of the lands in question, were at the time of such descent disabled to take and hold lands within this commonwealth, and to bring any real or personal action concerning them.

Such being the disabilities under which an alien labours by the common law, the question may be more succinctly stated to be, whether, in respect of the lands in question, the plaintiffs are to be regarded as aliens or not.

I will consider this question:

1st. In relation to the doctrines of the common law of England as handed down to us in the reports and treatises on the subject, with no other variation than what arises from the érection of a new government in Virginia in 1776.

2dly. I will inquire how far those doctrines are controlled or affected by the principles of the revolution, and the provisions of our constitutional and legislative acts.

And 3dly. Whether any and what effects have been prodaced on this question by the treaty of peace of 1783: The treaty of 1794 is entirely out of the question, as being subsequent to the commencement of the right now claimed by the plaintiffs.

Under the first view I will remark, that the terms "alien" and "alien born" are used synonymously in the English law books; for it being an established principle of the English law, that a subject born can never shake off his natural allegiance,(a) it follows, that none are there considered aliens, but those who are born so.

The terms "alien" and "alien born" and "subject" or «citizen" are, in their nature, relative: and to what else can they have relation, what else is their correlative, but the sovereignty or government where the discussion is?

The question then, in this case, is, more particularly whether the plaintiffs were at the time of the descent cast, aliens in respect of the commonwealth of Virginia.

This idea is entirely borne out by the English cases themselves. In Calvin's case, 7 Coke 1. the question was "whether the plaintiff, who was born in Scotland after the descent

(a) 1 Black. 369. 7 Rep. 25 a.

of the English crown to James I. was an alien born, and consequently disabled to hold any real or personal action for lands within the realm of England:"(b) but in the same case it was adjudged that "whosoever is an alien born is so accounted by law in respect of the king of England." (c) The question therefore in Calvin's case was more particularly whether he were an alien born or not in respect to the king of England. Am I not therefore correct in saying that the present question is, whether the plaintiffs were aliens or not in respect of the commonwealth of Virginia?

An idea has sometimes been urged that all those who are born subjects of the same common allegiance can never be considered as aliens in relation to each other.(d) I admit the truth of this position in every case where the plaintiff can shew himself to be no alien to the sovereign where he sues; I deny the truth of it in every other case: in other words, the relation which existed between the two individuals is wholly immaterial and foreign. I bottom this position upon Calvin's case itself. I have already said from that case, that an alien born is so accounted "in respect of the king;" and I will now add from the same case, "that this appeareth from the pleading so often before remembered, that he must be extra ligeantiam domini regis without any mention making of the subject."(e) I might further add from the same case, that "nec eœlum nec solum sedligeantia et obedientia” make the subject.(ƒ) If allegiance gives the criterion, must we not unavoidably have reference to the government, and decide whether or not this allegiance exists? Under the position now controverted, the universal plea in cases of alienage would be wholly improper, (and well established pleadings are good evidence of the law); the inquiry would be called off from the question of allegiance or not, to the question of a common birth between the ancestor and heir; and this absurd consequence would follow, that a recovery might be had in any country, by persons born in any other country, and not naturalized in it, the plaintiff making out his case in this latter respect. The same

(d) See Wythe's Reports, Farley v.

(b) 7 Co. 25 a. (c) 7 Co. 25 a. Earley. (e) 7 Co. 25 a. (ƒ) 7 Co. 6.

VOL. IIL

D

person might also sustain one action and fail in another, in the same country and at the same time, according as the person, under whom he claims, might or might not have been born under a common allegiance with him.

In Calvin's case (which I principally resort to, because it contains the whole doctrine upon this subject,) a definition is given of an alien, and it is "that he is a subject that is born out of the allegiance of the king, and under the legiance of another:"(g) this definition presents to us the only criterion whereby to discern who an alien born is. I say an alien born, because in this country a citizen born may become an alien by expatriation; and even in England a subject born may become an alien by the act of the government, though not by his

own act.

