I admit, legal considerations that depend upon a man's local character, which may be changed by change of residence, and therefore must be ascribed to his own act and choice. But those are in cases of such a character as is capable of being acquired, and, as it is acquired, so it may be lost, by his own act; such is a man's local and national character. But the character of natural subject, which a man is born to, and to which is applied the maxim, nemo potest exuere patriam; to lay it down as a position of law, that it is in a man's own choice to decide whether he will put off this character or retain it, and that his continuing his native character depends upon altering his domicile-this is, surely, one of the most singular novelties that ever was attempted in the face of an acknowledged principle to the contrary. For which principle I must again refer to Calvin's Case, the whole doctrine and result of which is, that the personal rights of a subject, to which he was born, remain through life, and through all circumstances, unchanged and indelible; and that allegiance and native rights arise wholly from birth, and do not depend on actual local sovereignty for their continuance.

Such a device as this is not interpreting the law, but making it. A temporizing scheme, reduced to an Act of Parliament, for settling this national question, might very well be so modelled; it would be a half-measure that probably would be thought reasonable enough; but this very character of it is sufficient to discredit it as a piece of juridical reasoning: it is void of all steadiness of principle; it has not even in it the consistency of the former arguments and conclusions, that "relinquishing the sovereignty," that "acknowledging the States to be free," &c., &c., implied that there was an end of allegiance and of British rights. The device was, I believe, contrived by those who found they could not maintain the above bold conclusions in opposition to acknowledged principles of law; and, desirous of doing something, they were content to lower their notions to a medium between the two, which would sound, as they thought, reasonable in the effect of it, however unsupported it might be in principle.

So much for this half-measure of "reasonable time," and "domicile,” which I have had occasion before to reprobate. I hope the difficulties, in point of law, with which this arbitrary notion is

pregnant, will be avoided: if so, the other difficulties in point of fact, which you mention, will be escaped-namely, the necessity of inquiring in every particular claimant's case, when and how he was domiciliated in America, or in this kingdom.

Upon the whole I see nothing to distinguish, in a legal view, the condition of Americans from that of other British subjects residing in a ceded country; nothing done by the King, nothing by Parliament, nothing by themselves: and it seems to me, the person in question coming to this country is still entitled to the privileges of a natural-born subject.

January 17, 1809.

An authority is quoted for the notion of "optional domicile." It is said that Chief Baron Eyre has been heard, over and over, to lay it down, that Americans domiciled in the United States could not be deemed British subjects, so as to navigate a British ship. There may be good reason for such an opinion. The Chief Baron might have considered that, under the Order of Council for carrying on the American trade (it was before statute 37 Geo. 3, c. 97), American ships were to be navigated by subjects of the United States. He might consider domiciliation as the best evidence of being an American subject. It might appear to him reasonable, that such persons being allowed to navigate American ships, as American subjects, they should not be recognized occasionally as British subjects when navigating a British ship. Such a discrimination might appear to him to promote the principle of our navigation system, as no ships are allowed to be British-built, unless built in the King's dominions; it might seem to him an appropriate construction, to exclude from the character of British mariners all those who chose to domiciliate themselves in America, then become a foreign country.

Be it so; but can they report to us that the Chief Baron ever laid it down that persons who so made themselves Americans, by residing in the United States, might not afterwards be deemed British subjects and British mariners, by changing their domicile to some part of the King's dominions? Is there anything in the principle of domiciliation, which will enable them to say that the first choice is final, and the character thereby acquired cannot be

Y

put off? Is there not as much efficacy in a second, a third, or any other subsequent choice of domicile? And do not such persons become, toties quoties, successively British or American? And if not, why not?

If their notion is grounded on any principle, they should be able to explain to us why the first choice of domicile precludes the advantage to be derived from any subsequent choice.

