UNIVERSITY 
 
 AT LO
 
 SUPPLEMENT 
 
 TO THE 
 
 INVESTIGATION 
 
 OF THE 
 
 NATIVE RIGHTS 
 
 O F 
 
 BRITISH SUBJECTS. 
 
 9 
 
 08 2 6
 
 A 
 
 SUPPLEMENT 
 
 TO THE 
 
 INVESTIGATION 
 
 OF THE 
 
 NATIVE RIGHTS 
 
 F 
 
 TdvititD ^uWect^* 
 
 B Y 
 FRANCIS PLOW DEN, Efqr. 
 
 " • Veiitas nil veretur nifi abfcondi. 
 
 'J^^^^ 
 
 LONDON, 
 
 Printed for the Author; 
 
 And fold by R. Baldwin, No. 47. Paternofter-Row ; 
 
 T. Whieldon, No. 43. Fleet - Street ; ami 
 
 J. D E B R E T T, in Piccadilly. 
 
 M D C C L X X X V.

 
 
 THE 
 
 ^PREFACE. 
 
 
 TH E Point of Alienage, which 
 ^ the Author of the following 
 
 «=> fheets attempted to inveftigate in a 
 a= former Eflav, feems never to have re- 
 ceived an attention equal to its 
 importance and magnitude, from 
 the Courts of Law in this coun- 
 try, or from the Legiflature, not- 
 withftanding frequent Opportuni- 
 5 ties have occured to afccrtain the 
 3= doctrine beyond the reach of doubt. 
 
 a 3 For 
 
 301000
 
 [ " ] 
 
 For it mufl be admitted, that when 
 fcveral llntiites have been made con- 
 cerning a Point of Law, it can then 
 only be laid to have received a 
 thorough inveftigation, when a Court 
 of Law has taken each of the flatu- 
 tes, which relates to that fubje£l, 
 under its judicial confideration. The 
 attempt to difcufs a fubject of fuch 
 confequence was arduous : tho' the 
 intention of afcertaining a point of 
 fuch national import, the Author 
 humbly hopes will intitle him to the 
 countenance of the candid and im- 
 partial. 
 
 In publifhing his firfl: Argument 
 upon this fubjed, the Author's view- 
 was to collect and digeft materials^ 
 tliat would induce abler men to de- 
 liberate
 
 [ iii ] 
 
 liberate before they decided upon the 
 point in queftion. In pubhfhing this 
 Supplement to that Argument, his 
 view is the fame. Further time and 
 further refearches have enabled him 
 to offer to the Public feveral reafbns 
 and authorities, which he flatters 
 Ikimfelf, will add no fmall degree of 
 perfpicuity and conviction to his firO; 
 Argument. 
 
 A remark of Lord Coke upon 
 Calvin's cafe, which was alfo upon 
 the Point of Alienage, is very appo- 
 fite : " This cafe, in the opinion of 
 " divers, was more doubtful in the 
 ''beginning; but the further it pro- 
 *' ceeded, the clearer and ftronger it 
 " grew." An invariable teft of truth, 
 when obfcurity vanifhes in propor- 
 tion
 
 r i- ] 
 
 tion to the reiearches made into the 
 points of invcfligation. 
 
 An individual may with perfeo: 
 Iccuiity communicate his opinion, in 
 private, upon a legal topic; hut from 
 the moment of puhlication, heafllimes 
 a refponfihility for it, to the PuhHc in 
 crencral, to the profeffion in particular^- 
 to whom fuch opinion is immedia- 
 tely relative, to thofe individuals who 
 may he perfonally'interefted in the 
 point, upon which the opinion is given, 
 and to his own profeflional repu- 
 tation. Thefe coniiderations will apolo- 
 gize for the Author's puhlifhing fuch 
 further reafons, in fupport of what he 
 formerly fuhmitted to the Public, as 
 he flatters hlmfelf, will carry convic- 
 tioFi to every impartial mind. It is a 
 
 natural
 
 [ V ] 
 
 natural prefumptioii, to conclude, that 
 thofe arguments which brought con- 
 vldlion to our own mind, fhould con- 
 vey it alfo to the minds of others. 
 
 The point, which is attempted to be 
 difcufled in this*public form, called 
 for the opinion of the Author in the 
 courfe of his practice : and the rea- 
 fons and authorities, which aie now 
 fubmitted to the Public in fupport 
 of it, were originally coUe^led to fatis- 
 iy his mind in forming that opinion, 
 whicli being contrary to that of fe- 
 veral perfons eminent in the profef- 
 fion, who had been formerly conful* 
 ted upon the fame point, induced him, 
 under a diffidence in his own judgment, 
 to fubmit them to the confideration of 
 fome Gentlemen of the profeffion, 
 b under
 
 [ vi ] 
 
 under the fandlion of whofe appro- 
 bation, the Author ventured to com- 
 mit them to the prefs ; and he hopes 
 they will kindly permit him thus 
 publickly to exprefs his grateful 
 lenfe of that mark of their friend- 
 Ihip. 
 
 The mind of man is naturally 
 open to prejudice : for every one ia 
 readier to decide, than to examine ; 
 and it rarely happens, that the feelings 
 of individuals do not dire6t their 
 judgments. Thus prejudices often 
 generated in paffion, are handed 
 down to the lateft poflerity ; and no 
 tradition is fo blindly received, as 
 that, which is founded on prejudice. 
 When a perfon has thus received a 
 prejudice, his rcafoning is ufually di- 
 
 redled
 
 [ vli ] 
 
 reeled at flrengthcning and jnflifying, 
 rather than inveftigating the grounds 
 of his belief. Thus for hiftance, upon 
 the idea of an outlawed or attainted 
 perfon, we foon learn to ingraft the 
 do£lrine of excluding his children 
 from every benefit of that Law, 
 which he had violated by his crime : 
 on the other hand, if the unoffending 
 parent of thofe fame children firft 
 ftrike our thoughts, the fame preju- 
 dice will not arife hi our minds a- 
 galnfl them ; and in proportion to our 
 abhorrence of the crime of the guil- 
 ty perfon, Hiall we exert our reafon- 
 ing in confirmation of the prejudice. 
 
 I take it therefore as a datum^ that 
 
 every Law, which relates to the 
 
 punifhment of flate offenders, is view- 
 
 b 3 ed
 
 [ viil ] 
 
 cd and underftood, by the Public in 
 general, with fome degree of prejudi- 
 ce. Yet am I convinced, that an at- 
 tempt (even of mine) to develop the 
 truth, will be countenanced by all, 
 whofe wifh and principle and duty it 
 is, to forward the caufe of Ju/iice, 
 
 When I fpeak of a prejudice, I ra- 
 ther take it in the litteral, than in the 
 vulgar acceptation of the word. For 
 I have no conception, that any per- 
 fonal rancour, revenge, or hatred ac- 
 company the prejudices I allude to. 
 I would be only underflood to fpeak 
 of that fort of habitual judgment, by 
 which moil perfons, thro' an inconfi- 
 derate analogy to the fpirit of the 
 frame rs of an A61, (of attainder for 
 inflance,) extend the effeds of it in- 
 definitely
 
 [ ix ] 
 
 indefinitely to all perfons connedled 
 with, or defcended from the party 
 attaint. To fhew how unreafonable 
 this is, we need only to attend to 
 what Judge Foster fays of thefe 
 A6ls in general, they being ufually 
 made after the fortune of war has 
 crufhed fome violent effort againft 
 the Government.(^) "And at fucli 
 *' a jundlure, to what lengths cannot 
 *' the fweets of revenge, the joys of 
 *' conqueil:, the profpedt of rich plun- 
 " der in a plenty of confifcations, 
 *' with a mifgiving heart, ftill dread- 
 '* ing the final iffue of things ; to 
 " what lengths of violence cannot 
 ** thefe incitements carry the vindic- 
 *' tive, the ravenous, the timid bluf- 
 b 3 tering 
 
 {a) FosTERt Crown-Law, 4th Difcourfe, 3598.
 
 [ X ] 
 
 *' tering mortals, who upon fuch re- 
 *' volutions cither take the lead or 
 *' join in the cry ! At feafons fuch as 
 " thefe, the fliil voice of Law and 
 *' reafon is feldom heard. And as 
 *' Lord Hale elfewhere, with a 
 *' candor habitual to him obferveth, 
 " Parliaments have been ahvays ob- 
 '''- fequlous enough to the viftor, and 
 '* ready to pafs attainders for his fa- 
 " fety and their own." What this 
 learned Author faysof A6ls of attain- 
 der, muft a fortiori apply to that ready 
 accommodation of a prejudiced mind, 
 to extend the effeds of attainders to 
 the unoffending pofterity of the par- 
 ties attainted. 
 
 State policy indeed may di6late 
 reafons and arguments againfl mine ; 
 
 but
 
 [ ''i ] 
 
 but I fay what Lords Ellesmere 
 and Bacon fald upon a queftlon not 
 unlike to the prerent(j): " // is 7iot 
 " a quejlion de bojWy but de vero ; 979t 
 '* what is Jit to be done^ but what the 
 " L,aw already is^ which is^ what the 
 " Law of England is. 
 
 (a) IVI o R E ' s Reports, 79c, And Harg. State 
 Trials, v. 11, 67, 
 
 THE
 
 
 THE 
 
 SUPPLEMENT,&c. 
 
 BEFORE I immediately enter into 
 the further diiculTion of the Point 
 of Alienage, it will be necefTary topremife 
 certain principles and maxims, which 
 are univerfally agreed to by all perfons ; 
 for contra negantem principia non eft difpU' 
 tandum. Nor (hall I affetS to take up the 
 time of my Readers in proving grounds 
 or rules, which carry with them univer- 
 fal authority, perfpicua non funt probanda. 
 It is true, what Lord Bacon remarks, 
 " That without a clear and perfpicuous 
 ** expofition, the rules are but as pro- 
 *' verbs, and many times plain falla- 
 A '' cies.
 
 ( ^ ) 
 
 " cics"(^). And he alio obfcrvcs " That 
 " there be two contrary faults and extre- 
 " mities in the debating and fifting out of 
 *' the Law, which may be bed noted in 
 '' two feveral manner of arguments; feme 
 " argue upon general grounds, and come 
 " not near the point in queftion; others, 
 *' without laying any foundation of a 
 " ground or diiference, do loofely put ca- 
 *' fcs, which tho* they go near the point, 
 *' yet being put fo fcatterd, prove not, 
 *' but rather ferve to make the Law ap- 
 *' pear more doubtful, than to make it 
 " more plain" (b). My aim will be to 
 purine the contrary traft. As my defire 
 is to fix the attention of my Readers fo- 
 Jely to ivhat t/ie Law of England is, not 
 what it ought to be, or what it may hi- 
 therto have been fnppofcd to be. 
 
 A maxim is, " A flire foundation or 
 *' ground of art, and a concliifion of rea- 
 *' Ion, fo called, quia maxima efi ejus digni- 
 
 " tas 
 >■ , — i- ■' ■ 
 
 (a) Preface to the Maxims of the Law. 
 
 {b) Ibidem.
 
 ( 3 ) 
 
 *' tas dr' certijfima aiiihoritns^ atqiic quod 
 " maxim} omnibus prohetur, fo fure and 
 " iincontroiilablc, as that they ought not 
 " to be qucflioned. And that which our 
 *' Author here and in other places cal- 
 " Icth a principle, and it is all one with 
 *' a Rule, a common Ground, Fofuilatum, 
 '^ or an Axiom; and it were too much 
 *' curiofity to make nice diflinftiojis be- 
 <' tween them" {a^) . 
 
 The point, which I feci myfelf called 
 upon to invefligate and difcufs in a fur- 
 ther and more explicit manner, is, uohe- 
 iher by the Law of England^ as it nozo />, 
 a per/on bo}'n of Englifh parents out of the 
 allegiance of the King of England^ luhofe 
 father was attainted of high treafon at the 
 time of his birth^ is enabled by the 2.^th of 
 Edward III. or otherwife^ to take an inheri- 
 tance within any part of his Majejly's do- 
 minions. As the following fneets arc but a 
 fupplemcntal Tra^l to a former Treatife 
 or argument upon the fame fubje£l, I 
 A 2 Ihall 
 
 {a) Co. Lit. II. a.
 
 ( 4 ) 
 
 fliall often be nccelTitatecl to argue by 
 reference, and to omit many things con- 
 tained in my firft publication, which the 
 orderly form of an argument would 
 otherwifc require to be here inferted. 
 
 In a point of co;nmon Law, the repeat- 
 ed refolutions of the Judges, is the only 
 way " to know M^hat the Law is ; but 
 " when the queflion arifes upon an Ait 
 " of Parliament, that is to be the rule for 
 " Courts of Juftice to go by, of which 
 " they are to judge according to their 
 *' own reafon and underflanding, and are 
 " not, in fuch cafes, tied down by for- 
 *' mer determinations any further, than 
 '' the reafons or arguments thereof ap- 
 *' pear conclufivc, for judicandum eft le- 
 ** gibus non exc?nplis" (rtj. 
 
 The reafon of this is obvious ; for the 
 fenfe and import of words, and the inten- 
 tion of the Legiflators in making an Adt, 
 may be equally prefent and known to fu- 
 ture as well as paft Judges. And for the 
 
 fame 
 
 (a; Hale's P. C. i pt, izz.
 
 ( 5 ) 
 
 fame reafon, the fame rule holds in the 
 Law of Scotland. '' It is the fime in Scot- 
 '* land, the decifions or refolutions of 
 *' our fupcrior Courts of JulHcc declare 
 " what the Common Law is with us; 
 '' but when they concern the fenle or in- 
 " terpretation of a ftatute in obfervance, 
 *' they cannot influence fubfe<:juent judg- 
 '* mcnts, except fo far, as they are fup- 
 " ported by the ftatute " (n), 
 
 A very recent and notable inftance has 
 happened, to which this rule applied. The 
 Houfe of Peers, in the year 171 1, after 
 having confultcd the Judges upon the 
 conflrnftion of the Ad: of Union, refolv- 
 ed " That no patent of honor granted to 
 " any Peer of Great Britain, who was a 
 " Peer of Scotland at the time of the 
 *' Union, can entitle fuch Peer to fit and 
 " vote in Parliament, or to fit upon the 
 " trial of Peers ". In confequence where- 
 of the Duke of H a m i l t o n, who two 
 months before, had been created Duke 
 A3 of 
 
 (rt) M'Douall's Inft. Pt. I, p. 41.
 
 ( 6 ) 
 
 of Brandon in England, was never per- 
 mitted to take his feat in the Houfe of 
 Peers as an Enghfii Peer, untill the Lords 
 in the year 1782, not confidering them- 
 felves tied down by precedent, where a 
 point of Law turned upon the conftruc- 
 tion of a Statute, totally did away the prior 
 determination, by admitting his Grace 
 to talce his feat as Duke of Brandon. 
 Li this latter cafe, counfel was heard, and 
 the Judges of England attended. 
 
 It follows from this Maxim, that the 
 25th of Edward III, altho' it had been 
 ib conftrued by a Court of Law or the 
 Lep-iflaturc itfelf, as to exclude Inch chil- 
 drcn from the benefit of it, wliofe fathers 
 were attainted of high treafon: yet 
 would not the Courts of Law have been 
 lied down, by fuch a precedent; a fortio- 
 ri then, are they at liberty to interpret 
 .1!! Act, whicli as to iliat point, has 
 li'iihcrto received no legal or judicial ccn- 
 llrutfiiion. 
 
 An KCi of Parliament cannot alter 
 " by rcalon of time, but the common 
 
 '' Law
 
 { 7 ) 
 
 " Law may" (<?), and therefore the Law 
 of England knows not, ^vhat it is for a 
 ftatute to run into cUfuetudehy non ufagc, 
 and fo to lofe ils force, as in the Law of 
 Scotland. 
 
 As in the courfc of m/ argument I fiiall 
 have frequent opportunity to recur 
 to the caib of Calvin, it wiil not be 
 improper to (late what Lord Coke ob- 
 {erved concerning its v/elght and authori- 
 ty (/>■). He fays, " it v/as remarliable, what 
 " a concurrence of judgments, refolu- 
 *' tions and rules theic were in our 
 " books, in all ages, concerning this 
 " cafe, as if they had been prepared 
 ** for deciding the queRion of this 
 *' Point ; and thn.t, (which never fell 
 *' out in any doubtful cafe) no one 
 " opinion in all our books is againft this 
 " judgment." And if the doftrine laid 
 down by the Court in that cafe, were 
 
 not 
 
 (a) Per A(k. J. Sti. 190. Hil. 1649 B. R. Anpii. 
 Vin. Ab. iQ. V. 513. 
 
 (/') Calvin's Cafe.
 
 ( 3 ) 
 
 not found Law at this clay, Lord Mans- 
 field could not have laid, as he did in 
 the cafe of Hall and Cambell (a), 
 " that a maxim of conftitutional Law, as 
 " declared by all the Judges in Calvin's 
 " cafe, and which two fuch men in 
 *' modern times, as Sir Philip York, 
 *' and Sir Clement Wearge took for 
 " granted, will require fome authorities 
 " to fhake.'' 
 
 Penal and difabling ftatutes fliall not 
 be extended by equity, but fliall be taken 
 ftridlly and according to the letter. A 
 general beneficial ftatute, which con- 
 tains an exception, may become penal 
 and difabling to thofe, who are included 
 in the exception. 
 
 Mr. YoRKE, the ftaunchefl advocate for 
 extending and perpetuating the Laws 
 of forfeiture for high treafon, cannot 
 be fufpedted of relaxing the feverity of 
 the Law, by any conftrudlion or ex- 
 pofition of it. And in his confideraticns 
 
 on 
 
 (rt) Cooper's Rep. 2,12,
 
 ( 9 ) 
 
 on tliel.aw of forfeiture (<?), he admirably 
 dillin^uiflies between wliat is penal, and 
 what is not. " Nothing, fays he, is a 
 *' punilimicnt, wliich docs not 'di'icCc a 
 *' Rio:ht, ftridly i'o called. Now fince 
 " the children have no Right but from 
 *' the fatlier, or through him, there is 
 " no injury done, v.'hcn he is juilJy de- 
 " prived of that wealth acquired under 
 " the protedion of that Ju^ciety." And 
 fpeaking of Riches and Honors, he fays, 
 *' Thcfe laft arc merely contingent, and 
 " if hoped for in the courfe of fucceffion, 
 " depend on the condudt of thofe ancef- 
 " tors, from whom wc would deriv^e 
 " them." But confrnrj/', that certainly 
 is a puniflnnent, and an injury, which 
 does afFccl a Right ftriftly fo called ; and 
 it certainly is a Rig/it fl;ri6tly fo called, 
 that a child has to inherit from that 
 anceftor, who can tranfmit Riches or 
 Honors; but the wife of a perfon attainted 
 retains the power of tranfmitting Riches 
 
 and 
 
 («) Page 14. 
 
 B
 
 ( 10 ) 
 
 nnu Honors to her own legitimate chilJ: 
 therefore altliough it hd no PuniPrment^ 
 Penalty^ or liijury to deprive the fon 
 cf what the father had forfeited, and 
 conlequcntly could not tranfmit, yet is it 
 a PiiniJIrinent^ Penalty, and Injury to de- 
 prive him of what his mother never had 
 forfeited and cciild tranfmit. 
 
 Nothing is more certain, tlian that, 
 if the cliiKl of an attainted father born 
 abroad is incapable of taking an inheri- 
 tance within this kingdom, in thcfe in- 
 Itances, in which he ivonid have been capable 
 had his father not been attainted ; fuch 
 incapacity mufl be cffeded by the at- 
 tainder. And if it be the cffe6t of the 
 attainder, it mufl be either a part of the 
 judgment in high trcafon, or a confe- 
 quence of the judgment, or of the Adl 
 of attainder, which being nothing more 
 than a parliamentary judgment, intro- 
 duces no new or additional rigor, unlefs 
 it be exprelTed in the Aft. As no h&i of 
 attainder then, wliich I have ever feen, 
 cxprelTes any fiich difabilit}-, we mnil 
 liflen to what the common Law and the 
 
 ftatute
 
 ( It ) 
 
 Statute Law oftrcafons have faid upon 
 the fubjcd:. 
 
 Sir Matthew Hale the greatefl con- 
 (litutional Lawyer, whicli this country 
 lias ever produced, iays, ^' Tliat al- 
 *' though the crime of hi'2,h trenfon is 
 " the greatcil: crime agaiDft faitii, duty 
 " and human focicty, and brings with 
 " it tlie grcatcfc and mon: fatal dangers 
 " to the government, peace and happi- 
 "• ncfs C)f a kingdom or fbatc, and there- 
 *' fore is defcrvedly branded with the 
 " higlicfl ignominy, and llibjecled to the 
 " greateO: penalties, that the Law can 
 " infliift, yet by theie inllances, and more 
 ^' of this kind that might be given, it 
 "- appears, firfl, how neceffary it v/as 
 " that there flioudd be Tome fixed and 
 " fettled boundary for this great crime 
 " of treafon, and of what great impor- 
 " tance the ftatute of Edward was, h\ 
 " order to that end. Secondly, how 
 " dangerous is it to depart f;om the 
 " letter of that flatute, and to multiply 
 " and enhance crimes into treafon, by 
 " ambiguous and general words, clx. 
 B 2 Thirdlv,
 
 ( 12 ) 
 
 " Thirdly, hov/ dangcrc^us it is by con- 
 '' ftriiCiioii and analogy to make trenfon, 
 '• I'cherc t!:c letter of the Law has not done 
 *' it: for fiich a method admits of no 
 *' limits or bounds, but runs as far as 
 " the wit and invention of the accufers 
 " and cdioiifnefs and deteftation of the 
 " pcrfons accuftd will carry men" (rt). 
 
 If then by our Law and in our conflitu- 
 tion, the utmoft certainty, and the mod 
 pofltive and exprefs words be required to 
 conflitute the offence and crime of high 
 treafon, what man, much more, what 
 Englifliman will pretend to advance, that 
 the punifliment of treafon fliall be ex- 
 tended by conflrucflion beyond the letter 
 of the Law ? What then is the Letter 
 of the Law ? 
 
 " The judgments in cafes of treafon 
 *' are of two kinds, viz. the folcmn and 
 " fevere judgment, and the lefs. The 
 " folemn or fevere judgment againft a 
 " man convift of high Treafon is fet 
 
 '^ down 
 
 Hale's P. C. i pt. p. 86.
 
 ( '3 ) 
 
 " down Co. P. C. p. 2 10. SrAMF. L. 3. 
 **^ c. 19. 1 H. 7. 24. a. Stafford's cafe, 
 *' 6' «//(^'/. £/ jiipcr hoc vijis Cr /7^r 
 *' curiam Ljc intclkClis omnibus ^' Jingalis 
 *' premijjis confidcratum eji, i. ^/o^ 
 " prcdidus R. ujque fur c as T. trahntur. 
 " 2. Ihideiii jufpendatur per collum 6' 
 " x-Zl'/zj- ad t err am prnjlernatur. 3. /??- 
 '• tcrim fua extra ventrem fuum capiantur. 
 " 4. Ipjoque vivente cojnburantur^<6^ 5. Gz- 
 " /;/</ y«-7;« amputetur. 6. jE/ ^«o<'/ c^/;//? 
 *' 6' quarteria ilia ponantur^ ubi DoiHinus 
 *' ^cu' <?<7 ajjignare voluerif* [a). 
 
