British subject, and alien, are not terms contradictory; because the two characters may concur in the same person: the inhabitants of the Dutch colonies, now in our possession, are British subjects; they have taken the oath of allegiance, and they have the advantages of British colonists; but they are aliens, because they were born out of the king's allegiance. The inhabitants of the Floridas, born while those were British colonies, are, however, not now British subjects, because they inhabit a foreign country; nor are they aliens, because they were not born out of the king's allegiance; but they are natural-born British subjects, because they were born within the king's allegiance: so that it may be predicated of the same person, that he is a “British subject," and an "alien;" that he is "a natural-born British subject," and not a "British subject;” accordingly as you speak of the local and national character, or of the personal character. "British subject" is a term of common parlance, that has not properly a legal defined meaning: it serves sufficiently in ordinary discourse, for "natural-born subject," but it can be properly applied only for intimating the local and national character. The true legal description is that of natural-born subject: this is the opposite to alien; and these are the terms that describe the personal character, which is the only one sought in the present inquiry, and the only one that is a subject of discussion in the books of the common law.

Through the whole of the argument, I have been insisting on this personal character of British-born Americans; but those who object to my conclusion in favour of them, from the common law principle (which principle, however, they do not pretend to dispute), keep their eye principally on the local and national character of the present Americans. Their two great topics are quite of that sort; namely, the stat. 22 Geo. III. c. 46, for making peace or truce with the colonies and plantations; and the definitive treaty, which acknowledges the independence of the United States, and relinquishes sovereignty, propriety, and territorial dominion. Surely all these are national and local ideas, rivetted to the very soil, and limited by metes and bounds. Nothing is, by either instrument, said or done, as to the personal character of the inhabitants; that was left, as the personal character of the inhabitants of the Floridas, to the sentence and disposition of the law, when any of the individuals, residing there, chose to remove

himself into a situation, where his personal character could be brought into question, and considered distinctly from the local and national character, which the king of Great Britain had been pleased to superinduce upon him by ceding the country where he was born; that is, when any such individual should choose to come into the king's dominions, where alone his personal rights can have their application and exercise.

The only consideration for us, in this country, seems to be such personal character, whether it is the case of a native of Florida, or a native of the United States, born within the king's allegiance.

Dec. 16, 1808.

December 17, 1808.

A passage has been cited by the objectors, from Mr. Wooddeson's lectures; and as this is the only book-authority they have been able to adduce, it must not be let pass without observation; especially as it has acquired a sort of reflected consequence, by being inserted in sir Henry Gwillim's edition of Bacon's Abridgement, title “Alien." The passage is this, "But when by treaty, especially if ratified by act of parliament, our sovereign cedes any island or region to another state, the inhabitants of such ceded territory, though born under the allegiance of our king, or being under his protection, while it appertained to his crown and authority, become, I apprehend, effectually aliens, or liable to the disabilities of alienage, in respect to their future concerns with this country. And similar to this, I take to be the condition of the revolted Americans, since the recognition of their independent commonwealths."-[Vol. i. p. 382.]

To those who insist on this as an authority for saying, that such persons become aliens, and cease to be natural-born subjects, it might be enough to reply, that a proposition laid down with an alternative, as this is, has not in it sufficient precision to be authority for any thing: "effectually aliens, or liable to the disabilities of alienage," is a circumlocution that does not suit with the plainness required in a juridical proposition. And yet, I think, the author has expressed himself not unsuitably with another sense of the word alien, accompanied, as it here is, with an exposition. It seems to me that "or" is not intended here to be a conjunction merely; but it bears a sense that is not uncommon, it introduces a member of a sentence that is meant to be

explanatory of the foregoing; and is the same as "or in other words," "or to speak more plainly," "or to speak more properly." In this sense of "or," he explains the meaning of "effectually aliens," by shewing, they are liable to the disabilities of alienage in respect to their "future concerns with this country." Their "future concerns with this country," must be the trade they carry on with this country; something which they transact from a distant place, something that affects the whole community, something that arises out of their locality and national charactér. He is speaking of the local and national character, which we discussed before (in pa. 459), and which was superinduced on the inhabitants of these ceded countries, in respect of which the inhabitants become a species of aliens, or as the author expresses it in an undefined epithet, "effectually aliens," or, I suppose," in effect aliens;" that is, in the case of trading with this country.

