heritable capacity is the test of a perfon's be

ing a natural born fubject; whoever therefore can inherit and tranfmit lands in England is under the protection of our king, owes him his allegiance, and whenever he is within the territorial jurifdiction of our laws, he is completely amenable to them.

The inheritable

capacity is the

teft of a person's

being a natural

born subject.

of the present

The fingularity and great inconveniency Inconveniences of the law, as it now ftands, confifts in our law of alienage. being obliged by fome acts of parliament (as the navigation acts, &c. &c.) to confider and act by some perfons in refpect of navigating veffels, paying the alien duties, and in other respects, as if they were really aliens, whilst they enjoy by birthright the inheritable capacity within this kingdom, which effentially carries with it all the rights and liberties of a native Englishman. The authority of Calvin's cafe never having been questioned nor impeached, remains to this day a part of the common law of the land; and it is known to every one, that the common law can only be altered by an exprefs ftatute. *"For

statutes are not prefumed to make any alteration in the common law, further or otherwife, than the act does exprefsly declare; therefore in all general matters the law pre

11 Mod. 150.

fumes

fumes the act did not intend to make any alteration; for if parliament had had that defign, they would have expreffed it in the act.”. I have never been able, and I have long fearched, to find the ftatute, which alters the law laid down in the most folemn and unequivocal manner in Calvin's cafe.

The inheritable capacity, which attached to a man by his birth within the dominions of the king of England, not only remains to him "whilst the country, in which he was born remains under the fubjection of the prince, to whom it was fubject at the time of his birth, but for ever after in case it changes its fovereign.

"No fubfequent acquifition of a country by any prince or state, whether by conqueft, inheritance, exchange, or purchase, shall give this right to thofe, who were born during the poffeffion of the former fovereign. Thus for example, every perfon born within any of the British colonies in America, before their independence was acknowledged by this country, is and ever will be a natural born fubject of Great Britain, capable of inheriting lands in this country, and claiming all the other rights of an Englishman. And

* Investigation of the Native Rights of British Subjeas, by the author, p. 19.

for

for the fame reason, every person born in Canada, whilst it remained under the fub

Canadians, born

under the

French govern

ment, aliens;

under the Bri

jection of the French king, cannot claim the Boftonians,born rights of a natural born Englishman (although now a British subject) without an exprefs act of naturalization.

The judg

ment of the court upon this point in Calvin's cafe is thus expreffed by my Lord Coke: *For as the antenati (or those born before the union of the two crowns of England and Scotland) remain aliens, as to the crown of England, because the ywere born, when there were feveral kings of the feveral kingdoms, and the uniting of the kingdoms by defcent subsequent cannot make him a subject to that crown, to which he was an alien at the time of his birth; fo albeit the kingdom (which Almighty God of his infinite goodnefs and mercy divert) should by descent be divided and governed by feveral kings, yet was it refolved, that all those, that were born under one natural obedience, whilft the realms were united under one fovereign, fhould remain natural born fubjects and no aliens for that naturalization due and vested by birthright cannot by any feparation of the crown afterwards be taken away; nor he,

* Calvin's Case, ubi fupra.

I i

;

that

tih governable in England.

ment, inherit

No exchange of kingdom can alter the

condition of a

man's inherita ble capacity.

Aliens refident are amenable

to the laws.

The duty and fubmiffion of the subject paid to the executive power.

that was by judgment of law a natural born fubject at the time of his birth, become an alien by fuch a matter ex poft facto, and in that cafe, upon fuch an accident our poft natus may be ad fidem utriufque regis."

Befides this original native obligation, which is contracted by birth, to fubmit to the laws of the country, in which we are born, whoever chufes to refide in a particular community, and receives the protection of its laws, becomes of course amenable to them, and as much liable to their rigour and feverity, if he the natural born fubject.

violate them, as

The indulgences,

which our laws grant to aliens refident in this country are fo very ample, that their obligation and compulfion to obferve them can never be justly complained of.

When the general original duty and fubmiffion of the members of this community are called into action, the constitution, which has concentered and deposited the collective majesty of the whole people in the executive power, directs and obliges them to pay and exprefs this duty and fubmiffion to the perfon, in whom the executive power of government is vefted. When this duty or fubmiffion is practically spoken of, it is called allegiance;

*

allegiance; and this my Lord Coke fays, "is a true and faithful obedience of the subject due to his fovereign." In this fenfe therefore I fhall always treat of it; for thus only in reality is the duty performed. † Sir Michael Forster says, that this allegiance" is undoubtedly due to the person of the king; but in that respect natural allegiance differeth nothing from what we call local. For allegiance confidered in every light is alike due to the person of the king; and is paid, and in the nature of things, muft conftantly be paid to that prince, who for the time being is in actual and full poffeffion of the regal dignity."

Whatever actions of individuals tend to vilify, confuse, disturb, interrupt, fubvert, or destroy that political form of government, which the majority of the community have eftablished, and chofen to fupport and maintain, they are, properly speaking, public wrongs, crimes, or misdemeanors; and because our conftitution collects and concentrates the majesty of the state in the perfon, to whom it entrusts the executive power of the government, therefore with great propriety it ex