Much indeed is said in Calvin's case about the "time of the birth being the essence of a subject born, &c.;"(h) but it is evident that the time of the birth is no further material than as explanatory of the principal question, viz. whether born within the allegiance of the king or not? This principal question therefore may be regarded as the sole one upon the subject. It is further said in that case, that "natural legitimation respecteth actual obedience to the sovereign at the time of the birth;"(i) but this is still also referring to the same standard. It is here to be remarked, that the result in Calvin's case was to discriminate between a Scotch antenatus and postnatus in respect of a legitimation in England: the time of the birth was therefore a very material ingredient of the principal question, and may be regarded as the turning point on which that question depended. It is no wonder therefore, that, in a very long report, and one containing an abundance of extrajudicial matter, the same idea may be exhibited perhaps in different points of view, and be sometimes so indistinctly expressed as to cause some embarrassment.

In the same case it is adjudged, that "the usual and right pleading of an alien born doth lively and truly express and describe what he is," and that this pleading is both exclusive

( g ) 7 Co. 18 b.

(h) 7 Co. 18b.

(i) 7 Co. 27 a.

and inclusive, viz. extra ligeantiam domini regis, &c. et infra ligeantiam alterius regis.(k) I can find no principle of the common law, which will exempt a person, against whom the above plea will truly apply, from being considered as an alien born. I say of the common law; because by the English statute of 29 C. II. c. 6. an exception is made to this rule in a particular case,() and perhaps there may be other statutory exceptions. I hold it, therefore, to be an universal proposition, that, by the principles of the English law, no man can sustain a real action, unless he either shews that this plea is not true with regard to him; or, that being true, he forms an exception to it by virtue of some statutory provision, or by having, subsequent to his birth and before the accruing of the action, become legitimated in the country where the action is instituted; or unless his title to the land is preserved to him by treaty or otherwise, and the right of suing is preserved by necessary consequenc

Some supposed exceptions have been confidently stated from the English books, but I flatter myself I shall be able to shew that they all fall strictly within my positions. I will now proceed to examine them; and first, great stress has been placed, on the part of the plaintiffs, on a resolution in Calvin's case, 27 a. (m) The resolution is as follows, viz. "And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream; for, as it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth: for, as the antenati remain aliens as to the crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms by descent, subsequent, cannot make him a subject to that crown to which he was an alien at the time of his birth; so, albeit, the kingdoms (which almighty God of his infinite goodness and mercy divert) should by descent be divided and governed by several kings; yet it was resolved, that all those who were born under one natural obedience while the realms were united under one sovereign, should remain natu< (m) 7 Co. 27 a.

(k) 7 Co. 16 b.

(7) 1 Bl. 372.

ral born subjects and no aliens; for that naturalization due and vested by birthright, cannot, by any separation of the crowns, be afterwards taken away; nor he that was by judgment of law, a natural subject at the time of his birth, become an alien by such a matter ex post facto. And in that case, upon such an accident, our postnatus may be ad fidem utriusque regis, as Bracton saith, in the before-remembered place, fol. 427. Sicut, &c."

An objection had been made in that case by the defendant, that, "if postnati were by law legitimated in England, what inconvenience and confusion would follow, if the royal issue should fail, &c. whereby the kingdoms might again be divided."(n) The judges, taking up this supposed case, gave the answer to it, which is above quoted. The objection having reference to a supposed inconvenience in England, the answer to it must be considered under the same restriction. The judges are here of opinion, that in case of dismemberment of the two kingdoms, and being governed by several kings, the postnatus would still remain legitimated in England. This supposed case, however, differs from the case before us in the following particulars: 1st, The Scotch postnatus in that case was born under the allegiance of the king of England. 2dly, This allegiance, being by the English decisions, perpetual, continues as the king of England continues, notwithstanding the postnatus may have fallen under a different power. 3dly, Consequently he may truly be said to be in the language of the case, ad fidem of the king of England; and 4thly, The general plea before stated, will not exclude this postnatus, for it cannot be said of him that he was born without the allegiance of the king of England.

But, in the case before us, 1st, The plaintiffs were not born under the allegiance of this commonwealth, nor had contracted such allegiance at the time of the descent in question. 2dly, There was consequently no existing allegiance due from them to it, even on the English principle, nor could they be truly said to be ad fidem with respect to it; and 3dly, The general

(n) 7 Co. 26 a.