If there is any thing in this statute to control the effect of the common law position so often alluded to, I think it should be in these two clauses; yet I have not been able to discover such a meaning, and I must leave it to be demonstrated by those who have found it out. The clauses appear to me to have something particular in them; they omit the naming of heirs, which was the enactment most wanted, and they supply this omission by a winding wordiness in the proviso, that is not easily evolved. There is a grudging caution in the whole conception of these clauses: I believe the framers of them did not like the matter of them, being unwilling to bear this parliamentary testimony to the legal conclusion, that ante nati Americans are British-born subjects, so as to hold lands.

As to the third objection, the anomaly and inconsistency of Americans being citizens of the United States while there, and being British-born subjects when here; this is not a novelty, nor is it peculiar to Americans. It may happen to any British subject, and it is allowable in our law, which recognises this double character of a person being, as was before shewn, ad fidem utriusque regis.* British subjects may voluntarily put themselves in such a situation; it is part of the privileges of a British subject to be at liberty so to do. Have we not British subjects who are naturalised in Holland, in Russia, in Hamburgh, in various places on the continent of Europe? Do not British subjects become citizens of the United States? Some persons are born to such double character; children and grandchildren, born of British parents, in foreign countries, are British-born subjects, yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural-born subjects there.

Thus far of individuals; the like may happen to a whole community, a whole people. When the king relinquished his sovereignty over the United States, the land became foreign, while the inhabitants remained all British subjects. When the king's forces took Surinam, and the other Dutch colonies, the land became British, but the inhabitants still continued foreigners. The personal character of alien, with which the Dutch colonists were born, still remains to them, and the indelible character of

Vid. ant. p. 30.

British subject, with which the Americans were born, remained to them after their country was made foreign.

I am aware of the difficulties which such persons may labour under, with these double claims of allegiance upon them. Such difficulties must be got through, as circumstances will allow, and consideration should be had for the parties, according to their respective situations; more especially with a distinction between those who brought themselves into such embarrassing situation voluntarily, and those who were born in it; and more particularly with regard to the difference between that, which is the act of private individuals, and that, which is a national proceeding, involving a whole people. In weighing such circumstances, it will soon appear, that these are all objections which relate more to facts than to the law of the case; they are inconveniences in the way of full exercise and enjoyment of the rights in question, but detract nothing from the rights themselves. On the one hand, the king cannot reckon upon the full and absolute obedience of such persons, because they owe another fealty besides that due to him; on the other hand, the subject cannot have full enjoyment of his British rights. Indeed, it will be found, he will have as little of his own rights, as the king has of his obedience; for if the rights of a British subject are examined, it will appear, that almost all of them depend on a residence in the king's dominions, and that when he removes into a foreign country, as they are without exercise, or application, they are suspended, and have no apparent existence.

I have heard it asked, if the king was to send his writ to command the attendance of Mr. Jefferson in this kingdom?—I agree he would not come; but that would be no test of the law upon the subject; it is an inconvenience in point of fact. The law, in the execution of it, is liable to many obstructions which prevail, and yet the judgment of law is not deemed thereby invalidated. If the king had sent such a writ to general Washington, at the head of his army, I suppose he would not have obeyed it, and yet no one would have deemed it a demonstration, that he was not amenable to our law: Why then should a pacific refusal from Mr. Jefferson have in it more of the force of a legal argument? And yet, I think, Mr. Jefferson might decline obedience to such a command, admit himself to be a British subject, and have the law on his side too.

Mr. Jefferson might answer such a call upon him by saying, true it is, I was born a British subject, and I myself have done nothing to put off that character. But your majesty has, by the treaty of 1783, relinquished all sovereignty over the United States; and, as your majesty, and all the world know, it was thereby intended that your subjects here should form a government of their own; we have so done, under the faith of your majesty's grant and covenant; and it has happened, in the progress of events, that I am now exercising an office in that government which necessarily requires my presence here. I am brought into this situation in consequence of an act of your majesty, by which it was designed that myself, or some other of your subjects here, should come into such a situation: being so circumstanced, I am no longer at liberty to make a choice of my own. There is a moral and political necessity, that makes it impossible, at present, to obey the commands of your majesty; I pray your majesty's forbearance; I plead your majesty's own covenant and good faith; and I rely upon them as a justification, or excuse, for my disobedience.

Surely this would be a good plea in point of law, and Mr. Jefferson might have the benefit of his American citizenship, in perfect compatibility with the claims upon him from British allegiance. Such scintilla juris in the king of England, can, I should think, raise no flame in any American bosom.