Such are the queries that may be put on this piece of exchequer law, confined only to the very peculiar case of navigation and of mariners. There still remains the principal query, why should such a construction of the Navigation Act, supported as it is there by the special circumstances of the case, be adopted, and made to govern in the general question of natural-born subject, where there is nothing similar to make the application of it fit or colourable? Certainly domiciliation, or residence, temporary or permanent, never made a part of the consideration whether a person is a natural-born subject; but simply this was the question, whether he was born within the King's allegiance? However, if domiciliation weighs anything, the claimant in this case is resident here, and professes to make this kingdom his future residence. Perhaps the Chief Baron, upon a habeas corpus, would, in the case of this claimant, have deemed his present residence, and his determination declared to reside here in future, to be a sufficient choice of domicile within the principle of his exchequer decision; perhaps he might consider this case as standing on different grounds from the exchequer case, and to be decided on general principles, without regard to domiciliation.

We are so uninformed as to the extent of what the Chief Baron is supposed to have ruled at nisi prius, that it seems to afford no safe ground of reasoning.

January 21, 1809.

I have been desired, by a great lawyer, to look at the statute De Prærogativa Regis, c. 12, de terris Normannorum. I suppose he meant this should prove to me that on King John losing Normandy, the Normans became thereby aliens, and therefore the lands holden by them in England escheated to the King; but the statute does not import this, nor is it so understood by Staunforde.

On the contrary, Staunforde understands that the Normans still continued English subjects, and were ad fidem utriusque regis. The statute expressly speaks of those who were non ad fidem regis Angliæ, which must be such as were born after the severance of the two countries; and the design of the statute is to fix that the escheats, in the case of such post-nati, accrued to the King and not to the lord; and that the King was to grant them to be holden of the lord, by the same services as before.

This chapter, therefore, of the statute De Prærogativa Regis is an express authority that the severance of Normandy from the English Crown did not make the inhabitants there aliens, though their children, born after the severance, were aliens.

This authority becomes also an answer to another point maintained by the same great lawyer; he goes beyond the rest that I have had to contend with, except the civilian, and he holds, with the civilian, that the inhabitants of a ceded colony become thereby aliens. Yet in this I cannot but allow there is consistency, for the principle appears to me to be the same: those who call the Americans aliens ought to consider the inhabitants of Florida, ceded at the same time, in the same light; and those who consider the inhabitants of Florida as not deprived of their personal rights of Englishmen, ought to admit the American claim to continue natural-born subjects.

March 22, 1809.

Perhaps the objectors have never considered the persons to whom naturalization and denization are granted. In both cases, in the Act of Parliament and in the patent, the party is alleged to be born out of the King's allegiance, and in applying for either, he must allege the same in his petition; but an American cannot do this with truth. What then is to be the conclusion on the peculiar circumstances and situation of this supposed alien? Is he to be deemed an alien beyond all other aliens, that is, irredeemably such? Assuredly he is not susceptible of denization or naturalization in the ordinary course, because he cannot bring himself within the description which alone makes him the object of such favour; or may we conclude that, not having the defect which is to be supplied by such grant, he is already in possession of the character

to be conferred by it; in other words, he is not an alien, but a natural-born subject?

The latter appears to me the just conclusion, and I shall accordingly say with confidence, that there is the authority of the Lord Chancellor in cases of denization, and of the two Houses of Parliament in cases of naturalization, for the proposition that birth out of the King's allegiance is the only circumstance which constitutes an alien. We may be sure such forms would not have been settled and constantly acted upon if they were not known to be required by the general law of the land. Indeed, it is nothing more than the definition of alien laid down in all the books, whether elementary or practical; the following examples are sufficient:

"Natural-born subjects are such as are born within the dominion of the Crown of England-that is, within the ligeance, or, as it is generally called, the allegiance of the King; and aliens, such as are born out of it."-Blackstone, book i. ch. 10.

"An alien is one who is born out of the ligeance of the King."Comyn's Digest, article "Alien."

"An alien is one born in a strange country."-Bacon's Abridgment, article "Alien."

And thus I conclude this discussion, as I began it; relying upon established and known positions of law for maintaining juridical truth against hypothesis and the speculations of political reasoning.

March 24, 1809.

(6.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN S. COPLEY and SIR CHARLES WETHERELL, on the Status of a Citizen of the United States born before the Peace of 1783, and resident in Canada; and also on the Status of his Son, born in the United States after that date.

Serjeants' Inn, November 13, 1824.

MY LORD,-We have had the honour to receive your Lordship's letter, transmitting to us several documents relative to the case of