20 Johns. 313 | N.Y. Sup. Ct. | 1822
I consider these facts as proved : that William Edmonston came from England to this state in 1774, at which time he was a major in the British service. In 1776, he was arrested by direction of the committee of safety, in the town of German Flatts, as a person disaffected to the revolution. In the latter part of August, or beginning of September, 1776, he was in Albany, in consequence of this arrest. He was there as a prisoner on Ms parole, and remained there until the following winter, waiting for a passport to join his regiment. After that time, we have no further account of him during the revolutionary war ; but the inevitable presumption is, that he joined the British forces, or proceeded immediately to England ; for there is no proof that he continued to reside in this state, or in any part of the United States; and the evidence is9 that he died a general in the British army.
The lessor of the plaintiff does not claim to have derived title under the children of Robert Edmonston, as his heirs, but claims that William Edmonston was a citizen of this state, and took by descent, the real estate of his brother Robert, as his heir; and that on the death of William, it descended to his sister Eleanor, and to his nephews and niece, the children of Robert. It becomes, then, unnecessary to consider the effect of the act of the 29 th of March, 1816, and the decision of the Chief Justice and Surveyor General under it.
It is not pretended that the children of Robert Edmonston
We are called upon to discuss and decide this question, as a mere matter of private right, when all the feelings and passions incident to so mighty a revolution, have subsided. I think it cannot be doubted, that when a people, from a sense of the viciousness of a government under which they have lived, are driven to the necessity of redressing themselves, by throwing off the allegiance which they owed to that government, and in its stead, erecting a new and independent one of their own, that such of the members of the old government only, will become members of the new, as choose voluntarily to submit to it. Every member of the old government must have the right to decide for himself, whether he will continue with a society which has so fundamentally changed its condition. For, having been in- . corporated with a society under a form of government which was approved, no one can be required to adhere to that society, when it has materially and radically changed its Constitution. Every member submitted to the society as it was, and owed obedience to it, while it remained the same political society. When it divests itself of that quality, by an entire new institution of government, it cuts the knot which united its members, and discharges them from their former obligations. (Vattel, b. 1. ch. 3. s. 33., and ch. 16. s. 195. Puffendorf, 639.) These principles were expounded by Ch. J. M‘Kean, in a very satisfactory manner, in Chapman’s case. (1 Dallas’s Rep. 58.) He observed, that in civil wars, every man chooses his party; but that all the writers agree, that the minority have individually an unrestrainable right to remove with their property into another country; that a reasonable time for that purpose ought to be allowed; and, in short, that none are subjects of the adopted government, but those who ha,ve freely assented
It is to be observed, that although the declaration of independence was made by Congress, on the 4th of July, 1716, and although the Convention of delegates of this state adopted that declaration on the 9th of the same month, and although we had committees, and temporary bodies of men, who took charge of the public safety, we had no executive, legislative, or judicial authority, nor any organized government, until the 30th of April, 1 111, It would be a very grave question, which I shall avoid discussing, whether, until the adoption of our Constitution, treason could be committed against that imperfect and inchoate government which was called into existence by the necessity of the case, and was continued until the people could deliberate and settle down upon a plan of government calculated to secure, and perpetuate their liberties. But the question is, whether Major Edmonston, being in this state at the very commencement of that revolutionary struggle, holding a commission in the army of the British king, and being taken up, within one or two months after the declaration of independence, put on Ms parole, and finally sent out of the country as a dangerous and disafiected man, prior to the institution of any regular form of government, can be said to have renounced the former government, and to have become a mem
I cannot bring my mind to doubt on this question; and to me it appears most clearly, that Major Edmonston never did acquire the character of a citizen of this state. In Chapman’s case, Ch. J. J\£‘Kean said, that when the word subject, instead of inhabitant, is used, it meant a subjection to some sovereign power; it refers to one who owes obedience to the laws, and is entitled to partake of the elections into public office; and he observed, that if there were no laws to be obeyed, the prisoner could not be deemed a subject of the state of Pennsylvania. It has been decided by the Supreme Court of the United States, (4 Cranch’s Rep. 321.) that a subject of Great Britain, born before the declaration of independence, who was never in the United States, cannot take.lands in this country by descent from a citizen. In Kelly v. Harrison, (2 Johns. Cases, 30.) it was decided, that although the division of an empire worked no forfeiture of a right previously acquired, and, as a consequence, all the citizens of the United States who were bora prior to our independence, and under the allegiance of the .king of Great Britain, would still be entitled there to the rights of British subjects; yet the rule would not apply e converso, and British subjects have not, with us, the privileges of citizens; and for this reason, that the sovereignty of the United States was created by the act of independence, and there could be no previous right acquired in re-: spect to it, and, consequently, none to lose ; nor could it include any other than residents, at the time, within the jurisdiction of the state; and that, therefore, the demandant, who was the widow of Kelly, prosecuting for her dower in lands acquired by her husband after the declaration of independence, who had been married to Kelly before the revolution, but who remained in Ireland during, and after it, he having resided here, and become a citizen, was held not to be endowable of such after acquired lands. This decision fully sanctions the principle, that there must, even in the case of a feme covert, be some personal act, indicative of an assent to become a member of the new government, and without it, the rights of citizenship are not acquired. Re
The plaintiff’s counsel has referred us to an ordinance of the Convention of this state, of the 16th of July, 1776, which, he supposes, recognises persons in the situation of Major Edmonston, as citizens. It resolves, 61 that all persons, abiding within the state of Mew- York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state $ and that all persons passing through, visiting, or making a temporary stay in the said state, being entitled to the protection of the laws, during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto; and that all persons, members of, or owing allegiance to this state, as before described, who shall levy war against the said state, within the same, or be adherent to the king of Great Britain, or others, the enemies of said state, giving to him or them aid and comfort, are guilty of treason against the state j and, being thereof convicted, shall suffer the pains and penalties of death.”
This ordinance takes the distinction between such persons as were abiding within the state, and, as such, deriving protection from, and owing allegiance to the laws, and thereby
The plaintiff’s counsel relied, also, on another ordinance or resolution of the Convention of this state, of the 10th of May, 1777, offering u a free pardon to such of the subjects of the state as, having committed treasonable acts against the same, shall return to their allegiance.” This ordinance leaves the inquiry, who were subjects of the state, open to examination 3 and I have endeavoured to show, that Major Edmonston was not a subject of the state. Besides, this resolution was posterior to the adoption and promulgation of the state constitution 3 and treasons may have been committed in the interval between the adoption of the constitution and this ordinance. There may, also, have been persons who had, openly and unequivocally, made their election to become members of the new government, and who were afterwards guilty of treasonable acts. When the Convention speak of subjects of the state, they speak of those who owed a permanent allegiance to the state as a political body, and had acquired the rights and ovyed. the duties of citizenship 3 for we perceive, that the same Convention had, on the 16tli of July, 1776, discriminated, with great accuracy, between an abiding in the state, which produced permanent allegiance, and a temporary stay, which exacted obedience only during such stay.
Having come to the conclusion, that William Edmonston never became a citizen of this state, he was incapable, from his alienage, of taking by descent from his brother. This disposes of the cause, and renders it unnecessary to consider the other points raised by the defendant’s counsel.
Platt, J. concurred.
Woodworth, J» dissented.
Judgment for the defendant.