(3.) OBSERVATIONS by SIR JAMES MARRIOTT, King's Advocate, on the Case of the Inhabitants of Dominica, sent to the Attorney and Solicitor General previous to a consultation with him thereupon (1). January 5, 1765.

The case of the inhabitants of Dominica does not come under the description of the Treaty of Versailles; it being an island in partition, neither ceded nor restored, but now first occupied in full sovereignty by his Majesty and acknowledged by France.

The inhabitants of Dominica hold all they have now under the King; and their request to be at liberty to withdraw their persons, and dispose of their possessions, is not supported by the spirit of the treaty, nor the letter of it; nor consequently by the good faith of any express or tacit agreement of the King.

It has been disputed by writers on the law of nations whether any persons can withdraw themselves, and renounce the Government under which they were born, or fallen en partage; but be this as it may respecting their persons, it is certain that their possessions, under the protection of that Government and sovereignty, are the guarantees of their continuing their persons under it; for their possessions and effects may be confiscated to the State which they desert contrary to express injunctions.

It is stated that many of the inhabitants of Dominica have, since the treaty and Article of Partition, passed over to Guadaloupe, and now desire to withdraw their property as they have withdrawn their persons.

The King will be justified in refusing protection to their possessions, if they do not return to them on such conditions as his Majesty shall be pleased to grant them.

The terms of the treaty formally grant a privilege to the inhabitants of the islands ceded or restored, for withdrawing their persons and effects; and it is a well-known rule of the civil law, which is the allowed interpreter of the law of nations-Affirmatio unius est exclusio alterius; therefore those islands, neither ceded nor restored, are excluded by necessary implication of the terms of the treaty.

(1) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott.

2. They come within the intention of the treaty, because it is a known quality of all private and public compacts, of treaties more especially, tantum disponunt quantum loquuntur. In stipulations the intention of the contractor can only be judged by his words, as the sole indication of his sentiments. Silence then in one object, and affirmation in another, work a direct negative by implica tion equally to express words in every case not mentioned, and which is different in its nature and circumstances from the case affirmed to be privileged. Now all privileged cases are held universally to be stricti juris, and they cannot by the civil law be granted but by express words.

Those adventurers who have established themselves without lawful commissions from their respective Sovereigns are intruders upon public rights, and the law of nations adjudges them to have made such establishments at the peril of their own persons and properties.

This law is necessary for the repose of mankind, and the support of all civil associations and governments.

The settlers in Dominica, till this period without civil rights, their settlements disavowed by one Sovereign and prohibited by the other, are fallen to the King, who may make their possessions answerable for their conduct, if they withdraw their persons; for from him only, and from his royal grant and confirmation, can they derive any right to what they possess.

The fact represented of Admiral Knowles draws to no consequence in this question, unless it makes those inhabitants more subject by their own acquiescence to the King than they are now by partition. The fact urged by the memorialist is a made fact; it conferred no privilege on these inhabitants; but merely the protection of the Admiral pro tempore, on condition that they remained upon the island.

The protection of the King under the present circumstances of the island, and the inhabitants continuing upon it on such terms as it shail please his Majesty to dictate, is the question.

But if the utmost force is allowed to the declarations of an admiral, though made without orders from his Sovereign, yet the indecision of these islands by the treaty of 1660, called the treaty of League and Union, and by the agreements in the year 1733, and

by the subsequent treaty of Aix-la-Chapelle, still kept in suspense the civil condition of those inhabitants; under that decided dependency into which they are now fallen by partition, they must necessarily abide, or lose the benefit of protection.

With respect to the inhabitants of Cape Breton, the treaty being silent, their condition falls under the terms of the particular capitulation for that island.

If the French King, notwithstanding the disavowals of his ministers, has made grants to French settlers in Dominica, it is unfortunate for them, but these grants cannot affect the right of his Majesty; and in a case between Sovereign and Sovereign, they must be considered relatively to them, and comme non avenus. The French settlers who have obtained such grants can only hope to obtain their indemnification from the same hand from which they obtained their grants.

The whole of this case depends upon his Majesty's good pleasure. All which is humbly submitted, &c.

(4.) OPINION of MR. CHALMERS on the legal effects resulting from the acknowledgment of the Independence of the United States (1). 1814.

