ed, that the same parliament would have recognised the king's power to relinquish his sovereignty over the United States, although there had been no such act as stat. 22 Geo. III. c. 46. The relinquishing of sovereignty to the king of Spain, whereby he parts with all royal authority over his subjects in the Floridas; and the relinquishing of sovereignty over the colonies of New Hampshire, &c. &c. to the United States, whereby he parts with all royal authority over his subjects in New Hampshire, &c. &c.; where is the difference, in a juridical view, between these two cases? If you analyse them, and bring them down to their first principle, you will find it amounts to the same thing in both cases; to this, and nothing more, namely, that he makes the Floridas, and makes New Hampshire, &c. equally foreign dominions. Every consequence that follows upon the relinquishment of sovereignty, is ascribable to that, and to that only. The inhabitants of the Floridas, and of New Hampshire, &c. &c. become British subjects living in a foreign land, and lose all British advantages, now that British ground is taken from under them, in like manner, and in none other, as if they had removed themselves to the foreign soil of Spanish, or Portuguese America. Indeed, no one has ever pretended, that the inhabitants of the Floridas, who were British subjects born, were made aliens by the cession, though some do mistakenly suppose, this deprivation to happen to Americans of the United States, who were put under the same circumstances, at the same time, by the same, or by a similar operation, certainly for the same purpose, that of peace.

I say, that the cession has the single effect of making the Flo ridas, and the united states of New Hampshire, &c. &c. foreign countries; and, that no alteration is made in the birthrights of British-born subjects, because, what is covenanted, granted, and agreed in the treaty, relates wholly to the former, and there is not a word that relates to the latter. The Floridas are ceded to the king of Spain; that contains in it nothing so particular as to raise a question: the material consideration is, the case of America. The definitive treaty begins by the king acknowledging the united states of New Hampshire, &c. &c. to be free, sovereign, and independent states; and he relinquishes all claims to the government, propriety, and territorial rights of the same: the king here parts with the states, that is, the political machinery formed

for the government of those colonies, the governor, the assembly, &c. &c. &c. and declares them independent; to make this independence quite clear and unclogged, he relinquishes all territorial sovereignty. The thing given up by the king, is his own superintendance and authority over the local authority of those places; of the individuals his subjects, there residing, he says nothing; there is not a word in the treaty affecting their birthright, as British subjects.

There is certainly not a word expressed upon that point; but I think the great mistake in this discussion, and that which misleads those on the other side, is, an implication which they think necessarily arises upon this transaction of granting independence to America; and they allow themselves to be carried away by the force of expressions, which, without any defined meaning, seem to signify something, and are repeated, without examination into their import. It has been said, that by acknowledging the independence of the United States, the king dissolved the allegiance of the Americans, and they of course were made aliens; this is an inference drawn from the independence, but it is wholly a fiction of imagination among politicians; there is no such principle in the law of England; it never was heard of: can any book, case, or dictum be shown, that gives the most remote intimation of any such operation? In the cession of territory, the king has always forborne to declare any thing expressly on the article of allegiance; and never before has any one raised the construction, that allegiance was ever surrendered by the king, any further than the nature of the cession did, in point of exercise and enjoyment, circumscribe the scope of it. As the king has, in no case of cession, made an actual relinquishment of allegiance due to him, so has he, in no case of such cession, ventured to take away what was not his, but belonged to the individuals his subjects; who were to suffer enough in being compelled thenceforward to live in a foreign land, and who might very well be indulged with the consolation of retaining their birthright of British subjects; a right which might be brought into enjoyment and exercise, whenever they should again come to live upon British ground.

With all the instances of cessions, which are examples to the contrary, I cannot understand, how any one should entertain the imagination of their effect in dissolving personal allegiance, ac

companied too with such an inconsequent result, as, that the British subject, so released, becomes thereby an alien.

To return to the objection which I was to consider, in regard to the design and effect of stat. 22 Geo. III. c. 46; it appears, from what I have before detailed out of the Parliamentary Debates, that the statute was deemed necessary, in order to satisfy the scruples of some persons, who thought, that the king had not, at common law, power to alienate any part of his dominions; further, that it was necessary the king should have power to suspend the operation of certain acts of parliament, which, it was foreseen, might stand in the way of making peace. It was afterwards contended, that the statute had also the special effect of authorising the king to grant independence to the colonies; because, as it empowered him to make peace or truce, any law, statute, matter, or thing to the contrary notwithstanding, it of course, say these objectors, empowered him to grant independence, or indeed any thing that should be deemed necessary towards making such peace or truce; meaning by such independence, disfranchisement, and converting the Americans into aliens.

