the courts in this country, state or national, and we are compelled, therefore, to exercise an arbitrary discretion, or to resort for precedents and information to English writers, and the decisions of English courts.

The question presented here having been definitely disposed of, so far as related to England, by Act of Parliament in the 7th year of Queen Anne, if not as early as the 25th of Edward III., no decisions on that subject since the earliest of those dates, of the courts of that country, based exclusively upon the prior common law, are to be found; and it is only by resorting to a more remote period in the history of the common law that we obtain any light to guide us to a decision of that question.

It seems to have been adjudged by the Court of King's Bench, as early as 7 Edw. III., that the children of British subjects in the service of the king, though born beyond the sea, were capable of inheriting; and this was confirmed by Parliament in the seventeenth year of the same reign: Dyer 224 a, note 29. An effort was made at the same Parliament to obtain a further declaration or enactment on the subject, which failed, but was renewed a few years afterwards, when the statute of 25 Edw. III., ch. 2, was passed, which, among other things, provides that children, "which henceforth shall be born out of liegeance of the king, whose fathers and mothers, at the time of their birth, be and shall be, at the faith and liegeance of the King of England, shall have and enjoy the same benefit and advantage, to have and bear inheritance within the same liegeance as the other inheritors aforesaid in time to come, so also that the mothers of such children passed the sea by the license and will of their husbands."

It is essential to our present inquiry to ascertain whether this statute was introductory of a new rule, or simply declaratory of the previous law. There are considerations of weight on both sides of this question. The preamble shows that the act was passed to complete what was left undone by the previous Parliament in 17 Edw. III., and the action of the latter Parliament was purely declaratory, as it simply confirmed what had been decided by the King's Bench ten years before. It also shows that the

application to both parliaments was for the purpose of resolving a "doubt," and that the king, in order that the law on the subject be "declared and put in certain," caused Parliament "to deliberate" upon this doubt. The application to Parliament was by "petition," and of course came from the people; and it is well known how tenaciously the people of England at that day adhered to the rules of the common law, and how unwilling they were that Parliament should change them. It seems clear to me, therefore, that what was desired and expected from Parliament at this time was not any new law, but simply a declaration removing the doubts which obtained as to the existing law.

On the other hand, the terms of the statute would seem to imply that the introduction of a new rule was intended. It is limited to children "henceforth" to be born, and provides for their inheritance "in time to come." It not unfrequently happens, however, that statutes are passed in language importing a new enactment, which afterwards prove to be merely confirmatory of the prior law. It is perhaps not easy to determine, therefore, from the statute itself, taken in connection with its history, whether it was in truth an enabling or a declaratory act. Principles, however, have, since the statute, been thoroughly settled, which, in my view, are decisive of the question.

The subject of alienage was very elaborately examined in Calvin's Case, 7 Coke 1, 6 James I. Among the principles settled in that case, and which have remained unquestioned since, are these:

1. That natural allegiance does not depend upon locality or place; that it is purely mental in its nature, and cannot therefore be confined within any certain boundaries; or, to use the language of Coke, that "liegeance, and faith and truth, which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi:" p. 76.

2. That it is not sufficient, in a plea of alienage, to aver that the plaintiff was born out of the kingdom, or out of the jurisdiction of the king, but every such plea must aver that the plaintiff

is not of the allegiance of the king; and judgment was given for the plaintiff in Calvin's Case, "for that the plea in this case doth not refer faith or liegeance to the king indefinitely and generally, but limiteth and restraineth faith and liegeance to the kingdom :" Id. 10 a.

p.

3. That allegiance and protection (i. e. the rights and the duties of citizenship) are reciprocal, the one being the consideration for the other: Id. p. 6 a.

4. That a British subject, although residing abroad, still owes allegiance to the King of England.

It seems to me to result of necessity from these principles that the children of English parents, though born abroad, are, nevertheless, regarded by the common law as natural-born citizens of England. The decision upon the plea in Calvin's Case, which was merely repeating what was decided in Cobbledike's Case as early as the reign of Edw. I. (see Calvin's Case, p. 9 b), necessarily implies that a child may owe allegiance to the king (i. e., not merely local or temporary, but natural and permanent allegiance), although born out of the king's dominions; and also that this was a broad general rule, not confined to a few exceptional cases, because, if it was an exception, the plea could not have been held bad on demurrer, as it was in both Cobbledike's and Calvin's Cases; but the exception must have been pleaded.

