The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-04-23


plates the dig9oiufion of the tye of allegiance b.
the erection of a new and different government
upon the ruins of the old. May we not then FAY
that the pYrjeHt cafe had never entered into the
minds of the Enslfh judges? andthat theirdecili-
ons even when the mott impartial, cannot be ap-
piled to cafe, where the rea/oaJ of this dccior
cannot politely apply
But even the cafe of Calvin itfelf dsferves We.
ny little reipe6t. 1T, becaufc there is reaion to
believe from pafage in Hume 5, 554. that this
was decifon which King James 1T "engagcd
the judges to make ely, becaufe in the iuc-
ceeding reign this Judgment was openly i'm
peached in parliament by one of the patriots O!
that day as " an illegal Judgment of lawyers a
galnit liberty, Hume, 49," sly, becaufe the
Judges of that time were particularly obircui-
Gus to the will of the monarch.
It may therefore be concluded, that the doc
tines of the Englifh common law, are founded
upon principle, which does not exit in this
cafe, that is, an exiting allegiance; that the
erection OF difereaf government and the DIFF
tolRton of the ancient tie of allegiance, had me-
yer been weighed, or even confidered by the
Engih Judges, deciding in Calvin's cafe and
that even according to their received doctrine
OF allegiance, no capacity of inheritance was ever
lnfuted into the prefsnt plaintiffs becaufe they
had never contracted any allegiance to the
pretent commonwealth and all the inherita-
bic quality which may be hStitiouay furpofed
to have been in them from their formerly obey
Ing common iovereignty with us, was actually
deitroyed by the deitrueton of that fovereignty
over us, and the erection of a new government
9. This view the cafe has already antici-
pated the remarks that were made on the fe-
cond branch of the enquiry: How far the
EnGhih doctrines are controlled b. the p-inci-
| Piles of our revolution, and the theory OF our
government. il the actual principlescven of the
Eneliih law wiiupport thetite OF the preient de-
PENDANT, ihe will occupy amuch fironger ground
IN this country and in our courts which muft
reject tuch OF thoie principles, as are inimical TO
| Our republican inftitutons. ~. the Englifh
doctrines are founded upon three main pillars
nither of which contributes part OF cur politi
Cal 9difice
IN: That allegiance is PERPETUAL: end. That
this perpetual allegiance was fuppoftd always
TO be due to the fame unchangins fovereienty:
3rd: That it <.ue to the beyjiou and net to
the political character OF the Icpe,rigr. The
tirit petition is nappcable to this country, BE-
caUie we have no monarch to whole facred per-
ion, our allceialc: is 70 be rendered The fc
cond petition has been equally fubverted by the
, American peop,e, who have erected SiTcreut
as well as nezU government. The frit poft;-
on immemcrially Imported by the Eagliih
courts, has been exploded by the moit intelii-
ger. writers on natural right or common law
and by the principles and praStice OF our c;yn
government. Thele have recognized tie right
of every individual, 10 inap the chains which
the Engi:th monafch wiihes to irnpofc upon his
| fubjects, and TO bind them forever to their ma
tive fell. The very ACT of separating ourfcIves
from the Britiih government, the fnbme prin-
ciples cou!ecrated by the declaration of indie
pendence and cur bill of rights, the exprers de-
claration ofthe Virginia legislature, have each
Of them ratified the doctrine OF e.bnf, ;ai:ou.
To fuch poiitica! iyiem, therefore, the Engliih
common law doctrine OF a perpetual allegiance,
is perfectly hetrc,;cnc IS and hottie. Where
the fyfcm is 10 different, particular rule mua
BE- completely irrelevant; for it is one of the
maxims Of the common law, that where the
resion CT rule cea.es, the rule itGelf mutt like
wife ccafe.
Hence this principle of the Englih common
law does not apply, becau!e the reaion of that
principle no longer exits among us. Had it
indeed been che Of thofe doctrines, which are
recognized by or. laws and obferved by our
courts, that every native of this country was
bound III perpetual allegiance, then indeed
might we have admitted, that all the duties and
/ all the cOrreative ri, hts which he inherited,
would be nieparable from his being, and that
among thofe was an inberita5As capacity, of
which no change OF iovereignty OF diitance
of reEdence could deprive him. Then indeed
III
prefent plaintiffs to be confidered not as aliens
but as co-lubjees or co-citizens of our fate, en-
titled as wei. &c ourfelves to the privilege of
acquiring real property, becaufe there 4va5
period when they owed allegiance to the fame
undivided fovereignty with ourielyes. But
fuch a doctrine is foreign TO the infitutions of
this country, and thofe differences which it
may be fuppofed to warrant, mutt confequently
be deferted.
9. In coniidering the operation & effect of the
TREATY OF PEACE upon the prefent cafe,
three diltiDa views may be takeE Of the rights
Of Britifh antenati:
lit: In relation to lands adnavy boiden by
them ii this country, at the epoch of our de-
claration Of independence but as no right of
this fort exits in the prefent cafe, this topic will
be very Tightly and incidentally conidered.
end: In relation to lands burcbajed by them
.fnee that epoch, and which, if they be aliens,
will accrue 10 the Commonwealth, by way of
forfeiture"
| 3rd In relation to fuch lands as have de-
| lceDdcd to them 6nce that epoch, and which,
if they be aliens, will accrue to the Common
wealth by way of " efcheat." In this clafs, the
! pTeicnt cafe is found to fall.
AS the cafe of a right accruing by way of far
future is fronger one than the cafe OF right
accrung by sfcbeat, it is properly entitled 10 a
preliminary inyeltigatiou.
| ]. 1t is the 9Th article Of the treaty of peace
which has been relied upon by the plaintiffs IN