MEMORIAL. SECTION I. On the title of the state of New-York to the absolute fee, and to the fee simple, of the lands claimed by John Jacob Astor, in the counties of Dutchess and Putnam. The title of the People of the state of New-York, to the absolute, and to the inferior fee, of the lands aforesaid, is derived from Political, Diplomatic, National, and State Law.-The Political Title. is founded on the innate sovereignty of the People of the United States, which had remained dormant, under the colonial government of Great Britain, and by the exercise of which, after having conquered and overthrown that government, the said People became invested of all the property, rights, and titles of the crown of Great Britain, over the respective territories of their assumed dominion. The public acts manifesting the assumption of those rights, are: 1. The declaration of the delegates of the United States in congress, of the 4th of July, 1776, dissolving the bands which had connected them with the kingdom of Great Britain, and recommending the institution of new governments, in the respective colonies of North America. 2. The act of the representatives of this state, in convention convened, the 20th April, 1777, approving the said Declaration of Independence, and declaring, in the name, and by the authority of the people of this state, that all the powers of the crown of Great Britain had reverted to the said people, and that no authority should, on any pretence whatever, be exercised over the said people, but such as should be derived from or granted by them. 3. The law passed by the Legislature of this state, February 6, 1778, accepting the articles of confederation, and perpetual union, between the states, and retaining its individual sovereignty, freedom and independence, and every power, jurisdiction, and right, which were not, by the said articles of confederation, expressly delegated to the United States in congress assembled, 4. The federal constitution of 1787, combining the respective advantages of a consolidated and a confederated government, without infringing the reserved sovereign rights of the states within their local dominion. The diplomatic tille, is founded on the definitive treaty of peace between the United States and his Britannic Majesty, signed at Paris, December 3, 1783, which treaty surrenders, transfers and assigns, forever to the several United States, all claims to the government, propriety, and territorial rights of the crown of Great Britain within their respective dominions, and implies an acknowledgment, on the part of Great Britain, that the states which, in pursuance of their assumed sovereignty and independence, had confiscated the property situated within their territories, belonging to such of the British subjects who had borne arms against the said states, or who remained voluntarily in places occupied by the British forces during the war, had exercised a right sanctioned by the law of nations; an implied acknowledgment and settlement, which is evinced by the compromise which took place between the plenipotentiaries of the two contracting governments, on the subject of the restitution of the said confiscated property; the English plenipotentiaries having insisted, at first, as a condition, sine qua non, that the said property should be restored without exception, and the American Ministers having declared that the states would never consent to such a demand unless the English government consented also to compensate the American citizens, for all the property taken from them by the British, or destroyed by them on the seas and on the land during the war; upon which firm and patriotic declaration, made by the immortal Franklin, the English plenipotentiaries were instructed, by the cabinet of St. James, to give up the point, and only to claim, as an act of equity, that congress should recommend to the states to restore the said property to its former owners; a vain request, evidently calculated, as a soporific elixir, to quiet the clamors of the American refugees, to which the American Ministers, satisfied that it was unbinding for the states, consented to agree, in order to accelerate the conclusion of the treaty. It was accordingly stipulated, that congress should recommend the said restitution, it being well understood, that it depended entirely upon the will and pleasure of the sovereign states, and in the event of the success of the recommendation, which has never been acted on, the claims of the loyalists were divided, ad expectandum, into three very distinct classes. The first class, comprehending the loyalists, who had borne arms, or acted in hostility to the United States, together with those who had not borne arms against the said states, but had remained, during the war, in districts or places within the possession of the British forces. The second class, comprehending all other persons of any other description, whose property had been confiscated, which class would * *Vide American State papers. It is in be allowed to go to any part of the United States, and therein to remain twelve months, unmolested, in their endeavors to obtain the restitution of such of their estates, rights and properties, as might have been confiscated, on their refunding to any person who might have been in possession, the bona fide price, where any had been given, which such person might have paid, on purchasing any of the lands, rights or properties since the confiscation. The third class, comprehending exclusively the real British subjects who were not attainted nor liable to attainder, and who had interests in confiscated lands, either by debts, marriage settlement, or otherwise. behalf of this latter class, and of that class alone, that it is positively agreed and promised by congress, independently of the assent of the states, that the said British subjects would meet with no lawful impediment in the prosecution of their just rights; a restrictive favor which is exclusively relative to the British subjects included and described in the latter class, and decides nothing in favor of the two first classes. It is obvious accordingly, by the above article of the treaty of peace, of 1783, that unless it can be proved, contrary to the facts and authorities that will be hereafter presented, that the heirs of Roger and Mary Morris, whom Mr. Astor represents, were included in the latter class, and not in the first; their claim is not protected by the treaty of peace, inasmuch as the states have never acted on any recommendation of congress, in relation to the confiscations, and that no public document shews that congress itself did enter into any negotiation with the states on that subject. The treaty of amity, navigation and commerce, concluded in the year 1794, between the United States and Great Britain, does not extend any more protection to Mr. Astor's claim, than the treaty of peace, as it will be seen by the following analysis of the article* of that treaty, from which it is pretended that such a protection is derived. This is the article-"The British subjects who held lands in the territories of the United States, shall continue to hold them, according to the nature and tenure of their respective estates therein, with the power to sell, grant or devise the same." If the words, which compose a language, are the representative sounds or signs of the ideas which they are intended to convey, a grammatical and glossographical definition of the words which compose the said article, will demonstrate that, very far from protecting Mr. Astor's claim, it excludes it entirely. * Vide article 9th of the treaty of 1794. Because, the idea attached to the participle passive, held, of the verb hold, is that of a thing grasped in the hand,-griped, clutched. And that the said heirs having only a contingent or reversionary interest in a fee simple, or fee rent farm, subject to contingencies, dependent upon the punctuality and good behavior of the tenants in possession towards the superior lord; and the tenants in possession having forfeited all their rights, and all the rights attached to their inferior fee, by their failure in the payment of the rent and their criminal conduct towards the state, when the people became invested, in 1776 and 1783, with the superior fee and dominion of the premises, (as it will be fully proved and explained hereafter,) it cannot be alleged that they held such an untangible and forlorn nonentity in 1794. Because, if that definition and illustration of the verb hold, in the usual language, is not sufficient to show that the article 9, of the treaty of 1794 does not apply to the claim in question, the latter part of the said article removes all doubts and equivocations on that subject, in providing expressly, that the confirmation of the title of lands held by them in the United States "shall be according to the nature and tenure of the irrespective estates therein." The technical word tenure being specifically descriptive, in the common law language, of the actual possession of lands under any kind of tenure, which have not reverted and determined back to the superior lord of the manor or seigneurie, by forfeiture, escheat or any other expropriatory operation of the law, or which are left vacant, as a feudum apertum, which no heir has a right to hold, particularly if it is a fee simple subject to vilain services or rent, if the lord of the manor or the sovereign have not reinvested it, after the claimants for relief have duly fulfilled the usual requisites and forms to obtain the restoration of the tenement held by their ancestor. Because no tenure in any kind of fee con commence IN FUTURO and be created at common law, without livery of seisin or corporeal possession of the land.* And finally because, if diplomatic tests are also applied to the interpretation of the said article, it will appear evident that, had the federal and the British governments, in view to effectuate, eleven years after the peace, a restitution of the confiscated property of the loyalists, it would certainly have been expressly and unavoidably mentioned in the treaty of 1794, in order to alter (if a treaty of * Vide Blackstone, Book II. ch. 9. |