Now, upon what ground can allegiance in such cases be claimed? If natural allegiance, or allegiance by birth, does not depend upon boundaries or place, as Calvin's Case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obligation than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. This being then the nature of permanent allegiance, it follows that the King of England may properly claim allegiance from the children of his subjects, wherever born. If, then, the child of English parents, though born abroad, is, subditus natus, a born subject of the king, he must also be a born citizen of the kingdom. Allegiance and citizenship are, as we have seen, correlative terms, the one being

the consideration of the other. So long, therefore, as the parents continue to owe allegiance to the Crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.

This conclusion needs no other support than the principles laid down in Calvin's Case. It is sustained, however, by a remark in Brooke's Abridgement, title Denizen 6, which is as follows: "Nota, per HUSSEY, C. J. If a man be born beyond sea whose father and mother are English, he should be inheritable before the statute, but the statute makes this clear." This opinion of HusSEY is in no manner weakened by the case of Hyde vs. Hill, Cro. Eliz. 3, where it is said to have been held upon evidence that "if baron and feme, English, go beyond sea without license, or tarry there after the time limited by the license, and have issue, that the issue is an alien, and not inheritable, contrary to the opinion of HUSSEY," because it is plainly implied in this, that if the parents were abroad, with license, their issue would inherit. The not being inheritable, therefore, was a penalty for the supposed offence of going abroad without license. When it came to be held, as it was later in the reign of Elizabeth (Dyer 296 a), and has been ever since, that it was not an offence to depart the kingdom without license, the penalty of course did not attach. What is meant by the words "contrary to the opinion of HUSSEY," does not distinctly appear. The case as it is stated tends, impliedly, to support the note in Brooke. The court must have had in view the common law, as the statute was not mentioned, and has nothing to do with the question of license. The right to go abroad, without license, appears to have been secured to the subject by the Magna Charta of King John; and how a license could afterwards have been supposed necessary, it is not easy to discover. The language is, "It shall be lawful, henceforth, for any one to go out of our kingdom and return, safely and securely, by land or by water, saving his allegiance to us, unless in time of war, by some short space, for the good of the kingdom :" Ch. 49. Much more might be urged, but enough has, I think, been said to make

it quite clear, both upon principle and authority, that the Statute of 25 Edward III. was merely declaratory of the common law. The reasoning here adopted is intended only to apply to cases where the fathers and mothers were natural-born subjects of the King of England.

We have next to inquire what was the rule of the common law in respect to children born abroad, when the father was a subject and the mother an alien. The earliest direct authority on this subject, to which we have been referred, is from Brooke's Abridgment, title Denizen 21, where it is said, that "if an Englishman pass the sea and marry an alien woman, by this the wife is of the king's allegiance, and the issue will inherit," for which reference is made to the Abridgment of Assizes. That the author speaks here of the common law, and not of the statute, is plain from the reason he gives, viz., that the wife owes allegiance in consequence of her marriage.

The question was very ably discussed in the case of Rex vs. Enton, Litt. 23. An Englishman residing in Poland, as a merchant, married a Polish woman, and had children born there, and the question was, whether they were aliens. It was held that they were not. Several of the judges, it would seem,-who, or how many does not appear,-held that the words "fathers and mothers," in 25 Edw. III., should be taken distributively, and to mean fathers or mothers. This ground, however, was not taken. by the counsel who argued the case. He cited Bracton and Fleta in support of the position that, by the common law, where both father and mother were English, their children, born abroad, were not aliens, and argued that it could make no difference, though the mother were alien, as it was a settled maxim of the common law that the issue follows the condition of the father.

We have the opinion of Lord HALE upon this question, in Collingwood vs. Pace, 1 Vent. 413, 422. He says: "Although an English man marry an alien beyond the seas, and having there issue, the issue will be denizens, as hath been often resolved ;" and that he put this upon the common law ground, that the issue take the condition of the father, without regard to that of the mother,