APPENDIX. Judge ROANE's opinion in the case of Reed v. Reed. The principal question arising out of this special verdict is, whether the lessors of the plaintiff, who were born in Ireland prior to the year 1770, and who did not become citizens of this Commonwealth, until after the descent 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 erection 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, Sdly. Whether any, and what, effects have been produced 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 plaintiff's action.* 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 (a) Bl. 369. nature relative: and to what else can they have relation; what else is their correla- 1 Rep. 25. a. tive, but the sovereignty or government where the discussion is? The question then in this case is, more particularly, whether or not the plaintiff's 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, (6) the question was, "whether the plaintiff, who was born in Scotland after the (b) 7 Rep. 1. descent 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 En gland:"(c) but in the same case it was adjudged, that "whosoever is an alien born (c) lbid. 2. a, is so accounted by law in respect of the king;"(d) the question, therefore, in Cal- (d) Ibid. 25. a. vin's case was, more particularly, whether he were an alien born, or not, in respect of 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. (e) 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, (e) See in every other case: in other words, the relation which existed between the two in. Wythe's Rep. dividuals is wholly an immaterial and foreign inquiry. I bottom this position upon ley v. Farley. "that Calvin's case itself. I have already said, from that case, that an alien born is so Note by Judge ROANE. Since this opinion was delivered, the decision of the Supreme Court of the United States in the case of Dawson v. Godfrey, 4 Cranch, 321. has been rendered; from which it is inferred that the treaty of 1794 would be held not to apply. In that case the descent to a British antenata was in 1793; and yet the judgment of the Court was, that she was incapable of taking the lands descended; and this although the case of Lambert v. Payne, 3 Cranch, 97. in which this point was much relied on by counsel, was considered by the Court in forming its judg ment upon the principal case, and indeed superseded another argument. See also note post, p. 616. case of Far Reed v. Reed. (a)7 Rep. 25. a. (b) Ibid. 6. ligeantiam domini regis, without any mention making of the subject."(a) I might further add, from the said case, that "nec calum nec solum, sed ligeantia et obedientiu," make the "subject."(b) 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 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 (c) 7 Rep. 16. another."(c) 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 a. Much indeed is said, in Calvin's case, about the time of the birth being the (d) Ibid. 18. essence of a subject born," &c. (d) but it is evident that the time of the birth is 6. 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 (e) 7 Rep. 27. birth."(e) 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 post natus, 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. a. 16 b. In the same case it is adjudged, "that the usual and right pleading of an alien born doth truly and lively express and describe what he is, and that this pleading is both exclusive and inclusive, viz. extra ligeantium domini regis, et infra ligeantiam (f) 7 Rep. alterius regis."(f) 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 Car. II. (g) 1 Bl. 372. c. 6. an exception is made to this rule in a particular case, (g) and perhaps there may be other statutory exceptions. I hold it, therefore, to be a 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, subsequently, 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 saing is preserved by necessary consequence. 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 position. I will now proceed to examine them. And, first, great stress has been placed, on behalf of the plaintiffs, on a resolution (h) 7 Rep. 27. in Calvin's case. (h) The resolution is as follow, viz. "And, as to the fourth, it is a. 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 Almightly God divert, &c ) 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 natural 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 matter ex post fucto; and in that case, upon such an accident, our postnatus may be ad fidem utriusque regis, as Bructon saith in the before remembered place, fol. 477-sicut." &c. Reed V. Reed. An objection had been made in that ease by the defendant, "that if postnati were legitimated in England, what inconvenience and confusion would follow, if the royal issue should fail, whereby the kingdoms might again be divided."