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MAYOR OF LYONS
The facts must, of necessity, be numerous, and of constant occurrence, for every foreigner holding a house by lease, or by freehold tenure, affords an instance of the law not being in operation; and no instance has been produced, indeed it is agreed on all hands that no instance has ever existed, of a forfeiture to the Crown for this cause. There is no such thing known in those parts as an inquisition of office, or any analagous proceeding, or any proceeding whatever for entitling the Crown or those exercising its delegated authority, to the real estate, or the chattels real, of aliens within the district. When those foreigners die, their real estates have descended to their heirs, or been taken by their devisees, or been administered as assets by their executors, without any claim ever having been made by the sovereign power, which would here, in England, have been entitled without any office. Ejectments have been brought, and the parties in possession have never been advised to set up the defence that the lessor of the plaintiff claimed by descent from an alien; and dower has been assigned to widows, alien also. Previous to 1826, which is long after the present proceedings were instituted, and after the first decree in the cause, no mention of the subject appears ever to have been made in any place, or in any court of justice. Assuredly, if the law be as is contended, and the Crown by law is entitled, no one can contend that it is too late to declare the law, and enforce the right. But the whole question turns upon this, Has the law in question been introduced ? and the non-claim is material to show that it has not been introduced ; because it is not merely the acquiescence of a party, it is the acquiescence of that power which alone pos
MAYOR OF LYONS
v. EAST INDIA COMPANY.
sessed the right to introduce the law, and affords strong proof that this power never had introduced it.
But the acts of the same power, afford positive evidence yet more distinct. The charter of the 13 Geo. 1 expressly sets forth that the intention of the Crown is to induce foreigners to settle within the district: “Whereas the East India Company have, by a strict and equal distribution of justice, very much encouraged, not only our own subjects, but likewise the subjects of other provinces, and the natives of the adjacent countries, to resort to and settle in the said towns, factories, and places, especially in Calcutta, Madras, and Bombay;” to enable them the better to administer justice, corporations of mayor and aldermen are constituted, with power to administer justice; and it is expressly provided, that of the nine aldermen, seven shall be natural-born subjects, and two may be subjects of any other province or state, in amity with the Crown; and all of these are to be chosen from the principal inhabitants of the presidencies. In the successive renewals of this Charter, down to the end of Geo. 2, the only change in this province is adding the qualification that of the nine aldermen), the two foreigners shall be Protestants. This Charter could hardly have been so worded had the Crown intended that aliens should be incapable of holding lands; and it certainly could never have contained the provision directing two aliens to hold offices of trust under the Crown, or directed all the aldermen, including the aliens, to be chosen out of the principal inhabitants, if the general incapacities of aliens by the English law had been introduced into Bengal. For even if their disqualification to hold office can be traced no higher
MAYOR OF LYONS
than the statute, there can be no argument raised in favour of the introduction of this part of the English law into Calcutta, before the statute of 11 & 12 Wm. 3, c. 44. was passed. Observe too in what way the supreme authority in Bengal, exercising the delegated powers of sovereignty, regards aliens. And mark if it views them as at all on a different footing from subjects, in respect of rights of property. The Regulation 38, A.D. 1793, was made, as the title states, to enforce the "existing rules against Europeans of any description holding lands, without the sanction of the Governor-general in Council.” And the third section enacts, that "No European, of whatever nation or description, shall purchase, rent, or occupy, directly or indirectly, any land out of the limits of the town of Calcutta, without the sanction of the Governor-general in Council; and all persons now so holding land beyond the limits of Calcutta, without having obtained such permission, in opposition to the repeated prohibitions of Government, or who may hereafter so purchase, rent, or occupy land, shall be liable to be dispossessed of the land, at the discretion of the Governor-general in Council; nor shall they be entitled to any indemnification for buildings which they may have erected, or other account.” No statute made for England could have been so framed. It would have been absurd to prohibit Europeans, "of whatever nation or description,” doing that which only one class of Europeans, viz., British subjects, could by law do. The provision of the Bengal Regulation manifestly proceeds upon the assumption, that persons other than subjects, could, but for the prohibition, and the former rules which it is made to enforce, have held lands. It declares that aliens, as well as sub
MAYOR OF LYONS
t. EAST INDIA COMPANY.
jects, shall be liable to be dispossessed of lands purchased contrary to the enactment; which would have been wholly absurd, if aliens had been liable to be dispossessed upon office found, whether the prohibition had been issued or not. It would be difficult to produce a clearer recognition that the sovereign power did not consider that the Alien Law had ever been introduced into Bengal. But it seems also to admit, that in Calcutta, and notwithstanding the prohibition, foreigners as well as subjects might hold lands without licence, for it confines the prohibition to the Mofussil: “out of Calcutta" are the words.
The same inference is still more strongly raised by the statute 9 Geo. 4, c. 33, “ for declaring and settling the law respecting the liability of the real estates of British subjects and others, within the jurisdiction of the Supreme Court in India, as assets for the payment of the debts of their deceased owners.” It declares and enacts, that when any British subject shall die seised of, or entitled to, any real estate in houses, lands or hereditaments, or, “ wherever any person, not being a Mahomedan or Gentoo, shall die so seised or entitled, then such real estate of such British subject, or other person as aforesaid,” shall be assets. And it afterwards declares the executor or administrator “of such British subject, or other person entitled to sell and dispose of such real estate, and to convey and assure the same to a purchaser, in as full and effectual a manner as the testator or intestate could or might have done in his lifetime.” Surely this could have no meaning, unless persons other than British subjects—that is, aliens--could by law be seised of, or entitled to, real estate. And nothing could be more absurd,
MAYOR OF Lyons
than to declare that the executors and administrators of aliens, should be entitled to sell the real estates of alien testators or intestates in as full and effectual a manner in law as the testators or intestates could have done if those testators or intestates could not in any manner orway have sold, or demised, or in any way have dealt with, such estates. Suppose such an enactment in any statute relating to this country, and see how absurd it would have been. This seems strongly to prove that our law as to aliens was not understood by the Legislature to have been introduced in India before 1828; and yet the earliest of the cases, the only one before the case at bar, had then been decided at Calcutta.
But it seems to be contended, both here and below, that there is something in the law incapacitating aliens, which makes it, so to speak, of necessary application wheresoever the sovereignty of the Crown is established, as if it were inherent in the nature of sovereign power. To this a sufficient answer has been already afforded, if the acts of the sovereign power to which we have referred show that no such application to Bengal ever was contemplated, unless direct authority can be produced to show that this right is inseparable from the sovereignty, and, as it were, an essential part of it. Now, there is no intimation of anything of the kind in those cases where the whole subject is discussed most at large, as in Calvin's case, where all the doctrines connected, however remotely, with each head of the argument, are broached ; Lord Hale's famous judgment in Collingwood v. Pace (h), and Lord Mansfield's, in Hall v. Campbell. But in the absence of any such authority, the distinct recognition by the sovereign of the
(h) 1 Vent.