opinion of the attorney.general Macdonald, in Feb. 1789, that engaging American seamen for foreign service, should be prosecuted as the offence of enticing British seamen into a foreign service: the prosecution was commenced, the indictment found, but the attorney-general entered a noli prosequi upon the party paying the costs.

Among the opinions of lawyers, I must mention what I received from Mr. — to whom I sent a statement of the case, with the view of learning, whether any alteration had taken place in the opinions of lawyers of late days: I knew I should have from him the current opinion of Westminster-hall; he at once wrote with pencil, on the back of the paper, that such persons are British subjects; he seemed to answer it, as if it was as known and as established, as that the eldest son is the heir in fee simple.

I made enquiry at the Custom-house, where, I was told, I might possibly find notes of some decisions at nisi prius in the Exchequer, which conveyed the chief baron's opinion, that a domiciliation in America took away the British character from a seaman, employed in navigating a British ship. The solicitor said, he knew of no such cases, nor of such opinion; on the contrary, he said, it was the usage of the Custom-house to consider the ante nati in America, as British-born subjects, and they were registered as owners of British ships: he informed me also of the above prosecution for enticing British seamen, and he gave me copies of the papers.

These authorities from the opinions of lawyers, and the practice of a public office, cannot be closed better, than by an authority superior to all of them; I mean what has been already mentioned, the 9th article of the treaty of commerce, and sect. 24. and 25. of stat. 37 Geo. III. c. 97. where there is a solemn declaration by the king and the parliament, that American citizens did then hold lands; which they could not lawfully do, unless they were deemed British natural-born subjects.

After such authorities, there does not seem to me any need to add a word more.

Dec. 9, 1808.

December 15, 1808.

Since writing the above, I have been told, that the subject of ante nati is no part of the present question, and, that what the

objectors mean to urge, is as follows: First, That the Americans, at the time of making stat. 22 Geo. III. c. 46. were in a state of legitimate war, bearing the character of foreign enemies, and not that of rebels. This is implied in the passing of such an act, and in the wording of it:-Peace and Truce-was not the language to hold to rebels; nor did the king need the authority of an act of parliament to proceed with traitors: the act has no object, if the Americans are not admitted to be foreigners in this transaction. Secondly, That after the peace made, it still remained for Americans, if they chose, to adhere to the British character; and it is not meant to deny, that prima facie, the Americans are to be deemed British subjects. But those who domiciliated themselves in the United States, showed thereby a determination to become American citizens; and after such choice, they cease to be British subjects, and cannot resume that character.

If I have not stated the above points quite correctly, nor with all the advantage that belongs to them, I hope I shall be pardoned by those who made them, and who rely upon them: they were communicated to me, in a rapid conversation only; for nothing, on that side of the question, has been put into writing: I have done my best to retain what I heard, and to state it fairly and fully.

I am totally at a loss to comprehend, at what period of the war, or by what modification of carrying it on, either on one side or the other, or by what events or circumstances, that which was once rebellion ceased to be so, and the traitors became changed into aliens waging legitimate foreign war. As to the words peace and truce, I do not understand, why they are not as applicable to war, coupled with rebellion, as to war not coupled with it. For war is still war, whatever may give rise to it; and I do not see why the war of rebels is not legitimate, quatenus war, and, therefore, needing every consideration, that attends all wars. Surely, in the time of Charles I. there were treaties, and truces, and peace too; there was a peace, for a short time, I think, in 1645, and yet, the lord-chancellor Clarendon intitled the narrative of these transactions, a "History of the Rebellion;" and no man has ever doubted, be he law-man, or layman, that the war levied against Charles I. was treason and rebellion; although it was attended with success, and could command names,

and although many amongst us have long agreed in applying to it the qualified appellation of civil war.

As to the necessity of making such act of parliament, and giving thereby power to the king to make peace and truce, because the Americans were become alien enemies, and ceased to be traitors and rebels; it is very curious, that a different reason for making it was given by the makers of the act; that reason is recorded in the parliamentary debates of the time; and the reason so given, seems to me to supersede the necessity of inventing any new one, like the present.

The bill was called "the Truce Bill," and was brought into the house of commons, on February 28, 1782, by the attorneygeneral Wallace. It does not appear, that it became a subject of debate in any of its stages; the nation and parliament were bent upon peace, and any measure tending to bring it about was too welcome to be questioned or criticised.-[See Debrett's Debates, vol. vi. p. 341, 363.]

