have remained aliens, as to the sovereignty established here by such a conquest.

I confess I cannot see a difference 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 his 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 those 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 on this subject; that, if it had, they could not have sustained the pretensions of 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 authorise us to say, that, in the actual case before us, an English court itself would render judgment in favour of the defendant.

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, 1st, 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.(x) As to the last position, we have happily no king to whose sacred person this allegiance may be said to be due. It is the government only which affords protection to the citizen, and to this government only, which is perpetually changing as to the persons who administer it though itself is permanent, the allegiance of the citizen is due. As to the second position, I need not repeat that the Americans have erected a different, as well as a new government. The first position requires rather more consideration. 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 "cui libet 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 shall we be governed by the particular municipal codes of a particular country? I believe, that this position of the English judges has always stood condemned by the most enlightened writers upon natural law. I mean

(x) Tuck, Bl. vol. 1, part 2, p. 371.

not (as being unnecessary in the present case) to investigate this point at this time; but I beg to refer to the new edition of Blackstone, vol. 1, part 2, note k, p. 90, where the editor has elaborately discussed the subject, and his conclusions seem fully to sustain my position. See also Vattel, p. 170. § 220. p. 172. § 223. I rather chuse to refer to the sublime principles contained in the declaration of independence, and in the Virginia bill of rights, consecrating the right of expatriation; to the memorable assertion of that right by the American people, who, sword in hand, expatriated themselves from the government which had tyrannized over them; to the limited and qualified adoption of the common law as a part of our code; and to that dignified act of the Virginia legislature, which prescribed the mode of effecting an expatriation, but did not presume to bestow the right.(y) While these great authorities destroy some of the main pillars, on which the English doctrines on this subject are founded, the Virginia legislature, by several acts, have declared who shall be deemed citizens and who aliens. Under those acts, the plaintiffs, at the time of bringing the action in question, must have fallen into the latter class. It has been supposed by some that, inasmuch as the act of May 1779, ch. 55., after declaring who shall be deemed citizens, declares that all others shall be deemed aliens; and, as in a subsequent act (October 1783, ch. 16.) on the same subject, this latter declaration is omitted; that the last law is to receive a more enlarged construction in relation to aliens than the former.(z) These answers occur to me however to this position. 1st, As every man, according to the English doctrine, is either " an alien born, or a subject born," (a) and, according to those doctrines, as here received, is either an alien or a citizen, it was perhaps a work of supererogation, after declaring who, and who only, should be deemed citizens, to declare also who should be deemed aliens; and 2dly, that position proves too much, for it would equally legitimate the subjects of all other countries in the world as of England, whereas the same authority seems to think that

(y) Oct. 1783 ch. 16. (2) Tuck. Bl. vol. 2, p. 62. Append. (a) 7 Co. 601.

the omission was produced by the intermediate conclusion of the treaty of peace between America and England. To say nothing of the absurdity of the legislature's doing away, in the gross, the disabilities of alienage, when at the same time it was granting, in detail, the right of citizenship, it is contrary to all fair deduction to infer a conclusion which is very general and extensive from a cause which is limited and particular. Such is the construction which I deem myself obliged to adopt in the present instance. If the adherence of the British subjects to their own government, on the erection of our government in 1776, has thrown them into the class of aliens by election, a definition I think properly applied to them in the new edition of Blackstone, (see vol. 1. part 2. append. p. 102.) they stand on as good a footing as our own expatriated citizens. Subjects of foreign nations have no reason to complain at receiving the same measure as is dealt out to our own citizens, unless they have ulterior rights secured by treaty. Such a treaty would be neither natural nor reasonable; but if such a one exists, it must probably have its effect. Whether there be any such treaty-rights in the present instance we shall presently inquire. These British subjects have, however, less pretensions to sue than our own expatriated citizens; for the latter can say, which the former cannot, that they were once under the allegiance of the commonwealth of Virginia; nay, in some instances that they were born under the allegiance of this commonwealth. Why then shall we not consider them as expatriated, in respect of the commonwealth of Virginia?-expatriated by having refused to yield to us their allegiance, and to unite their destiny with ours.

I have thus chosen to consider the pretensions of the antenati, or, in other words, the common law doctrines of legitimation, somewhat at large; because these doctrines have been often pressed upon this court, and particularly in the case of Fairfax v. Commonwealth, and have received countenance from the opinion just delivered. In all the elaborate discussions, which have taken place in this court upon this subject, there has been heretofore no difference of opinion upon this point as far as I have understood the judges: and our late

venerable president, who did not sit in those causes, has informed me, since they were determined, that he entirely agreed with the court in opinion upon this subject. But for the foregoing considerations, I might perhaps have saved myself this trouble; for it appears that both the treaty of peace and the treaty of 1794 have repudiated the pretensions of the antenati: the latter treaty does not immediately apply to this case, and would not now be mentioned, but as corroborating and explaining the former. That treaty abandons those pretensions, by setting up a new criterion, viz. the actual holding of the property at the epoch of its date. In setting up this epoch, and establishing a new criterion in relation to the antenati, (if it regards them at all) that treaty enlarges the common law pretensions, which respect the period of our actual separation from Britain; and by superadding the other requisite, (an actual holding) it also abridges those pretensions for all the residue of the lives of the antenati subsequent to the date of the treaty. In thus enlarging and abridging the common law pretensions of the antenati, am I not correct in saying that the treaty of 1794 has set up an entirely new rule, and has abandoned those pretensions altogether? So, with respect to the treaty of peace, the case is precisely the same, if it be considered as relating, at all, to the laws of alienage of the several states, and the epoch of its signature be resorted to as protecting from those laws the property then holden; and this perhaps is the most that has hitherto been contended for. But if we carry the exemption still further, if we contend that that treaty protects British property in this country through all time, there is still less reason to contend for the rights of antenati, or, rather, an infinitely stronger reason for their abandonment. In that case, which is the present case, (for the descent in question was cast in 1787) a bolder and stronger ground is taken in favour of all British subjects, who may chance at any time to purchase or inherit lands in this country. It is most clear then that both those treaties (if the treaty of peace has any relation to the subject) have immolated this pretension of the antenati, (if it would have otherwise applied in this country) by taking a new