commerce could do it?) what had been settled by the treaty of peace on that subject; and preliminary negociations would have been set on foot, not only on the part of the British government, with the federal government, to obtain that restitution or an equivalent in money, but also on the part of the federal government with the states, to make them consent to such a monstrous encroachment on their reserved rights and on their purse.

It would effectually amount to a libel against the memory of Mr. John Jay, who negotiated and signed the treaty of 1794, to pretend that the same statesman who during the negotiations of the treaty of peace had, jointly with Benjamin Franklin and John Adams, refused to assent to the restitution of the confiscated estates of the attainted loyalists, should by the said article of the treaty of commerce, have perfidiously and covertly understood and agreed to protect proscribed persons and revive their extinct titles to the said property, by the invasion of a right of direct dominion which is as much reserved to the states by the federal constitution of 1787 as by the articles of confederation of 1777.

Under those considerations it seems that the inherent and vested right of the people of this state to the absolute, as well as to the inferior fee simple of the lands claimed by Mr. Astor, instead of being shaken and demolished by the treaty of peace with Great Britain, and the treaty of commerce with the same power, is strongly fortified by those public covenants.

It now remains to be shown that the common law of Great Britain, the law of the state of New-York, the rules of its tribunals, and the declarations and decisions of the Supreme Court of the United States, equally concur to defend that right.

The legal title is founded on the national law of the United States, which has been declared by the Supreme Court of the United States* to "be the common law of Great Britain, such as it existed before the declaration of independence of the United States," and which has been also proclaimed by this state in the constitution of 1777, to be the law of the state of New-York. Under that law, and in conformity to its principles, and to the principles of the law of nations, this state did pass, the 22d of October, 1779, An act for the forfeiture and sale of the estate of persons who had adhered to

*In the case of the United States vs. Williams and others, (vide Peter Duponceau on Jurisdiction.)

the enemies of this state, and for declaring the sovereignty of the people of this state, in respect to all property within the same. "By that law, as well as by the constitution of 1777, the state assumes all the royalties, prerogatives, rights of escheat and forfeiture, duties, services and dues, by whatever name respectively the same are called and known in law, and all right and title to the same, which next and immediately before the 9th of July, 1776, did vest in or belong to, or were due to the crown of Great Britain; and the same and every of them are declared to be vested in the people of this state, in whom the sovereignty and seignory thereof were united and vested on the 9th day of July, 1776. By reason whereof all persons holding or claiming property within this state, who had in overt treason to their native country, adhered to the king of Great Britain during the cruel war which the said king had waged against this state, and the other United States, to bring the same in subjection to the crown of Great Britain, have severally forfeited all right to the protection of this state, and to the benefit of the laws under which such property is held or claimed, and that the public justice and safety of this state absolutely require that the said notorious of fenders should be hereby immediately convicted and attainted, of the offences aforesaid, in order to work a forfeiture of their respective estates, and vest the same in the people of this state."

Accordingly, among many notorious offenders, Roger Morris and Mary his wife, Beverly Robinson the younger and Susannah Robinson his wife, and each of them, are severally declared to be, ipso facto, convicted and attainted of the offences aforesaid; and it is ordered that all and singular the estate, both real and personal, held or claimed by them the said persons, severally and respectively, whether in possession, reversion or remainder, within this state, on the day of the passing this act, shall be and hereby is declared to be forfeited and vested in the people of this state.

The said law provides further for the conviction of all other persons not included in the list of the notorious offenders attainted and convicted, ipso facto, by virtue of the said law, and declares among other things, that, "not to have taken the oath of allegiance to this state before the 4th of April, 1778, to have remained in places under the possession or power of Great Britain, shall be sufficient a cause for the confiscation of their estates."

And by the 13th article it is further declared, "that all titles, estates and interest by executory devise or contingent remainder claimed by any person hereby, or by virtue of this law to be convicted, shall, on conviction, be as fully forfeited to all intents, construction or purposes in the law, whatsoever, to the people of this state, as any other claim, estate or interest whatsoever."

It is also by the 12th article of this act enacted, that all conveyances, since the 9th of July, 1776, by any or either of the persons who are immediately convicted and attainted, "shall be presumed to be fraudulent."

This law, with all its apparent severity, is in reality nothing more than a promulgation, under American colours, of the common law of Great Britain, in relation to treason, attainder, forfeiture and escheat; and as that law was the law of the colonies before the revolution, and has continued to be the national law and the law of the state since, the property of the native Americans, who had committed overt acts of treason against their country or resided during the war in places in the possession of the enemy, and continued to adhere since to its government, would have equally devolved to this state, by the operation of that law, as it has by virtue of the statute of 1779, a fact that will be corroborated by the following extract of the commentaries of the profound and judicious Blackstone, on the laws of England.