(a) 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 (a) 7 Rep. 26. that, in case of a 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; Sdly. And consequently, he may truly be said to be, in the language of the case, ad fidem, with respect to 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 ou the English principles; nor could they be truly said to be ad fidem with respect to it; and, 3dly. The general plea before stated would truly have applied to them, in both its members. : The above resolution it is also contended will go to sustain a claim, e converso, viz. by an English postnatus in Scotland, supposing the same common law to exist there, after the supposed dismemberment; and this view of the case, it is argued, has a strong analogy to the case before us. I have already said that this resolution should be considered with reference to England only in relation to a discussion in Scotland, it was no case before the Court; it was wholly extrajudicial: but upon principle, I cannot see a difference. The English postutus was as much born under the allegiance of the King of Scotland, as the Scotchman was under that of the King of England. The kingdom of Scotland was (before the act of union) wholly independent of that of England, and James's character of King of Scotland was not merged in that of King of England; after the supposed separation, a King of Scotland would still exist: there would be a continuation of the same government, and the allegiance due to the King of Scotland at the time of the birth, before the separation,) would continue to that king after that event. It might truly be said of the English postnatus, suing in Scotland, that he was born under the allegiance of the King of Scotland, and was ad fidem with respect to him; and the general plea before stated would not truly apply to him. The effect of this supposed dismemberment, therefore, would not be to destroy the tie of allegiance, by destroying the correlative of the subject, by establishing a different government on the ruins of that government to which the allegiance was due; but to transfer and continue to the persons of two kings that allegiance which before was due to one. I shall presently attempt to shew that, under the doctrines of those times, (as derived from a feudal origin,) it was no novelty for a subject to owe allegiance to two or more sovereigns. In this supposed case, therefore, quacunque via, there would be, according to the English decisions, an existing allegiance due to the king, in either country, which would capacitate the plaintiff to sustain the action. The supposed case of a dismemberment, therefore, (entirely extrajudicial and hypothetical as it is,) only proceeds upon the idea of a separation of the crowns, of a descent to several kings: it does not put the case of a destruction of the kingly government. It goes upon the idea of a continuation of the same government, though under different kings, and a consequent continuation of the original allegiance: it is entirely different, therefore, from the case of the destruction of the tie of allegiance, by the erection of a new and different government upon the ruins of the old. Every position to be found in the English cases of this era proceeds, at most, upon the former idea. The right of revolution, and ereeting a new government, was not an admitted doctrine of the day; it was incompatible with the jure divino ideas which then prevailed. May we not, then, say with confidence, that the case now before us, had never entered the minds of the English Judges? And that their decision, even where general, shall not be applied to a case, in which the grounds and reasons of their actual decision fail us, and which those judges most certainly never contemplated? These same ideas must be borne in mind, while we examine a quotation from Bracton, 427. which is also much relied on, on the part of the plaintiffs. That quotation says, "there are some Frenchmen in France ad fidem utriusque regis, and always were so both before and since the loss of Normandy, and who plead here and there because ad fidem utriusque regis." (b) (b) 7 Cv. 27. The Frenchmen here alluded to were M Normans, born under the allegiance of the b. King of England, whilst he had possession of Normandy. It is here to be remarked, that the loss of Normandy which Bracton speaks of, happened in the reign of King (c) 2 Hume, John, and in the year 1205, (c) and that Bracton wrote in the reign of Henry 55. Reed Reed. Co. 20. III. (a) which reign began in the year 1216: so that this quotation evidently means those Normans born whilst Normandy was subject to England, very many of whom may be reasonably supposed to have been yet alive when Bracton wrote. Because they were born under the allegiance of the King of England they remained legitimated in England, by the English doctrines, even after the loss of Normandy, and were still considered as ad fidem with respect to the King of England: but they were also born under the allegiance of the King of France. Normandy was a fief holden under him the King of England was, in respect of it, a vassal, and the King of France, his liege lord; and there are many instances to be found in the history of both nations, of the Kings of England doing homage to the French kings, in respect to their possessions holden upon the continent. By the feudal law, "allegiance, properly speaking, is due to the lord paramount or sovereign."