 Tlie fame accurate author has alfo 
 fpecially fet down the confcquenccs of 
 the judgment in high trcafon(Z'), which 
 are fimi^ly thcfe three. Firft, corruption 
 of the blood of the party attaint. Second, 
 forfeiture of lands, or of goods and 
 chatties, or of dignities and honors 
 by the party attaint. Third, forfeiture 
 B 3 of 
 
 (a) Hale's P. C. i pt. p. 350. 
 
 {l>) Ibidem, i pt, p. 354. 359, Bacon's La\\' 
 
 Tnids 1 66.
 
 ( H ) 
 
 of ciowcr by the wife of tlic partv at- 
 taint. 
 
 No prior or fubfcqucnt v.'riter, that 
 I can iiiid, lias mentioned any oilier 
 j)UHinjnicnt, pcriaky or difabiiity incurred 
 by an attainder. No Court of Judicature 
 lias extended the Icvcrc circtts of tlic 
 judgment in high ticafon beyond the 
 line marked out lb precifely by Sir 
 INIattiiew Hale, Lord Bacon, and all 
 other writers upon the fubjcct. No Acl 
 of Parliament has fuperaddcd to the rigor 
 of the common Law: unlefs the fourth 
 of George II. fliall be found to have 
 operated that effccl. 
 
 To (liew how far 1 am warranted in 
 afierting, that the Legiflature hath not 
 by any A(ft extended the fevcrity of 
 attainders, fo as to incapacitate the child 
 of an attainted peribn from inheriting, 
 in thofe cafes, in which he would have 
 been inheritable, had his father not been 
 attainted ; we need only to throw our 
 eye upon an Aft made in the twenty- 
 ninth year of his late Majefty King 
 Cjeorge the II. This Adt was paiTcd, 
 
 as
 
 ( -y ) 
 
 as the inofl: effcclual and even rigorous 
 nicafiire to prevent Britifh fiibjccStS from 
 entering into the French fervice. Yet 
 lo far fiom declaring the children of 
 perfons fo fl rving the French King, in- 
 capable of inheriting in England, the 
 A6t is concluded by this mitigation of 
 that rigor, which the Law of itfelf would 
 oiherwife have operated, '■^T/iat no nttnin- 
 ** der for any offence made felony by this Ad 
 '* /halt make or vjork any corruption of 
 *' bloody lofs of dower or di/Iierifon of Heix' 
 " or Heirs.'* Behold here the only 
 relative eflccfis of an attainder clearly 
 marked out by Parliament, and in this 
 inftance particularly faved. And (liall it 
 ferioufly be contended, that a child fiiall 
 be precluded from inheriting his own 
 mother in this country, by an uncertain 
 and rigorous conftrudion of the Law, 
 who is particularly faved and prcfcrved 
 by flatiite from the public and known 
 efFe«fls of that fame Law ? Can the fame 
 Law in the fame fpirit and intention 
 dccl'.jre, that the child of a father ferving 
 a foreign enemy, is r/Jt dilablcd to inherit 
 
 even
 
 ( 16 ) 
 
 c'ven liis (7//<7/;//<fr/ father, and that ht f/iall 
 be incapable o't inheriting his own mo- 
 ther, whom the guilt cr punidiment of 
 the Law never reached ? It would be 
 the grofTeft ini'ult upon common reafon, 
 to fuppofc, that a child of a father ferv- 
 ing a foreign enemy fliould be in a worfe 
 fituation before, than after the conviction 
 of his father of high trcafon. Yet the 
 llatute tells us, that no attainder ftn- this 
 oflence fliall work any corruption of blood 
 or diflierifon of an heir. How then 
 (hall the circumstance of a man's fcrving 
 a foreign enemy render his fon incapable 
 of inheriting, who otherwife w^ould have 
 been capable ? For to work diflierifon of 
 an heir, is nothing more than to deprive 
 a man of that inheritable capacity, which 
 he would otherwife have enjoyed. 
 
 Whether the benefit of naturalization 
 of the children ofEnglifli parents born 
 out of the ligeance of our King, be pro- 
 duced by the common Law, or only by 
 the ftatutc of Edward III, is immaterial 
 to the generality of the application : nay, 
 if it v.'cre not declaratory of the common 
 
 liEW,
 
 ( >7 ) 
 Law, there is a ftroriger reafon fof ad- 
 mitting the generality of the operation 
 of that (Utute : for it is a maxim in Law, 
 that fuch jiatiites as give remedy^ 'which 
 was not at common Law^ /hall be taken by 
 equity (^a^. Now the equitable, con- 
 ftrudlion of tliat ftatiite, can never go to 
 exclude fuch perfons from the general 
 benefit conferred by the flat Lite, unlefs 
 they are expreflly excepted out of it. 
 
 If it be urged, that the ftatute de 
 natis ultra mare, dots not extend to the 
 children of attainted parents, and there- 
 fore, that there needs no exception to 
 exclude them from its benefit ; 1 anfwer 
 by this obvious reafoning. The f1:atute is 
 general; it extends to every child, whofe 
 father is at the faith and ligeance of 
 our King. To be at the faith and ligeance 
 of the King of En<5land, and to be a fub- 
 je^l of the King of England, are con- 
 vertible propofitions ; but an attainted 
 Englifliman is a fubjedt of the King of 
 
 England, 
 
 (*) Br. Ab. 119. Vin. Ab. 19, v. 51 j. 
 
 c
 
 ( I3 ) 
 
 England, therefore he is at the faiih and 
 ligeance of the King of England, and 
 therefi>rc the ilatute extends its benefit 
 to his child. 
 
 As the ftatute is worded, could any 
 pcrfon have pretended to fay, that it did 
 not extend to the child of an Englifli 
 mother, whocrolTed the fea without the 
 licence of iicr hufband ? Certainly not. 
 And therefore it was neceifary that the 
 legillators, who intended to make the 
 exception, fliould do it in cxprcfs words; 
 and their having made the exception, is 
 a dcmonftration, that the perlbns ex- 
 cepted were included in the terms, out 
 of which they are excepted. For Lord 
 Coke fays moft truly (a), an exception is 
 ever of part of the thing granted^ and of a 
 thing in cJJ'e, The judicious comment of 
 Mr. Barrington \ipiin this Ilatute is in- 
 deed flicTt but pithy: and Ifetl it a very 
 Mattering tafli, to have only to prove, 
 what he has aiTerted(/'). " The Aft, 
 
 " fays 
 
 (a) C'o. Lit. 47. 
 
 {b) Obf. on anct. Stats. 242.
 
 ( >9 ) , 
 
 " fays he, enacts, tlua for the future 
 " all children born of pareius (i'ubjeds 
 " of the King) fhouLl inheiit, except 
 " thole of ni )ihers, who Ihall pals the 
 " fca, without the 1 ave of their iiuf- 
 '■'■ bauds; which Lit provilion, 1 (hould 
 *' eoneeive to have arifeii from an in- 
 " ftauce of this fort in a family of con- 
 '' fequence." 
 
 " When an AcH: of Pai liameut makes 
 " iile of a known term in the Law 
 " generally, it Ihall receive the fame 
 '■'■ fcnfe, that the common Law takes it 
 " in, and jio other(^)." Let us fee how 
 this maxim of Law applies to the fubjed: 
 of our pielent confideration. In what 
 fenfe does the common Law take thefe 
 terms, a child whoje parents are at the 
 faith and ligeance of the King of Englandf 
 
 HUS SEY, FiTZHERBVRT, BrooKE, BaCON 
 
 and others take thefe terms to mean, a 
 child o't Engli/h parents. And Sir Fran- 
 cis MooRE jiarticularly fays, that the 
 C z Judges 
 
 {a) 6 I\IoJ. 143. Hub. 97, 98.
 
 ( 50 ) 
 
 Judges of England, within feventeen 
 years after the palUng of the 25th of 
 Edward III, viz. in the forty-fecond 
 year of his reign, examining the (latute 
 de nails ultra /}inrc, agreed " Tliat the 
 *' third ordinance of that ftatute is for 
 " perfon!? born beyond feas, and out of 
 ** the King's ligeance, whofe parents are 
 Eiigli/l2'\a), Mr. Barrington with 
 more propriety, and fiom a ciofer atten- 
 tion to the words of the flatute, 'takes 
 thefe terms in a larger fenfe, viz. a child 
 'ivhofe parents are the King^s fid)jeds ; thus 
 clearing away any doubt, whether the 
 benefit fliould arife equally under the 
 ftatute, to a child of Irifli or Scotch, as 
 of Englifli parents. For it is evident, 
 that what conflitutes the condition of 
 the ftatute, is the relation of fovereign 
 and fubjeft : where that fubfifts between 
 the parents and the King of England, 
 there the child is ipfo failo naturalized, 
 There is no method fo fure of finding 
 
 out 
 
 (fl) Moore 800.
 
 ( 21 ) 
 
 out the vis termini, as to afcertain wliat 
 propofition is contradi(n:ory to the term. 
 For contradiftory propofitions cannot be 
 verified of one and the fame fubjecl. So 
 if the queftion be put, is a man at 
 the ligeance of the King of England? 
 meaning natural ligeance : it is no con- 
 tradi(n:ion to the term to reply, that he is 
 attainted of high trcafon, or that he is in 
 the fcrvice of a foreign enemy, or that he 
 would be liable to the penalties of high 
 treafon or of felony in cafe of returning into 
 this kingdom or Ireland; for they may be 
 both true ; and two contradiftory propo- 
 fitions cannot be both true''^). So Doctor 
 Storie, who had fworn allegiance toKing 
 Philip of Spain, pleaded to his indift- 
 ment for high treafon, that he was no 
 fubje6l of Qjieen Elisabeth, tho' born at 
 Salifbury; but the Court of King's Bench 
 rejected the plea, and Dodlor Storie was 
 executed as a traitor. For if a man by 
 ferving an enemy, or by being guilty of 
 
 C 3 ftate 
 
 (a) Dyer 300,
 
 ( " ) 
 
 ftate crimes, cealcd to be at the ligcance 
 of oiirKiii;^^ he could not be piinilhcd for 
 the criiiie, which he can only be guilty of, 
 becanfe he rcinains a lubjedl: or at the 
 ligeance of our King. 'I'he only propo« 
 lition that is coniradictory to the qu .1- 
 flion put, is, Ik; is at the ligeance of the 
 Kiiijy of France or Jo)/ie other fovereign. 
 S ) Bracton andl'LETA, who mull be al- 
 lowed to l'peai<: njoi'c the language of the 
 con/nicMi Law, than more modern writers, 
 luideiiland only, that a pt rlon is not at 
 the ligeance of our King, chhev .propter 
 dejlciian naiionis^ or eo quod eft ad fide m 
 regis Franci^t:. Be it remembered, 
 that I am not now ipcaking of the 
 child br)rn beyond leas, but of the pa- 
 rents born within this kingdom. 
 
 In further elucidation of this fubjeiTr, it 
 may not be improper to recall to mind 
 what I obferved in the Invefligation; that 
 the Parliament fitting in the very fame 
 25th. year of Edward III, when it meant 
 to dcfcribe fuch peribns as had forfeited 
 their civil rights by crime, ufed this 
 known proper unequivocal term, hors de 
 
 la
 
 ( =3 ) 
 In protcCiion noti r fiynior Ic Roy. It may 
 tciicl alio to illultratc tlic argument, if I 
 icverfc the i ealoiis, rtnd turn thcni ngainft 
 Inch chihlrcii horn abroad. It would un- 
 doubtedly have been a coiiciufiv e aigu- 
 mcnt, ihit the trim at t!ic liyenncc oj'i/te 
 Kiii<r r/'£?/^o7rt'//(Y did not extend to lubjedts 
 attainted of high trcalon; if the legiflature, 
 in defcribing a pcrlon attainted, had uf'cd 
 the negative term not at the ligeance of 
 the King of EngJ anil ', but having ulcd a 
 term of a very different import, no man 
 is warranted in giving them tlie fame 
 conOru6tion and efi^eil. Let any perlbn 
 give but a cool and impartial attention 
 to thefe words, a per f on at tJie faith and 
 Ugeancc of the King of England^ and he 
 will necefTariJy underRand neither more 
 nor lefs by them, than that inch a per- 
 fon is a fnbject of the King of England, 
 and of no other fovereign : for the civili- 
 zed ftatc of nature knows no being (bin- 
 dependent, that owes not rillegiance to 
 fomc fovereign. In a woiJ, ifihefepro- 
 politions are fclf evident, that every fub- 
 jedt of tlic King of England, is at the faith 
 
 and
 
 ( '4 ) 
 
 and ligeancc of the King of England, aqd 
 that every perfon, -who once was at the 
 ligeance of our King, mufl for ever necef- 
 larily remain To, nntill he be releafed or 
 difcharged from his allegiance by the 
 fovereign or flate; it necelTarily follows, 
 that every perfon born in England, whe- 
 ther criminal or innocent, is a perfon at 
 the ligeance of the King of England ; and 
 therefore his children are comprized in 
 the flat Lite of Edward III. If it be clear 
 that the Englifh father of a child born 
 beyond feas, tho' attainted of high treafon 
 be at the faith and ligeance of the King 
 of England, fuch child is indifputably 
 within the letter of the Law. It is in- 
 cumbent upon me to fliew, that by no 
 conftrudlion whatfoever, (liall he be ta- 
 ken out of the letter of that Law, which 
 being in its nature beneficial, both to the 
 crown and fubje^l, ought in the princi- 
 ples of our Law and conflitution, to be 
 extended by equity beyond the letter, and 
 not narrowed by a flrift and rigorous 
 conflruction within the meaning of the 
 letter, 
 
 " Civil
 
 ( 2j ) 
 
 " Civil Laws (/z), fays Mr. Yorke^ 
 " have ahvays dilUnguifhed betwcti; jura 
 ^^ fanguinis and jura literedita ia. In the 
 *' Law of England the fame dilrni(ftion 
 " is clearly made. If a man attainted be 
 ** miiiderM by a ilranger, the ion fhall 
 *' not have the appeal, b( caufe it is given 
 " to the heir: yet if he be murdei'd by 
 " the fon, it has been held by fome 
 *^' great Lawyers (Z), that the crime is 
 " petty Trcafoiif becaiife the relation of 
 ** a fon remain?^." And Foster lays (c), 
 *' that the murderer is liable to a proiecu- 
 *' tion at the fuit of the widow; for, 
 " fays he, the relation grounded on the 
 " matrimonial contraiSt, continued till 
 " death." Upon thcfe grounds thrn is 
 founded tiie maxim, jura /aiigu/nis nullo 
 jure civili dirimi pcjj'unt : ai d therefore^ 
 fays Lord Bacon (<^), ''Corruption of blood 
 
 " taketh 
 
 («) Confid. on the Law of Forfeiture, 22,. 
 
 {h) Bacon on Tre.<fons. 
 
 {c) Foster's Crown Law, 61. 
 
 {d) Bacon's Law Trads, 71. 
 
 D
 
 ( -6 ) 
 
 *' taketh away the privity of the one, 
 *' tliat is of the heir, but not of the 
 " other, that is of the fun." 
 
 Now nothing can be fo fimple, as the 
 difference between thele two relations 
 in the fame perfon. The relation of hch' 
 between the fon and the attainted father 
 is certainly dcftroyed by the effccfls of 
 the attaindei-, becaufe an attainted perfon 
 can tranfmit nothing by defcent, and 
 therefore no perfon can be his Iieir. The 
 relation of blood between the fon and 
 his attainted father is not affefted by the 
 a^ttainder, in as much as being fuch legi- 
 timate fon, he may claim to be heir to 
 his mother or any other collateral an- 
 ccftor, where he has no occalion to de- 
 rive his title through the corrupted blood 
 of his attainted father; and that in as fnll 
 and free a manner, as if the father had 
 not been attainted. For, fays Molloy («), 
 ^' The corruption of the blood by the 
 " attainder, is only of the blood of the 
 
 " father, 
 
 (y) De-jure Mar, 2, p. 243.
 
 ( 27 ) 
 
 " father, for the fon's blood or collateral 
 *' heir was not at all corrupted." So 
 that the jus ha;reditarium, which is afteded 
 by the attainder, is nothing more, than 
 the extinguifhment of the privity of heir 
 between the perfon attainted and all o- 
 ther perfons whomfocvcr. In lb much, 
 that all the relative dilabilities and inca- 
 pacities incuned by an attaindei\ arc 
 reduced to thefe plain and obvious prfi- 
 tions: the fon of an attainted father can 
 not'claim or derive any right, benefit, or 
 advantage from or through his attainted 
 father, as heir to him ; but as the legiti- 
 mate Jon of an attainted father, he may 
 claim or derive any right, benefit, or ad- 
 vantage from or through every other 
 perlbn indefinitely. The only difierence 
 then, which can by poflibility exifl be- 
 tween two perlbns born under every cir- 
 cumftance common to both, (except the 
 attainder of the father of one of them) 
 mull be produced by the attainder. But 
 it has been feen that the attainder affects 
 anly the privity of heir between the at- 
 tainted father and his fon; therefore 
 D 2 every
 
 ( 23 ) 
 
 every other civil light, which is diftinft 
 from thu privity, remains open to the 
 one, as much as to the other. 
 
 li has been ruled and determined re- 
 peatedl)(<7), that the Ton of an attainted 
 father may inherit hisoun brother or lif- 
 ter, or anv of h's maternal anceflors, pro- 
 vided hr does not ref^rt to the con iipicd 
 blood c^f las father, in order to eltablilh 
 bis title. 
 
 It would be abfurd to fay, tliat the 
 j«f hc:reditarium of the fon wasaftcdted by 
 the attainder of ihe father: for the ex- 
 tingninimmt of the hereditary right is 
 effeded by the conuption of the blood ; 
 and is thercfi^re confined to the perfm, 
 whofe bIo"d is err upted ; and in other 
 wcrds, is not!ii''g m(^re nor ]( fs, than the 
 paflive and a(!!live dilabil'ty of taking and 
 tranfmittivg by defcent. It has been feen 
 that tlie I'nn, after the attainder of the 
 father, is notv. ithftanding capable of tak- 
 ing and tranfmiitlng by defcent The 
 
 hundreth 
 
 (a) rid. Invert.
 
 ( =^9 ) 
 
 luindrcth cofin, is as much difabled to 
 take from or ihrough an attainted an- 
 ccflor, as the immediate eldell Ion. Fit)m 
 what lias been iairl, this Corrolary may be 
 deduced : "That^ as to the general capacity 
 of inheriting^ by the Law of England, the 
 child of an attainted father labours under 
 no incapacity, or difuility, nihich the child 
 of a father not attainted, does not alj'o la^ 
 hour under- 
 
 In all the mon troubled periods of our 
 hiflory, from the c ntefts of the two Ro- 
 les, to the eftiblifnment of the prefent 
 family on the thione, when Adls of at- 
 tainder were pailcd witli frequency, and 
 carried into execution with virulent ri- 
 gor, nricher the Courts of Law nor the 
 Legiflature invented or impofcd new dif- 
 abilities or forfeitures, nor extended the 
 penal efFeCiS of an attainder beyond the 
 perfonal punifliment of the party attaint, 
 his corruption of blood, the forfeiture of 
 his wife's dower, and of his o\\ n honors, 
 lards and chattels. And fliall the innocent 
 children of attainted fathers be deprived 
 of their birih rights and inheritai:ces, 
 D 3 merely
 
 ( 3^ ) 
 
 mcrclv bv conftiLidive diiabilities, in an 
 age, which boafts of the Independence 
 of its Judges, the judice and lenity of its 
 Governmen!:, and ihe wifdom and libe- 
 rahty of its Lcgiflatlon \ If however the 
 matter were now to be fairly difcuffcd, 
 we have a happy prefage of the Legilla- 
 ture's chfj)o(ition to lenity, in the favor 
 lately fiiewn to the loyal defcendants of 
 attainted anceflors. Add to this, what 
 was faid on a molt folemn occafion in the 
 Exchequer chamber by Lord C. Baron 
 Hale(/7) '' The Law of England, which 
 *' is the only ground, and muft be the only 
 " meafure of the incapacity of an alien, 
 " and of thofe confequential refult?, that 
 *' arife from it, hath been always very 
 " gentle in the conftrueTiion of the difabi- 
 *' lity, and rather contrafting than ex- 
 " tending it io fcvcrely." And for inftancc 
 he then mentioned, that the words of the 
 ftatute of Edward III, fathers and mo- 
 thers, had been conftrued disjundivcly, fa- 
 thers 
 
 {a) I Vent. 427.
 
 ( 31 ) 
 
 thcrs or mothers, and quoted fcveral ca- 
 fes in point. 
 
 If I prove prolix in iriy argument, tlic 
 flrength of my own conviction, and the 
 earrjeft defire I have to convince others 
 of the truth of it, are my only grounds 
 for an apoloj2;y. it being then clear and 
 undeniable, that the jura jarigidms raillo 
 jure civili dlri?ni pajjunt, it remaijis to iis^ 
 to afcertain, vv'hat civil quahfications or 
 abiliiies are ingrafted upon the jus fan- 
 guinis, in the cafe of children born a- 
 broad of En;i]ifli parents, th.c father 
 being attaiuled of high trcafon. I have 
 before particularly fet forth every efleft 
 poiitive and relative of an attainder: 
 and there is no one c?{c€t of the Law, 
 which conftitutes any difference in point 
 of ability or capacity to inherit, be- 
 tween the cJiild of a father attainted 
 and not attainted, if they are both born 
 within the kingdom : we are now to 
 fee, what is the difference between them, 
 when born out of the kingdom. 
 
 An objection, very appoiite to this 
 fubjedV, was forcibly dated and con- 
 
 clufively
 
 ( 3^ ) 
 
 clufively anlVereH bv Lrl. C. Bnron Hale 
 inthccaleof Collingwohd and Pace. 
 
 '' Obj. 2 (a) But all their blood 
 '' that they luve, is derived from tlicir 
 *' pcirents, and they can take no other 
 *' blood, but what they have from them; 
 " and if that blnod, which the parents 
 " tranfmir, be ftained, and void of he- 
 " reditary quality, no hereditary blood 
 '' can intervene between them." 
 