There are much stronger cases, of a similar kind, that have never startled any one with their anomaly or incompatibility. Mr. J. and other American citizens have entered into their offices, their engagements, and their situations, under the faith of the king and the parliament. But how many British subjects have become citizens, burghers, burgomasters, and have taken other offices in foreign countries, voluntarily, upon speculations of private interest, and from various inducements, all of them of an individual and personal nature! If such persons had been called upon by the king's writ, they would not have had so good a plea as Mr. J. and yet, probably, none of them would have moved from their station. Was it ever heard that such persons, when returned to this kingdom, were deemed to be less of British subjects, because they had lived, and risen to public stations, in foreign states? No, certainly, they are considered as having exercised the liberty belonging to all British subjects,

respecting whom there is no restraint but the considerations of prudence which are suggested by the occasion; and yet none of these volunteers in foreign service have so much to say for themselves as an American citizen, who chuses to leave the United States, and to spend the remainder of his days in this kingdom. The local allegiance he has acknowledged to a foreign government, is recognised by the king and parliament: he has never lived wholly out of the view of the sovereign power under which he was born; and the language, law, and manners he has been conversant with during the whole of his residence in the ceded states of America, restore him to this kingdom, and to his original and natural allegiance, unchanged, and quite British. Why should a person of this description, an American citizen, be the only one rejected and excluded from the rights of a British subject, because he owes a local allegiance in another country?

There is a parliamentary record, testifying instances of such contumacy. In stat. 14 & 15 Henry VIII. c. 4. it is recited, that Englishmen living beyond sea, and becoming subjects to foreign princes and lords, "will obey to none authority under the great seal of England; but they give themselves over to the protection and defence of those outward princes to whom they be sworn subjects." It is herein recorded by parliament, that Englishmen thus expatriated themselves, and refused obedience to the king's writ; and yet no declaration or enactment was made by parliament on that point of disobedience, so as to disfranchise them, and make them aliens; but there is by that act imposed on them merely a penalty in one particular article, that of importation of goods. Such persons, it seems, had abused their privilege as Englishmen, and had lent their name to cover the goods of persons of the foreign country where they resided. To put an end to such impositions, they were in future to pay alien duties, as the subjects of the country where they resided.

Compare these recusant absentees alluded to in the statute, with the American now in question. The former voluntarily leave the kingdom, make themselves subjects of a foreign state, refuse obedience to the king's writ, abuse their privilege of natural-born subjects to defraud the revenue. The latter is born under the king's allegiance, in a country which the king has since ceded, and made a foreign land. It does not appear, this

particular person had any concern in the public affairs of the country, till it was so settled by his majesty's solemn covenant and grant. He chuses, in the latter part of his life, "to go home," (for such is the phrase in the United States to the present moment,) and end his days here. No act of recusancy, or contumacy, is imputed to him.

Now compare the consequences in the two cases: the former, though solemnly noticed and censured by parliament, is not marked by any penalty of disfranchisement, though thus alienated from his native country, but is merely mulct in the payment of alien duties; the latter is told he is an alien, and has lost his right of a natural-born subject.

The further we go, the more we find of precedent and principle against such a sentence of disfranchisement.

These are the answers which, I think, may be made to the above three objections. These answers seem to me sufficient, and nothing further need be done but to come round to the place from whence we set out, namely, the position of law resolved by all the judges in Calvin's case, according to which the ante nati in the United States continue still British-born subjects, and, coming here, are entitled to all the privileges of such. The plain and explicit principle laid down, on that occasion, has, I suppose, governed the minds of lawyers, whenever they have been consulted on the application of it to American citizens. It is owing, no doubt, to this uniformity of opinion, that the question has never been brought to argument in any court. During the space of 25 years, since the independence of America was declared, there has never been so much doubt on this claim, as for any lawyer to advise a contest by suit. I deem this want of judicial determination, coupled with what follows, to be a great testimony for the affirmative of the question.

In the mean time lawyers have been consulted, no doubt, very frequently, and written opinions are in the possession of many. I have been able to obtain a sight only of two. I have seen an opinion of Mr. Kenyon, in 1784, where he declares, in few words, and without hesitation, or qualification, that American citizens may hold lands as British-born subjects. I have seen an

* I recollect another objection: how is the question of American citizens to be tried? I see this was an objection in Calvin's case: it is the second of the five inconveniencies, and it is answered in the Report, fol. 26, b.