DISCUSSIONS ON THE QUESTION,

"Whether Inhabitants of the United States, born there before the Independence, are, on coming to this kingdom, to be considered as natural-born subjects?"

BY A BARRISTER.

December, 9, 1810.

I thought the affirmative of this question was acknowledged by all lawyers. One authority, it seems to me, is sufficient to support it; I mean, what is laid down in Calvin's case, on the supposition that the crown of Scotland might, possibly, be separated from that of England: upon which point the judges resolved, "That all those who were born under one natural obedience, while the realms were united under one sovereign, should remain natural-born subjects, and no aliens; for that naturalization, due and vested by birthright, cannot, by any separation of the crowns afterwards, be taken away; nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such matter, ex post facto, and, in that case, upon such an accident, our post natus may be ad fidem utriusque regis," (7. Rep. 27. b.) or, to apply the words to the present case, our ante natus, or American born before the separation, may be ad fidem regis, and also a citizen of the United States.f

[* The Barrister here alluded to, is John Reeve, Esq. the author of the History of the English Law, and other works. Ed. L. J.]

† The post natus there, that is, one born after the union with Scotland, corresponds with the ante natus here, that is, one born before the separation from America.

Such a plain and explicit authority as this, seems to make it unnecessary to search for any other; however, objections are raised to the claim of such persons, to be considered as Britishborn subjects.

1st. It is objected that, admitting the common law to be as laid down in the above resolution, there are circumstances in the American revolution, that distinguish it from all other changes of sovereignty. The island of Jamaica, say they, may be ceded by the king, and this being done without the consent of the inhabitants, there is no reason why they should lose their birthright of British subjects; but the Americans, a whole people in arms, claimed to be released from the English government, and the king, at the peace, consented to give up his authority: how can such a people be afterwards considered as British subjects! 2dly. It is objected that there are certain statutes, and public acts, which stand in the way of the abovementioned common law principle taking effect.

3dly. It is even objected by some, that no principle of the common law can support so unwarrantable an anomaly, as that the same persons should belong to two states, and that admitting them to levy war against the king in the character of American subjects, without being deemed traitors, and then allowing them to come into this kingdom in the character of British subjects, is an inconsistency, which, they think, cannot be countenanced by the law of England.

To the first of these objections, it may be answered, that the peace which put an end to the American war, ought to be considered as putting an end to all the consequences that might be imputed to the Americans, by reason of their rebellion; and, indeed, there is in the definitive treaty, article 6, an express provision, that no person should, on account of the war, suffer any future loss or damage, either in his person, liberty, or property.

Further, we should inquire, what the Americans could be supposed to relinquish by making war, and what was the result of the king making peace? The Americans could not mean to renounce the privileges of British subjects; because they rebelled and made war, in order to get something which they had not, and not to surrender what they possessed: it was to release themselves from their allegiance; but no man can throw off his allegiance at his own option, as must be admitted by every one. Did the king, then, make peace with them, in order to take away their rights as British subjects? But, surely, it is well known, that the king alone cannot take away the rights of a British subject from any one. In the peace, therefore, made with the Americans, there seems to have been no legal competency in the contracting parties, to produce the effect supposed, of making the Americans aliens. This must appear even upon general principles only; it will presently be shown that there was not, de facto, any thing in the treaty upon the subject of British rights, that warrants the supposition of their being taken away from the Americans.

There cannot, in a juridical point of view, be any difference between the supposed case of cession of territory, without consent of the inhabitants, and the present case of cession to gratify the wishes of the inhabitants. The allegiance, in both cases, is of the same nature; the allegiance is not to the soil, but to the person of the king; and as no transfer or cession of the soil to a foreign prince, makes any alteration in the allegiance or birthright of the subject, but the same still remains in the person of the subject, it imports nothing, whether such cession is made with or without his consent. In both cases he becomes a British-born subject, living in a foreign land, and liable to the alteration of circumstances, which every where attends a British subject, when out of the king's dominions.