 ** I anfwer, it is true, that their na- 
 *' tional blood is derived from their 
 " parents, and as it is that, that makes 
 ** them brother's. fons, fo it is that, that 
 *' makes them have their blood ; but 
 *' yet the civil qualification of their 
 " blood, which makes them inheritable 
 *^ one to the other, is from another foun- 
 *' tain, viz. the Law of the land: and 
 '^ this Law finding- them legitimate, and 
 ** iitrinque conjundof janpuine paren'ali 
 " naturally and fo natural brotl-ers, and 
 *' finding them tranfplanted into the 
 
 " civil 
 
 («) 1 Vent, 427.
 
 ( 33 ) 
 " civil rights of this kingdom, by their 
 " birtli here, or naturalization, ivhich is 
 " all one, doth f iiperliiducc and clofe the 
 " natural confangninity, with a civil 
 " hereditary quahty, whereby they 
 ** may inherit one the other." 
 
 Nothing can be more pointedly de- 
 cifive, than thefe words of Lord Hale, 
 that the child, ivhofe parent*s blood was 
 Jlained by attainder, when born out of 
 the kingdom, fliall be as inheritable to 
 his brother, as if he had been born in 
 the kingdom. And in another part of 
 his argument, he ranks brother with 
 every other anceftor, to whom he can 
 make a title, without reforting to the 
 corrupted blood of his father. And fucli 
 evidently would be the defcent of honors 
 or lands from a mother to her fon : for it 
 is evident, that fuch a fon does not derive 
 his title to his mother's honors or lands 
 through his father, becaufc he may come 
 into poffeflion of them during his father's 
 life ; and no man can claim as heir 
 through a living perfon, for nemo cjl 
 h<sres viventis. 
 
 E MOLLOY
 
 ( 34 ) 
 
 IVloLLOV cxprefTcs himfelf with the 
 utmoft: clearnefs and precifion upon the 
 fame fubjedt. (j) " The father and 
 ** mother are the fountain of the blood 
 " natural, and as it is that, that makes 
 '^ them inheritable one to the other, and 
 '' capable of enjoying the immunities 
 " and priviledges of the kingdom; but 
 " that is from another fountain, viz. the 
 " Law of the Land, which finding them 
 " legitimate, doth tranfplant them into 
 *• the civil Rights of the Land, by an 
 " A6t called Naturalization, which does 
 " fupcrinduce and cloath that natural 
 " confanguinity with a civil hereditary 
 " quality, whereby they are enabled, 
 '* not only to inherit each other, but 
 *' alfo to enjoy all the immunities and 
 *' priviledges, that mere natural born 
 " fubjeds may or can challenge. 
 
 " The relative term, as if born in 
 '' England, is generally ufed to fiipply 
 " the perfonal defed of the parties natu- 
 ralized, 
 
 (a) De Jure Mar. L. 3, 342.
 
 ( 3J ) 
 
 " ralized, arifing from their birth onfe 
 " of England, and therefore fhall never 
 " be carried to a collateral piirpole, nor 
 *'• cures a difcafe of another nature, as 
 *' half bli)od, illegitimation, and the like; 
 '' but all difeafes , \vhether in the parties 
 " themfelvcs, or rcfulting from the an- 
 " ccftor, it cures/' 
 
 Words cannot more diftindly fet forth 
 the doftrine, which I am attempting 
 to eftablifh. For if the attainder of the 
 father, difabled the child to inherit his 
 mother, if born within the kingdom : 
 then indeed would not the naturalization 
 cure this difeafe. But there being only- 
 two requifites to make a perfon a proper 
 fubjeCt for this general naturalization, viz. 
 legitimacy of blood, and foreign birth, 
 the flatute muft apply its effeds to every 
 child of Englifli parents, in whom thefe 
 two requifites arc found. It is more- 
 over certain, that our author talks of 
 the ftatute of Edward III, or the com- 
 mon Law; for a private Aft of naturaliza- 
 tion applies only to certain individuals ; 
 snd a private Ad: certainly could natu- 
 E 2 ralize
 
 ( 36 ) 
 
 ralizc a baflard ; but he fays it is the Law 
 of the Land; and herewith agree Lord 
 Bacon, and aimed every other writer 
 upon the Ibbjcd:. 
 
 *' Whereupon I conclude, that your 
 '' Lordfliips cannot judge the Law for 
 *^ the other fide, except the cafe be luce 
 *' c/arins. And if it appear to you but 
 *' doubtful, as I think no man in his 
 *■' right fenfes but will yield it to be at 
 *' leaft doubtful, then ought your Lord- 
 *' fliips, under your corredtion be it 
 *' fpoken, to pronounce for us, becaufe 
 *' of the favor of the Law. Further- 
 " more, as the Law of England muft 
 " favor naturalization as a branch of the 
 " Law of nature, fo it appcareth, that it 
 " doth favor it accordingly. For is it 
 " not much to make a fubjedt riatu- 
 *' ralized ? By the Law of England it 
 " fhould fuffice either place or parents. 
 *' If he be born in England, it is no 
 " matter, though his parents be Spaniards 
 *' or what you will. On the other (ide, 
 " if he be born of Engiifh parents, it 
 *' fldlleih not though he be born in Spain 
 
 or
 
 ( 37 ) 
 
 ** or in any other place of the world. In 
 " fuch Ibrt doth the Law of England 
 ** open her lap to receive in people to 
 ** be naturalized, >a hich indeed flieweth 
 *' the wifdom and excellent compofition 
 " of our Lavv(«)." 
 
 I know it is a commonly received Idea, 
 that in the decifion of Calvin's cafe, 
 tlie Judges were biafTed by the opinioa 
 of his then Majcfty, which had been 
 publickly cxprefied in a royal proclama- 
 tion. Be that as it may, it certainly 
 is no juft inference, bccaufe the King 
 wilhed fuch an opinion to be given, 
 therefore that opinion was contrary to 
 Law. Even interefl may fometimes di- 
 re6t us to the right ; let us therefore 
 hear, what the greateft Englllh Lawyers 
 thought upon the fubjedV, long before 
 the union of the crowns of England and 
 Scotland. Lord Chief J uflice Hussey, 
 Lord Chief Juflice Brooke and Fitz- 
 
 E 3 HERBERT, 
 
 {a) Bacon's Argumt. on Calvin's Cafe in the 
 Exchequer Chamber. 
 
 301000
 
 ( 38 ) 
 
 HEiiBERT, all rpfak ihc iamc langnnge : 
 " Kota- pprfiussEY Chief Jullicc,// /;o;;;(? 
 " fuit nee iiUra f.are. cl nt /c" pcre et mere 
 ** lont Evvjois^ tici fuit inheritable de~ 
 *' vant le jlatute^ tciJitn ore Ic Jlamic 
 *' fait ceo clerc. ''Tit. Tryal Fits. 29. 
 
 From thele authorities, which arc 
 neither trivial nor tquivocal, it appears, 
 that by the pafitive Law of Englancl, the 
 national blood of the parents and the 
 legitimacy of the child's birfh, makes u 
 perion as much a natural born fubjedl of 
 this country, when born withiuit, as 
 when born within the ligeance of the 
 King of England. It is certainly incum- 
 bent upon fuch perfons, who would op- 
 pofe the claims of the children born a- 
 broad of attainted Englifh parents, to 
 point out and (hew that particular Law 
 of the Land, by which they are excluded 
 from the general felf operating natu- 
 ralization of the Law of England ; this 
 
 cannot 
 
 (a) Br. Den. Alien. 214.
 
 ( 39 ) 
 
 cannot be done, and therefore we may 
 conclude as Lord Chancellor Ellesmere 
 did in Calvin's cafe : (<?) '* and io Juftice 
 ** Fenner's argument holdeth well, viz. 
 " there is in this cafe no Lavv to exclude 
 " the complainant, ergo he is a liege and 
 " a natural born fubjed:." 
 
 In no one writer upon treafons and 
 attainders, that I can find (and I have 
 made an extenfive fearch) in no one 
 judgment, in no one Act of Parliament 
 relative to that fubjeft, can I trace an 
 idea, that the judgment, or the confe- 
 quences of the judgment in high treafon 
 extend, to make the child of the at- 
 tainted perfon, an alien, in thofe cafes, 
 in which he would have been a natural 
 born fubjedt, had his father not been at- 
 tainted. So far then from there being 
 any pofitive Law, that fuch a child is 
 an alien, 1 maintain it to be the clear pofi- 
 tive Law of the Land, that notvvithftand- 
 
 ing 
 
 (a) Lord Ellesmere's Speech in the Exchequer 
 Chamber.
 
 ( 40 ) 
 
 ing the attainder of the father, the King 
 is rightfully entitled to the fovereignty 
 over fuch child, and fuch child is right- 
 fully entitled to the protection of our 
 King: for according to Hussey, Brook, 
 
 FiTZHERBERT, RasTALL, BacON, MoL- 
 
 LOY, Barrington and others, nothing 
 more is required to make him a natural 
 born fubjeft, than that his parents be 
 EngliJJi^ or the King's fubjeCisy and the 
 mother pafs the fea with the privity and 
 confent of her hulband. And who fliall 
 fay, that an attainted Englifhman ceafes 
 by the attainder to be an EnglifJiman: 
 or that the relation grounded on the 
 matrimonial contract doth not continue 
 till death ? All the Judges in Calvin's 
 cafe declared folemnly and unanimoufly, 
 that a pcrfon attainted of high treafon, 
 and abjured the realm, remains at the 
 ligeance of the King. The Court of King's- 
 Bench, according to Lord Crook, unani- 
 moufly determined, that a perfon at- 
 tainted of high treafon remained afuhjeCl 
 of his Majefly, and bound to obey his com- 
 mands. In more modern times, Mr. 
 
 YORKE
 
 ( 4' ) 
 
 YoRKE took it for granted, when he 
 laid, that ivliere a per/an /lad forfeited his 
 civil rights by crime ^ he was fill re- 
 garded as fuhjcCi to the power of the ftate. 
 And Sir Michael Forster lays(rt), in 
 anfvver to Sh' John Strange (the Soli- 
 ciror General) infirting upon it, that a 
 perfon under an attainder is, civiliter 
 mortuus, '' that the Court agreed, and the 
 " latter rclblutions have been, and the 
 *' Law hath been long; fettled, that an 
 " attainted perfon is liable to civil fults, 
 *« and he himfelf, as long as he liveth, is 
 *' under the protedion of the Law." It 
 will furely require fome authorities to 
 (liake fuch folemn and pointed decifions. 
 Lord Chief Juflice Brook, one of the 
 mod authentic writers and found expoun- 
 ders of our Law, marks the llrongefl 
 difference between the child of an alien 
 and of a perfon attainted.f ^ j " Nota 
 
 " Per 
 
 {a) Forstfr's Crowa Law, M^^Donald and 
 Ramsey, 6i. 
 
 (*) Br. Ab. 9j. 
 
 F
 
 ( r- ) 
 
 " Per Fineiix^ clcrk\ convidi on attaint nefl 
 " hors lie ley come alien eft ; car Jon hcire 
 ''^ poit inherit er puis Jon mort" What more 
 decifive, than that an a: ual inheritable 
 capacity exifts in the child of an Englifli- 
 man attainted, which docs not exift hi 
 the child of an alien ? And tiiis mnfl be 
 fpokcn of children born abroad of at- 
 tainted parents; for if they are born 
 within the kingdom, the place of birth 
 makes them inheritable, whoever their 
 parents were : and therefore it is faid, 
 that an attainted perfon nejl Jiors de ley 
 come alien ejl : for the Law of England 
 cannot affect an alien or his iiTue born 
 ont of the kingdom, but it does reach 
 the child of an Engli/?iman attainted born 
 out of it. 
 
 It has, I confide, been fully proved, 
 that the child of an attainted father 
 born within the kingdom, is inherita- 
 ble aflively and paflively. Bacon, Mol- 
 LOY, and otiiers have laid, that place of 
 birth or naturalization is all one: the 
 confeqnence is. therefore, children born in 
 England, or of EnglKh parents in a foreign 
 
 country
 
 ( 43 ) 
 
 country, arc equally intitlecl to every 
 benefit of natural born lahjccls. There 
 could not be railed a doubt, whether 
 a child born in Scotland, or Jerfey, whofe 
 father was attainted of high treafon. 
 was capable of taking an inheritance 
 in England: for his birth in either of 
 thofe countries by the Law of England 
 makes him as inheritable, as if he had 
 been born in England: and naturalizes 
 him ipfo fade. Thus according to Lord 
 Bacon (rt), " the queflion in the cafe 
 *' of Calvin, was no more but whether 
 " a child born in Scotland, fince his 
 " Majefty's happy coming to the crown 
 " of England, be naturalized in England or 
 *' nor" And the court decided that he was 
 naturalized. There is no reafon, why the 
 Law of England Ihouid operate in one 
 cafe more than in another, by natura- 
 lizing the child of an attainted father. 
 The crime of treafon, and the difability 
 of the father, is equal in both cales: the 
 F 2 Law 
 
 {a) Bacon's Arg. in the Exchequer Chamber.
 
 ( 44 ) 
 
 Law of England is equally pofitive in 
 both cafes. In faft, the Law of England, 
 that a child born of Englifli parents in 
 a foreign country was inheritable in 
 England, was much more certain, than 
 that a child born in Scotland was in- 
 heritable in England after the acccffion. 
 The great authorities of Hussey, Broi;ke, 
 FiTZHERBERT, and others fupportcd by 
 the exprefs words of the ftatute of 
 Edward III, would have rendered the 
 difcuHion of this queftion abfolutely ufe- 
 lefs. And to (hew more diftinftly, how 
 the Law of England favours natura- 
 lization , as a part of the Law of nature, 
 be it fuppofed, that by the Law of 
 Scotland, the child of a perfon attainted 
 of high treafon could not take an in- 
 heritance in Scotland, yet would fuch 
 child notwithftanding, evidently be in- 
 heritable in England; becaufe, what the 
 Lav/ of England requires, and would 
 inquire into, is the fingle point, whether 
 born or not within the ligeance of the 
 King of England ? So in the cafe of a 
 child born out of the territorial ligeance 
 
 of
 
 ( 45 ) 
 
 of the King of England, who would 
 claim an inheritance in England, the only 
 point, which the Law of England requires 
 or undertakes to afccrtain, is, whether 
 his father and mother were Englifli. If 
 this fa<^ be once proved, and the mother 
 did not pafs the fea againfl the confent 
 of her hulband, the child is ipfo faClo 
 naturalized in England; and there is no 
 difference by the Law of England, be- 
 tween a child fo naturalized and a child 
 born in England. Lord Bacon having 
 enumerated the three different degrees 
 of perfons, whom our Law takes know- 
 ledge of in naturalization, fays,(«) "The 
 " fourth and laft degree is a natural 
 " born fubjedt, which is evermore by 
 *^ birth, or by Att of Parliament ; and 
 ** he is complete and entire, for in the 
 *' Law of England, there is nil ultras 
 " there is no more fubdivifion, or more 
 *' fubtil diftindion beyond thefe. And 
 '* therefore it feemeth to me, that the 
 
 F 3 wifdom 
 
 («) BACOhf Ibidem,
 
 ( 46 ) 
 
 " wifdom of the Law, as I faid, is to be 
 
 '' admired in both ways, both becauie it 
 
 *' diiVinguillieth fo far, and becaufe it 
 
 *' doth not diflinguilh further.'* And he 
 
 further adds; " That by the former dif- 
 
 *< tribution it appeareth, that there be 
 
 *' but two conditions by birth, ^lien or 
 
 *' natural-borji^ nam ttrtium panitus igno- 
 
 " ramus." And he before faid, that by the 
 
 " Law of England it fhould fuffice, cither 
 
 " place or parents, and both thefe apply 
 
 *' to birth: i^n) for naturalization takes 
 
 " its effedl from the birth of the party, 
 
 ** and cannot be with limitation, or upon 
 
 '^ condition, for that is contrary to the 
 
 *' abfolutencfs, privity and indelibility 
 
 " of natural allegiance." From all which 
 
 it follows, that this Law of the land 
 
 muft operate upon every child born of 
 
 Englifli parents out of the kin^rdom, 
 
 whofe parents were at the ligcance of 
 
 the King of England, except fuch as arc 
 
 fpecially excepted by the ftatute. 
 
 1 faid 
 
 (rt) Cr. Jac. 539. 2 Roll. Rep. 95. Vin Alien. zbS.
 
 ( 47 ) 
 
 1 faiii indeed, in the iStli page of the 
 Inveltigation, that in our hiilory, 1 had 
 not bct-n able to find one inftance, in 
 which the debt of allegiance had been 
 releafed to an individual. I have however 
 fince the publication of that Tradt, met 
 with an inllance of the nature, which 
 proved to be the ground of a very fo- 
 lemn decifion in the Houfe of Lords. This 
 was the cafe of Horan and Arcedecnk* 
 Mr. Hannin, the father of Mrs. Arce- 
 DECNE, left Ireland under the articles of 
 Lhnerick, and continued to ferve the 
 French King. During his refidence abroad 
 he had one only child, who married Mr» 
 ARCErECNE. MefTrs. Hugh and Michaei; 
 Hannin brought an ejcclment for re- 
 covery of fome lands (to which Mrs. 
 Arcedecne would have been heir at 
 Law, had (he been capable of taking 
 them, ) as heirs in Gavelkind. This 
 brought on the queftion, whether Mrs. 
 Arcedecne being fo born abroad, was 
 an alien or a natural born fubjedt ? 
 And the Court of Exchequer in Ireland 
 decreed, after feveral hearings, that fiie 
 
 was
 
 was a natinal born fubjcdl ; which decree 
 the Houfe of Lords reverfed in the year 
 1730. The rcafon for revcriing this 
 judgment, as ftated and figned by P. 
 YoRKEand C. Talbot, was : " That flic 
 *' was not within the provifion of the 
 " Ad of the 7th of her late Majefly 
 " Qiieen Ann, which makes the chil- 
 '« dren of natural born fubjeds, though 
 " born out of the allegiance of her Ma- 
 " jefty, to be natural born fubjedls of 
 *« this kingdom : becaufe her father at 
 " the time of her birth, ought not to 
 " be confidered as a natural born Tub- 
 " jccb, within the meaning of that Ad, 
 '« he at that time not being properly 
 *' a fubjed of the Crown of Enjilaiid, 
 " in regard he vvas then in the country 
 " and flrvice of an alien enemy, and 
 " had left Ireland purfuant to the licence 
 " given by the treaty of Limerick, by 
 " which, thofe fubjeds of Ii-cland, who 
 " then bore arms for the late King 
 " James, had the liberty of going to 
 *' France, and in effed of transferring 
 " their allegiance to another Prijicc, and 
 
 from
 
 ( 19 ) 
 
 " from thence llich pcrion", who went 
 *' from Ireland to Fi-ance purfuant to 
 " the faid licence, tho' ihey continued 
 ^^ in arms againit his Lite Majefly King 
 '* William, they were ever after trcat- 
 " ed as prifoners of war, when taken, 
 " and not as rebels; which treatment 
 " fuppolcd that they might lawfully be in 
 " open war againll: the King, and confe- 
 " quently, that they had ceafed to be 
 •* his fubjeds, unlcis it be confident 
 " w^ith the duty of a fubjcft to bear 
 " arms againd his Sovereign." 
 
 It is in fuch a cafe only, that a child 
 of Englifli parents could be excluded 
 fi-om the benefit of the (latute of Ed- 
 w^ARD III; for altho* there might have 
 been fome grounds for arguing, that 
 fuch a child came under the general 
 words of the ftatute of Qjieen xA.kne, ^// 
 natural born fubjedis^ as that I'cems a pre- 
 dicament, which indelibly attaches on the 
 perfon at the inPcant of his birth, and 
 cannot be altered by any matter ex pojl 
 faClo after birth: yet tlie condition of the 
 ftatute of Edward III, evidently depends 
 ' G unon
 
 ( 50 ) 
 
 upon the ftate of tlie parents at the time 
 of the bh'th of the child, which im- 
 ports, that their iituation may be dif- 
 ferent at one time, from what it may be 
 at another. For in this inftancc, the fa- 
 ther and mother had been at the faith and 
 ligeance of the King of England, but 
 were not lb at the time of the birth of 
 the child. And this may be a reafon, 
 why in the proceedings of this caufe, as 
 well as of many other caufes, the ftatute 
 of Edward III, has never been men- 
 tioned; and becaufe it was not, or indeed 
 needed not to be mentioned in this caufe, 
 therefore both Counfel and Judges may 
 in fubfequent cafes, which it would af- 
 fe6V, have moft unaccountably omitted 
 to refort to the (latute de naiis ultra 
 7nare. 
 
 I will not fay that this is the only 
 poffible cafe, but I believe it to be the 
 only adlual cafe, in which the allegiance 
 of Britifli fubjecfls was ever relcafed by 
 the Sovereign or fiate. And nothing can 
 be more ftrongly marked out by this 
 judgment, than the diflerence between 
 
 the
 
 ( 5" ) 
 
 the ligcancc of a pcrfon attainted of high 
 trealbii, and of a former fubjeiSl relealed 
 from his allegiance by the adl of his 
 Sovereign. Sir Mathew Hale, long be- 
 fore there ever had perhaps exifled an 
 inftancc of llich extinguifliment of alle- 
 giance, had minutely pointed out its opera- 
 tion and effect (^a). '' The natural born fub- 
 *'je(ft of one Prince cannot, by fsvearing 
 " allegiance to another, put off or difchar- 
 " ge him from that natural allegiance. For 
 " this natural allegiance was intrinfic 
 ** and primitive, and antecedent to the o- 
 " ther, and cannot be divefted, 'without the 
 " concurrent Ad of that Prince^ to whom it 
 '^ luas firji diie^ If then the ccfTation or 
 extinguiQiment of the allegiance of the 
 parents, were the reafon why their chil- 
 dren born abroad, w^ere not natural born 
 fubje£ls, is not the alternate deduction 
 conclufive, that thofe children of Englifli 
 parents born abroad, whofe allegiance had 
 neither ceafed nor been extinguiflied, are 
 ipfo fado naturalized? 
 
 {a) Hale's P. C. 68. 
 
 G 2 If
 
 ( 5^ ) 
 
 If wc throw an inipartial eye upon 
 the Words and intention of the Legiila- 
 tuie, in padin^ the three Adts of the 25th 
 of Edward ill, th.e 7th of Oiieen Anne 
 and tlic 41 b. of George II, a very obvious 
 clear and rational expolition of tliem %vill 
 prefent itfelf to our view. 
 
 In the clays of King Edward III. it 
 was not thought rcafonable nor jufl, 
 that tlie King IhouM have the right of 
 Sovereignty over the children of fucli pa- 
 rents, whom he might have releafed 
 from their allegiance, or whofe allegian- 
 ce he had loft by war or treaty ; nor 
 was it rcafonable, that thofe perfons, 
 who owed allegiance to any other 
 Sovereign, and were not fubjeft to the 
 commands of our King, (hould have chil- 
 dren inheritable within this kingdom. 
 But in every cafe, where the King re- 
 tained his right of Sovereignty over 
 the parents, it was neither found juft 
 nor reafonable, that he fliould lole the 
 allegiance of the children : nor could it 
 certainly be the fpirit or intention of 
 the Legifiiture, that fuch children fliould 
 
 be
 
 ( S3 ) 
 
 be dlfablcd to take the inlieritance of 
 their anccflors within this kingdom, by 
 reafon of the diiability incurred by their 
 foreign birih: and that dilcafe alone this 
 A6t meant to cure. It was then certain, 
 that a child was by tiiat Acl enabled to 
 take every inheritance in England, which, 
 had he been born here, would have de- 
 volved upon him. 
 
