Trevor and Hawles, how far Scotchmen were aliens, and how a Lieutenant-Governor could be tried for misdemean

or.

To the Right Honorable the Lords Commissioners for Trade and Plantations.

In answer to your Lordships' quæries, signified to us by Mr. Popple, the 30th of April last, relating to offences committed by Captain Norton, and against the act for regulating abuses in the plantation trade;

First, We are of opinion, that for such offence or wilful neglect, the Lieutenant-Governor, Captain Norton, may be indicted and tried in the court of king's bench, by virtue of the act for punishing governors of plantations for offences committed by them in the plantations. But we doubt whether he will incur the penalty of £.1000 by the act made the seventh and eighth of the King, for regulating abuses in the plantation trade; for the words of the act extend only to governors and commanders in chief, and is given only for the offence of not taking the oaths or putting the acts in execution; but he will be finable at the discretion of the court;

Secondly, We think a foreigner endenized is qualified to be master of a ship trading to the plantations, unless there be a provision in the letters patents of denization, that such denization shall not enable him to be master of a ship, which is usually inserted for that purpose; but hath been omitted in some denizations of French protestants since the reign of his present Majesty, by order of council;

Thirdly, We are of opinion, that a Scotchman is to be accounted as an Englishman within the act, every Scotchman being a natural born subject.

June 4, 1701.

THO. TREVOR.

Jo. HAWLES.

(16.) The opinion of the Attorney-General, Northey, on the question of alienage, and trading with her Majesty's enemies.

To the Right Hon. the Lords Commissioners for Trade and Plantations.

May it please your Lordships;

On consideration of the case of Manasses Gillingham, who (being a natural born subject of her Majesty, but a settled inhabitant in the island of St. Thomas, belonging to the King of Denmark, and naturalized there) traded from thence to and with the Spaniards, in war with her Majesty; I am of opinion, his being naturalized without the license of her Majesty will not discharge him from the natural allegiance he owes to her Majesty; however, he being a settled inhabitant in the island of St. Thomas, under the King of Denmark, and not having been commanded to return into her Majesty's dominions, as he might have been, though naturalized there, his trading with the Spaniards from that island, in amity with the Danes, will not be a capital, if any offence at all; and therefore I cannot advise the proceeding against him criminally for such trading. If any inconvenience happens from such trading, as is suggested by the governor of Barbadoes' letter, the Queen's subjects may be recalled to return to her Majesty's dominions, and if they refuse, and after trade with her Majesty's enemies, they may be proceeded against crininally for such trading, as any of her Majesty's subjects residing in her plantations may be proceeded against for trading with her Majesty's enemies, that is, for a misdemeanor; for I do not take simple trading with an enemy to be high treason, unless it be in such trade as furnishes the enemy with stores of war.

March 22, 1703-4.

EDW. NORTHEY.

(17.) The opinion of the Attorney-General, Norton, whether the French and Spaniards who remained in the ceded countries after the peace of 1763, were aliens or subjects.

To the Right Honorable the Lords Commissioners for Trade and Plantations.

May it please your Lordships;

In obedience to your Lordships' commands, signified to me by Mr. Pownall's letters of the 21st of December, and the first of March last, stating that great difficulties had frequently occurred from the question whether the subjects of the crowns of France and Spain, who remain in the ceded countries in America, are to be considered as aliens; and intimating more particularly, that a variety of doubts and difficulties had occurred as to the ability of aliens to acquire property in America, either by purchase, grant, or lease from the crown; and also as to the situation in respect to the laws of this kingdom, of such subjects of the crowns of France and Spain, as being inhabitants of Canada, Florida, and the ceded islands in the West Indies, remain there under the stipulations of the last definitive treaty; and therefore desiring my opinion, whether such of the French or Spanish inhabitants of Canada, Florida, and the islands of Grenada, Dominica, St. Vincent's, and Tobago, as being born out of the allegiance of his Majesty, and also remain in the said countries under the stipulations of the definitive treaty, are, or are not, under the legal incapacities and disabilities put upon aliens and strangers by the laws of this kingdom in general, and particularly by the act of navigation, and the other laws made for regulating the plantation trade; and if it should be my opinion that

they are under such disabilities and incapacities, your Lordships, in that case, desire my sentiments in what manner such disabilities may be removed. I have taken Mr. Pownall's letters into my consideration, and am humbly of opinion that those subjects of the crowns of France and Spain, who were inhabitants of Canada, Florida, and the ceded islands in the West Indies, and continued there under the stipulations of the definitive treaty, having entitled themselves to the benefits thereof, by taking the oaths of allegiance, &c. are not to be considered in the light of aliens, as incapable of enjoying or acquiring real property there, or transmitting it to others for their own benefit; for I conceive that the definitive treaty, which has had the saction, and been approved and confirmed by both houses of parliament, meant to give, and that it has, in fact and in law, given to the then inhabitants of those ceded countries, a permanent transmissible interest in their land there; and that to put a different construction upon the treaty would dishonor the crown and the national faith, as it would be saying, that, by the treaty they were promised the quiet enjoyment of their property, but, by the laws were to be immediately stripped of their estates; but I think that no aliens, except such as can claim the benefit of the definitive treaty, or bring themselves within the seventh of his late Majesty, are by law entitled to purchase lands for their own benefit and transmit them to others, either from the crown or from private persons, in any of his Majesty's dominions in North America or the West Indies.

But I submit to your Lordships, whether, as it is a matter of the highest importance that those countries should be settled, and perhaps not less so that such set

tlements should be made without draining this country of its inhabitants; whether it would not be proper to apply to parliament for a naturalization bill for those places, under proper regulations, as well to encourage foreigners to go thither, as to quiet such aliens as may have already settled there under the common received opinion that they were capable of holding lands there for their own benefit, and disposing of them in any manner they might think proper, in common with the rest of his Majesty's liege subjects.

Lincoln's Inn, July 27, 1764.

FLETCH. NORTON.

II. Of the legal effects, resulting from the acknowledged independence of the United States.

A re-statement of Mr. Chalmers's opinion on that im portant subject.

The question is, whether the inhabitants of the United States, who had been born within the King's allegiance, and remained within the United States after they were acknowledged by the King to be independent and sovereign, continued subjects, having the rights of subjects; or became aliens, having the rights of aliens, from that acknowledgment.

During the year 1783, which forms the epoch of that event, I took the liberty of publishing my opinion of those effects. Whatsoever I may have seen or heard since that epoch, I have not in the least changed my opinion. And as abler men than I pretend to be have avowed and published very different sentiments from mine, it may, perhaps, be permitted me to restate and reinforce my original opinion, which first broke the ice