I take this to have been what the author's mind was then contemplating, the local and national character of such ceded colonists; and by no means their personal character, that of naturalborn subjects, which he knew, as well as all lawyers, can neither be surrendered nor taken away.

Mr. Wooddeson has certainly been not sufficiently technical in expressing himself upon this occasion. It may be fit enough to oppose what he has said, by an expression in the treaty of peace, which, though in like manner not technical, has evidently a meaning that cannot be mistaken, and that makes against his conclusion. In the fifth article, it is agreed, that congress shall recommend to the legislatures of the respective states, to provide for the restitution of confiscated estates which belong to real British subjects. Now, if there are "real British subjects," it is implied, there are British subjects who are not real, that is, less so than the others. No one can doubt, that the one expression means British subjects, not comprehended within the new states, érected and recognised by the king's acknowledgment in the treaty; the other must mean those inhabiting the United States. It is plainly indicated, therefore, by this phrase, that both contracting parties in the treaty admitted, that the inhabitants of the United States did remain, in some sort, British subjects; and the mode in which they so continued can only be that, which I have been contending for.

Dec. 17, 1808.

According to the foregoing reasoning, I think the law officers, if consulted, would give an opinion somewhat to the following effect.

Supposed opinion of the law-officers.

"In obedience to your lordship's commands, we have considered 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; and we are of opinion, that such a person, coming to this kingdom, cannot be denied the character and privilege of a natural-born subject.

In forming this opinion, we have given due consideration to all the topics that have been suggested to us from different quarters, on both sides of the question, as well as to the principles of the common law, which are to be found in books of known authority amongst lawyers.

Among the suggestions that have been made to us, are stat. 22 Geo. III. c. 46, and the definitive treaty of peace with the United States; and we find ourselves obliged to declare, that nothing in those two instruments appears to us to make any alteration in the case of Americans, when compared with others of his majesty's subjects who reside in a ceded country. In like manner as the inhabitants, natural-born subjects of his majesty, in the two Floridas, ceded to the king of Spain, (at the same time that the independence of the United States was acknowledged) are still deemed to retain their privilege and character of natural-born subjects, so, we think, these persons, being similarly circumstanced, when they come into this kingdom, cannot be denied to retain their original privileges and character.

Our reasons for thinking, that the statute and treaty make no difference or peculiarity in the case of the United States, are these: The statute, upon the face of it, appears to have been made for two purposes; First, To enable the king to make peace or truce with the colonies or plantations in question; Secondly, To enable the king to suspend the operation of certain acts of parliament that might stand in the way of peace. The need of the second provision is obvious; the need of the first is not so plain; but we are told, in a debate in the house of commons, by the attorney-general Wallace, who drew the bill and moved it, that it was intended to give the king a power of alienating those

colonies; a power which he, and some others, considered the king as not possessing by the common law. Without saying any thing, at present, on the justness of such opinion, we allege it as the best testimony to the design of the act. This design is perfectly consistent with the conception and wording, and it does not appear to us necessary, or proper, to suppose any other meaning in this act. We conclude, therefore, that there was no particular design, by this legislative measure, to make any alteration in the personal character of the Americans, beyond that which necessarily must, and always has followed upon the cession of any of his majesty's colonies.

After these observations on the act for enabling the king to make peace, we come to the definitive treaty itself; and we find ourselves compelled to declare, that as we perceive no design in the act to enable the king to alter the personal character of the Americans, so in the treaty we discover no declaration or provision that can be construed expressly, or impliedly, to alter their original character of natural-born subjects, and to make them aliens.

In the first article of the treaty, the king acknowledges the United States of New Hampshire, &c. &c. to be free, sovereign, and independent states; and he relinquishes all claim to government, propriety, and territorial rights of the same. It is upon this provision, and these words, that the separation and independence of those colonies are grounded. The effect of this provision appears to us to be confined wholly to the soil and territory, which is thereby made foreign, and ceases to be a part of the king's dominions; we cannot discover any thing that at all affects the personal character of the natural-born subjects, inhabiting such foreign territory.

Indeed, we are much surprised that any such peculiar effect should be ascribed to this cession of territory to the United States, (for so it is, in truth) when, at the same peace, the adjoining colonies, the Floridas, were ceded to the king of Spain; and no such consequences of the cession are supposed by any body to affect the natural-born subjects residing there. We may here too remark, that the cession of the Floridas was made without any such enabling statute, by the king's common law prerogative; which demonstrates, that in the opinion of the majority of parliament, who approved the treaty, the act of the attorney