 In the days of Oiiee-n Anne, the fpirit 
 and intention of the Legiflature went 
 further ; they opened the Law to every 
 perfon indefinitely who chofc to make a 
 profelTion of the proteftant religion, and 
 inferted a fort of declaratory claufe in 
 more ample and unconditional terms ; by 
 whicii they made the condition of the fta- 
 tute to depend upon the birth of the pa- 
 rents of the child; whereas the former Acfl 
 made it to depend upon the actual fcate 
 of the father's ami mother's allegiance, 
 at the time of the birth of the child : for 
 we have fcen a noted inftance, in which 
 natural born fubje6ls of the King of Eng- 
 land, were not at the faith and ligeance 
 of the King of England, at the time of 
 G 3 the
 
 ( 54 ) 
 
 the birth of their child. The Lcgiflators 
 who palled the fiift AO:, took eight years 
 to confuit and dehberate upon the pro- 
 priety of paffing it ; and their llatute has 
 flood the tell: of many centuries unaltered 
 and unrepealed to this very day. Tlie 
 /til ofQjieen Anne lived not half as many 
 years, as the other has centuries; what 
 was not repealed within two years, was 
 attempted to be explained the very 
 next year, after the determination of the 
 cafe of HoRAN and Arcedecne; when 
 the plain import of the words ofihe 7th 
 of Oneen Anne was found to extend be- 
 yond the meaning of the Legillature in 
 pafling it. And fo little fatisfadory was 
 that explanation to the nation, that a 
 further explanation was found necefiary 
 to be made of that very explanatory A6t 
 in the 13th year of his prefent Majefty; 
 and another and further le2:i{lative ex- 
 planation was attempted to be given to it 
 v/ithin thefe few months. And the rea- 
 fon, as I conceive, why the bill was thro'.vn 
 out of the Honfe of Commons, was becaufe 
 the point intended to be afcertained by 
 
 it.
 
 ( 55 ) 
 
 it, appeared already fufSciently clear to 
 want liO furllicr cxplauatioi). I'or, lie 
 mufl be a fubtile argiicr truly, who fiialJ 
 prove that every fiibje^t is not inclucicd 
 in the term all liibjedls; or that a wo- 
 man cannot be a fubjecl of Great Britain. 
 We arc bound by A61 of Parlia- 
 ment to believe, that the words children 
 of all natural born fiibjtcis included the 
 child of every Britilli father; and I beg 
 to know, what there is contained in thofe 
 words, to denote the difference of fex, 
 or in other words, to make the term iia- 
 tiiral horn JubjcCfs apply to men and not 
 to women ? 
 
 In the year 1731, the Legiflature find- 
 ing by experience, that they had rather 
 ftretched the Law beyond the old ftatute, 
 enacted, that the Law fliould remain as it 
 was fettled by that A61, which (l:ould 
 continue to operate its whole effect ; but, 
 tliat it was not the intention of the 
 Parliament in 1708, to open the Law 
 more, than it then was, by common Law 
 or by the ftatute de natis ultra mare, and 
 that therefore, on account of the dif- 
 ference
 
 ( 54 ) 
 
 fcrcncc in wording the two Ads, which 
 they fuppoied to mean the fame, certaui 
 perfons fnould not ckhii under the latter 
 A6t, unlcis they could alfo make out their 
 clahn under the former, which they mud 
 have thought to be declaratory of the 
 common Law, and therefore did not 
 mean to alter. This is very different 
 from giving a Icgiflative conftrudtion to 
 the Aft of Edward III; nay, nothing 
 can be more the rcverfe : for faying 
 that fuch children fliould in that rcfpedl 
 remahi in the fame flate, plight and con- 
 dition, as they would have been in, if 
 the 7th of Oiieen Anne, and the 4th of 
 George II, had never been made, is a 
 neceflary implication, that their flate 
 and condition cither \Vas or might have 
 been different, from what the 4th of 
 George II intended or fuppofed it to be ; 
 but that, at the fame tiaie, fuch dif- 
 ference fhould not in the flightcfh man- 
 ner be affeded by tlic 4th of George II. 
 Tlie intereft therefore of the Sovereign 
 in the allegiance of fuch children, and 
 the right of fuch chikhcn to the bene- 
 fit
 
 ( 57 ) 
 
 fit of our Laws, as they exiflcd at 
 common Law, or by the flatute of 
 Edward III, are ftill open to the frceft 
 clifcufllon. 
 
 If the common Law and the flatute of 
 Edward III were intended or meant to 
 be controuled or explained by the 4th of 
 George II, it was not pnffible that the 
 Lcgiflature flioiild have made a Ipccial 
 declaration to exclude tlie children of 
 attainted parents born abroad, from 
 every benefit of the Ad: of QueenAnne, 
 and admit them to the benefit of any 
 prior Law. If fuch had been the inten- 
 tion of the Legiflature, the exigency of 
 the circumflances, and the commonly 
 received ftile and language of the 
 flatutes, would have neceffarily removed 
 all ambiguity of the Law (if any could 
 have been fuppofed to exift) !)y Tome plain 
 pofitive declaration, that fuch children 
 fiiould be and remain aliens, any thing 
 in the 7th of Qiieen Anne, or any other 
 flatute or Law of this realm contained to 
 the contrary thereof in any wife notwith- 
 ftanding. But the Acft fays in th':: clcareft 
 H maiii.er,
 
 ( 58 ) 
 
 manner, that the children of liich parents 
 jhall not be naturaHzed by the 7th of 
 Qj-ieen Anne, if they were not fo by 
 any prior Act ; but if they were natu- 
 ralized by any prior Act, tliat they 
 fliould remain natural born fubje£ts to all 
 intents and purpofes. 
 
 But it maybe ftill urged, that although 
 an attainted EngHfhinan remains at the 
 ligeance of our King, yet he remains 
 only at the Hgeance of the Sovereign for 
 the benefit of the itatc, but for no civil 
 advantage, which he can derive from it; 
 and therefore that his children fliall not 
 derive an inheritable capacity from him, 
 as fuch a capacity in the ifllie is a civil 
 advantage to the parent. 
 
 I anfwer, that an attainder has been 
 conftantly holden to affed: no right, 
 w^hich arifes to a third perionjure fanrriiniis 
 of the party attaint. Thus a legitimate 
 fon of an attainted father has in him that 
 jus fanguhiis, which intitles him to every 
 civil right and advantage which he would 
 have had, if his father had not been 
 attainted, except that of being his /leir; 
 
 which
 
 ( 59 ) 
 
 which latter cJiiadvantagc is only a iar, 
 tliat prccliules all mankind as cfic^Tlually 
 7i% tlic inunediate ion, and in fact, is no- 
 tliing more, tlian the incapacity of the 
 attainted perfon to trani'mit an inheri- 
 tance. Thus, for example fake, it may 
 wiih equal reafon be faid, that the ifluc 
 in tail of a tenant for life attainted of 
 high treafoii, who takes an eftate of 
 inherilance under a family fctilenient, 
 derives a civil advantage and benefit 
 from his attainted father ; but how does 
 the Law operate in this cafe ? Adopt- 
 ing the maxim, that jura fauguinis are 
 not affected by the attainder: it per- 
 mits him to ellablifh himfelf the fon of 
 the attainted father, and then opens to 
 him every other benefit, which can arife 
 to him as fuch fon, (excepting that of 
 being heir to his attainted father); and 
 therefore may he take an eftate of in- 
 heritance under a fettlement, as the fon 
 of his attainted father, which he could 
 never have taken as his heir. So a child 
 of Englifh parents born abroad, (the 
 father being attainted) is not naturalized 
 H 2 as
 
 ( 60 ) 
 
 aslielr of his attainted father, but as the 
 fon of a father and motlicr Engli/h^ and 
 that clearly juj-e fanpiiinis. 
 
 Although it fluMild be admitted, that 
 the child of an attainted father can de- 
 rive no beneficial capacity or quality 
 from hisfathci-, yet it is beyond difpute, 
 that the attainder of the father com- 
 municates no difability to the fon, by 
 which he is rendered incapable of taking 
 an inheritance from any perfon, who is 
 capable of tranfmitting it. The inheri- 
 table quality is not in its nature divifible; 
 it mufl either exift in toio or not at all. 
 There are certainly the very ftrongeft 
 reafons, why a child born abroad of 
 father and mother EngliQ], (the father 
 attainted) is naturalized by the common 
 Law and flatute Law of this country. 
 But the ingenuity of man cannot invent 
 a reafon, why the child of an Englifli 
 woman married to an attainted Englifli- 
 man, Ihall not at leaft be in as good a 
 fituation, as if fuch Englifliwoman were 
 married to an alien. How then has the 
 T>aw been undeiftood in this latter cafe ? 
 
 In
 
 ( 6i ) 
 
 In the firft place, fuch cliild " in a mort 
 " d'anceftor, Sec. (hall make his title as 
 " heir to the mother^ without mention 
 **• of the father. And a father, though 
 *' an alien, is regarded as a father to 
 " confer relationiliip, though not to 
 *' have an heir ; and fo if an inheritrix 
 " takes Baron an Alien, the Baron fhall 
 *' communicate fuch a quality to their 
 " iffnes, that they fliall inherit to their 
 " mother as well as to one another (ft).'* 
 And this mufl be certainly faid of children 
 born abroad, becaufe if they were born 
 in England, though both the parents 
 were aliens, they would by the place 
 of their birth be inheritable in this 
 country. 
 
 It is certain, that the flrength of either 
 prejudice or error, which hath been con- 
 ceived relative to this qiieflion, has arifen 
 from attending foleiy to the condition 
 and fituation of the father, and forget- 
 ting wholly that of the mother. Whereas 
 H3 it 
 
 (<») Vin, 2, 271.
 
 ( 62 ) 
 
 it is obvicui^, that tlie Ipirit and intention 
 of the Law requires the very reverie: 
 for if we confider attentively the ftatiite 
 of Edward III, we (hall find, that it is 
 intimately founded in tlie nature and 
 reafon of things: for in the firfl place, 
 the birth of the child out of the king- 
 dom, depends wholly and folely upon the 
 mother'' s quitting the kingdom^ and there- 
 fore the only licence, that is required for 
 ©^ither to quit the kingdom, is that the 
 wife do it with the licence of her huf- 
 band ; which licence he certainly re- 
 mains capable of giving, whilft the rela- 
 tion founded on the matrimonial con- 
 tract rubfifts ; and we have feen, that 
 ////.)• continues till death. The condition of 
 the Law cannot certainly depend upon 
 the attainder or ablence of the hufband 
 out of the kingdom : for in both thofe 
 fuppofitions, if the mother be delivered 
 within tlie kingdom, the fon is inheri- 
 table. And I will fuppole, that whiKl 
 Sir Walter Raleigh was confined in 
 priibn, in England, after his attainder, 
 his Lady, for her health, which had 
 
 been
 
 ( 63 ) 
 
 been impaireJ by ber relicicnce witb birn 
 ill piifon, bad crolTetl tbe water witb bis 
 coiifciit, wbcre Hie was delivered of Mr. 
 Carew Raleigh, (wbo in fad: was boni 
 in prifon iomctime after tbe attainder of 
 Sir Waltf:r:) wbo will pretend to fay 
 tbat fucb cbild was not naturali-zed by tbe 
 ftatute of Edw'ard III ? Lady Raleigh 
 ex confl'fj'o was at tiie faitb and Hgeance 
 of tbe King of England at tbe time of tbe 
 birtb of lier fon : and tbe Court of 
 King's Bencb moft folemnly determined, 
 that Sir Walter Raleigh as a fnbjed of 
 his Majefly luas bound to obey his com- 
 'fiinnds, wliicb be could not be, unlefs be 
 were at tbe f;iitb and ligeancc of our 
 King at tbe time of tbe birtb of bis 
 rbild; what elle then was requifite to 
 naturalize fucb cbild, but the confent of 
 Sir Walter, that his Lady might crols 
 the fca ? This confent th^n being liad, 
 is it not clear and evident bevond the 
 polbbility of doubt, that IMr. Carew 
 Raleigh would under fucb circumftances 
 have been as capable of taking the inheri- 
 tance of his anccflors in England, as if 
 
 he
 
 ( 64 ) 
 
 he had been born here I But not the 
 eftate of the Raleigh's(c/), becaufe his 
 father being attainted, coukl not tranf- 
 mit it, or have an heir ; but the eftate 
 of the Throgmortons, as this he could 
 claim through his mother, who could 
 tranfmit it, and to whom he could make 
 himfelf heir, without reforting to the 
 corrupted blood of his attainted father. 
 And as the ftatute of Edward III fup- 
 pofed and underftood, that the two gene- 
 ral requifites at common Law for natu- 
 ralizing children born abroad, were the 
 national blood of the parents, and the 
 
 legitimacy 
 
 {a) The Raleigh eflate might infant have come 
 to Mr. Care w Raleigh: for Sir Walter, 
 long before his attainder, on refolving to accept 
 of a challenge from Sir Amias Preston, 
 made it over to his eldeft fon : from whom it 
 would have dcfcended to his younger brother; 
 but Car, a needy favourite at Court, having 
 difcovered a flaw in the conveyance, procured 
 Judgment for the Crown ; and the eilate was 
 granted to him, againft the earneft folicitations 
 of Lady Raleigh, oh behalf of heifelf and 
 children.
 
 ( 65 ) 
 
 legitimacy of the child : fo in order the 
 more cfFedlually to fcciire the latter, it 
 Ihpcradded a third condition, which was 
 the licence of the hulband for his wife to 
 quit the kingdom, concluding naturally, 
 that fuch licence would not be given to 
 fuch of the fcx, who fliould be fo aban- 
 doned as to fly from their hufbands, and 
 thereby expofe them to the probability 
 of adopting a fpurious offspring; and the 
 Ipecial provifion made by the A£l for the 
 proof of baflardy, is a conclufive argu- 
 ment, that the requifition of the hus- 
 band's confcnt was folely founded in the 
 caution of the Legiflature, to exclude 
 fuch children from inheritances, whofe 
 legitimacy could be queftioned. 
 
 Nothing can fo conclu lively evince the 
 right, which the wife of a man abjured 
 the realm has, of quitting the kingdom, 
 in common with all other fubjecTts, with- 
 out thereby injuring her iffuc, as to con- 
 fider the cafe of Margerie de Mose, 
 the wife of Thomas of Weylajjd, {PI. 
 in Parlt. 19 o/Ed\vard I,) which was 
 the precedent, that warranted the judg- 
 I ment
 
 ( 66 ) 
 
 mcnt in the Lady Belknap's cafe in the 
 2d of Henry IV. *^ 1 homas of Wey- 
 *' LAND being abjured ihe realm for 
 " felony in the year before, Marge rie 
 " DE MosE, his wife, and Richard Tonne 
 " of the faid Thomas, exhibited their 
 " petition of right into the Parliament 
 '' for the Manor of Sobbir, wherein her 
 *' hufband had but an eltate for life 
 '' jointly with her, and the inheritance 
 " in Richard the Ton by fine. The Earl 
 *' of Glocester, Lord of the fee, (who 
 " claiming the land by efcheat, had taken 
 " pofTeffion thereof) alledged, quod non 
 ''* fuit juri cGufofiu;??, quod aliqua femina 
 '' intraret in aliquas terras viventc marito 
 *' fuo, CO quod prtffaius Thomas ahjuravit 
 «f regmtm, &• adhuc vivit ; 6- afj'erit idein 
 *' Comes nunquam hujufmodi cafiim acci- 
 '' di^e, 6' inde petit poft mult as allega- 
 " tiones^ quod pojfit pradidum manariutji 
 " tenere ut efcJi<ieatam Juaryi. Super quo per 
 " ipfum domimmi re gem preceptum fuit^ 
 " qnod tani jujlic^ fai de utroque ba?ico, 
 *' qunm co'icri de regno fuo, tarn milites 
 '* quam fcrvientes in Ic^ibus e:^' conjiieiu- 
 
 " dinibus
 
 ( 6? ) 
 
 " dimbns Jnglicc expert/, mandareniur, 
 ** quod c(]'cnt coram Rerre 6* ejus conjilio 
 *' err. ad cerfiorandiwi ipjiim rcgem, qua- 
 *' liter 6" quomodo in cafii ijlo fnerit pro^ 
 " cedendimi, 6' qnatiter temporibus pra'tc- 
 *' ritis 6" anteccfj'oriim fiiorum in cafi- 
 " Z?«j coyifimilibiu jieri conjucvit; & interim 
 *■' Jcriitantur recorda de con/imilibns^ ubi re- 
 *' citantur duo vel tres confiniiles cafus. Et 
 " quia^ licet prius non videbaiur aliquibus j..~ 
 " ;•/■ confomimfuiff'e, quod uxor in vita viri, 
 " fccundum fanClmn Ecclefiam^ qualitcrcunque 
 " dcliquiU'et, quoad forum rc'^iu?n^ nonpoffet 
 ** 7iec deberet a virofuo Jeparari, ^Jic quid- 
 ' ' quid foret in pofjl'ljione uxcris, convertere- 
 " tnr in potejlatcm viri fui, 6- hoc manifejle 
 " immineret contra conjuetudinem regni; <& 
 " etiam quia qnidam dubitabant^ quod de 
 *"'- poffeOlonibus & bonis uxor is vir pojjit 
 " aliqualiter fuflentari ; tamen coram con- 
 ^^ Jilio domini Regis vocatis thefaurar dr 
 " baronibus <6' jnjiiciariis de ntrcque han- 
 *■'• CO, concordatumeji^ quod prccdidia Marge- 
 *' ria rehabeat talem feijinafn, ^'c.J'ecundum 
 " purportum finis pr^d. <&c. Patet etiam 
 " confimile exc:nplum tempore Henrici 
 la *• patris
 
 ( 68 ) 
 
 ''' patris regis,'" And Lord Coke amongil: 
 tlie many obiervations, which he makes 
 upon this very folemn judgment, fays: 
 *' That it plainly appcareth, that this 
 " opinion, concerning the habiiity of the 
 " wife of a man abjured or baniflied, 
 " was not firlt hatched by the Judges 
 " in Henry the fourth's time." And fur- 
 ther- '* So it is, if by Adt of Parliament 
 " the hufband be attainted of treaibn 
 " or felony, ^.l (a)." It is not poilible'to 
 meet with a precedent of greater au- 
 thority, than this. It was an application 
 to Parliament, and before they would 
 determine the point, all the Judges of 
 t!:.j land, all the Sergeants and the 
 whole bar were fummoned before the 
 King in coujacil, to certify to his Majefty 
 what had hitherto been, and what then 
 was the Law of the Land, as to the right 
 of the wife of a perfon attainted. And 
 what is thedecifion? Not that by the at- 
 tainder of her hufband, flie loles any right 
 
 or 
 
 (a) Co. Lit. 133.
 
 ( 69 ) 
 
 or civil advantage, which fne enjoyed 
 before the attainder ; but tliat in fad, 
 f!ie is by anticipation admitted into the 
 Ible pofTedion and enjoyment of her cftatc 
 Iboner, than by the order of nature Ihc 
 would othcrwife have been entitled. And 
 fuch attention had the Judges and all the 
 Lawyers of that time, for the rights of 
 thofc connefted with the attainted per- 
 fon, whofe blood was not corrupted by 
 the attainder, that in this cafe the in- 
 heritance, which the fon claimed under 
 the fine, was exprefsly declared to be 
 faved to him ; and that, as the legitimate 
 fon of the attainted father, and heir of 
 the mother, who never was attainted nor 
 affected by the attainder otherwile, than by 
 the lofs of dower out of her hulband's i'c- 
 parate eftates. In this cafe the Law is fo 
 favourable to the rights of the wife, that 
 it mildly fuppofcs the huiband as aiflually 
 dead, rather, than that his attainder iliould 
 obfcrucft either the claim of the mother or 
 the fon. If this be fo, the fame Law miifl: 
 conliftently with its own principles make 
 the like fuppofition in the cafe of a child 
 I 3 bom
 
 ( 70 ) 
 
 born abroad of an Englifli mother, who 
 was tlic wife of an attainted EngliHi- 
 man. For no man will be fo extrava- 
 gantly abfurd, as to pretend to fay, that 
 the natural death of the hufband in a 
 foreign country, before the birth of his 
 child, fliall make the child there born an 
 alien. The conclulion therefore evidently 
 is, that every right, which cxifted in the 
 mother or the child before the attainder 
 of the hufband, remains unaltered, and 
 entire in them after his attainder. And 
 fuch evidently was the right which the 
 mother had, in common with every other 
 fnbjeft, of quitting the kingdom, and con- 
 fequently of communicating to her iffiAe 
 born abroad, the capacity of taking her 
 inheritance within the ligeance of the 
 King of England. For as Lord Bacon 
 cxpreffes it, here ivas no intertnixiure of 
 foreign blood ; and tlie only parent, which 
 the child in this fuppofition had, was ex 
 conftfffo at the ligeance of the King of 
 England. 
 
 It is not ferioufly to be imagined, that 
 the very Parliament, which took fuch 
 
 cffedual
 
 ( 71 ) 
 
 efPeaual means to afcertain the Law of 
 trealbn, by reducing every crime and pe- 
 nalty to a pofitivc certainty in the 25th 
 year of King Edward III, fliould leave the 
 penalties and difabilities incurred by at- 
 tainders for high treafons, open to the 
 inconveniency and injulVice of being ex- 
 tended by conftruiStion beyond the ftrift 
 letter of the Law. For it muft ever be 
 maintained, if a father having two fons 
 born abroad, the one before, and the 
 other after his attainder, and tlie elder 
 be naturalized by the common Law or 
 ftatute of Edward III, and the younger 
 born after the attainder, fliould be an 
 alien, that an a6tnal difability is commu- 
 nicated by the father to his fon by means 
 of the attainder ; which is both abfurd 
 and falfe : for then the attainder of the 
 hufband would impede the difcent from 
 the mother to her fon, and from one 
 brother to the other ; the contrary of 
 which h?.s been mod folemnly determin- 
 ed: nor has the determination ever been 
 overruled or impeached as againft Law. 
 And therefore, as the queftion is not d^ 
 
 OonOy
 
 ( 7-' ) 
 
 bono^ but de vero^ the inference is juil, 
 that fi(c/i is the Law of England. And I 
 may again lay with Ellesmere and FeN- 
 NERs, if there be no politive Law to 
 exchide fuch a child, therefoie is he a 
 natural born and hege fubjeil. If there 
 had been fuch a Law, it mull have been 
 known and mentioned by fome of the many 
 and eminent Lawyers, who have writ- 
 ten fo amply and minutely upon treafons 
 and attainders : and yet, as to this point, 
 there is altu7n filentimn : niong them all. 
 The very cxpreffion i;t words of fuch 
 a fuppofed Law, will be proof of its non 
 cxiftence. 7hc attainder of the hujhand 
 prevents a child horn out of the kingdom 
 froj7Z inheriting his fiwther, to whom he 
 would have been inheritable., if born out of 
 the kingdom before the attainder. I not 
 only maintain, that no fuch Law ever did 
 or does exift ; but that ftanding the Law 
 of England as it now is, none fuch can 
 poffibly exifh For in the firft place, it 
 would change the nature of a inort d'an- 
 ceftor, and oblige a child to refort to his 
 father, in making title to his mother or 
 
 brother.
 