(b) Under this idea, therefore, those Normans owed allegiance emphatically to the French king; and in consequence of this allegiance it was, that they were, by the principles of the common law, permitted to sue in France. In illustration of this position we find it resolved in Calvin's case, "that those who were born in Wales, before 12 Ed. I. whilst it was a distinct kingdom, were natural born subjects, (as to (c)7 Co. 22. b. England,) because holden of England, or within the fee of the King of England. (c) These Welchmen, therefore, might as well as the Normans, sue in both countries; and for the same reason, viz. because, and only because, they owed allegiance to both sovereigns. (b) 1 Bl. Comm. 367. Whilst I am upon this subject of allegiance, I will beg to refer to t Hale's Pleas of the crown 58. et seq. who fully and elaborately proves, that there might be, and really were, in many instances, several allegiances due from a subject to several Sovereigns. Thus, in p. 66. he tells us, that when Hen. 11. made his eldest son King of England, in his life-time, so that there was rex pater and rex filius, and when William King of Scotland had, at the same time, done homage to Henry the son, for his kingdom, saving the faith due to Henry the father, these several kings, though subordinate in respect of each other, were sovereign in respect of their subjects; and the subjects of Scotland owed an allegiance to their king, saving their faith to the Kings of England, father and son, and an allegiance to Henry the son, saving (d) Hale's P. their faith due to Henry the father (d) It follows that these Normans, referred to by Bracton, owed at their birth an allegiance to both kings, (viz. of England and France,) and this allegiance continuing during their lives, upon the principles of the English law, they could always be said to be, in the language of the case, ad fidem utriusque regis. Blackstone, in confirmation of this position of owing several allegiances, admits that a natural subject of one prince may, even by his own act, subject himself to another, though he may thereby bring himself into straits and diffi. culties. (e) Without inquiring to those difficulties, or differing the case of two several allegiances produced by the act of the party himself, this quotation is decisive to shew that, under the English doctrines, a natural boru subject may owe allegiance to more sovereigns than one, even since the destruction of the feudal sys C. 66. (e)1 Tucker's Bl. part 2d, p. 370. tem. Am I not correct, therefore, in accounting for all these supposed exceptions, by shewing that, in every instance, there was an existing allegiance due from the party suing, to the respective sovereigns? I have said, and I repeat, that no position by any of the English Judges was predicated upon the idea of the erection of a new and different government. If there be any such, let it be produced. Are we not then to consider ours as a new case, not contemplated, nor provided for, by the English decisions? The reign of James I. was not an æra when the Judges were independent enough to have dared, or (f)Sec 11 Co. would have been permitted() to argue upon the supposition of a destruction of the Rep passim, kingly government. That loyal and devout spirit which caused the Judges in Calvin's to prove this. case, (27. a.) so much to deprecate a descent of the kingdom to several kings, that slavish devotion of the Judges to the will of King James, which, in relation even to this very case of Calvin, Hume remarks with censure, in more passages than one of (g)See Hume's his history,(g) while it goes far to destroy the authority of the decision, would not 5. have permitted them, for a moment, to contemplate the idea of the erection of a p. 554. and popular government upon the ruins of a throne, deemed, in the mania of the times, vol. 6. p. 169. to have been held by divine authority. See also in 4 Hist. vol. In the total absence, therefore, of a case of this kind, either actual or contemplaCranch, 210. ted, in the English authorities, we must reason only from analogy. other authori- It is held in Corp. Rep. p. 208. "1st That a country conquered by the British arms ties cited to becomes a dominion of the king in right of his crown," &c. and, 2dly. "That the shake the de- conquered inhabitants once received under the king's protection become subjects, and cision in Cal- are universally to be considered in that light, and not as enemies or aliens;" and in vin's case. 1 Bl. Com. 105. the reason of this privilege is given; it is, "that in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and conquered, that, if they will acknowledge the victor for their master, he will treat them in future as subjects, and not as enemies." Now nothing can be clearer than that, if the whole territory of the belligerent nation is not com. quered, the inhabitants of the unconquered part continue to be, in respect of the sovereign of the part conquered, enemies and aliens; enemies during the war, and aliens after the peace. They do not become subjects of the conquering power and are not