1836. MAYOR OF LYONS v. EAST INDIA lease of any dwelling-house or shop within the realm, or in any other of the King's dominions, part of the possessions of this country." At that time, Calais, and the northern isles, Guernsey and Jersey, were part of the possessions of this country. Could it be contended that that Act did not apply to them, as well as the British Isles ? The opinion of Sir Fletcher Norton, already cited, shows, that the law is equally applicable to all colonial possessions of the Crown; the Acts of Parliament to which he refers, the 13 Geo. 2, c. 7, and 2 Geo. 3, c. 25, were passed with a view of encouraging foreigners in America; but they in no respect alter the disqualification of aliens to hold lands, without letters of denization, or some equivalent. The 13 Geo. 3, c. 14, intituled "An Act to encourage the subjects of foreign states to lend money upon the security of freehold or leasehold estates in any of His Majesty's Colonies in the West Indies, and to render those securities granted to such aliens effectual for recovering payment so. to be lent, by sale of such freehold or leasehold estate," was passed in consequence of the alarm, prevailing after the war of 1763, that we had not capital sufficient to manage the transactions in our Colonies. It recites, that doubts had arisen whether, as the law then stood, any security in the nature of a mortgage granted to foreigner or alien, or to any person in trust for him, could be made effectual against such estate, for recovering the money lent thereon; and that no foreigner or alien, as the law then stood, could bring or prosecute any suit for the recovery of money, in any court of law or equity within His Majesty's dominions, at a time when the State of which such alien is a natural-born subject is at war with this kingdom; and then, in order to remove such doubts, and to encourage foreigners to lend money on the security of estates so situate, it is enacted, by the 2d section,-"That in case of non-payment of money so lent, suits may be brought at common law for the recovery of damages, or in the Court of Chancery for the colony; and the plaintiff shall be entitled to a like remedy for recovering as a British subject;" and by the third section, power is given to the Court of Chancery to order sale of the mortgaged premises, as in cases where the mortgager had consented to a sale. Now the provisions of the statute are, not that an alien is to take possession of the land so mortgaged, but that the Court shall take care that it is sold; and there is no authority to be found more distinctly recognising the doctrine, respecting the inability of aliens to hold lands in our colonies, than in the enactments of this statute; and looking at the state of the law anterior to the passing of this Act, recognised and elicited by the Act, it is quite clear that the Legislature intended to have this doctrine unimpeached; and by the declaratory parts of the Act, have, in fact, strengthened and confirmed it. The cap. 25 of the same year, which was passed to explain the two former Acts of the 13 Geo. 2, c. 7, and 2 Geo. 3, c. 25, have in no way varied the effect of the previous Act. With regard to the objection urged by the appellants, that there is no machinery by which this law can be carried into effect; that would apply to many of our colonies; for, except the Supreme Court, there is no other Court of Exchequer; but 1836. MAYOR OF LYONS V. EAST INDIA 1836. MAYOR OF LYONS v. EAST INDIA that is not a ground of objection which is tenable. It cannot be a bar to the prerogative of the Crown, which will, if it think fit, readily create means to enforce its claims, if these means do not at present exist. Then as respects the obtaining letters of denization, it is said, by the appellants' counsel, that no such letters have ever been required for aliens resident in India, and that there is no mode of obtaining such; that again is a fallacy; letters obtained from the Home-office here would be just as good for the purpose of holding lands in India, or in one of the colonies, as in this country itself; there is no such thing as partial letters of denization; they are in their very nature general, and must extend to all the dominions of the Crown. It is not fairly put, when it is said that the enforcing this rule of law now is a breach of faith; the abstaining from such a claim on the part of the Crown may have been accidental, and probably arose from there being no Crown law-officer in the Presidencies; the Advocate-general being the officer of the Company, not of the Crown; but the absence of asserting the prerogative is no bar to it, when it comes in question; and those who, like General Martin, being aliens, have purchased lands under such disabilities, must abide the consequences of their own acts. It is an evil which, if found to press hard, the Legislature can remedy without difficulty. In the case of Gabriel Frignon, cited from the records of the Supreme Court, it cannot be contended that, because no claim was made on the part of the Crown, or no notice taken by the Supreme Court, the prerogative of the Crown is barred when it comes in another case, to be asserted: the case, however, proves too much; for the peace with 1836. MAYOR OF LYONS V. COMPANY. France was only in 1815; he must have been, at the time of making his will, an alien enemy; and it cannot be contended that an alien enemy could have any legal title in lands. The same rule EAST INDIA applies to General Martin; he died in 1800: either it must be presumed that he had obtained letters of denization, or he was an alien enemy, and as such incapable of holding lands. The Act of 4 Geo. 4, c. 33, known as Mr. Ferguson's Act, has been fully commented on by the Attorney-general. I entirely agree in his observations. But I rely especially upon the 13 Geo. 3, c. 14, conceiving that no sound distinction can be made between the colonies of the Crown in the West India Isles, and its possessions in the territory of Asia; and I submit, with great confidence, that the lands of General Martin, situate in Calcutta, or within the presidencies of Fort William, or the provinces subject thereto, are forfeited, and must be declared to have escheated to the Crown. Mr. Tinney, (in Reply): The inconvenience of applying the laws respecting aliens to the East Indies is admitted on all hands; but the law officers of the Crown say, it can be remedied by the Crown granting the funds, in this particular case, to the objects contemplated by General Martin in his Will, and preventing, by legislative enactment, a similar inconvenience occurring again; and they hold out a reasonable expectation that that course will be adopted here, if your Lordships shall, in this respect, affirm the decision of the Court below. However satisfactory to the parties such a promise may be, it is better to have the limits of this branch of law well defined, for it is impossible to 1836. MAYOR OF LYONS v. EAST INDIA COMPANY. say in what cases it may not be made applicable, if allowed here. It is admitted that the rule cannot extend beyond the lands in Calcutta and the Mofussil; the lands, therefore, in Lucknow, are not affected by it. No authority of any kind has been produced, to show that the escheat to the Crown, in the case of alienage, is any other than a rule of municipal law. If it were otherwise, it would prevail in other countries than England; in the Canadas, therefore, it might be expected; but there the old French law, the Droit d'Aubaine, which repudiates our law of alienage, prevails; and though, at his death, the lands of an alien go to the Crown, yet he can hold them during his life. The authorities referred to by Blackstone, 1. vol. 372, confirm this view, and show, that by the civil law, no such prerogative as that contended for existed. By the Mahomedan law aliens may hold lands. The escheat of a copyhold in the possession of an alien cannot be; it is contrary to the case in Styles, where a beneficial interest in copyholds was seized under inquisition, and the judgment was removeas manus, the judgment said, that inasmuch as it was a mere beneficial interest, the legal estate could not go to the Crown; and from that time to this, there has been no decision touching the point of copyhold. The argument on behalf of the Crown assumes, that if any part of the law of real property is introduced, the law respecting aliens must necessarily follow; that is not a sound conclusion, nor is it warranted by the authorities cited (z). It must appear itself to have been introduced, being not a rule of tenure, but a municipal regulation. The charters of Geo. 1 & 2 recites, that (2) 1 Bla. Com. 108, |