 ( 73 ) 
 
 brother. Sccojidly, it would communi- 
 c:ite an ailual difability to an innocent 
 perfon, contrary to the maxim of Law, 
 *' Tliat A(fts of Parliament are to be fo 
 " conllrucd, as that no man, that is in- 
 *' nocent or free from injury or wrong, 
 " be by a natural conftru<n:ion punifhed 
 " or endamaged (rt')." And this even, 
 when a pcribn is found exprefsly to be 
 within the letter of the flatute; a 
 fortiori then, fliall not the words of a 
 flatute be tortured into a meaning againfl 
 itsexprefs letter, to punifh and endamage 
 wliole famiHcs, and to deprive the King 
 and ftateof their allegiance and fervices. 
 Thirdly, it would alio avoid another 
 known maxim in t!ie Law, which fays(^), 
 *' That where the fubje£l has authority 
 " to do a thing by the cxprefs letter 
 " of a flatute, this (hall not be taken 
 " away by any flrained conftru(flion, 
 '* though it be for the benefit of the 
 
 " King. 
 
 {a) Co. Lit. 360. 
 
 ^h) Roll. R. by WoRRAT, and Harper, 16 Rep. 84. 
 K
 
 ( 74 ) 
 
 " King," The common Law permit- 
 €c\ generally every fubjedt to quit the 
 leahn ; and the flatute of Edward III 
 cxprel'sly authorized the wife to pafs the 
 lea with the coiifent of her hulband, ft) 
 that her child afier that, born abroad, 
 fliould not be an ahen. Muft not i/iai 
 coiiftrudion then be much llrained, that 
 takes avv'ay a benefit fo exprefsly confer- 
 red by the letter of a {latute, or that 
 contradicts the moil folemn language of 
 our Law, which has repeatedly declared 
 an attainted perfon to be at the ligcance of 
 tlic King f Fourthly, every punifliment 
 or difabiiity inflided by the Law, on ac- 
 count of a crime committed, mull be 
 obligatory and dependant upon the guihy 
 perfon. In this cafe, Uie dilability of the 
 child born after the attainder, depends 
 entirely upon the mother's quitting the 
 kinpdom with or without the licence of 
 her hulband. But the wife is not at all 
 affcfted in Law, by the crime or the pun- 
 ifliment of her hulband, (unlcis by the 
 lofs of licr dower) ; and therefore fucli 
 diidbility of the child to inherit his mo- 
 ther,
 
 ( ry ) 
 
 thcr, cannot be the effeCl of tlic attain- 
 der, fince it depends not upon the at^ 
 tanned perfon, and concerns not tlie 
 relation of heir between the fon and his 
 attainted father. Laftly, the Law of Eng- 
 land favors the Law of nature, and there- 
 fore did the flatnte of Edv/ard III re- 
 quire the wife to have the confent of her 
 hiifband to pafs the fea ; becaufe civili- 
 zed nature demands the fabmilnon and 
 obedience of a wife to her hnfband, and 
 inverts him with all reafonablc means of 
 afcertaining the legitimacy of his ifllie, the 
 firil of which, is the command of his 
 wife's perfon. Every relation grounded 
 on the matrimonial contract continueP! 
 till death. Suppofmg then^ an attainted 
 hufband infifts upon his wife's croHing 
 the fcas, (and by the common Law ilie 
 is authorized to do it) fhail it be faid that 
 our Law v.-ill encourage her to difobey 
 lier hufband by baftardizing, as it were* 
 her children for obeying his commands, 
 and reward her refulal to obey them, by- 
 admitting her children as legitimate and 
 natural born fubje(rts ? 
 
 K 2 U
 
 ( 76 ) 
 
 It was from the rcafon and fplrit of 
 the Law, that our Judges and commcnta 
 tors have undcrftood the words of Ed- 
 ward III, fat hers and moiJicrs^ in a dif- 
 jun^tivc fenfc. For as it was the avowed 
 intention of that Atl, either to declare or 
 make children born abroad, as capable of 
 taking the inheritances of their anceflors 
 within this kingdom, as if they had been 
 born here : fo thofe v/ere certainly in the 
 contemplation and meaning of the Legifla- 
 ture, whohnd or might have anceflors in 
 England, to whom they would have been 
 heirs, had they been born in England. 
 And fnch evidently were tlie children, 
 either of an EngUPi 'man^ or of an Eng- 
 lifJi ivomayi ; the one as much as the o- 
 ther. Certain however it is, that the at- 
 tainder of the hufiiar.d, cannot diminifh 
 the number of the wife's anceflors, from 
 each of whom, an inheritance might de- 
 volve upon his fon. Such Ton therefore 
 who might be heir to many maternal 
 anceftors, is certainly within the fpirit 
 ^nd meaning of the A£l, as well as within 
 the letter of it. To thcfe reafons, which 
 
 are
 
 ( 77 ) 
 
 are more fully flated in the Inveitlgation, 
 I have but to acid, that when the Lcgifla- 
 ture, (probably iiuttentiv^e to the 25tli 
 of.EowARD III, or if otherwile, ex abun- 
 dnnti cantcla,') palTcd two different A£ls^ 
 one in the 29th year of King Charles II, 
 c. 61. intituled, An ACi for naturalizing of 
 cJiildren of his Majejly's Englifi fuhjeCls 
 horn in foreign countries during the trou- 
 bles : the other in the 9th and loth of 
 William, c. 16, intituled. An Aci to na- 
 turalize t/ie children of fiich officers^ fol- 
 diersj and others, the natural born JubjedJs 
 of this realm^ who have been born abroad 
 during the ivar^ the parents of fuch chil- 
 dren having been in the fervice of this go- 
 vernment^ they actually ufed the disjunc- 
 tive term, fathers or mothers : they then 
 evidently intending, that the right fhould 
 accrue through the female blood, as well 
 as through the male. And if we attend 
 to the difference between the A^ls of Ed- 
 ward and of William, we fliall find a 
 much flronger reafon, why the former 
 fliould operate upon the children of Eng- 
 Hfli mothers than the latter. The A£t of 
 K 3 Edward
 
 ( 78 ) 
 
 Edward had for its view to rcpecple the 
 country after the ravages of a direful 
 peftilcnce, by enlarging, or declaring and 
 publidiing the Law of naiurahzation, and 
 fo inviting home fuch Englirti families, 
 as had been refident for fome time out 
 of the kingdom, which reafon was cer- 
 tainly as applicable to one fcx as to the 
 other. The A<fl: of William is exprefsly 
 faid to be made for naturalizing the chil- 
 dren of officers, foldiers, and others em- 
 ployed in the fervice of government, 
 which reafon it ihould feem, was folely 
 applicable to the children of Englifli fa- 
 thers : for the fair fex of this iiland, fince 
 BoADiCEA, have not frequently appeared 
 in arms, nor indeed have they vifibly been 
 employed in the fervice of this govern- 
 ment : and it is more than probable, that 
 they were not employed in any fervices 
 by King William. However, the bene- 
 fit of the A6t, is conferred as v/ell upon 
 the child of an Englifli mother, as upon 
 the child of an Englifli father. If thefe 
 two latter ftatutes of Charles and Wil- 
 liam were paffed with any knowledge of 
 
 or
 
 ( 79 ) 
 
 or reference to the ftatute de natis itltra 
 mare, their adopthig the disjun£live fcnfc, 
 is a Legillative conftruCtioii of that 
 ftatute in the disjundive : if not, they 
 muft at leatt eftablifh a rule from parity 
 of reafoning fo to interpret it. 
 
 I will concUuIe iny obfcrvations upon 
 tlie flaciite de natis ultra ?nare^ with a 
 repetition of Lord Bacon's words ; '' By 
 " the Law of England it fliould fuffice 
 '' cither place or parents. If he be born 
 " in England, it is no mattei', though 
 *' his parents be Spaniards or what you 
 *' will. On the other fide if he be born 
 *' of Englifh parents, it fl'iilleth not 
 *' though he be born in Spain, or in any 
 *' other place of the world." Such then 
 is the common Law of England, and 
 with this agree Hussey, Rastal, Brook, 
 FiTZHERBET, tl'c. Now " It is a good 
 " expofition of a ftatute, when the reafon 
 *' of the common Law is purfued(rt)." 
 And " In all doubtful matters, and where 
 
 the 
 
 00 ^Inlt. 148. 30S. Co. Lit. 17?..
 
 ( 8= ) 
 
 *' the •'cxprcirion is in general terms, 
 "• they are to receive fuch a conftrudlion, 
 **• which may be agreeable to the rules 
 " of the common Law, in cafes of that 
 *' nature : for ftatutes are not prefumed 
 *' to make any alteration in the common 
 " Law, further or otherwife than the 
 *' Att does exprefsly declare; therefore 
 *' in all general matters, the Law pre- 
 ** fumes the A61 did not intend to make 
 ** any alteration ; for if Parliament had 
 " had that defign, they would have ex- 
 *' prefled it in theAd(rt)." Parliament 
 did probably in this inflance make one 
 aheration in the common Law, which 
 was the requifition of the hufband's con- 
 fent for the wife to quit the kingdom : 
 and therefore they exprcffcd it in the h&. 
 But it cannot be fuppofcd, much lefs 
 proved, that if the guilt of high treafon 
 in either of the parents were to exclude 
 liieir children from the benefit of the Ad, 
 in the fame manner as the wife's quitting 
 
 the 
 
 (</) II Mod. 1501
 
 ( Si ) 
 
 the kingdom againft the confcnt of her 
 hvifband, that fuch exception flionld have 
 been overlooked or omitted to be men« 
 tioned by that ParHament, which was 
 actually at that time fo bufily employed 
 in alccrtaining the Law of treafon. And, 
 as I faid before, fince the foreign birth 
 of ihe child depends folely upon the 
 mother's quitting the kingdom, therefore 
 the llatutc has very properly annexed 
 the only condition of the Law to her; 
 for there is not a fiiadow of pretence to 
 fay, that the hufband's being within or 
 without the kingdom at the time of his 
 child's birth, caufes any difference in the 
 operation of tiie Law; nor can it be even 
 furmized, that the attainder of the huf- 
 band, obftrudls the operation of the 
 common Law upon the wife, by which 
 every fubje(fl is authorized to quit the 
 kingdom without licence. And in fa.6\:, 
 the Law, by which every fubjeft has 
 licence to quit the realm, is a demonftra- 
 tion, that their children born out of the 
 realm are by common Law natural born 
 fubjeds ; or otherwife it would be at 
 L the
 
 ( S2 ) 
 
 the option and in the power of individuals 
 to deprive his Majefty of the allegiance 
 and fervices of their children, which 
 could not be in any government, without 
 the confent of the Sovereign, who would 
 be fo deprived of their fervices, 
 
 I need not have faid lo much of the 
 ftatute of Edward III, if its operation 
 had ceafed, or if it had received a final 
 con{lru<Sion, either from the Courts of 
 Law or from the Legiilature. I am in- 
 deed fully aware of an objecTiion that may 
 be urged againft me, " that flatntes made 
 " in pari materia are to be taken into the 
 *' conftruflion of one the othei- ;" that 
 the A£t of Edward III, the 7th of Oiiceu 
 Anne and the 4th of George If, are fo 
 to be conflrued, that the explanatory 
 Aft of George II, fliall controul the Adt 
 of Edward III, as well as the 7th of 
 Anne. 
 
 But it is a maxim of Law, that ex- 
 preffimi facit ccjjare taciturn : whatever 
 implied conftruction therefore, the 4th 
 of George II might otherwife have 
 given to the flatute of Edward, it is 
 
 here
 
 ( 83 ) 
 
 here abfoliuely defeated, by the exprcfs 
 words of the 4th of Ghorge II, which 
 declare that its effects fiiail not reach any 
 Law prior to the 7th of Qiieen Anne: 
 and exprefjio nnins- exclufio eft alterius. 
 And it has been holden, " that ftatutes 
 " of explanation ilnll be conflrued only 
 '* according to the words, and not with 
 *' any equity or intendment, for there 
 *' cannot be an explanation upon an ex- 
 *' planation. For when one Acft is made 
 *-' explanatory of another, the Court 
 " cannot carry the explanation farther 
 " than in that Aft; but in an original 
 *• ftatute the Court will make con- 
 •*' ilruvStion according to equity (rt)." So 
 in this cafe, the explanatory Aft of 
 George II, cannot be made to carry its 
 effects further, than the 7th of Oueen 
 Anne. 
 
 It is very fingular and ahnoft unac- 
 countable, that the Legiflature and the 
 Courts of Judicature have, for near a 
 L 2 century, 
 
 (rt) Viii. Ab. Tit. Statutes.
 
 ( S4 ) 
 
 century, paid as little attention and re- 
 gard to the llatute of Edward III, as if 
 it had never exilted, or had ceafcd to 
 operate- Yet although the Judges are 
 oilicially bound to take notice of a public 
 ftatute in their determinations, Hill their 
 omiiucn ib to do (liall certainly never amount 
 to a repeal of fueh Act. The admiflion of 
 fuch an idea would vefl a tranicendcnt 
 pov/er in a Court of Judicature, to defeat 
 any A£t of the Legiliature. And the late 
 Judge Blackstone, laid truly '^' that to 
 *• fet the Judicial power above that of 
 " the Legiflature, would be to fubvert 
 " all government (^/)/' 
 
 Whoever would argue, that a child of 
 EngUfh parents born abroad, whofe 
 father was attainted of high treafon, may 
 be naturalized by the 25th of Edward III, 
 although he (hall not be naturalized by 
 the 7th of Queen Anne, may be called 
 upon to fliew the difference between 
 the two A<^s. In the firft place I anfwer, 
 
 there 
 
 (^a) Bl. Com. I. p. 91.
 
 ( 85 ) 
 
 there is no neccirity of flicwing a dif- 
 ference; for by the exprefs words of the 
 4th of Georgi: II, if w child was natu- 
 ralized by the flatute of Edward III, 
 his condition is declared not to be chang- 
 ed by the Acts either of Queen Anne 
 or of George II: for this lafl A61 as 
 pofitively cnaCts, that the child of an 
 attainted Englifliman, born abroad, fhall 
 be judged by the common Law, or 
 ftatute of Edvva:id III, as that he was 
 not naturalized by the yih of Qjieen 
 Anne, if he was not naturalized by any 
 prior ftatute; but it does not declare him 
 to have been an alien before the yth of 
 Oiieen Anne, or otherwife this muft 
 have been done in abfolute, pofitive and 
 unequivocal terms. It could not certainly 
 mean to make them aliens, if it avoided 
 declaring them fuch. 
 
 Let us then colle(n: from the words of 
 the Lcgiflature in the year 1731, what 
 the Law of the Land then was, and had 
 been for Tome years prior to that period. 
 The Ad is intituled, *' An Aft to explain 
 " a Claufe in an Acl made in the 7th 
 L 3 " year
 
 ( 86 ) 
 
 " year of the reign of her late Majcfty 
 " Oueen Anne for naturalizing foreign 
 " Protcllants, which relates to the chil- 
 ** dren of the natural born fubjefts of 
 ** the Crown of England, or of Great- 
 ** Britain." And the Preamble, which is 
 the key to open the meaning of the 
 ftatutc, particularly recites, that doubts 
 had arifen upon the confhruition of the 
 faid claufe, and that the Adl was made 
 to prevent difputes touching the true 
 intent and meaning of the fame claufe. 
 From all which it appears, that the 
 Legiflature could not poflibly mean to 
 enaft any new Law, or to extend the 
 benefit of naturalization to any perfons, 
 who were not included in the words or 
 meaning of the yth of Qjieen Anne, for 
 ex confefj'o^ the A61 is to explain the true 
 fenfe and meaning of the 7th of Qiieen 
 Anne. The very efTcnce of the point,which 
 we are inveftigating, is, whether before 
 the parting of the 4th of George II, a 
 child born in a foreign country of Englifh 
 parents, (his father being attainted of 
 high treafon at the time of his birth) 
 
 was
 
 ( 87 ) 
 
 vas iiatnralizcd by the Law of England. 
 Which point rciolvcs itlclF into this 
 dilemma: citlicr llich child is a natural 
 born fiibjciT, or he is prevented from 
 being fuch by the attainder of his father. 
 Then mufl the Ail of attainder make 
 him an alien, either by exprcfs words, 
 or by implication and condrucftion. It is 
 not by exprcfs words, for they are no 
 where to be found : and we hope, it has 
 already been fufFiciently proved, that the 
 effects of the punifhment of high treafbn 
 cannot be extended by conftrudtion be- 
 yond the exprefs letter of the Law; 
 for who fliall than limit the boundary ? 
 If it be by conftruction or implication, 
 it muft be, becaufe by the attainder, the 
 father ceafes to be at the ligeance of 
 the King of England, or to be a natural 
 born fubjedl. We have already fpokeii 
 fully to each of thefe points, but yet it 
 is a firfl: truth, that if an attainder does 
 operate this effed; in one inftance, it muft 
 operate the fame effcO: in every inftance 
 under the fame circumftances. John and 
 Thomas cannot be attainted of high 
 
 treafon
 
 ( 8« ) 
 
 treafon by one and the fame A£l, for one 
 and the fame crime, and after the at- 
 tainder, the relation of Sovereign and 
 fubjedt continue between the King and 
 one of them, and ceafe between the King 
 and the other of them. Therefore is it 
 utterly impoffiblc, that if the fon of 
 John, born in France, be, on account of 
 the attainder of Ills fatJier, an alien by 
 the Law of England, tliat the fbn of 
 Thomas, alfo born in France, fliould by 
 that fame Law be naturalized. The cir- 
 cumftances of their father's attainder, 
 and their own foreign birth are common 
 to both children : " the Law proceeds 
 " upon general rcafon, and looks upon 
 *' no men's faces («).*' And therefore is 
 it repugnant, that by reafon of a cir- 
 cumilance common to both, the Law of 
 England fhall make one perfon an alien, 
 and another perlbn a natural born fubjedl. 
 Thefe pofitions no man can deny ; and it 
 
 is 
 
 («) Bacon's Speech in the Exchequer Chamber 
 on Calvin'* cafe.
 
 ( 89 ) 
 
 is equally clear, if the cliild of an 
 attainted Engliihman born abroad, has 
 ever been naturalized by the general Law 
 of England, and the ligeanee and fub- 
 je(Stion of the father to our King ceafed 
 by the attainder, that it mnfl have been 
 thro* his unattainted Engliili mother ; 
 but if this were the reafon, then it mull 
 fubfift till this hour: for the disjvindive 
 conilru6lion of the (latutes of Edward 
 III, and of the 7th of Oiieen Anke, has 
 been warranted in many inflanccs, but 
 difavowed in none, as we have attempted 
 to fiiew before. 
 
 If by the Law of England, the children 
 born abroad of Englifli parents, whofe 
 fathers were attainted of high treafon, 
 were naturalized, or admitted to be na- 
 tural born iubjeds of this country, at 
 any time, on any occafion, or under any 
 circumftances, without a pardon or the 
 reverfal of the attainder, it muft eftab- 
 lilli the truth of this general propofition, 
 that a child of Englifli parents born a- 
 broad, is not therefore an alien^ becaufe 
 his father was attainted of high trealbn- 
 M at
 
 ( 90 ) . 
 
 at the time of his birth: and till this 
 propofition can be verified in the affirma- 
 tive, it is falfc, that fiich is the I^aw of 
 England. 
 
 It will not be denied, that an exprefs 
 legiflative declaration is the highefi: au- 
 thority over tlie Law of this country. 
 We have feen that the 4th of George II, 
 is an A£l to explain the true fenfe and 
 meaning of the 7th of Qiieen Anne: and 
 therefore its immediate province is, to 
 declare the eifccts of that Ail from the 
 time of its pafling: and fo fcrupulous is 
 it not to extend its explanation further, 
 that it confines it to the day of the 
 month, on which the 7th of Qj^ieen 
 Anne a£tually pafTed into a Law; which 
 mofl emphatically proves, that the ef- 
 fects fet forth and dcfcribed in the 4th 
 of George II, were produced by the 7th 
 of Queen Anne. For I am warranted by 
 Parliament to fay, that the 7th of Queen 
 Anne operated differently from the i6th 
 of November 1708, till the 25th of 
 March 1731, fi'om what it has been 
 permitted to do fince the palling of 
 
 the
 
 ( 91 ) 
 
 tlie 4th of George II, which was on 
 the latter date. 
 
 *' Provided always (^), and be it fur- 
 ** ther enadted by the authority aforefaid, 
 " that if any child, whofe father at the 
 *' time of the birth of fuch child, was 
 ** attainted of high treafon as aforcfaid, 
 *' or was liable to the penalties of high 
 " treafon or felony in cafe of returning 
 *' into this Kingdom or Ireland without 
 ** licence as aforefaid, or was in the ac- 
 *' tual fervice of any foreign Prince or 
 *' ftate then in enmity with the Crown 
 *' of England or of Great-Britain (other 
 " than and excepting always out of this 
 " provifo all children of fuch perfons, 
 " who went out of Ireland in purfuance 
 " of the Articles of Limerick), hath come 
 " into England or Ireland, or any other 
 " of the dominions belonging to the 
 " Crown of Great Britain, and hath con- 
 ** tinued to refide within Great Britain 
 ** or Ireland, or other the dominions a- 
 M 2 *' fore- 
 
 {a) 4th George II, c. 21.
 
