Court Of King's Bench, We...
This was an action of ejectment on the demise of hlr. and Alrs. Thomas, to recover p-sseseion of lands in this country, which irs. Thomas claimed- bv descerit. The father and vnoiher of Mrs. Thomas, whose na ie was Ludlow, were-bom in the British colonies of A.ietrica before the breaking oat Qf the warof independence, and re: mainedI there when the treaty recognizing the independence of the United States was ratified. 1Irs. Thomas, their daughter, was born aflerwards, and the question was, whetber she was a natural- borli British subject, and as such entitled to inherit lands in England. Thc case came before the Court on a snedal verdict. Mr.TINDALT now on the part of the le5sors of the plaintiffargued in support of the afi'irmative of the proposition, that the children of natives of the country now called the United States, whose parents were born before the separation of those States from the Crown of England, had the power to inherit re-l estates as subjects of Great Britain. To sustain this position he laid down three propositions- i first,thatanative of oneofthe British colonies,-.vhile they were part of the domniions of England, hIad a right to enJoy during the union. all the rights and immunities of a British subiect: secsndlv. that the separationof those colonies from the parent state did not de facto make thosc subjects aliens; thirdly, that the children of tbose who were born before the separation derived from their parents all the rights which the parents themsdves were entitled to enjoy. He only mentioned thefirltl)ropos,ition to render the argument complete, for he apprehended that it could not be disputed; and if it wetei the statute 6 Geo. III., c. 12, whicli was a declaratory act, and which distinctly recognized all natives of the American plantations as British subjects; must set it at rest. The second preposition-that therightsofAmericans who were Britishsubjects before the separation were not divested by that meaaure-would probably evabrace the stress of the argument; but he trusted he should show, that it was aendt d with less difficulty than at nrst it might seem to involve. If it were granted that, before the separation, all Americans born within the dominions of the Crown were subjects it mutst lie on the other side to show that they became aliens, which could not be done on any recognized principle of the law of nations. At the time of the separation, there were manv who had taken part wlth the parent State; and were these to be despoiled of the rights which they had clherished ? Nay, adverting to the motives and interests of those who were foremost in the struggle, could it be believed that they, ho4tling lands in this countrv, ever sought or intended to abandon the right to hold them ? Neither by conquest nor by ces- sion could the rights of a subject be divested; he could not volunta. rily lay them down for no man could cast offthe allegiance which he he owed at his birth. If reference were had to the treaty of separation, it would be found, that so far from providing for the abolition of ex. isting rights, it was intended to confirm them. By the first article. Great Britain resigned all control over the soil and govemment of the United States, but did not give up a claim on the allegiance of their people. Mr. Justice BAYLEY.-Then all Americans born before the se- paration, taking up arms against us in case of war,would be traitors ? Alr. TzrnaAL admitted that-in point of law this consequence must folow, but observed that in point of fact no practical incon- venience could result, as no man would thinkofattempting to punish a whole nation of traitors. He thein referred to the 5th article of the treaty, wherehy the Congress was to provide "for the restltudon of ,lands to real British subje*ts," as proving that In the dontemplatien of the contracting parties, Englishmen might hold lands ia America, and Americans might hold lands in England. The 6th article, which provided that no futare confiscatiDn should take place, that no pro- secuttion should be instituted against any man for the sbare whic he lhad taken in the stru&gle, and thatno maR should be periUed in life, lihberty,or estate, did in efThct provide agaiast that great divestment of dghts and duties which was asserted on the other side. The con- dition of a subject could not be laid downn: evern when a party ab- jured the realm, he retained it-it could net be forfeited; for evets when itttainted of treason he did not lose it. IIow, then, could it be taken away? The learned counsel theh referred to authorities to show that the sepaation of states did not destroy the allegiance of those who were born as subjects, when both were united. On the third point-that the father and mother of Alrs Thomas transmitted to hcr the right which they enjoved.Se cited 25E,i. IL.,which was declaratory of the common law, and which declared the children of all British subjects, wheresoever boen, if the parents were at the time of the birth" in the faith of all iance of the fKing," to be themselives subjects of the Crown and as such entitled to inherit. If that statute, rigidly construed, Aid not include Alrs. Thomas, the 7Ann, c. 5, a. 3, explained bv 4Geo.lI. c. 21,would reach it. He there- fore submitted that lie had established the claim of Mrs. Thomas to inherit, and the right of the plaintiff to recover. Mr. PARKE, on the other side, contended that Mfrs. Thomas was an alien, and assuch could not inherit. To constitute her ana- tural-born subject of this realin recourse must be had to the statutes cited; as, by common law all persons orn in a separate state were unquestionably aliens. Row, 25 Edw. III. required that both parents should at the time of the birth, be -in the faith and alle- giance of the king *" and 7 Ann, c. 5, explained by Geo. IL, c. 21, required that the parents should be "natural-born subjects at the time of the birth of the child;" and 13 Geo. III. extended the right to gr-andchildren. The words "at the time of the birth" implied, that in the contemplation of the legislature, a party might, under some circumstances, cast offi Iis allegiance, or be divested of his rights of a subject. This question was to be decided by the mu- nicipal laws of this country, which considered allegiance as grounded on the feudat relation of a subject to a feudal Sove- reign. The relation clearly could not be dissolved by either party without the consent of the other, which was the mean- ing of the maxim nemo potest Cexl7e patom-ier but it miglit be dissolved by a solemn act to wthich both were parties. In proof of this proposition, he cited the 6th Geo. I., c. 17, s. 13, which enacted that Eniglish artificers remaining abroad after notice should be regarded as aliens, and quoted several cases to show that allegiance might be transferred by cession, or by conquest, upon the hln.t of which the opinion of Lord Mansfield, in the great case of "Campbell v. hall." was decisive. He also showed by citation of reports of cases decided in the American courts, that it was there holden that British subjects born before the separation, though allowed to retain lands which they had previously acquired, were nlot permitted to iherit. On the whole, he submitted that thebond of allegiance was completely dissolved; and that 31r. Ludlow hav- ing adhered te the new gevermisnens, was bound by their acts, and therefore transmittedi no heritable blood to his daughter. .1r. TINDAL. replied. The COURT, after observing that the case had been extremely wvell argued on beth sides, took time to consider their judgmtert. COURT OF KING'S BENCH, WFSTVTYS+ER. AIAY 14. DOE. On DEM. TTRnflMQ .%ID WIE!. V -o .