The question is, whether the inhabitants of the United States, who had been born within the King's allegiance, and remained within the United States after they were acknowledged by the King to be independent and sovereign, continued subjects, having the rights of subjects; or became aliens, having the rights of aliens, from that acknowledgment?

During the year 1783, which forms the epoch of that event, I took the liberty of publishing my opinion of those effects. Whatsoever I may have seen or heard since that epoch, I have not in the least changed my opinion. And as abler men than I pretend to be have avowed and published very different sentiments from mine, it may, perhaps, be permitted me to restate and reinforce my original opinion, which first broke the ice that had been collecting and consolidating for so many years.

(1) The foot-notes to this Opinion are those of Chalmers, as given in his "Opinions of Eminent Lawyers."

S

The Act (1) which enabled his Majesty to conclude a peace or truce with certain colonies in North America, declared it "to be essential to the interests and the welfare and prosperity of Great Britain and the thirteen specified colonies, that peace, intercourse, and commerce should be restored between them."

The treaty, it must be allowed, is explicit enough as to the political associations that formed the States, which are expressly acknowledged" to be free, sovereign, and independent States; and the King, for himself and his heirs and successors, relinquished all claims to the government, propriety, and territorial rights of the same, and every part thereof." The statute of the 22nd of the King does not take notice of what the world knew sufficiently, that thirteen of the British colonies had revolted; neither does it notice, that the persons forming those colonies which had declared themselves in 1776 to be independent, were, and had always been, the King's subjects; but it merely enables the King to make a peace or truce with any commissioners who might be sent by the said colonies, or any of them, or any bodies politic, or descriptions of men within those colonies; and the treaty is altogether silent as to the individuals who formed those well-known confederations; it admits the thirteen societies, in their associated capacity, to be free, sovereign, and independent, by relinquishing all claim of government over them; yet it does not explicitly renounce the allegiance of those colonists, who, at the epoch of the war, were still British subjects, in contemplation of British law; for it does not declare that the citizens of the United States shall be deemed aliens in future; and it neither excepts nor disowns those faithful subjects who had retained their allegiance and adhered to their King and country.

The faithful colonists of Great Britain, as they had been born within the King's dominions, were, owing to this circumstance alone, constituted subjects of the King and freemen of the realm. By their birth within the allegiance of the Crown they acquired a variety of rights, which are called emphatically by lawyers their birthrights, and which can never be forfeited except by their own misconduct, and can never be taken away but by the law of the land. "No freeman," says the Great Charter," shall be seized or

(1) 22 Geo. 3, c. 46.

imprisoned, or outlawed, or any way destroyed, except by the legal judgment of his peers, or by the law of the land."

It is, nevertheless, a very different consideration with respect to those colonists who, having achieved the late American revolution by their efforts, now form by their residence the United States. Rights may be undoubtedly forfeited, though privileges cannot be arbitrarily taken away; a man's crimes, or even misconduct, may deprive him of those immunities which he might have claimed from birth, or derived from some Act of the legislature: he may be outlawed by the sentence of a court of justice, or he may be banished by the united suffrages of his countrymen in Parliament; the American citizens, who voluntarily abjured their Sovereign, avowed their design to relinquish their character of subjects, however contrary to law their relinquishment undoubtedly was. The American subjects who swore fidelity to the government of their own choice, thereby declared their election to be no longer connected with a State which had mortified their prejudices rather than bereaved them of rights; and by that conduct, and by those offences, the devoted colonists forfeited to the law all which the law had conferred on them. The American treaty virtually pardoned their misconduct in forming those associations which were admitted to be free: the Parliament, by its recognition, virtually legalized the election which the revolted citizens of those States had made.

But whether that treaty, or that Act of the British legislature, ought to be construed as a relinquishment of their allegiance, with the obedience that is inherent in it, or as a pardon of their faults, whatever were committed by forming those associations and taking oaths which were inconsistent with their allegiance, is a point which needs not be now very pertinaciously argued.

The term "nation" always supposes something collective, or a body-politic. A colony is also a body-politic, though inferior to a nation. Each of the revolted colonies, when it departed from its former character of a colony, became a State, or body-politic, and the association of those thirteen States which had departed thus from their character of colonies, formed a nation, or body-politic, under the name of the United States. The King, by the definitive treaty, acknowledged those States to be free, sovereign, and independent; he treated with them as such, and he relinquished for