 ( 92 ) 
 
 " forefaid, for the ipace of two yeans, 
 '' at anytime between the i6lh day of 
 " November in the year of our Lord 
 " 1708, and the 25th day of March 
 " in the year of onr Lord 1731, and 
 " during fuch refidence hath profcf- 
 *^ fed the protcllant rcHgion ; or if 
 " any child, whofc father at the time 
 *' of his or her birth was within any of 
 " the defcriptions before mentioned, 
 " hath come into Great-Britain or Ire- 
 *' land, or any other the dominions be- 
 " longing to the Crown of Great-Britain, 
 *' and profefTed the proteftant rehgion, 
 " or died within Great-Britain or Ireland, 
 " or any other the dominions aforefaid, 
 " at any time between the faid i6thday 
 " of November in the year of our Lord 
 ** 1 708, and the faid 25th day of March in 
 *' the year of our Lord 1731 ; or if any 
 *' child, whofe father at the time of his 
 " or her birth was within any of the 
 " defcriptions before mentioned, hath 
 " been- and continued in the aftual pof- 
 *' fcHlon or receipt of the rents and 
 " profits of any lands, tenements or he- 
 
 *' rcditaments
 
 ( 93 ) 
 
 " rcditaments in Great-Britain or Ireland, 
 ** for the fpace of one whole year, at any 
 '* time between llie faid i6th day of 
 " November in the year of our Lord 
 " 1708, and the faid 25th day of March 
 '' in the year of our Lord 1731, or hath 
 ** bona fide J and for a good and valuable 
 " conlideration, fold conveyed or fettled 
 " any lands, tenements, or hereditaments, 
 " in Great-Britain or Ireland, and any 
 " perfon claiming title thereto, under 
 " fuch fale, conveyance or fettlemcnt, 
 " hath been and continued in the aftual 
 " pofleflion or receipt of the rents, or 
 " profits thereof, for the fpace of fix 
 ** months, between the faid i6th day 
 " of November, in the year of our 
 '* Lord 1708, and the faid 25'th day of 
 " March, in the year of our Lord 1731, 
 " every fuch child fliall be deemed ad- 
 *' judged, and taken to be, and to have 
 " been a natural born fubjC(St of the 
 *' Crown of England, or of the Crown 
 " of Great-Britain, to all intents, con- 
 *' ftrudions, and purpofes whatfoever 
 " any thing herein containeci to the 
 M 3 " con-
 
 ( 94 ) 
 
 " contrary thereof \n any wife notwith- 
 *' {landing." 
 
 It will be nccefTary for the eftablifli- 
 mcnt of my opinion, to confider this 
 claufe of the 4th of King George II, 
 with more than ordinary prccifion and 
 attention. 
 
 "When an explanatory ftatute enacts 
 and declares, that a perfon was benefited 
 from the very day, upon which that Acft 
 was made, the true fenfe and meaning of 
 which it undertakes to explain, it can- 
 not be pretended, but that it was by 
 virtue of the A^ explained, and not of 
 the explanatory ftatute, that he was fo 
 benefited : elfe, v/hy date the benefit from 
 the commencement of the operation of the 
 Ait explained ? Nor can it be pretended, 
 that an A£b (liall produce an effeCt for 
 twenty-four years before its pafiing, and 
 ccafe to operate that fame efFed: from the 
 inftant of its palhng. An explanatory 
 flatute moreover eflcntially enads no- 
 thing new. But if a child born abroad, 
 whofc father was attainted of high trea- 
 fon, at the time of his birth, was natu- 
 ralized
 
 ( 9S ) 
 
 ralizcd by the yth of Oucen Anne, '.vhich 
 commenced to operate from the i6th of 
 November 1708; it mufl be true, that a 
 child Co born, was not out of the reach 
 of the Law, notwitlillanding the attainder 
 of his father : and that the child could 
 not be fo naturalized, unlefs his father 
 continued after attainder to be a natural 
 born fubjedl of this country. For the 
 Ad excepts the children of ail fuch pa- 
 rents, whofe allegiance had been adlually 
 relcafed or extinguifhed by the Articles 
 of Limerick ; for fuch, and fuch alone 
 could ceafe to be fubje(fls of our King. 
 And therefore fuch, and fuch alone were 
 evidently not included in the 7tli of 
 Qiieen Anne ; and therefore, were they 
 declared not to have been comprized in 
 it by the third claufe of the 4th of King 
 George II. Now if we attend clofeiy to 
 the nature of this fame third claufe of the 
 Ad: of George II, we fliall find it to be 
 nothing more nor lefs, than an exception 
 out of the fecond claufe of the fame AdV. 
 And the fecond claufe of that AtH:, we 
 hope, has been fufficieatiy proved to be 
 
 an
 
 ( 96 ) 
 
 an exception out of tlic 7th of Oucen 
 
 Now when one exception is made 
 oiit of anotlier exception, the per- 
 fons included in tlic fecond exception, 
 muft have been comprized in the original 
 Aft, out of which the firfl: exception was 
 made. And fo the fecond exception, 
 v/hich is the third claufe of the 4th of 
 George II, muft be taken only as clearer 
 words to convey the true fenfe and mean- 
 ing of the 7th of Queen Anne : and con- 
 fequently the perfons, who had been 
 releafed from their allegiance by the Arti- 
 cles of Limerick, are declared not to be 
 included in the 7th of Qiieen Anne, be- 
 caufe in faft, tliey had ceafed to be fub- 
 jefts of the King of England. But as it 
 is evident, that thofe, who are except- 
 ed out of the third claufe of the 4th of 
 Geoge II, were not included in the 7th 
 of Qj.ieen Anne ; fo is it equally evi- 
 dent, that thofe who are comprized in 
 the fame third claufe, were included 
 in the 7th of Quee n Anne. And fo 
 from thcfe prcmiles, this neceffary con- 
 
 fcquence
 
 ( 97 ) 
 
 fcquencc (lows, that the gc)ic}:al Law of 
 the realm extends naturaHzation to the 
 cliildren of attainted fathers ; for thofc 
 only arc excluded from it, who were 
 comprized in a fpecial exception out of the 
 general Law. 
 
 It is proper here to obfervc a wide 
 diverfity between the perfons excepted 
 cut of the Aft of Qjieen Anne, and the 
 perfons, who never were included in it. 
 The child of an attainted Englifhman is 
 certainly the child of a (ubjeci of the 
 King of England; but the cliild of a per- 
 Ibn included in the Articles of Limerick, 
 is not the child of 3. fubjecT of the King 
 of England. So that the condition of 
 the ftatute of Qjieen Anne, by this con 
 Ilrudlion, not only refpeds the birth of 
 the parents ( natural horn j but the con- 
 tinuation of their lubjeftion to our King 
 (Jubjedfs J. And in this fenfe and mean- 
 ing, the Aft of Edward III, and the 
 Aft of Ojieen Anne, are perfcftly fy- 
 iionymous, co-operative and co extenfive; 
 for, whoever remains a iiibjeft of the 
 King, is at the ligeance of tJie King ; and 
 N whoever
 
 ( 98 ) 
 
 whoever is at the hge?nce of the King, 
 reirains a fubjedl of the King. 
 
 There is indeed this difi'erence betA'ecn 
 the two Ails; that if a wife, enfeinte, 
 fliouldqnit the kingdom ap;ainft the con- 
 fent of her Imfband, the iffue, of wliicii 
 flie might be d^-livf^red abroad, cowld be 
 naturalized by tlie fc .tute of Oiieen Anne, 
 ahhoiigh not bv the AvJt of Edward, 
 which requires a fpecial condition not 
 mentioned in the 7th ol Qjieen Anne. 
 
 If then, as it is evident, it be one and 
 the fame thing to be a fubjedl of the King 
 of England, and to be at the faith and 
 iigcance of the King of England ; it ne- 
 cefTarily follows, that if the general Law 
 of naturalization affects the child of a fub- 
 jeCt of our King, under a particular cir- 
 cumfcance, it muft alfo afFedl the child of 
 a perfon at the faith and Ijgeance of our 
 King, under that fame circumflance ; 
 tlierefore, if the child of an attain'^ed fa- 
 tiicr may have been naturalized by the 
 Aft of Anne, he may alfo be naturalized 
 by the ftatute of Edward III. But it 
 may be urged, tiiat without certain con- 
 ditions
 
 ( 99 ) 
 
 ditions mcntioneJ in the 4lh of* George 
 II, he fliall not be naturalized by the yth 
 of Oiiccn Anne. 
 
 To this 1 anf\ver, that the real truth 
 is : thefe conditions do not give effect to 
 tlie general Law, but the want of them 
 creates tlic exceptions, svhich the 4th of 
 King George II, has attempted to make 
 cut of the general Law. For a condi-^ 
 tion to controul the Law, it muft be 
 fmiultaneous with, or prior to the ope- 
 ration of the Law. Here, the Law ei- 
 ther operates upon the child at the in- 
 ftant of his birth or not at all ; and it 
 would be too abfurd to lay, that the 
 -death of luch child within the dominions 
 of our King, or his receiving one penny 
 rent, or his profcfling the protellant re- 
 ligion, or any inch condition twenty 
 years after his birth, fliall affe6l the ope- 
 ration of the Law at the inftant of his 
 birth. " For the Law looketh not 
 " back, and therefore, cannot by a m?.t- 
 '* tcr ex pop: facto after birth alter the 
 " ftate of birth : wherein no doubt the 
 " Law hatli a grave and profound rea- 
 N 2 • *' fon 

 
 C 100 ) 
 
 " Ion, which is this in a few words, 
 " Nemo jnhito fingitur : aliiid ej} naj'ci^ 
 ^^ aliud fieri{^a)J' For it is an obvious qnef- 
 tion before the happening of fuch con- 
 dition ; was fuch child an alien or a natu- 
 ral born liibjet^? The very words of 
 the Avfl give a full anfwer, by which 
 fuch a child is declared to be, and to 
 have been a natural born fubjeft. For, 
 if he were naturalized by virtue of a 
 condition Jubjeqiient to his birth, he could 
 not have been a natural born fubje£l of 
 this country, though he might be natu- 
 ralized in it. *' It appeareth that there 
 *^ be but two conditions by birth, either 
 " alien or natural born, nam tcrtium pe- 
 " nitus ignoramus (b^ ." Thus is it clear 
 as a firfl principle, that if the child of an 
 attainted father, born abroad, be natura- 
 lized by the general Law of the realm, 
 lie mufl have been naturalized at the in- 
 ftant of his birth. And furely no man 
 
 will 
 
 {a) Bacon' ubi fupra. 
 {b) Ibidem.
 
 ( lOI ) 
 
 will ferioufly pretend, that the receipt 
 of one penny rent for a tv/elvemonth, 
 fliall convert an aUen into a natural born 
 fubje£t. For what is it to be natura- 
 lized ? It is the raifing of the relation of 
 Sovereign and fa bjedt, between our King 
 and an individual. It is invefting the So- 
 vereign and ftate with a right to com- 
 mand the fervices of the perfon natura- 
 hzed, and intitling the fubjedt to the 
 protcdtion and benefit of the Sovereign 
 and Laws ; which relation is fo highly 
 eftimated in this country, that the Laws 
 and conftitution have not even entrufted 
 his Majefty with the power of creating 
 it. It is referved lolely to the Legifla- 
 ture. It can never then be ferioufly fup- 
 pnfed, that by the death of an individual 
 within the dominions of the Crown of 
 Great-Britain, this relation fiiall arife 
 after death, which did not exift during 
 life ; or that the receipt of twelve pence 
 yearly rent fliall beflow that benefit, 
 which the King in the plenitude of his 
 prerogative cannot confer. The more 
 we confider this matter, the more glar- 
 ^ 3 injr
 
 ( 102 ) 
 
 ing does this tnith appear, tlvat by the 
 Law of England, the attainder of the 
 father dc^cs not make his ch.iKl born a- 
 broad an alien. For if it did, fuch fab- 
 fequent contingent, fortuitous conditions 
 could not by polfi'.nhty alter the Law: for 
 flo matter ex poft fado after birtn, can 
 alter the ftate of bix'th ; and ( very lub- 
 je£l muft be t\l\\CT Juklitus natus, or fub'' 
 ditus faCliu. The iirft he never can be, 
 if the attainder of his father makes him 
 an alien ; for he that is alien, is not a 
 fubjeft. The fccoud he cannot be, un- 
 lefs he be naturalized by Parliament, 
 during his life : and this ex conftffo 
 he was not, becaufe the ctfTation of his 
 life, confequently of his fubjeftion, is the 
 commencement of his naturalization ; from 
 which, the evident and concluiive infe- 
 rence is, that the attainder of the father 
 does not make his child born abroad, an 
 ahen. For here fuch a child is declared 
 by Parliament, to be, and to have been a 
 natural horn lubjeft, that \% fuhditus natus, 
 notwiihflanding the attainder of the fa- 
 tlicr. Nor is there a pretext to fay, that 
 
 he
 
 ( 103 ) 
 
 he was made a fubjcft by tlic 4'-h of 
 Ge' rge il: for he is particularly declared 
 t'> ha\ e been ib, from the pafTing of the 
 7rl» of Ojieen Anne, until the palling of 
 thi 4th of George II. As thefe condi- 
 tions are m nti )iie<i in the 4th of King 
 George JI, I nay be called upon to (hew 
 the ed'ed th'^y prod ice ; for it will btf 
 urged that every ftatut/ miifl: operate in 
 feme manner. I anfwer, firft, that feve- 
 ral A.ts of Parliament have been holden 
 and Iblemnly determined to be ineffe<flual, 
 inoperative, and repugnant in toto^ as 
 wtll as /;/ parte. Secondly, that the Par- 
 liament in 1731, when in the laft ftretch 
 of their omnipotency, they enafted an 
 ex poft fado difabling Law (for fuel) cer- 
 tainly was the fecond claufe of the 4th 
 of George II,) they alfo annexed certain 
 conditions, to which they gave a retro- 
 fpeftive operation upon fome of the chil- 
 dren of natural born fubjefts comprized in 
 the yih of Oiieen Anne, whom they 
 thereby excepted out of it. For, if we 
 reduce the fenfe of the 4th of King 
 George II, into plain common language, 
 
 and
 
 ( 104 ) 
 
 and ftrip it of its technical form and order; 
 we fliall find, that it merely enadcs, that 
 being the child of an Englifliman fuffices 
 to mal^e a peribn a natural born fubjett, 
 under the 7th of Oiieen Anne ; but it 
 does not fay, that being the child of an 
 Englifii vvoman fuffices not. It then de- 
 clares, that fuch children of attainted fa- 
 thers were included in the 7tli of Anne, 
 who fliould have complied with the 
 conditions, or been found within the cir- 
 cumftances mentioned in the third claiife 
 of the Ad. But that all other children 
 of attainted fathers diould not be natura- 
 lized by the 7th of Oiieen Anne; yet, 
 if they could prove themfelv^es to be na- 
 turalized by any prior Law, that they 
 fliould then be natural born fubjects, as 
 much as if they had been naturalized by 
 the 7th of Anne. Hence it is clear to 
 demonftration, that the Legiflature in 1 7 3 1, 
 avowedly confefTed and declared, that 
 the attainder of the child's father was not 
 a circumftance in the eye of the Legifla:- 
 tnre in 1708, and that the words of the 
 7 th of Ouecn Anne did extend to make 
 
 fuch
 
 ( i°5 ) 
 fnch children natural born fubjeftJi 
 Though afterwards in the year 1731, for 
 particular private reafons, they thought 
 proper to alter the Law in future, by the 
 4th of George II; but yet they would 
 not give thefe alterations a retrofpevSlive 
 operation, but under certain conditions, 
 that is, they w^oukl permit only fuch 
 children of attainted parents to be retro- 
 fpeftively excluded from the benefit of 
 Oiieen Anne, who were not under any 
 of the circumllances mentioned in the 
 third claulb of the A£l of George II. 
 Therefore it is not within the ingenuity 
 of man to prove, that the attainder of 
 the fatJicr is the reafon, why the words 
 of Queen Anne did not extend its effeds 
 to his child born abroad ; for, a fla- 
 tute cannot by pofTibility include one 
 perfon, and exclude another perfon, by 
 reafon of a circumftance common to both. 
 If then two children of one attainted fa- 
 ther, arc both born out of the dominions 
 of our King, it is demonflrative, that one 
 of them cannot be a nalnral horn fubje^l, 
 and the other an alien, by virtue of the 
 O fame
 
 ( io6 ) 
 
 fame ftatute, unlefs by rcafon of fome cir- 
 cumftance or condition, by which they 
 differ from each other. We will fuppofe 
 two twin brothers to have lived from 
 the year 1709, till the year 1730: the 
 attainder of the father, the place of birth 
 and every enfuing circnmftance of their 
 lives were common to both; the one died 
 at Madrid, the other at Gibraltar; by 
 the flatute of Oueen Anne, the one is a 
 natural born lubjeiSl of England, the o- 
 ther an alien. And why ? but by reafon 
 of fome difference between them; and 
 the only difference was the place of their 
 death. Or fuppofe, that both thefe twin 
 brothers had gone to Ireland to vifit 
 their relations, and after the death of 
 their mother, the elder of them had re- 
 ceived the yearly rent of fivefliillings for 
 a houfe, which had belonged to their mo- 
 ther, and after her death they had both 
 returned to, and died in the fame year 
 at their native home at Madrid ; yet, by 
 the 7th of Qj-ieen Anne the elder was a 
 natural born fubjcd; of Great-Britain, and 
 the younger an alien; and this wonderful 
 
 dif-
 
 ( 107 1 
 
 difference in the operation of tlie flatute 
 upon each of tliem is produced by the 
 receipt of five (Inhings, which were paid 
 by the mother's tenant to her eklcfl 
 Ion. 
 
 I am at a total lofs how to treat this 
 flatute of George II with the refpedt 
 due to every Act of the Legiflature, and 
 to fpeak of it with that freedom, which 
 the inveftigation of truth requires. Such 
 certainly are the conditions, to which that 
 Adl annexes the effecfts of the 7th of Queen 
 Anne. Be it to others to conclude upon 
 their force and efficacy, in controuling it; 
 be it alfo to them to adlgn the reafon either 
 of equity. Law, Juf{:ice or common fenfe, 
 why the Legiflature declared and enadled, 
 that the words of Queen Anne children 
 ef ail natural born fubjcClSy fliould have 
 operated one effect for twenty-four years 
 rucceflively, and then ccafc to operate that 
 fame effedl. It is impoflible for any man 
 to point out a fmgle word of that claufe 
 of the 7th of Qiicen Anne, which Hiil re- 
 mains unrepealed, that has borne a diffe- 
 rent import, fcnfe, meaning or efFe£t, fmce 
 O 2 the
 
 ( io8 ) 
 
 the 5'ear 17 31, from what it bore in tlie 
 year 1730. To fpeak with piopriety, it 
 mufl: be allowed, that the ftatute never 
 could have produced an effect contrary to 
 its words, fpirit or intention : and it 
 muft alfo be allowed, that the Aft muft 
 for ever continue to produce the effetls 
 of its words, fpirit and intention, until 
 it be repealed. But every confideratloa 
 is fvvallowed up in the fathomlefs gulph 
 of Paiiiamentary power. The Legifla- 
 ture has manu fvrtijjima interpofed, and 
 declared that on the twenty-fifth day of 
 March in the year 1731, the unrepealed 
 claufe of the 7th of Oiieen Anne fhould 
 not reach the children of attainted 
 fathers, as it had done from the time of 
 its paffing until that day. "What can be 
 faid of fuch a flatute ? A Domino fadlmn 
 ejl illud, <& eft mirahile in ocuUs noftris. 
 The unfortunate children of attainted 
 fathers, born in foreign parts fince Lady- 
 day 1 731, are certainly cftopped from 
 claiming the benefit of the 7th of Queen 
 Anne; and in defiance of the niofi con- 
 dufive argument?, muft groan under 
 
 the
 
 ( I09 ) 
 
 the piteous couiblation of plcduntttr 
 ^chivi. 
 
 '1 here will be no difficulty in admit- 
 ing the nccrility of the 4th of George II, 
 in order to make it known and certain, 
 how long a time, and for what reafons, 
 and under what circumflances, and upon 
 what conditions, the child of an attainted 
 father born abroad, was a natural born 
 fubjcft of this country: for certainly 
 without the aid of this (latute, it would 
 have been a difficult tafl<, to alledge the 
 realbn, w hy a perfon dying at London 
 on the 24tii day of March 17 31, would 
 have been a natural born fiibjeft of 
 England to all intents and purpofes 
 whatioever; whereas if he had continued 
 to linger on his death bed till the 26th 
 of tlic fame month, he would have been 
 an alien. 
 
 If then, it were neccITary to befo very 
 particular in marking the number of 
 da} s, during which thefe conditions were 
 to operate ; and the fame Parliament 
 thought it proper to declare in exprefs 
 tenriw';, that they ihould not in any man- 
 O 3 ncr
 
 ( "0 ) 
 
 ncr affect a prior claim to naturalization; 
 1 may be free to fay, that no perfon will 
 be fo grofsly ignorant, as to annex the 
 benefit of the 25th of Edward III, to 
 the condition of perfbns profelling the 
 proteflant religion, or fo extremely ab- 
 furd, as to make its efl'e^ls depend upon 
 the death of the perfon within or with- 
 out the kingdom, or his having received 
 rent for one year, or fold, or fettled a 
 landed eftate in this country. 
 
 Whatever then may be the title of 
 the 4Lh of King George II, it is clear 
 to demonilration, that it is not an ex- 
 planatory ftatute, for that effcntially can 
 ena£t nothing new. Now, the effect pro- 
 duced by the 4th of George II, which 
 could not be known or afcertained by 
 the common Law or any prior ftatute, 
 muft be fomething new. It need not be 
 argued, that a perfon's dying in the' fame 
 place, or receiving five fliillings rent, 
 on the twenty-fourth or twenty-fixth 
 day of the fame month, was a fadt, upon 
 which the difference either of a natural 
 hornfubjed or alien depended at common 
 
 Law,
 
 ( 1" ) 
 
 Law, or by any prior flatute ; there- 
 fore it is conclufive, that the ^th of 
 George II is a new Law; and as far as 
 is adeth retrofpedively upon the yth of 
 Qiieen Anne, it is certainly an ex pojl 
 fado Law ; and being in this refpedt dif- 
 abling and reftraining, and in its nature 
 penal, by extending the piinifliment of 
 high treafon, cannot according to the 
 Law and conftitutioii of England, be 
 binding upon the fubjedt. 
 