That going out of the king's dominions, under the charge of criminality, at the choice of the party, and by the king's consent, does not make a British subject an alien, is evinced from the old law of sanctuary, in cases of felony and abjuring the realm to to save the felon's life. It is expressly laid down, "Qui abjurat regnum, amittit regnum, sed non regem; amittit patriam, sed non patrem patriæ; for notwithstanding the abjuration, he oweth the king his allegiance, and he remaineth within the king's protection; for the king may pardon and restore him to his country again. Allegiance is a quality of the mind, and not confined to any place." (Calvin's case, fol. 9. b.)

As to what is now said, of the Americans being a whole people in arms, demanding to be released from their allegiance, it should be recollected, that the language in this country, during the whole of the American war, was different: it was said, "the thinking part, those who had property and character," and some

said, "the majority of the people," were against the violent measures which were driven on by an active minority of agitators. Is it, then, at all reasonable to infer upon those persons, who were friendly to this country, the consequences of such resistance and rebellion? Indeed there is nothing so unjust in the law of England. The law does not consider the king's subjects in a mass, under the name of the people, in any number more or less. They cannot be considered in a legal view, but as individuals; what is the law respecting one, is the law respecting one million, and every man's case stands upon its own ground and circumstances. It is, therefore, utterly inconsistent with the law, to impute to the Americans any disfranchisement as a people: if there is any such extinguishment of rights, it must be in some individual; and if it is not to be discovered in one, it is not to be found in a million.

Secondly, as to the statutes and public acts which are supposed to stand in the way of the abovementioned principle of common law: the principal statute which, I believe, is relied upon, is statute 22 Geo. III. c. 46. This is a parliamentary authority, enabling his majesty to make peace with America; an authority which had become necessary, because the parliament had passed some acts of prohibition and penalty which might stand in the way of peace, as stat. 16 Geo. III. c. 5. and stat. 17 Geo. III. c. 7.* for prohibiting trade and intercourse with America, and for authorising hostilities against the rebels. The American war having thus become a parliamentary measure, it required the concurrence of parliament to make peace, which, in ordinary cases, belongs to the king alone.

Accordingly, stat. 22 Geo. III. c. 46. authorises the king to conclude "a peace or truce with the said colonies or plantations, or any of them;" and that the abovementioned prohibitory acts might not be an impediment to the progress of negotiation, the statute authorises the king "by letters patent, under the great seal, to repeal, annul, and make void, or suspend the operation or effect of any act, or acts of parliament, which relate to the said colonies or plantations;" meaning under these general words, most probably, the abovementioned prohibitory acts, and none other.

* These acts were afterwards repealed by stat. 23 Geo. III. c. 26. No. XXI.

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There might be another reason for an act of parliament, namely, some hesitation as to the persons with whom the king's commissioners were to treat, whether they had confpetency: therefore, the act speaks of treating with commissioners named by the colonies, with any body or bodies politic, with any assembly or assemblies, or description of men, or with any person or persons whatsoever.

Such are the provisions of the act for making peace with America, which is supposed to give authority to the king, to take away the rights of British-born subjects from the inhabitants of the United States, and make them aliens. I can only ask those who allege this act, to show us by what words, or by what construction of words, such power is given to, or is intimated to reside in, the king? And with such appeal I dismiss this

statute.

The next document that occurs, in course of time, is the definitive treaty, made in September, 1783, in pursuance of such parliamentary authority. In the first article of this treaty, the king "acknowledges the United States (naming the several colonies) to be free, sovereign, and independent states; and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same, and every part thereof." This leading and general provision being made, there follow in the treaty some few subsidiary stipulations, all tending to give effect to the above relinquishment of sovereignty, and to the confirmation of peace and amity. After reading these, I must again ask the like question as before, where is the provision, in the treaty, for doing that which I have not yet discovered the king was authorised by the act to do? It appears, from reading the treaty, that the king has not, de facto, done that which he was not enabled by the act, nor was otherwise authorised, de jure, to do. He has not taken away the rights of British-born subjects residing in the United States, nor has he renounced the allegiance of his natural-born subjects residing there; he has acknowledged the colonies to be free and independent, and relinquished all sovereignty over their territory: in doing so, he has departed with some of his own royal prerogative, and has circumscribed the claims he before had on the allegiance of his natural-born subjects residing there. This was his to give, and he has given it, but the rights of British