On this day, the judges delivered their opinions.
Tilghman C. J.This is an appeal from the Circuit Court of Allegheny county. A verdict was found for the plaintiffs; the defendant moved for a new trial, and his motion was overruled.
Two questions were made on the argument. 1st, Whether William Jackson deceased, who died in the state of Pennsylvania about the year 1784, without issue, and intestate, had good title to the land in controversy? 2d, Supposing that he had title, whether John Jackson one of the plaintiffs, the elder brother of William, who was born in Ireland before the American revolution, and was never in any part of the United States is capable of inheriting as the heir of WilliamP My opinion will be confined to the second question.
The plaintiff’s counsel endeavoured to support the verdict on two principles. 1st, That by the common law, John Jackson was capable of taking by descent. 2d, That by the treaties between the United States and Great Britain in the year 1783 and 1794, the right of taking by descent was secured to him, even though it was not given by the common law. On the second point it is unnecessary for me to enter into an *84argument, because the law has been lately settled by the Su-preme Court of the United States in the case of Dawson's Lessee v. Godfrey. 4 Cranch 321. It was decided that Mrs. Dawson, the lessor of the plaintiff, who was born in England before the year 1773, always remained a British subject, and was nevér in the United States, was to be considered as an alien, and incapable of takifig by descent from her brother Russel Lee, a citizen of the United States. So far as regards the construction of treaties, the judgment of the Supreme Court is an authority by which this court is bound; because by the constitution and laws of the United States, the Supreme Court is, in such cases, the court of appeal in the last resort. But with respect to the principles of the common law, the opinion of that court is not binding. To say that it is, would be a voluntary, and unwarrantable surrender of the independence of the state courts. It remains then to be considered, whether by the common law as adopted in this state, John Jackson is an alien, incapable of taking land by descent.
By the declaration of independence (4th July 1776) all political connexion between Great Britain and the United States was dissolved. From that day the state of Pennsylvania became completely sovereign and independent; and the people of Great Britain and Pennsylvania had no other relation to each other than that of aliens; in war enemies, in peace friends. It has never been denied that this was the case so far as respected sovereignty and allegiance. But it has been contended, that by the principles of the common law prevailing in both countries, certain rights flowing from former connexion remained in the people of each; that the right of inheritance was unimpaired, in all those who were born before the dismemberment of the British empire, because the people of both countries were once bound in allegiance to the same sovereign. Considering this subject on the principle of reason, abstracted from authority, it would seem that the right of taking by descent, should be governed by the condition of the party at the time of the descent cast; because it is then that he is to enjoy the inheritance. The denial to aliens of the right of taking land by descent, must have been founded on political motives; on the danger o’f giving too much influence topersons, who so far from having *85a common interest with the people of the country, may have an interest directly opposed to them. Now this danger is" not lessened, by the circumstance of the people of two countries having been once bound in bonds of common allegiance.