 If therefore the ftate, plight and con- 
 dition of a perfon born in foreign parts, 
 whofe father was attainted at the time of 
 his birth, fince the pafflng of the yth of 
 Oiieen Anne, is to be confidcred and 
 afcertained ; and fuch child be not found 
 within any of the conditions of the third 
 claufe of George II, (for then he is 
 thereby declared to have been a natural 
 born fubjed); we are cxprefsly directed 
 by the fccond claufe of the fame Act, 
 to confidcr in what ftate, plight and 
 condition he would have been, if the 
 7th of Qj.ieen Anne had never pafTed : 
 and this brings us to the firft confider- 
 
 ation
 
 ( n^- ) 
 
 ation, from which we fet out, which is 
 this iiiigie quertion, is an Englijhman 
 attainted, at the ligeance of the King of 
 England f The 4th of King George II 
 has declared, that his child, is the child 
 of the King's fubject, and therefore was 
 naturalized. It remains for thofe, who 
 •would oppofe the claims of fnch children, 
 to prove, that there is that degree of 
 difference between two perfons, the one 
 a fubjeCI of t lie King (f England, and the 
 other, at the ligeance of the King of 
 England, that the child of one fliall be 
 an alien, under the fame circumftance, 
 under which the child of the other fliall 
 be a natural born fubjeft. For, if w^e 
 lay out of the cafe, the conditions con- 
 tained in the third claufe of the 4th of 
 George II, none of which are certainly 
 applicable to the 25th of Edward III, 
 we immediately bring it to the fmiple 
 queftion I before mentiomd, is an 
 attainted EnglifJiman at the ligeance of 
 the King of England f 
 
 The only point which remains to be 
 difculled, is, whether a peifon naturalized 
 
 by
 
 ( I'S ) 
 
 by the Law of England, is thereby made 
 capable of inheriting through every 
 part of his Majefty's dominions. It is 
 an eftablifhcd principle of our Law, that 
 there is no difference between a perfon 
 born in England, or of Englifh parents, 
 it 7natters not by the Law of England 
 whether parents or birth: and Lord Bacon 
 alfo fpeaking of this degree of natural 
 born fiibjedts, fays, *^ they are complete 
 " and entire: for in the Law of England, 
 " there is nil ultras But the child of 
 Englifli parents born abroad, is not com- 
 plete and entire, if the allegiance, which 
 accrued to him by his birth, does not 
 entitle him to the fame rights, which he 
 would have enjoyed, had he been born 
 within this realm, and it would then be 
 falfe, that in the Law of England tertium 
 penltus ignoramus. Therefore as a child 
 born in England is inheritable in Scotland, 
 and every part of his Majefty's dominions, 
 fo alfo is a child born of Englifli parents. 
 For in what is this general inlurltable 
 capacity founded I Certainly in the bonrl 
 of allegiance, that iubfifls between the 
 P fubjea
 
 ( fi4 ) 
 
 fubject and the Sovereign. For this capa- 
 city is co-extcnfivs with the allegiance : 
 wherever th© latter reaches, the former 
 arifes. So a peribn born nt Dublin, is 
 inheritable in Scotland or Jerfey, becaufe 
 the bond of allegiance fubfifls between 
 him and the Sovereign of Scotland and 
 Jerfey. It is then true, that whoever 
 is born at the ligeance of the King of 
 England, is inheritable through all his 
 dominions : nor is it neceffary, in order 
 to be born at his ligeance, that he-. 
 fliould be born within the local territorial 
 allegiance of the King of England. A 
 perfon born out of the realm may be 
 born under the obeyfance of the King 
 of England; for, as Lord Bacon faith, 
 " the Law of England, for matters of 
 *' benefit or forfeitures in England,. 
 " operateth over the whole world (a)." 
 And as an inflancc of the truth of thfs 
 aflertion, he puts the cafe of a perfon 
 naturalized by the 25th of Edward III, 
 
 who 
 
 (a) Argumt. upon Calvin's cafe.
 
 ( 115 ) 
 %vho though born out of the territory of 
 England, was born under the obcyfance 
 of the King of England : " and therefore, 
 continues he, " it is utterly untrue, 
 *' that the Law of England cannot oper- 
 " ate or confer naturalization, but only 
 *' within the bounds of the dominions of 
 " England." This dodlrine was laid 
 down in Calvin's cafe, in direct anfwer 
 to the following objeftions, which em- 
 phatically fhew^G, how diredly it applies 
 to ourprefent purpofe: " It was ohjc^ed, 
 " that the priviledge of naturalization 
 *' followeth allegiance ; and allegiance 
 " followeth the kingdom ; that natur- 
 " alization is an operation of the Law 
 " of England ; that the Law of ILngland 
 " is of force only within the kingdom 
 *' and dominion of England, and cannot 
 "■ operate, but where it is in force. But 
 " the Law is not in force in Scotland, 
 ^'f therefore, &c. («)." 
 
 P 2 What 
 
 {a) Bacon" uh: fap-a.
 
 ( >"5 ) 
 
 V» hat Lord Coke and Moore have faid 
 in their rclpedive reports of Calvin's 
 cafe, flieu's alio howthefe obje<R:ions were 
 forcibly put, efpecially noticed, and fully 
 anfwercd by the Court. *' Ligeance or 
 *•' obedience without any place within 
 " the King's dominions may make a. Jhb- 
 jed born{a)." The Judges faid, with one 
 affcnt, '* that Allegiance and Laws were 
 ** notofequiparation (/>)." And the Judges 
 did infer, " That out of the allegiance, 
 '^ and within the allegiance of the King 
 *' (jidcs beiiig to be underdood allcgi- 
 *' ance) maketh the odJs between an 
 " alien and a denizen, and not the place 
 " of birth in England or ivithout Eng- 
 " land." 
 
 The determination of the grand point 
 in Calvin's cafe, was, that every pcrfbn, 
 who was born at the obeyfance of the King 
 of England, was inheritable throughout 
 every part of his Majefty's dominions. 
 
 k 
 
 {a) Coke uhifupra, 
 (h) MocrlfE, go.
 
 ( ■>? ) 
 
 It certainly was the Law of Scotlancf, 
 that nopeiTon born cut of the kingdom of 
 Scotland was inheritable within the king- 
 dom of Scotland : but vet the dccifion of 
 that cale placed the matter out of all 
 doubt ; and Lord Ellesaiere after fully 
 anfwering the objeclion founded in the 
 ditlcrcnce of the Scotch from the En^r- 
 lifli Laws, fays, '' But touching the fcve- 
 *^ ral Law^s, 1 fay, that fevcral Laws can 
 " make no dilFeience in matter of fove- 
 *' reiguty, and in the bond of allegiance 
 *' and obedience to one King ; and fo it 
 " concludeth nothing for the point in 
 " queftion(rt)." Then enumerating the 
 different parts of the King's dominions, 
 which were or had been governed by 
 different Laws, he thus concludes. " So 
 " I will conclude for this point, that di- 
 " verlity of Laws and Cufloms makes no 
 " breach of that unity of obedience, 
 *' faith and allegiance, which all liege fub- 
 " jetls owe to their liege King and '^o- 
 P 3 " vereign 
 
 (^7) Argument upon Calvin's cafe.
 
 ( ii8 ) 
 
 *' vereign Lord. And as none of them 
 *' can be aliens to the King, fo none of 
 *' them can be aUens or flrangers in any 
 " of his kingdoms or dominions, nor a- 
 •' Hens or flrangers one to another, no 
 " giorc than a Kentifli man to a Chefliirc 
 *■' man ; or e cojitra. 
 
 It being then neither cislum nor folum^ 
 that conflitutes obeyfance to the King, it 
 follows that wherever that exifls, there 
 alfo exifls the relation of Sovereign and 
 fubjedt between the perfon, who owes 
 it, and the Sovereign to whom it is due. 
 It does not then become a queflion, how 
 did this relation arife ? But does it 
 exift ? If it does exift, it mufl necefTarily 
 capacitate the fubje£b to inherit through 
 all the dominions of that Sovereign, to 
 whom he owes obeyfance. So I take it 
 to be clear, that if a perfon born fmce the 
 acceflion of the Crown of Scotland, fhould 
 claim an inheritance in Scotland, that lie 
 would eflablifli his capacity of inheriting, 
 by proving himfelf to be a natural born 
 fubjedl of England from the inflant of his 
 birth. For it was folemnly holden, that 
 
 a per-*
 
 ( "9 ) 
 
 a perfon cannot be born ad fidem Rcrrit 
 Aiiglie, and an alien to the King of Scot- 
 land ; but if the father and mother of 
 llich perfon born abroad, where at the 
 faith and figeance of the King of England 
 at the time of his birth, he was natus ad 
 fidcm Regis Avglice : therefore he cannot 
 be an alien to the King of Scotland. For, 
 fays Lord Chancellor Ellesmere, '^ Can 
 ** any man be a true fubjedl to King 
 " James as King of England, or a traitor 
 " or rebel to King James, as King of 
 •' Scotland(rt)." And in the fame argu- 
 ment he fays, '' It is clear pojl nati in 
 *' England are now capable and inherit- 
 *' able in Scotland, though fome have 
 " made a caufelefs and needlefs doubt of 
 "itCZ-)/' 
 
 Whatever 
 
 ^ - « 111 I I ■ ^ ■ III! ■ I 
 
 (tf) Ellesmere uhi fupra. 
 
 {h) Although this rcafoning appears unexception- 
 able and conclufive : yet it is a matter of un- 
 accountable aftoniftiment to me, that in pradicc 
 it feems to be univerfally exploded. Iprofefs 
 never to have converfed upon the fubjeft with 
 wnc Gentleman of the profeCion, who did not 
 
 iooiL
 
 ( 1=0 ) 
 
 Whatever might be the doubt con- 
 ccriUDg- the capacity of a pcifon capable 
 
 of 
 
 look upon a Hanoverian as an alien. The non 
 ndmiffion of rheir votes in the prefent memora- 
 ble Weftminfler fcrutiny, is the ftrongelt in- 
 ftance of this general idea. No objedlion is 
 made againft the votes of Guernfey and Jerfey- 
 men : and I have hitherto in vain tortured my 
 mind, to difcover the legal difference between 
 them. For certainly the diftance of time, at 
 which the two countries refpeftively became 
 fubjeft to the King of England, cannot polfibly 
 operate a difference, if during that intermediate 
 time, the Law of England remained unaltered. 
 Thefc iilnnds (being a p.irt of our Norman 
 pofleffions) are, as well as Hanover, " ill:, a 
 *' feperate and dillinft country from England. 
 " 2dly. Inherited by fcveral and diliinft titles. 
 *' 3dly. Governed by feveral and difiinft niuni- 
 *' cipal Laws. 4thly. Out of the extent of 
 *' the great feal of England, and the jurifdiftion 
 *' of the Chancery of England. 7 Rep. 19." 
 And our ancient Law books particularly fay, 
 that there is no difference vvlicther a country 
 became fubjed to our King by co)iqucJl or by 
 marriage : as Normandy, and Ireland did by 
 the former, and Gafcoigne and Aquit;.iiie l-y tlie 
 latter: *' for unity and allegiance to one King, 
 *' takcth r.v.-ft}- the rule of alien born from thein
 
 ( '^t ) 
 
 of inheriting in England, to take an eftate 
 in any other part of his Majelly's domi- 
 
 nions, 
 
 " all, houfocver they were united, be it by ir.ar- 
 " riage or conqueft. Moore2oo." If the cafe of 
 Calvin hath any force, as a judicial declfion, it 
 cannot be queftioned, whether fince the accefTion 
 of the prefent family to the throne of England, a 
 Hanoverian be capable of inheriting lands in 
 England. But fuppofing, that the cafe of 
 Calvin never had been determined, or fup- 
 pofing, that ( having been determined ) It had 
 never been quoted, or admitted as Law by any 
 Court of Juftice fince Its determination : yet 
 would the judgments, and books of our Law, 
 prior to the union of the Crowns of England 
 and Scotland prove beyond a doubt, the In- 
 heritable rights of the Hanoverlaas in England, 
 fince the union of the Eledorate and Crown of 
 England in one perfon. For to fay nothing 
 of the cafe of the Prior of Chelfey, and feveral 
 other cafes In the year books, and of the au- 
 thority of Bracton, Britton, Stamford, 
 &c. &CC. We cannot want any higher authority, 
 than the exprefs Ad 17th of Edward II, c. 12. 
 to prove that Normans were Inheritable in 
 England : and the 13th of Henry IV, to prove 
 that the inhabitants of Guienne i<.'cre enahkJ 
 fubjc^s as Euglijhmen. Cotton's Ab. 480. 
 And in what does King George III, as King 
 Q^ of
 
 ( 1^2 ) 
 
 nions ; yet the Parliament of Scotland 
 has particularly provided againfl the doubt 
 
 with 
 
 of England and Elecflor of Hanover, differ 
 from Henry HI, King of England and Duke 
 ofAquitaine? Both unioni arofe from marriage, 
 and the fovereignty of both countries refpec- 
 tively became veiled in each of them after an 
 equal number of defcents from that union. 
 
 There feems to have exifted for many cen- 
 turies in this country, a fort of hereditary doubt 
 about the admiflion of any other, of his Majefty's 
 fubjeds, befides Englijhmcn, to the enjoyment 
 of the Laws of England. Thus, fo early as 
 in the year of our Lord 1368, viz. in 
 the forty-fecond of King Edward HI, 
 *' The Commons defired, in Parliament, that 
 " children born beyond feas, within the feig- 
 *' nories of Calice and elfevvhere, within the 
 " lands and feignories, that pertain to the 
 *' King beyond feas, might inherit in England; 
 *' whereto the anfwer is : it is accorded, that 
 " the common Law, and the flatute, upon 
 *' the fome point another time, may be holden. 
 *' The Judges examining what that flatuie was, 
 *' found it was the 25th of Edward HI, de 
 " natis ultra mare^ t5)C. So as that flatute 
 *' directs not this controverfy, and therefore 
 " it muft be the common Law, that doth it, 
 *• whereto the ftatute of the forty-fecond of 
 
 " Edwari>
 
 ( 1^5 ) 
 
 with rcfpecTi: to the kingdom of Scotland, 
 by an Act palTed in the year 1607. 
 "I'he Aft confifts of two diftinct parts, the 
 one abjolutc, the other conditional. The 
 conditional -p^-Vt was to naturalize all Eng- 
 glifli fubjetls born before the acccffion, 
 upon condition of the Englifli Parliament 
 naturalizing all the antenati of Scotland. 
 The abfolute part of the AiSt declares, the 
 Q, 2 Englif/i 
 
 '• Edward III, doth refer concerning thofe 
 *' born at Calice, and other fcignories beyond 
 *• feaSj that pertain to the King; which perfons, 
 " liaving been ever expounded to inherit ia 
 " England, it muft needs be taken, that they 
 " inherit by the common Law, and not by 
 " liatute." Moore 800, 801. Whoever confiders 
 this legiflative declaration of the common Law, 
 after a confultation with the Judges of the land, 
 will not hefitate to join with the unanimous 
 voice of the Judges in 1606, in declaring, 
 that a Scotch fubject of our King was at leall 
 intitled to as much benefit in England, as a 
 Norman, Gafcoigne or Calefian. Nor have 
 I ingenuity enough to prove, that Hanover 
 does not con fill of lanJj ami fcignories^ that 
 pertain to the K'nig b<yoitd fcas ; and the flatute 
 declares, that perfons there born may inherit 
 in England by common Law.
 
 ( 1=4 ) 
 
 Krv^l'lfh born fmce the death of Oiieeii 
 Elizabeth to be natural born fubjedls 
 of Scotland ((-'). Now fuch perfons were 
 Englidi, who were capable of inheriting 
 in England. But by virtue of the 25tli 
 of Edward III, (or by common Law, 
 according to moft authors) children born 
 abroad of father and mother Englifli, 
 were capable of inheriting in England, 
 therefore they were thereby made, or 
 declared to be fubjefts of Scotland. 
 
 I will for illuftration fuppofe a cafe, 
 and propofe a queftion thereupon. Before 
 the union, a Duke of Richmond, who 
 was alfo Duke of Lenox in Scotland, 
 was fent EmbafTador to Paris, where his 
 Lady was delivered of her eldcfi: fon. 
 Such fon, by the Law of England, is 
 avowedly as mucliEnglifh, as if he had 
 been born in London. Would he not alfo 
 have been capable of taking the title of 
 Lenox and other eftates in Scotland ? 
 Several Englifli families have been en- 
 
 obled 
 
 {a) Unpriiucd Ads,
 
 ( 125 ) 
 
 obled by Scotch Peerages, without ihc 
 pofTeffion of an inch of land in Scotland. 
 The Lady of fnch a Peer, before the 
 union, by her Lord's defire went to the 
 German Spa for her health, and was 
 there delivered of a fon. Shall it be 
 fcrioufly contended, that fuch a fon would 
 be inheritable to his father's eftates in 
 England, and incapable of taking his 
 father's title, becaufe by the Law of 
 Scotland, a perfon born out of the realm, 
 is incapable of taking an inheritance 
 within it ? And I may fay with Lord 
 Ellesmere, " It is enough to propound 
 " thefe and fuch like queflions, whereof 
 *' many more might be remembered ; 
 " they carry a fuiticient and plain an- 
 " fwer in themfelves : magis docet, qui 
 '' prudenier intcrrogat {a)." 
 
 Whatever donbt there might have 
 
 been upon this matter before the union 
 
 of the two kingdoms, in the reign of 
 
 Qtieen Anne, it is totally done away, by 
 
 0,3 the 
 
 («) Ellesmere ubl J'upra,
 
 ( 126 ) 
 
 the 4th article of the union, by which 
 there is eftabliflied a mutual communi- 
 cation of all rights between the lubjects 
 of the tv.o kingdoms. So that a perfon 
 cannot by poifibility hnce the union, be 
 a fubjeft of one kingdom, without being 
 a fubjecl of the other: for they are now 
 but one kingdom. It is therefore clear to 
 demonilration, that if the s^th of Ed- 
 ward III be unrepealed at this hour, 
 a perfon born abroad, at a time when his 
 father and mother were at the faith and 
 Jigcance of the king of England, is by 
 that lUtute made capable of taking the 
 inheritance of his anccftors within the 
 fame ligeance. Scotland is not onlv with- 
 in tlie fame ligcance, but aiStually one 
 and the fame kingdom. And therefore, 
 as to the general capacity of inheriting, 
 it would be an infult on common reafon, 
 and a violation of truth to fay, that it 
 C(;iild exifl in a perfon as to England, 
 and not as to Scotland -, for it might as 
 well be faid, that one and the fame perfon 
 was capable of taking an inheritance in 
 Kent, but not in Herefordflurc. The 
 
 rules
 
 ( 1^7 ) 
 
 rules and method of taking by dcfcent, 
 are indeed diiicrent in England and in 
 Scotland; To are the tenures of Burrougli 
 Englifli, and Gavelkijid ; yet this difference 
 cannot afrc<fi: the gencFal capacity, which 
 in the inflance under our prelent con- 
 fideration, confifts in not being an ahen 
 in that country, where the eilate lies. 
 
 Arguments fuppcrted by indifputable 
 proofs and unexceptionable authorities, 
 will always have their full weight and 
 influence on the judgment of the candid 
 and impartial. Reafon will direct their 
 opinion, and integrity will prevent that 
 opinion from wavering under popular 
 prejudice, which often floats on the fur- 
 face of the mind, but is quickly removed 
 by reflection : and I can therefore have 
 no doubt, but that every perfon, who 
 has attended to the authorities, which I 
 have produced, and has entered into the 
 true fpirit, indeed I may fay the plain 
 meaning and direiTtion of the ftatutes, 
 I have cited in fupport of my opinion, 
 will agree, that the child of two Englifli 
 parents born out of the dominions of the 
 
 King
 
 ( i=S ) 
 
 King of Eno land, though his father was 
 attainted of high trcafon at the time of 
 his birth, was before the 7th of Oueen 
 Anne a natural born fubjedl of England, 
 and that therefore he is exprefsly de- 
 clared by the 4th of George II, to be fuch 
 at this day. It may not be unacceptable to 
 fuch of my readers, who incline to turn 
 this matter more ferioufly in their own 
 minds, to know the hiftorical combination 
 of circumdances, which created the con- 
 fufion contained in the 4th of George II. 
 Many reafons will arifc out of this know- 
 ledge, which may carry ftronger con- 
 viftion to the minds of fome individual?, 
 than all that hath been, or can be faid 
 upon the fnbjeft. 
 
 In or about the year 1731, a foreign 
 Lady, being the wife of one of the chief 
 fupporters of that party, which was not 
 then in the adminiftration, was delivered 
 abroad of a fon, who now is a Peer of 
 this realm. The party were very ill ad- 
 vifed, that this child was by Law an 
 alien : and that although he fliould be 
 naturalized by Parliament, yet could he 
 
 never
 
 ( 129 ) 
 
 never be adn.itted either to a feat in the 
 rioufe, or to any office of trull under 
 Government. They were fenfibic, that 
 the lofs of a family of fuch ponfequcncc 
 would be a confiderable abatement of 
 their intercfl, and accordingly procured 
 the confent of the Minilter, to bring 
 in a bill, which fliould fo explain the 
 7th of Oiiccn Anne, that it fiiould cx- 
 prefsly take in the cafe of the child, I be- 
 fore mentioned to have been born abroad. 
 And this, in fadl, was the only reafon, 
 why tlie Legifiature found it cither ad- 
 vifeable or neceifary, to give any expla- 
 nation to thole plain, obvious, and un- 
 equivocal words of the yth of Qjieen 
 Anne, children of all natural hornfuhjeds. 
 And therefore the particular effecft iri- 
 tendcd to be produced by this firft claufe 
 of the 4th of George II, was to extend 
 without a doubt, the effeiTts of the 7th 
 of Queen Anne to that particular cafe. 
 This explanation therefore never can be 
 faid to have fo narrowed the opeiation 
 of that flatute, as to exclude the children 
 of Englifli mothers from its benefit. For 
 R a
 
 ( -3° ) 
 
 a mere pofitivc declaration, that one 
 perlbn is included in a ftatute, is no 
 declaration that another is excluded 
 from it. 
 
 In the fame year 1731, died Mr. John 
 Radcliffe, a minor, who was tenant in 
 tail male in poifeffion of ail the Derwent- 
 water cftate?, by v.hofe death without 
 ilfue male, Mr. C. Radcliffe, his uncle, 
 became under one fettlement tenant in 
 tail male in poffeifion of one part of thofe 
 eftates, and under another fettlement, 
 tenant for life of the remaining part of 
 them. Mr. Charles PvADcliffe being 
 attainted of high treafon, all his interell 
 was forfeited to the Crown : he then 
 had two fons born, by the Countefs of 
 Neweurgh. The unexpefted death of 
 Mr. John Kadcliffe had thrown this 
 large ellate into the hands of Govern- 
 ment ; and the Attorney Genera!, we 
 mufl conclude, from an official zeal, to 
 perpetuate to Government, as well the 
 poffeflion of that part of the cfcate, which 
 was forfeited for the life of Mr. Charles 
 Radcliffe, as of that, which became 
 
 vefted
 
 ( '31 ) 
 
 vcfled in the Crown in fee fimplc by tlic 
 forfeiture, advifecl the fecond cla ufe of 
 the A(^, as the only means of exchiding 
 the legitimate ilfue of Mr. Charles IIad- 
 CLIFFE from taking under the family 
 fettlement, as iiTiie in tail, that part of 
 the eflatc, of which their father was 
 tenant for life. The then majority of 
 the houfc had an obvious reafon for 
 pafllng the clanfe : tlic minority having 
 brought in the bill for their own parti- 
 cular purpofes, would not objec^l to it, 
 for fear of lofmg their bill ; thus it paffed 
 the Houfe of Commons without any 
 oppofition. By the time it had come up 
 to the Hcufe of Lords, feveral children 
 born abroad, whofe fathers were at- 
 tainted of high treafon, though they 
 themfelves profeffed the proteftant re- 
 ligion, and had been admitted into the 
 polTeffion of family eftates, as natural 
 born fubjc£ls, procured intereft enough 
 to be exempted from the retrofpedtivc 
 effedts of this ex pcjl fadlo'L?i'W^ and there- 
 fore by the third claufc, which was an 
 amendment of the original A6V, tliey are 
 K 1 declared
 
 ( 13^ ) 
 declared to be, and to have been natural 
 born fiibjcfts to all intents and purpofes 
 ■whatfoever. TIius it is clear, that three 
 diftin(ft fcts of perfbns, were properly 
 the framers of this ftatutc: each of them 
 had a fepcrate and diftincl view of felf- 
 interefl in its palling, to which folely 
 they attended. The improving or afcer- 
 taining the Law of the Land, could not 
 have entered the thoughts of any one of 
 them; fince they avowedly declined de- 
 termining, what the Law was, prior to 
 the 7th of Oiieen Anne, being either 
 grofsly ignorant of, or willfully inatteu^ 
 tive to its effeifls. 
 