to be considered in that light; because they have not submitted to the conqueror, nor by any compact entitled themselves to the privileges of subjects; and yet they were once inheritable in the territory conquered, and can say as much as the present plaintiffs can say in respect of the territory of Virginia, viz. that, at the time of their birth, they were legitimated here. The people themselves who are conquered are legitimated by virtue of the implied compact only, and cannot claim such legitimation by the paramount title of having been, at the time of their birth, inheritable in that territory under another sovereign. If, then, the territory of Virginia had been conquered from Great Britain, in the ordinary way, by an existing sovereign, there is no doubt but that, upon the foregoing principles of the common law, the residuary subjects of the British empire, not residing here, nor contracting an allegiance to the conquering power, would have remained aliens, as to the sovereignty established here by such conquest. I confess I cannot see a dif ference between that case and ours: I see no difference in this respect between a change of the sovereignty of Virginia effected by an existing sovereign, and by a sovereign merely coeval with the change: and I should be sorry to be obliged to admit, that a people forming a government by compact, have not as ample power, both to confer rights upon the members of such compact, and to exclude the rest of the world from a participation of them, as a conqueror dictating at the point of the sword; nor can I agree that the natural (though silent) operation of a compact government is less efficacious, in either respect, than that which, as to these particulars, is produced by a conquest. I conclude, therefore, that, according to the acknowledged doctrines of the English common law, all the beforementioned supposed exceptions are referrible to a principle which does not exist in our case; I mean that of a continuing and existing allegiance; that the case before us, of the erection of a different government, and the destruction of the ancient tie of allegiance, had never entered the minds of the English Judges, when they were so copiously, and so extrajudicially, (in Calvin's case,) dealing out their doctrines ou this subject; that if it had, they could not have sustained the pretensions now set up by the plaintiffs in the present instance, without revolting against, and overthrowing, their own admitted principles; and that as far as we can judge by analogy, the principles of the English law authorize us to say that, in the actual case before us, an English court, itself, would render judgment in favour of the defendant. Reed V Reed. This view of the subject supersedes the necessity of saying much on the second branch of my inquiry; namely, how far the English doctrines on this subject are controlled by the principles of the revolution, and the provisions of our constitutional and legislative acts. If the actual principles of the English law will suffice for the defendant in the case before us, that defendant holds a much stronger ground in this country, and in this Court, which must reject such of those principles as are heterogeneous to our republican institutions. All the English decisions upon this subject are bottomed upon three main principles, neither of which can be admitted in the case before us. They are, ist. That allegiance is perpetual, and cannot be renounced by the subject; 2dly. A supposition of the continuation of the same Sovereignty to which this perpetual allegiance was originally due; and, 3dly. The character of that allegiance, by the English law, is, that it is due to the person of the sovereign, and not to his political character. (a) As to the last position, we have, (a) 1 happily, no king, to whose sacred person this allegiance may be said to be due. It Bl. part 2d, is the government only, which affords protection to the citizen, and to this govern- p. 371. The decisions by the English Courts at remote and arbitrary periods, and the municipal treatises of that country bottomed thereon, have denied the existence of a great natural right; I mean the right of expatriation. It is the character of the common law that it draws from various sources, is compounded of parts of various laws and codes, and refers to various arts and sciences. It is also a maxim of that law that "cuilibet in sua arte credendum est;" and Lord Coke tells us, somewhere, that it is better "petere fontes quam sectari rivulos." Shall we not, under the sound sense of these maxims, correct the mistakes of a municipal code, touching a question of general law, by referring to the fountain from which itself has drawn? Shall we decide a question of natural right, and of general law, by referring to the most approved writers, and to the sense of the world, on that subject, or be governed by the particular municipal codes of a particular country? I believe, sir, that this position of the English judges has always stood condemned by the most lightened writers upon natural law. I mean not (as being unnecessary in the present en. Tuck. |