"When, says that great Jurisconsult,* the Salii Burgundians and Franks broke in upon the Gauls, the Visigoths on Spain, and the Lombards upon Italy, they introduced, with themselves, their northern plan of polity, serving, at once, to distribute and to protect the territories they had newly gained. The Normands who conquered England under William the conquerer, established the same military tenure, in that kingdom, and all the English nobility who submitted to it, at Sarum, became the king's vassals and did homage and fealty to his person. In consequence of this change, by which all the allodial or free estate of the ancient Britons or Anglo-Saxons, were converted into feuds, it became a fundamental maxim and necessary principle of the English tenures, that the king is the universal lord and original proprietor of all lands in the kingdom, and that no man doth, or can possess, any part of it, but what has mediately or imme

*Blackstone, Book II. Chap. 4.

diately been derived, as a gift, from him to be held upon feudal service."*

"The manner of the grant was by words of gratuitous and pure donation, dedi et concessi, which are still the operative words in the modern infeodations or deeds of feoffment."+

"All tenures were subject to feudal returns, to render rent or services of some sort or other, and the tenants, to obtain the investiture or confirmation of their fee, were bound to an oath of allegiance and fealty denominated hommagium, from the latin words "devenio vester homo," "I become your man," (words perfectly expressive of the object of the oath, and which are the parent of the oath of allegiance in England and in the United States.‡)

"As the fees were gratuitous, so they were also precarious and at the will of the lord, who was the sole judge whether his vassal or the heir of his vassal, were entitled to be continued in the possession of the fee, and in cases of attainder for treason or felony, it was presumed that a man's blood was so universally corrupted, by attainder, that his heirs could neither inherit to him nor to any ancestor; founded upon this principle that the blood of the person last seised of the fee, is extinct or gone, since none can inherit his estate but such as are of his blood, and consequently that when such blood is extinct, the inheritance itself must, and the land becomes what the feudal writers denominate a feudum apertum; an open or unappropriated fee, and results back to the king."

The severity of that ancient English law was modified in the new felonies created by parliament since the reign of Henry the 8th, where it is declared that they shall not extend to corruption of blood. It was also modified by the 17th statute of George the second, by which it is enacted, "that after the death of the pretender and his sons, nɔ attainder for treason should extend to the disinheriting any heir, nor to the prejudice of any person other than the offender himself." But it is no where to be found that those statutes, no more than the statute of Charles the II. which turned all sorts of tenure, held of the king or other mediate lord, into free and common soccage, (by which the services were chiefly reduced to certain services, and differed from the knight service, where the render or service was precarious and uncertain,) have dispensed the heirs of persons

*Blackstone, Book II, Chap. 2. Ib. Chap. 4. Ib. Chap. 5.

attainted, whose fee had been forfeited to the crown, during their life, from fine and homage, to obtain the reinvestment of their fee; and if this duty is neglected, per diem et annum the fee de jure without trial or conviction, reverts to the crown.

There are besides the cases of attainder and forfeiture against the traitors and their heirs, if the latter neglect their duties towards the king, other cases which cause the landed property to revert to the seigneure or superior lord of the land or to the king, among which are, 1st, default in rendering rent or service, if it is an inferior fee and not a frank-tenement; 2d, alienism.

An alien is incapable of taking by descent or inheriting, not only because the law presumes that they have not in them inheritable blood, but because, on a principle of national policy, if lands were suffered to fall into the hands of those who owe no allegiance to the crown, the defence and support of the country, would be defcated, wherefore, if a man leaves no other relations but aliens, his lands escheat to the king.* Aliens for the same reason are also disabled to hold by purchase, and as they can neither hold by purchase, nor by inheritance or devise, it is, says Blackstone, almost superfluous if they have any heirs.†

Such was the law of Great Britain in 1776. Therefore, under that law, the fee simple, in the possession of Roger and Mary Phillips, would have reverted to this state, without the aid of the statute of attainder, on account of their treason to their native country; and their children would have also lost their contingent remainder in the said fee, on account of their residence among the enemies of their native country, and also on account of their voluntary alienism; because as it has been maintained, by the Supreme Court of the United States, in pursuance of that law, in the case of Ingals v. The Trustees of the Sailors' Snug Harbor. "If their infancy incapacitated them from making an election for themselves, and their election and character followed that of their father, it was however subject to the right of disaffirmance, in a reasonable time, after the termination of their minority, which never having been done, they remained British subjects, and disabled from inheriting land in the state of New-York;" which decision, mutato nomine is totibus verbis, applicable to the heirs of Morris, inasmuch as it has been proved on

*Vide Littleton's Commentaries, L. 2.

+Blackstone, Ch. 15, Book II.

+ Vide Peters' Reports, volume 3.