 In the courfe of the laft feffion of 
 Parliament, an obfervation was made, 
 by perhaps the firfl legal and political 
 character of this or any other age ; that 
 individuals, to ferve a particular purpofe, 
 frame bills, without the flightefl know- 
 ledge of the Law, which they mean to 
 alter, and then hurrying them through 
 the Houfc, upon the fpur of the times, 
 or with the tide of party, introduce ob- 
 fcurity, perplexity, and contradi(il:ion 
 
 into
 
 ( 133 ) 
 
 into the Laws. The bill, which oc- 
 caiioncd the remark, had palTcd the Houfe 
 of Commons, and was dcfervcdly thrown 
 out of the Houfe of Lords. 
 
 " Non nicii.f hie fernio cjl : fed quern 
 '^ prifcepit ." 
 
 My remaining tafk will be to examine 
 the authorities and decifions which may 
 be thought to counteracTt the dodtrine I 
 have attempted to eftablifh. 
 
 The cafe of Horan and Arcedecne I 
 have already fpoken to, and the reafons and 
 grounds of that judgment are the very 
 Ilrongefl: demonftration, that if the fa- 
 ther of the child born abroad could have 
 been executed as a traitor, for bearing arms 
 againft: the King of England, he would 
 have been looked upon as a fubjeft, 
 confequently at the ligeance of the King 
 of England, and therefore his child 
 would have been a natural born fnbjedt ; 
 there cannot be a clearer hne of dif- 
 dindlion drawn. 
 
 The next judicial determination upon 
 
 the point of Alienage, whicii I can find, is 
 
 the caie of Lesly and Lesly, which game 
 
 R 3 before
 
 < >34 ) 
 
 before the IIoulc of Lords in five diiTe- 
 rent lliapcs. The ])oint there detci-- 
 ir/med was, that the immediate grand- 
 Ion of a Britiih fubjecl born abroad, was 
 not a natural born fubjecl of this realm 
 by virtue of the 7th of Q^ueen Anne. 
 This cafe does not apply to the immedi- 
 ate fubjecl of our prcfent confidcration, 
 which is tlie cafe of the child of an at- 
 tainted father born abroad ; but cfiabli- 
 flies the grounds, upon which the 13th 
 of his prcl'ent Majefly, which I liave 
 noticed in the Inveftigation, was pafTed. 
 Uix)n refleding on the reafoning, which 
 induced me to think, that the ion of an 
 Englifliman born abroad is not a na- 
 tural born fubject himfclf to all intents 
 and purpofcs, if his child born abroad is 
 not as inheritable to him, as he was to 
 his father; I muft profcfs my opinion to 
 he moll: conchilively cietermined. I know 
 lome members of the Legifiature, and 
 many worthy loyal fubjefts of this king- 
 dom, who were born abroad ; but there 
 mufl exift a flrange relict of alienage in 
 them, if, their wives having equal licen- 
 ce
 
 ( 135 ) 
 
 ce with others to quit the kingdom, and 
 they thcmfeivcs peiliaps attending the 
 bufinefs of the Nation in Parhament, at 
 the time their children may be born 
 abroad, they are to be deemed aliens as 
 the Law now is. It is tiie grofTeft rcpTig- 
 nancy, to pretend to ejflabhni any fiich 
 difference between two perfons, the 
 one born in England, the other of En- 
 glifli parents in a foreign conntry. Even 
 upon the conftruclion of the 251!! of 
 Edward III, which is certainly lefs ge- 
 neral in its words, than the 7th of 
 Qj.ieen Anne, Lord Bacon faid(<^) " that 
 *• if divers families of Engliflimen and 
 " women plant themfeJvcs at Middle- 
 '* burg, or at Roaii^ or at Lijhcn^ and 
 '* have ifTiie, and the defccndants dt> 
 '* intermarry among themfclves, with- 
 " out any intermixture of foreign blood, 
 *' fuch defcendants are naturalized to 
 " all generations: for every generation 
 " is ftill of liege parents, and therc- 
 
 " fore 
 
 {a) Bacon's Argumr, in the Exchequer Chamber.
 
 ( 13^ ) 
 
 " fore naturalized, lb as you may have 
 *' whole tribes of Eiiglidi in foreign 
 *' countries." 
 
 The grand and lafl cafe, which applies 
 to the queftion under our prefent dif- 
 cunion,isof Gordon and Gordon in the 
 Houfe of Lords in the year 1754. T"he 
 cafe was iliortly this : Sir Wm. Gordon, 
 by virtue of a fettlement, duly re- 
 gifler'd, and containing prohibitive, irri- 
 tant and refolutive claufes, was tenant in 
 tail male of certain lands in Scotland. 
 In the year 1746, he was attainted of 
 high treafon, and after his attainder had 
 two fons born abroad in France, and the 
 queftion was, whether thefe two fons, Co 
 born in France after the attainder of 
 the father, were natural born fubje^ls or 
 aliens ? If they v/ere aliens, then after 
 the death of Sir William, the next heir of 
 thetalzie under the fettlement would take; 
 if natural born fubje^s, it had been ad- 
 judged by the Houfe of Lords in a former 
 appeal from the Court of Seffions, '' That 
 " the faid eftate became forfeited to the 
 " Crown by the faid Sir W. Gordon's at- 
 
 " tainder.
 
 ( '37 ) 
 
 " talnder, during his life and ihe continii- 
 " ance of fach ifTue male of his body, as 
 '■' would have been inheritable to the 
 *' faid eflate Talzie, in cafe he had not 
 '* been attainted. 
 
 '* The Counfcl on both fides having 
 " been fully heard in this caufe, and 
 *' being withdrawn, t lie following cafe 
 " and queftion of Law was ftated and 
 *' propofcd to the Judges : viz. Tenant in 
 '' tail of lands in England wilh remain- 
 " der over is attainted of high treafon, 
 *' and the eflate tail thereby forfeited to 
 " the Crown. After his attainder, tenant 
 " in tail has ifTue male born in foreign 
 " parts, out of the ligcance of the Crown 
 *^ of Great - Britain, and dies leaving 
 " iflue male. ^lejlion : Is the eftate 
 '^ or intereft in the lands, wiiich was 
 " forfeited to the Crown, as afore- 
 " laid, continuing or determined ? And 
 " the Lord Chief Baron of the Court of 
 "Exchequer, having delivered the una- 
 '* nimous opinion of the Judges prefent, 
 *' that the eftate or intcrcll in the lands 
 '' {o forfeited to the Crown, as aforefaid, 
 S *' is
 
 ( '38 ) 
 
 " is clclcrmined(^z)." It was ordcr'd 
 and adjudged, that the next heir of 
 the talzie fhouid take the eftate under 
 the icttlemcnt, as Sir William's chil- 
 dren being aliens, he was in Law dead 
 without ilFue male of his body. 
 
 At the iirft view of this cafe, it may 
 perhaps appear to fnbvert every princi- 
 ple and rule, which we have been endea* 
 voLiring to eflablifli j but upon turning it 
 cooly in our thoughts, we Ihall find, that 
 it is very far from going that length. In 
 the firft place, againft the alienage of 
 the children of Sir William Gordon, 
 the ftatute of Qjieen Anne was fpccially 
 pleaded: and the whole of^the cafe refls 
 entirely upon the effeft, which the 2dk 
 claufe of the 4th. of George II had, in 
 countrouling the 7th of Queen AnnEj 
 and therefore the whole force and 
 weight of the authority is confined to 
 this, that fince the palfing of the 4th of 
 George II, a child born in foreign parts, 
 
 whofe 
 
 (a) Vid. cafes in Houfe of Lords, 1 February 1754.
 
 ( ^39 ) 
 
 vvhofc father was attainted of high 
 treafon at the time of his birth, is not na- 
 turalized by the yth of Oiicen Anne. Al \ 
 tho'this decifion flioiild take in the whole 
 queftion, which we have been difcnlTing, 
 ftill would not the Court be bound by 
 the precedent, /or /lere the queftion arifes 
 upon an ACi of Parliament^ and the Courts 
 is therefore to judge of the fenfe of the AdI, 
 according to their own reafon and iinder- 
 y?^;?c//«^, according to Lord Hale. There- 
 fore it is evident, even that the 7th of 
 Oiieen Anne, altho' it had received this 
 conftruftion, is as yet as much open to 
 difcuffion, as if it had never been £0 
 conftrued. For what reafon can be al- 
 Icdged, why the two Mellieurs Gordon 
 are not as free to claim their right to 
 be natural born fubje£ls of Great-Britain, 
 after this conftrufbion of the 7th of 
 Oueen Anne, as the Duke of Hamilton 
 was to claim a feat in the Houfc of 
 Peers, after an equally pofitive conflruc- 
 tion of the 5th of Oiieen Anne againfl: 
 his right to fit in the Houfe of Lords, as 
 
 a Peer of England ? 
 
 S 2 But
 
 ( Hc> ) 
 But can it poilihly be prefumcd that 
 the Court, in determining this cafe, gave 
 any conib'u<ftion to tlie 25th of Edward 
 III ? This ftatute was never pleaded on 
 behalf of Sir William Gordon's chil- 
 dren : and it would be too abfurd, to pre- 
 tend, that their omilTion to plead it in their 
 ' own caufe, difabled other perfon« from 
 pleading it in fimilar circumftances. The 
 itatute was never mentioned by either 
 Connfel or Judges in the caufe; and 
 therefore its efiedt and operation cer- 
 tainly were not in contemplation of 
 the judgment given. For altho' the 
 judgment is given in general terms, yet 
 even a Court of Law, much more a 
 Court of Equity, will take it by refe- 
 rence, to what was infilled upon and 
 pleaded in the proceedings at the Bar. 
 For if the ftatute of George II, exprefs- 
 ly fays, that the explanation thereby 
 given to the 7th of Qjieen Anne, fliall 
 not affedt any prior ftatute, how fiiall a 
 judicial conftruclion of that explanatory 
 Act, carry the effedt of the explanation 
 farther than its exprcjfs words do war- 
 rant ?
 
 ( i4t ) 
 
 rar.t? This cafe ihercforc cannot by the 
 mon: flrctchcd conftrudlion operate any- 
 other effcft, than to exclude pcrfons 
 born fince the year 173 I, from claiming 
 to be naturalized by virtue of ihc 7th 
 of Oiiecn Anne. What their flate, 
 plight, and condition was before the 
 yth of Queen Anne had pafTcd, was not 
 before the Court, therefore the judg- 
 ment does not decide upon it. Much lels 
 can the ACt of Edward be faid in this de- 
 cilion to have received any conflrii£lion 
 at all. We muft therefore conclude, that 
 the fecond clanfe of the 4th of George II, 
 which is an exception out of the 7th 
 of Oneen Anne, flinll in future bar fuch 
 a claim under the Acl of Anne. And it 
 may be faid of this exception, what Lord 
 Mansfield faid of another exception out 
 of a (latute : " Although it is not poHible 
 " to fay, why the exception was made; 
 " but it is made, and mud be followed. 
 " The effect however is, that it is an 
 *' exception, not to be extended by 
 " equity. In remedial cafes, the con- 
 " Itrudlion of llatutes is extended to 
 S3 " other
 
 ( M^ ) 
 
 " other cafes within the reafon or rule 
 '■'■ of them. But where it is a hard pofi- 
 *■'■ tive Law, and tlic reafon is not very 
 *' plainly to be feen, it onght not to be 
 *' extended by conilrudtion (<?)." Add 
 to thi?, that in the prefent cafe, the 
 ^vords of the fcatute confine its operation 
 to the A61 of Anne cn!y. 
 
 There is ftill another difference to be 
 obfcrved, between perfons born under 
 the fame circumflance of the attainder 
 cf their fatlicrs, before, and fince the 
 pafiifig of the 4th of George II; which 
 alfo proves to dcmonilrai:ion, that the 
 judgment given in the cafe of Gordon 
 r.nd Gordon, was confined to the eifc6l 
 cf the 4th of George II in cbntrouling 
 the 7th of Oiieen Anne, fnice the year 
 1731 ; and that it did not reach the cafe 
 of a perfon born between the year 1708 
 and th.e year 1731 : for the tliird claufe 
 of the 4tl\ of George II is pofitively con- 
 tradiclory to the opinion of the Judges ; 
 
 for 
 
 (rt) Cowp. 391. Atcheson and Trott.
 
 ( M3 ) 
 
 for by ihc I.aw of Eiiglaiul, an eft'dte 
 tail is an cflate of inheritance, and may- 
 be forfeited to the Crown during tlie 
 continuance of the entail -, but licre the 
 entail continues fo long, as the tenant 
 in tail has illue male inheritable, and 
 every perfon (not attainted) is inherita- 
 ble, who is a natural born fubjeci:. But 
 according to the third claufe of the 4th 
 cf George II, a tenant in tail of lands in 
 England, with remainder over, being at- 
 tainted, might have ilFue born in foreign 
 parts, and die leaving fuch ilTue male, 
 yet would not the eflate forfeited to the 
 Crown be thereby determined ; for fuch 
 iffiie, being a natural born fuhjeCi^ and no 
 alien^ the inlerell ^i tlie Crown could not 
 determine during the continuance of fuch 
 ilfue male, who could have been inheri- 
 table to the ellate tail fo forfeited to the 
 Crown. We have before fpoken fully 
 to the difference, in point of alienage, 
 that is made by the 4th of George II, 
 to fubhil between two perfons born in 
 foreign parts, the one before the year 1731 
 and the other after it, although the 
 
 father
 
 ( H4 ) 
 
 father of each fhould be equally attainted 
 of hio:h treafon. Inhere is moreover this 
 glaring difference between two fuch per- 
 i'ons, that the 4th of George II, acfis re- 
 trolpectively upon one, and not upon tlie 
 other ; the flate of the birth cf one of 
 them is altered by a matter ex pojl fa^o 
 after birth, the other not. The parents 
 of the Gordons born after the year 17.^6, 
 knew of the Law paffed in the year 17 3 1? 
 which had received a formal promulga- 
 tion ; and confequently the mother had 
 it in her power to avoid the cffefts of it, 
 by coming over to be delivered in Eng- 
 land. Thcfe confequences could not 
 poffibly be forefeen, or confequently a- 
 voided, by the parents of fuch children, 
 who were born before the year 1731 : 
 therefore their cafes are widely different, 
 as is obvious to the plained underilanding. 
 This decifion therefore, is not a judicial 
 determination, that the child of an at- 
 tainted father, born abroad, is not the 
 child of a perfon at the ligeance of the 
 King of England, and therefore not a 
 natural born fubjeii either by the com- 
 mon-
 
 ( M5- ) 
 
 monLaw, or by the ftatute of Edward III; 
 but merely and fmipjy, that a pcrfon un- 
 der Inch circumftances, is now prevented 
 and elloppcd by the 4th of George II> 
 from claiming the benefit of the 7 th of 
 Queen Anne. This is the whole length 
 and extent of the cafe: nothing more 
 was brought before the Court, the Court 
 therefore decided upon nothing more. 
 
 It is moreover evident to dem.onftration, 
 that although the queftion was in this 
 cafe put generally to the Judges, yet the 
 determination was not general in its 
 efFeft : for to make the determination 
 general^ it muft verify this propofition, 
 that the child of every attainted father 
 born abroad is an alien. Now it is ex- 
 prefsly enabled by the 4th of George II, 
 that feveral fuch children were natural 
 born fubjeds by the 7th of Queen Anne, 
 and it cannot with any plaufibility be 
 pretended, that a judicial conftrui^ion 
 of the 4th of George II, can by poflibility 
 extend, to make it explanatory of a prior 
 flatutc, which by its exprcfs words it 
 avoids explaining. 
 
 T Lord
 
 ( >46 ) 
 
 Lord Coke has obferved, that it never 
 fell out in a doubtful cafe^ but fome opinion 
 could be found in the books againfl it. And 
 it muft certainly be allowed to add great 
 weiglit to the decifiori of the point un- 
 der our confideration, that no determi- 
 nation of any Court has been made 
 againfl the doctrine, I have attempted to 
 eftablifli, and one only opinion, whicli 
 was obiter thrown out by Lord Bacon to 
 counteract it : who fays, in his argu- 
 ment upon Calvin's cafe, that " all 
 " cldldren born in any part of the world, 
 *' if they be of Englifli parents, con- 
 " tinuing at that time as liege fubjefts to 
 *Mhe King, and having done no adl to 
 " forfeit the benefit of their allegiance, 
 " are ;/y6>/<7t'/d? naturalized." Here Lord 
 Bacon fcems to make the exclufion 
 from the general Law of the Land, an 
 elfedt of the punifliment of high treafon : 
 yet in none of the many works he pub- 
 liflied relative to this very fubjedt of 
 Attainders and Treafons, has he ever 
 thrown out an idea of the guilt of the 
 parents incapacitating their children from 
 
 inheriting
 
 ( U7 ) 
 
 inheriting in this country, in thofe cafes, 
 in which they would have been inherita- 
 ble, had their parents not been attainted. 
 Nor are his words immediately applicable 
 to the cafe, upon which I have argued; 
 for he fuppofes the guilt of each parent, 
 and 1 only prefume the guilt of the father : 
 and maintain that his being within or 
 without the realm, at the time of the 
 child's birth, makes no fort of alteration 
 in the effect of the flatute of Edward III: 
 for the only condition required by that 
 A«St, is, that the wife do obtain the con- 
 fent of her hufba-nd to quit the realm. If 
 flie remain loyal, and have the fandlion 
 and licence of the Law to quit the realm, 
 it is evident, that her a£ling under the 
 exprefs authority of the Lav/, fliall not 
 prejudice her unoffending children in 
 fuch manner, as to deprive them of the 
 benefit and advantage of the Law and 
 conflitution of this country, or deprive 
 the King of his right of fovereignty over 
 them. And it is conclufive, that the 
 only exception made by the A(ft of Ed- 
 ward III, may as well affc^l the child 
 T 2 of
 
 ( M8 ) 
 
 of a not attainted father, as the child of 
 an attainted father; ( for the relation 
 grounded on the matrimonial contract 
 continncth till death,) and therefore the 
 poliibility of their being excluded by 
 the exprefs condition, neccllarily im- 
 ports, that they were not excluded by 
 an implied condition. 
 
 When we confider the chain of autho- 
 rities, by which it is laid down as a 
 maxim, that an attainted per] on remains at 
 the ligeance of the King^ that the flatute 
 of Edward III is beneficial to the King 
 and fubjec^-, and therefore to be con- 
 ftrued largely; that the penal effefts of 
 attainders are not to be extended by 
 conftruclion beyond the exprefs letter of 
 the Law ; tliat no ancient nor modern 
 writer has mentioned any fuch effed 
 of an attainder; that the Courts of Law 
 and the Legiflature have fpecially mar- 
 ked out the cafes, in which perfons born 
 within the realm are, or are not at the 
 iigeance of the King, which depend upon 
 the relcafe of the debt of allegiance or 
 the licence to transfer it to another So- 
 vereign ;
 
 ( H9 ) 
 
 vcreign; that neither Lord Bacon himfclf 
 in any other place, nor indeed any other 
 writer upon the fubjecl, have mentioned 
 any other condition, than that the parents 
 he Engli/Ii^ whicii guilty as well as inno- 
 cent perfons may be; that the innocence 
 of children is not otherwife to be punifh- 
 ed for the guilt of their anceftors, than 
 by .being difabled to take, what the guil- 
 ty parents cannot tranfmit; when we re- 
 fledl on the gentle and liberal conflruc- 
 tion, which our Courts of Law have ever 
 made of the difability of an alien ; when, 
 I fay, all this is confidered, the diCliim 
 of Lord Bacon will appear fo fubverfive 
 of every maxim of the Law, fo contrary 
 to the authorities of the grcateft writers 
 upon thefubjeft, fo contradictory to the 
 exprefs words of the ftatute, fo repug- 
 nant to the fpirit of the conflitution, that 
 it muft be wholly overruled, and clalTed 
 among the many diCla and fuppoiitions, 
 which are frequently in arguments 
 thrown out in hafte, without any con- 
 nexion with, or even reference to the 
 cafe then waiting a judicial decifion. "V\^e 
 
 may
 
 ( 'JO ) 
 
 may ^villl the clofeft propriety aj^ply the 
 words of Lord Mansfield to tliis fay- 
 U)g( a ): '' What was dropped about it in 
 *' Calvin*s cafe, was a mere obilcr opini- 
 ** on, thrown out by way of argument 
 " and example. My Lord Coke" (and 
 we may indeed as well lay Lord Bacon, 
 for it ^v"as the general tafte and ftile of 
 the age,) ** was very fond of multiplying 
 " precedents and authorities : and in oi- 
 *' der to ilhiftrate his fultjccV, was apt, be- 
 *' fides fuch authorities as were ftri£tly ap- 
 ** plicablc, to cite otherCafes, which were 
 " not applicable to the particular queftion 
 " under his judicial conlideration. In the 
 " cafe then under judicial conlideration, 
 '* the queftion was, whether Robert 
 " Calvin, the Plaintif, horn in Scotland 
 " after the defcent of the Crown of En- 
 " gland to King James the fird, was an 
 " alien born, and confequently difabled 
 *' to bring any real or perfonal aflion for 
 '•'• Lands within the realm of England. "But 
 
 it 
 
 {a) 2. BuKROW'c 85R.
 
 ( '3-' ) 
 
 it never was a CjiiclVion, vvhetlier a cliiitl 
 by the attainder of his Father uas inca- 
 pacitated to take the inheritance of his 
 mother, in thofe cales, in which he 
 would have been able, had his father 
 not been attainted of high treafon. For 
 I fay it again once for all : Their ex- 
 ckiHon from this general pofitive Law, 
 evidently never was a part of the judg- 
 ment, or an eilccl: of the judgment in 
 high treafon. And it never can be ad- 
 mitted, that the penal and difabling 
 cfTccls of an attainder fiiall be arbitrarily 
 extended by conftrudlive feverity, that 
 can be warranted by no polltive Law, 
 confined to no certainty, authorized by 
 110 precedent. 
 
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