of New-York, lessors of the said James Jackson, entered into the said tenements, with the appurtenances, and from thence put out and removed the last aforesaid George Clarke, and were seized thereof as the law requires; and being so seized thereof, the said people, on the day and year last aforesaid, demised to the said James Jackson, the is 1818. Jackson V. Clarke 1813. Jackson V. Clarke. tenements aforesaid, with the appurtenances, to have and to hold to the said James Jackson, and his assigns, from the said first day of May then last past, until the full end and term of twenty-one years from thence next ensuing, and fully to be complete and ended, in the manner in which the said demise is set forth in the said declaration of the said James Jackson. By virtue of which said demise, the said James Jackson entered into the said lands and tenements, with the appurtenances, and was thereof possessed: and he being so possessed thereof, the said George Clarke, the said defendant, afterwards, to wit, on the tenth day of May, in the year last aforesaid, with force and arms, &c. entered into the said tenements, with the appurtenances, which had been demised to the said James Jackson as aforesaid, and ejected, expelled and amoved the said James Jackson from his said possession, as the said James Jackson hath above complained against the last aforesaid George Clarke. And the jurors aforesaid, upon their oath aforesaid, further say, that at the time of the commencement of this action, the tenements aforesaid, in the said declaration specified, were, and ever since have been, and yet are, of a value exceeding the sum of five hundred dollars, exclusive of all costs and expenses. And the jurors aforesaid, on their oath aforesaid, further say, that the said James Jackson, at the time of the commencement of this action, was and yet is a citizen of the state of New-York, in the United States of America. And that at the time of the commencement of this action, the said George Clarke, the said defendant, in the said declaration named, was and yet is a subject of the king of the united George Clarke is not guilty of the said trespass and ejectment, then the said jurors say upon their oath, that the last aforesaid George Clarke is not guilty thereof, in manner and form as he hath above in his plea alleged. On the foregoing special verdict, judgment was rendered for the defendant, George Clarke, by the circuit court, to reverse which, this writ of error was brought. 1818. Jackson V. Clarke. Mr. Champlin, for the plaintiff in error, made the Feb. 5. following points, and cited the authorities in the mar 1818. Jackson V. Clarke. gin. 1. That Secretary George Clarke, at the time of his death, was an alien enemy, and there being at that time no statute of wills in force in the state of NewYork, the people of the state, at his death, became seized of the premises. 2. That Secretary George Clarke, being an alien enemy, had no power to make a valid will, or alien his estate in any manner whatever. 3. His will being void, and George Hyde Clarke being an alien enemy, took nothing by descent. 4. That, after the death of Secretary George Clarke, there was no person competent to take the premises by inheritance or devise, whereby the people of the state of New-York, at his death, became ipso facto possessed thereof, without office found. . Mr. D. B. Ogden, contrà, was stopped by the court. Mr. Chief Justice MARSHALL delivered the opinion of the court, that every question arising in the cause had been settled by former decisions. Judgment affirmed, with costs." Hall, Cowp. 208. Vattel, L. 3, ch. 5. s. 7. a Dawson v. Godfrey, 4 Cranch, 321. Gardner v. Wade, 2 Mass. Rep. 244. Campbell v. b 5 Bac. Abr. Tit. Will. B. 499. 7 Co. Rep. 33. 1 Bl. Com. 372. c In the case of M'Ilvaine v. Coxe's lessee, 4 Cranch, 209, the court determined that a person born in the colony of NewJersey, 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 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 to British subjects, who then held lands in this country, the right to continue to hold them. In the supreme court of NewYork 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 seised 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 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 1794, relates only to lands then 1818. ⚫ Jackson V. Clarke. |