trading with an enemy to be high treason, unless it be in such trade as furnishes the enemy with stores of war.

March 22, 1703-4.

EDW. NORTHEY.

(2.) OPINION of the Attorney General, SIR FLETCHER NORTON, as to whether the French and Spaniards who remained in the ceded Countries after the Peace of 1763, were Aliens or Subjects. 1764.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to me by Mr. Pownall's letters of the 21st of December and the 1st of March last, stating that great difficulties had frequently occurred from the question whether the subjects of the Crowns of France and Spain, who remain in the ceded countries in America, are to be considered as aliens; and intimating more particularly, that a variety of doubts and difficulties had occurred as to the ability of aliens to acquire property in America, either by purchase, grant, or lease from the Crown; and also as to the situation in respect to the laws of this kingdom, of such subjects of the Crowns of France and Spain as, being inhabitants of Canada, Florida, and the ceded islands in the West Indies, remain there under the stipulations of the last definitive treaty; and therefore desiring my opinion, whether such of the French or Spanish inhabitants of Canada, Florida, and the islands of Grenada, Dominica, St. Vincent's, and Tobago, as being born out of the allegiance of his Majesty, and also remain in the said countries under the stipulations of the definitive treaty, are, or are not, under the legal incapacities and disabilities put upon aliens and strangers by the laws of this kingdom in general, and particularly by the Act of Navigation, and the other laws made for regulating the plantation trade; and if it should be my opinion that they are under such disabilities and incapacities, your Lordships, in that case, desire my sentiments in what manner such disabilities

may be removed.

I have taken Mr. Pownall's letters into my consideration, and am humbly of opinion that those subjects of the Crowns of France.

and Spain, who were inhabitants of Canada, Florida, and the ceded islands in the West Indies, and continued there under the stipulations of the definitive treaty, having entitled themselves to the benefits thereof by taking the oaths of allegiance, &c., are not to be considered in the light of aliens, as incapable of enjoying or acquiring real property there, or transmitting it to others for their own benefit; for I conceive that the definitive treaty, which has had the sanction, and been approved and confirmed by both Houses of Parliament, meant to give, and that it has in fact and in law given, to the then inhabitants of those ceded countries, a permanent transmissible interest in their land there; and that to put a different construction upon the treaty would dishonour the Crown and the national faith, as it would be saying, that by the treaty they were promised the quiet enjoyment of their property, but by the laws were to be immediately stripped of their estates; but I think that no aliens, except such as can claim the benefit of the definitive treaty, or bring themselves within the 7th of his late Majesty, are by law entitled to purchase lands for their own benefit and transmit them to others, either from the Crown or from private persons, in any of his Majesty's dominions in North America or the West Indies.

But I submit to your Lordships, whether, as it is a matter of the highest importance that those countries should be settled, and perhaps not less so that such settlements should be made without draining this country of its inhabitants-whether it would not be proper to apply to Parliament for a Naturalization Bill for those places, under proper regulations, as well to encourage foreigners to go thither, as to quiet such aliens as may have already settled there, under the common received opinion that they were capable of holding lands there for their own benefit, and disposing of them in any manner they might think proper, in common with the rest of his Majesty's liege subjects.

Lincoln's Inn, July 27, 1764.

FLETCH. NORTON.

(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 implication 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."

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