I suspect, if the principle contended for, could be traced to its source, it would be found to have originated in another principle, not compatible with the constitution of Pennsylvania, or her sister states; that is to say, that no man can, even for the most pressing reasons, divest himself of the allegiance under which he was born. This doctrine is founded chiefly upon Calvin’s case. To the main point decided in that case, there can be no objection; it was simply this, that Calvin who was born in Scotland, after the crowns of Scotland and England were united in the person of James the first, was not to be considered as an alien in England. But the judges, in the course of their arguments, laid down many other principles, which being collateral to the point in question, were in some measure extrajudicial; and it is certain, that they have not all been received with approbation by their successors. I am informed however, and believe it to be a fact, that by the law as now held in England, citizens of the United States, born before the revolution, are capable of taking lands in England by descent. It is supposed by some, that merely for that reason, the courts of the United States should extend the same principle to the subjects of Great Britain. To this J cannot assent. I confess I should be mortified, if my own country was surpassed by any on the globe, in acts of humanity and benevolence. But it is evident, that courts of justice have no right to regulate these matters. They are for the sovereign power of the nation. The judges must decide according- to the law. The English adhere to their principle, that those who were born under the king’s allegiance, can never be considered so completely aliens, as to be incapacitated from taking land by descent. But I apprehend, that they restrict the right of inheritance to the case of persons either born under the king’s allegiance, or being under it at the time of the descent cast. I presume they do not extend it to all those, who have owed a temporary allegiance; for instance, to the inhabitants of a country conquered in war, and ceded by the treaty of peace, to its former sovereign. This principle then, even if sound, cannot be applied to the circumstances of the *86United States; because although there was a time when the Pe0P^e °f England and the United States owed allegiance to the same sovereign, yet there never was a time when the people of England owed allegiance to the Unitéd States. j jlave saj(]5 that the judgments of the Supreme Court of the United States are not binding on us, except in cases where an appeal lies to that court. But they are intitled to very great respect, and consideration; certainly to much more, than the judgments of any court in England since the revolution. Now the very point before us, has been expressly decided by the Supreme Court in the case of Dawson’s Lessee v. Godfrey which I have mentioned. It would have been more agreeable to me, if this cause could have been decided without my opinion; because, having argued the same point at the bar of the Supreme Court in the case of M'Ilvaine v. Coxe, it. is possible that my mind may have retained some of the impressions it received in preparing for that argument. But upon reflection, I have concluded, that it would be more satisfactory to the country to know the opinions of all the judges in a case of so much importance. Having considered it attentively, since the argument in this court, my opinion is, that John Jackson, not now pwing allegiance, and never having owed allegiance, to the United States, is in all respects an alien, and as such incapable of taking land by descent. I am therefore for a new trial.
Yeates J.The plaintiff obtained a verdict in this cause on a trial at a Circuit Court held for the county of Allegheny, subject to the court’s opinion on a reserved point, whether John Jackson could take by descent as elder brother and heir at law of William Jackson?
The Circuit Court gave no opinion on the question, considering it as a matter of national moment. The counsel by mutual consent have argued the case before the whole court in bank.
The claim of William Jackson rested on a Virginia entry made in his behalf on the 18th March 1780, for 400 acres on Montour’s run, and a subsequent survey made thereon upon the 12th January 1786. He went to Ireland in 1774, and returned from thence in the spring of 1784. He died intestate *87prior to the act of assembly passed 19th April 1794, 3 St. Lotos 521; and the question to be determined is, whether the lessor of the plaintiff, who was never in the. United States, as his elder brother, could intitle himself as his heir.
It has been contended on the part of the plaintiff, that British subjects born previous to the treaty of peace, concluded on between the United States and Great Britain on the 3d September 1783, might well inherit lands in America after the separation of the two countries; and that the two brothers, being subjects of the same sovereign before the declaration of independence, could hold under each other by descent; that their rights were only suspended during the war, but were revived by the peace.
The court felt the importance of the subject in a national view, and considered uniformity of decision in a case of this nature in the tribunals of the different states, as a peculiar desideratum. They well knew that the question had been fully argued in the Supreme Court of the union, and that it must necessarily receive a decision in the dernier resort. We have not been disappointed in our expectations. The opinion of the Supreme Court of the United States delivered by Johnson, Justice, 4 Cra. 322, in Dawson's Lessee v. Godfrey, settles the point reserved in this case, if its authority is admitted. It is there laid down that the correct decision of the English law is, that the right to inherit depends upon the existing state of allegiance, at the time of the descent cast. The antenati of America may continue to inherit in Great Britain because we once owed allegiance to that crown. But the same reason does not extend to the antenati of Great Britain, because they never owed allegiance to our government. It would be a contradiction in terms, to assert, that one owes allegiance to a government, which did not exist at the time of his birth. I forbear to detail further the argument adduced in support of the opinion delivered; and I shall only add that I perfectly concur therein.
The judgment of this court cannot be rendered on the verdict in favour of the plaintiff, but a nonsuit should be entered; or if the plaintiff’s counsel desires it, a new trial may be awarded without costs.
*88Bragkenridge J. having been of counsel in the cause while at the bar, declined giving an opinion.New trial awarded.