statute law to the contrary. The only statutes which have been referred to upon this subject are 25 Edw. 3. st. 2. 7 Anne, c. 5. and 4 Geo. 2. c. 21., but these do not help the plaintiff, for these require that the father shall be a natural born subject of Great Britain at the time of the birth of the child. Here it is clear that when Mrs. Thomas was born, her father had ceased to be a subject of Great Britain, and therefore those statutes are inapplicable. The question is not whether, if Mr. Ludlow had come to England, after the declaration of American independence, and become domiciled here, he could be treated as an alien, but whether after he continued to reside in America until his death, and therefore must be taken to have adhered to the new order of things, he can be considered as retaining the character of a natural born subject of Great Britain. The doctrine of alienation must certainly be taken from the municipal law of this country: but if this question were to be decided by the law of nations, there are abundance of authorities to shew that Mrs. Thomas is to be considered as an alien. By the law of nations every person has a right, of his own accord, to throw off his allegiance to his government. That is considered as a proposition of universal law, by Vattel, lib. i. c. 19. s. 220. By the Code Napoleon, and even by the old law of France, a person might expatriate himself by taking the oath of allegiance to the sovereign of another state. In the state of Virginia a law to the same effect is in existence. But without referring to the law of nations, it is sufficient to shew, that by the municipal law of this country Mrs. Thomas is an alien. That law is founded on the feudal law, on the doctrine of the relation which exists between the sovereign and his vassal. In Calvin's case (a) ligeance is defined to be "duplex' et reciprocum ligamen quia subditus regi tenetur ad obedientiam ita rex subditi tenetur ad protectionem." The same definition is given by Lord Ellesmere in the same case, p. 64. In Forster's Crown Law, 183, it is said, "The duty of allegiance, whether natural or local, is (a) 7 Rep. 9. 1824. DOE v. ACKLAM. 1824. DOE 2. ACKLAM. founded in the relation the person standeth in to the Crown, There is, therefore, a complete recognition of the Sovereign's authority to do this. Then, on the part of the subject, what is done to shew his acquiescence? It is found by the special verdict, that Mr. Ludlow, the father of Mrs. Thomas, continued to reside in America after the treaty was signed, and died there (a). Then he must be considered as a party to the treaty, and bound by the acts of the state in which he is voluntarily living. He became as much a subject to the new government as the natives of Surinam after their allegiance had been transferred by Cur. 2. to the Dutch government in 1667 (b). According to Mr. Justice Blackstone, in 1 Comm, 569. this dissolution may take place by the mutual concurrence of the prince and the subject. If so, can there be a stronger proof of concurrence than, first, in the recognition by the Sovereign of the independence of a certain class of his subjects, and, second, in the act of those subjects throwing off their allegiance? It is said on the other side, that nothing is to be found in the treaty of 1783 from which it is to be collected that it was the intention of the parent state to consider the inhabitants of the colonies, after the separation, as aliens; and it was endeavoured to extract some expressions from it, to shew that they still continued British subjects. Very little attention to the treaty will shew that a contrary inference is to be drawn. First, as to the right of fishing, the people of the United States are to continue to enjoy that right as they did before. Why, if they were to be considered in future as vested with all the rights of natural born subjects, such a provision would have been quite unnecessary. The same obser→ vation applies to the provision for the restitution of all estates, rights, and properties which had been confiscated belonging to real British subjects. The object of that article was only to provide, that persons who had a right to lands in America should not lose them, and that if they had a title to lands before the rebellion, they should be restored to them, if the legislature of the respective states should chuse so to (a) Though it was not stated as a fact in the special verdict, it was now admitted that Mr. Ludlow resided in America until the time of his death. (b) See 2 Chalmer's Col. 485. for the debate between Sir W. Temple and De Witt, upon the cession of the province of New York for Surinam, to the Dutch. 1824. DOE v. ACKLAM. 1824. DOE v. ACKLAM. do. The 24th section of the statute 37 Geo. 3. c. 97. is open to the same observation, for unless that provision had been made by the legislature, the necessary inference must have been, that American subjects would have been considered aliens. The object of that section was merely to make a special provision in favour of those American citizens who actually or legally held lands in the territory of his Majesty; and in respect to such persons, it confines the privilege to them, their heirs, and assigns. If the argument on the other side could prevail, and if the effect of 7 Ann. and 13 Geo.2. c. 7. s. 7. was such as is represented, the consequence would be, to make the whole of the American population British subjects-to throw on them the obligations, and to give them all the privileges of British subjects, and to make every American who may hereafter bear arms against this country, subject to the penalties of high treason. The argument must be pushed to that length or it cannot avail the plaintiff. It may be admitted, that this is the case when persons entangle themselves in a double allegiance. If a British born subject were to go over to the continent, and become a subject of the King of France, placing himself in the situation of owing a double allegiance, and a war broke out between the two countries, he would be in every view in an inconvenient situation, but such inconveniences should be narrowed rather than extended. Upon general principle, therefore, it is clear, that the allegiance of the British colonists was put an end to by the operation of the treaty of 1783, wherein the United States of America were declared free, sovereign and independent; and that Mr. Ludlow, who must be taken to have consented to what was done by the American Congress, must be bound by that treaty, and must, from that moment, have become an alien. Although this is the first time that this question has come before the Court for its decision, yet there have been persons of great authority who have given their opinion upon it. In Somerville v. Somerville (a), Lord Redesdale, when AttorneyGeneral, said (and his opinion was not disputed by the (a) 5 Ves. jun. 781. Bench or at the Bar) that "the domicile every child has ou its birth, must remain until that is lost and another acquired. Until another is acquired, that one cannot be lost. After the peace of 1783, such of the Americans as chose to remain subjects of the States, ceased to be part of the British nation, and lost their character of Britons." This was stated as a clear proposition of law, not admitting of any dispute. Upon this occasion it may not be improper to refer also to decisions in the American Courts, not because they are binding on the decision of this Court, but to shew in what light the question has been considered in the United States as to the rights of British subjects born in that country before the declaration of independence. It would be a most singular state of things if, on the other side of the Atlantic, all persons born before the treaty of 1783 should be excluded from inheriting land in that country, and yet that the Courts on this side the water should hold them capable of inheriting land in England. The decisions in the American Courts have always been, that British subjects, born before the revolution are equally incapable with those born subsequently to that event, of inheriting or transmitting the inheritance of land to the subjects of this country. This position is expressly laid down in Bright v. Rochester (a), decided in 1822 in the supreme court of Pennsylvania. One point decided was that a British subject born before or after the revolution, was equally incapable of inheriting land by descent. It was there held that the treaties of 1783 and 1794 only provided for titles existing at the time of those treaties, and not to titles subsequently acquired. That case therefore is an express decision upon the point now under consideration. The fourth resolution in Calvin's case does not bear upon the present question, for here the separation of the two countries was by an act of law, in which both the parties were concurring. Then the statute de prærogativis regis, is equally inapplicable, because 1824. DOE v. ACKLAM. |