general Wallace owed its origin, not to an absolute necessity in law, but to an abundant caution, or some scruple in politics, which deserves no regard in a juridical consideration of the subject. We are not able to discover any distinction in the two cases of the Floridas, and of the United States. In both instances the soil was made foreign, and the inhabitants had superinduced upon them a new local and national character; that is, they became locally the inhabitants and subjects of a foreign nation, and they lost advantages of trade, and benefits of various sorts, which natural-born subjects must lose, when they inhabit, and make themselves subjects of a foreign land. But, under the control of this new local and national character, their personal character of natural-born subjects still remains; and we see nothing in law to prevent it reviving, and enjoying all its privileges, when the person comes into the king's dominions, where, alone, the rights of a British-born subject have their full application and exercise.

Having declared this our opinion, that nothing is, de facto, done by the act or the treaty to take away the personal character of natural-born subjects residing in the United States, it may seem unnecessary, though we think it not unsuitable, to add, that we know of no instance where the crown has presumed to exercise the power of taking away the personal rights of a natural-born subject; neither have we met with any principle in the law of England, that warrants such a supposition; nor can we conceive any proceeding, by which such a divestment or extinguishment of natural rights can be enforced. As the common law recognises no such principle as that of disfranchising a natural-born subject, the character has been deemed indelible; and the parliament has never interposed, on the occasions of cession of territory, to take from the British inhabitants of such countries that, which the common law has permitted them to retain.

Such having been the construction of law, in cases of cession, which have been made, sometimes, no doubt, against the wishes of the inhabitants, and always without asking their consent, a principle of law has grown up, and established itself, which it seems too late now to question in the case of the United States. We have given full consideration to the difference of circumstances which led to that cession, the rebellion, and war that preceded it, and were the cause of it, and the claim of the colonists to be independent; but, we think, this difference of circumstances No. XXI. H

makes no alteration in the legal result arising from the new situ ation of the parties. Such matters are, as we think, wholly political; and as they are not of a nature to be subjected to any juridical examen, we do not see how they can be brought into the account, when we are applying the legal principle before mentioned.

Conformably, therefore, with the principle and practice that have long been acknowledged, and declaring that there appears no reason in law for not applying the same principle to the inhabitants of the United States, we repeat the opinion we before expressed, that the persons described in the question ought to be considered, in this kingdom, as natural-born subjects."

Such, I think, would be, or should be, the opinion of the lawofficers on the present question.

Dec. 20, 1808.

Reply to observations on the subject of the foregoing argument.

January 17, 1809.

First, I cannot admit there is any straining to bring the Americans within Calvin's case; and I maintain, the circumstances, that distinguish them from the precise point in that case, aré fairly and fully considered by me.

It may not be necessary, in arguing with you, to adduce such authority as Calvin's case, because you do not dispute it. But the persons I had to deal with were ignorant of the principles of that case, and I needed such an authority to set them right. I know no book case where the principles of allegiance and native rights are laid down and explained, except in that only instance; the principle and nature of allegiance, and of native rights, is the first step in the present argument, and the subsequent parts of it would have been without foundation, if I had not taken that case for a basis.

The necessity for going so far back in the argument was shewn to me by the civilian;* who laid down the law, that the king's subjects of a ceded country become thereby aliens; when he called for some decided case to show the contrary, I had no decided case (you know there is none) but the resolutions and

Ant. pa. 51.

arguments of Calvin's case. He felt this to be an important authority; and the piece of law, which you admit, I doubt whether you can ground upon any other authority in the books. The circumstances in Calvin's case are different from those of the Americans; but the principle is the same (I mean the principle of the resolution that I quote): whether that difference in circumstances makes any difference in the application of the principle is the very question in hand.

Secondly, You here admit, that natural-born subjects, continuing their residence in a ceded country, do not thereby become aliens: you go so far as to think, that, if they joined in war with their new sovereign against this kingdom, it would be treason in them. I will not say any thing upon this point, except to remind you, that my argument is wholly confined to an American coming to this country, and residing here.

The other point in this part of your answer makes the main of your third article.