After such explicit discovery, as was before made, of the nature and design of the act, how are we to acquiesce in the construction thus put upon it in the objection? What reason is there for saying, that the act has no meaning or object, unless the Americans were admitted to be aliens and foreigners, in a state of legitimate war, and not rebels?

The second of these renewed objections to the grand common law position, on which I build this argument, is, to my understanding, as extraordinary, and as anomalous, as the preceding; but it is not so novel. I admit, I have before heard the notion of Englishmen domiciliating themselves in the United States, and being, in consequence of such election, pronounced to be no lon ger British subjects, but aliens and American citizens only; yet it always seemed to me to be an arbitrary and groundless assumption, totally irreconcilable to principle or precedent.

As to the precedent, I must again recur to the instances of the Floridas, Tobago, and other places, that have been ceded to foreign powers. Was it ever objected to the British-born subjects inhabiting those countries, that having domiciliated themselves there, they were considered as aliens in the British dominions? Where should men be domiciliated, but where their home is? No. XXI.

G

And did it ever enter into the mind of the king or his ministers, that, upon a cession of territory, the British-born subjects inhabiting there should migrate, at all hazard to their worldly affairs, and the prosperity of their family? There are no such migrations, no such expectations of them; nor have they ever been deemed necessary for keeping alive the birth-right of a British subject. Why then should it be necessary, for the first time, in the case of the inhabitants of the United States?

I think it erroneous in principle, because it makes that depend on the option and capriciousness of the person himself, which has ever been deemed an indelible character, one he is not at liberty to put off, that of a British subject. All the maxims, that we have heard about birthright and natural allegiance, are contrary to such a supposition, of a person choosing whether he will cease to be a British subject, and begin to be an American citizen; but all those maxims are consistent with the construction which I contend for, namely, that such persons owe a local allegiance while in America; and, when they come here, their rights of British subjects revive, and their natural allegiance attaches: and, it cannot be denied, that in such a state of things, there is a reciprocity of duty and protection, between the sovereign and the subject, which is quite commensurate with their respective situations.

This imagination of optional allegiance, and extinguishment of natural rights, is wholly inconsistent with the position resolved in Calvin's case, which is laid down generally, without making the consequence of continuing the rights of birth to depend on any condition or observance whatsoever. Such absolute, entire, and indelible quality, is what the common law ascribes to those rights of subjects that come to us by birth, and by birth only.

Such are the observations to which these two new objections seem to be open. These objections do not appear to me to have more force in them than the former; and I do not see any thing in either of them to invalidate the resolution in Calvin's case, and the application of it, without any qualification, or deduction, to citizens of the United States.

Dec. 15, 1808.

December 16, 1808.

In a conversation with a civilian upon this subject, I found he had made up his mind to the negative of the question; but it was upon principles wholly independent of the common law. He con

sidered British-born subjects, residing in an island or country ceded by his majesty, to become thereby aliens; he could not, therefore, he said, doubt about the state of Americans, especially after the act of parliament, which has been so often cited. He called for some case lately decided in the courts at Westminster, to contradict what he alleged of ceded countries; I had none to adduce, and could only refer to the common law principle, which had never been denied.

I perceive, that the civilian went upon the law of his court, where they hold, that persons take their character from the country where they reside; so, the ceded country becoming foreign, they deem the inhabitants foreign too. Such is the rule in prize causes, where hostility is to be regarded, which must ever be a national, not a personal consideration; accordingly, an enemy's country makes all the inhabitants enemies. So, indeed, at common law, the country gives the character to the persons who inhabit it, in matters that are governed by the character of the country. The British-born subjects of a ceded colony lose their character of British colonists, because their country has become foreign; they are restrained by the navigation laws that before protected them; they cannot trade as British colonists. They are foreigners, therefore, in every thing that relates to the country they live in, as the civilian contends; but the common lawyer will add, they are in their own personal rights still British subjects, as they were born; and they will be intitled to claim the privileges of such, whenever they remove from the foreign country which obstructs the application and exercise of them, and come to a place, that is, some place in the king's dominions, where alone the privileges of a British subject have their exercise and application.

In truth, the character of a British-born subject is not merely national and local, but personal and permanent. It is born with him, and remains with him during life, never to be divested; unchangeable, indelible. It is not so with what is called a British subject; that does, indeed, depend upon locality; and that is the character which the civilian contemplates. I believe, much of the misapprehension, upon this occasion, has arisen from not preserv ing the distinction between British subjects, and natural-born British subjects; they are not the same, though, I believe, they are reasoned upon as if they were.