However, this act, which came into existence without a struggle, afterwards was made a subject of discussion. When it had been carried into execution, and the provisional articles with America, together with the other preliminary treaties, came to be considered in parliament, in February 1783, this act was brought in question, and there was expressed great difference of opinion, as to its original design, the construction to be put on it, and the effect it produced. In the first debate, it was objected to the provisional articles, that the king has no right, by his prerogative, nor by the act of last session, viz. stat. 22 Geo. III. c. 46, to alienate territories not acquired by conquest during the war. The gentlemen of the law being called upon by this objector,* Mr. Mansfield answered, that, certainly by the act of last session, the king was authorised to alienate for ever the independence of America.-[Debrett's Debates, vol. ix. 280.]

On a subsequent day, the same gentleman [Debrett's Debates, vol. ix. 312.] again raised a question upon this act. It appeared to him, that no such power was given to the king by the act; that any power to alienate part of his dominions, or abdicate the sovereignty of them, should be conveyed in express words, and not left to implication and construction. This brought up Mr.

* Sir W. Dolben.

Wallace, who was the framer and mover of the bill, and who declared, that such power was given by the act: he said, he knew of no power in the king, to abdicate part of his sovereignty, or declare any number of his subjects free from obedience to the laws in being. As soon, therefore, as the resolution for peace had passed the house, he had, with a view to enable his majesty to make peace, drawn the bill; and as the subject matter of it was extremely delicate, he had been exceedingly cautious in wording it as generally as possible; but the whole aim of it was, to enable his majesty to recognise the independence of America; and that it gave the king such a power, was, he said, indisputable, because by the wording of it that power was vested in the king, any law, statute, matter, or thing to the contrary notwithstanding.

This explanation, by the mover of the act, did not satisfy the objector, who had been the seconder of it, but who now declared, he had never supposed such an interpretation could be put on the bill; and if he had thought it could, he would not have seconded it: but it was defended by the attorney-general Kenyon,* who said the act clearly gave authority to the king to recognise the independence of the Americans; adding, that it was obvious, the Americans, standing in the predicament of persons declared to be rebels at the time of passing the act, it was necessary to word it in the general and cautious manner in which it stood upon the statute book.

Though the attorney-general Kenyon thus supported the late attorney-general Wallace, in the construction and effect of his act, he, at the same time, denied the position, that the prerogative of the crown needed any such special act of parliament, to empower it to declare the American independence. Mr. Lee joined in opinion, upon that point, with Mr. Wallace. [Debates, p. 314, 315.]

A like difference of opinion was discovered among the law lords, in the discussions of the provisional articles, and the preliminary treaties. It was maintained by lord Loughborough, that the king had no authority, without parliament, to cede any part of the dominions of the crown, in the possession of subjects under the allegiance and at the peace of the king; and this, his

• He succeeded Mr. Wallace, on the change of the ministry, in March 1782.

lordship said, could be proved by the records of parliament. This doctrine was treated by lord Thurlow as unfounded, and he strongly maintained the contrary.-[Debates, vol. ii. p. 88, 89.]

The difference between the two lords had arisen, not upon the independence of the United States, but upon the cession of the Floridas to Spain; and it was on that account, no doubt, lord Loughborough stated his proposition with the words, under allegiance and at the peace of the king, which was a proper description of the Floridas; but the same could not be said so fully of the United States, which, though under the allegiance, could not be so well said to be at the peace of the king. Lord Thurlow, it is plain, did not admit, that this difference in circumstances made any difference in the power of the prerogative. It must surely be confessed, that this cession of the Floridas to Spain, at the very moment that the American independence was acknowledged, makes a great breach in the hypothesis of Mr. Wallace, Mr. Lee, and lord Loughborough, who thought stat. 22 Geo. III. c. 46, absolutely necessary for enabling the king to alienate part of his dominions. Indeed, the precedents are all against such a restriction on the prerogative; for when has there been a peace, that some West India island has not been ceded, not only such as has been taken during the war, but those of ancient possession? In truth, this is another distinction that has no solid foundation in law, but is a mere conceit. It is well known, that the laws of navigation attach upon a possession in America or Africa, immediately on a surrender; and the territory is, to all intents and purposes, as much the king's as any ancient colony or plantation. It is therefore wholly assumption to raise the above distinction, and to consider such a conquest as less a part of the dominions of the crown, and less under the protection of parliament, than the more ancient possessions.

But taking the judgment of parliament, (which finally approved all these treaties) for the supreme authority on this question of law, we are obliged to conclude, that the king had power to relinquish to the king of Spain his sovereignty over the two Floridas, without the special authority of any act of parliament, enabling him so to do. This is a decision, after argument, when the objection had been taken and reasoned upon, and both sides heard openly and fully. It cannot, after that, as I think, be doubt