Thirdly. Your third topic is, the difference between ceding a country to a foreign power, and the constituting of a sovereignty from among British subjects, and ceding the country to such new made sovereignty. You call it, making a treaty with the subjects themselves, that they should hold the country, as an independent state; "he ceded his sovereignty to them." You rely upon this difference in circumstances, which you make between ceding to a foreign sovereign, and ceding to British subjects, as you term it; and you mention one certain result from this difference, that, in the former case, the levying of war by the natural subjects would be treason; in the latter case, it would not. I protest, I do not discern this distinction; in both cases, the subject is put into such peculiar situation by the act of the new sovereign; and being so circumstanced, why should it be treason in an inhabitant of Florida, more than in an American, to obey the militia law of his new sovereign, and bear arms against us, like the rest of his fellow subjects!

Some persons would argue differently from you on this point: those who distinguish the British subjects of the Floridas, because they were given up against their will, or without their consent, from the Americans, because these claimed to be independent, would not infer upon the former, who were wholly passive, the crime of treason, and acquit the latter, who sought and made

choice of the peculiar situation of double allegiance, in which they have placed themselves.

However, this point, as I before said, does not bear upon our present question, which relates to the American, while he is in the king's dominions.

But you rely upon the difference of "the treating with the Americans, and giving up to British subjects the sovereignty of the country." I think there is in this an assumption, and a reliance upon words, which has no support from the real transaction. To come up to the representation you make about" them," and "they," there ought to be a covenant and grant from the king, to Mr. A., Mr. B., Mr. C.; and the said Mr. A., Mr. B., and Mr. C., ought to be plainly estopped and barred by what they took under such covenant and grant from the crown. When we had thus ascertained who are legal parties to the transaction, and legally bound by it, we might then inspect the charter or instrument, and search, whether the king, by the terms of it, relinquished his claims of allegiance wholly, or in part; and whether the British subjects, therein named, had expressly relinquished, or were expressly deprived of their native rights, or whether such deprivation arose out of it, by necessary construction.

I think, such should have been the form of the transaction, in order to come up to your supposition; but when we examine it, we find it to be quite another sort of proceeding. As to Mr. A., Mr. B., and Mr. C., it is a matter inter alios acta; they are not parties, not named, not alluded to; it does not appear to have been transacted by them, or for them. Let us consider the treaty of peace, which must be the instrument, if any, that produces the supposed effect.

The treaty declares New Hampshire, &c. &c. &c. to be free and independent States, and the king relinquishes the government of them. When this grant and covenant is brought to plain facts, it amounts to this, that the king will no longer send governors to those states, nor expect the legislative and executive authority to be subordinate to him. The king gives this to the States; but how can this be construed to take any thing away from Mr. A., Mr. B., and Mr. C.? The king gives away the allegiance, which the States owed him; it was his to give; but how should such free gift be construed to take away from Mr. A., and other individuals, the private rights to which they were

born? Two questions arise upon this, First; Are the native rights of individuals hereby, de facto, pretended to be taken away? Secondly, Could the king de jure take away such rights?

To talk of "treating with them," and "they holding the country independently of the king," is speaking in a popular manner, and without sufficient regard to juridical circumstances. Any inference of that sort will not be allowed by law to deprive a man, living peaceably in his house in New Hampshire, of his British rights, that he was born to, and that are personal to him, (namely, which he can carry about with him, and which do not depend on locality,) merely because some daring men have forced the king to allow the States of New Hampshire to govern him, without enjoying, any longer, the right of appeal to the king. I say, the law will not allow this, because personal rights of British subjects cannot be taken away from multitudes in a lump; they must be discussed in every individual case, and there must be a several judgment and execution against every person. Even the act of the king in this instance, though a national act, and relating to millions, is but a personal act; when he acknowledges them Free States, and relinquishes the government of them, he acts only for himself, his heirs, and successors; and accordingly thereto, and agreeably with the true principles of the law, he alone is bound, and the sovereignty of those States ceases to be his. But where is the personal act of any American relinquishing his own rights? or if there was any such proceeding, in fact, shew me the authority in law that recognises any such principle, as that a natural-born British subject can divest himself of his native character: there is no such authority; and there is the known maxim of law against it, nemo potest exuere patriam.

I cannot, therefore, bring myself to distinguish the treaty with America, from the ordinary case of cession to a foreign sovereigu: in both cases, it is a transaction between the two sovereigns, in which the inhabitants bear no part; and it seems to me a departure from principle, to say, that the American is thereby rendered an alien, while the inhabitant of Florida is allowed to be still a British-born subject.

Fourthly, I have raised no question of the king's authority to make the American treaty. I agree with those who think he might have made it without the act of parliament; and I agree also with those who thought the treaty fell within the authority