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capacity of aliens, is itself a strong authority against the position which affirms the title of the Crown to aliens' estate to be inseparable from the sovereignty. At the very least it shows, either that the right in question does not exist, or that it has been waved and removed.
It should seem, however, independent of these considerations, that there is no warrant in the nature of the thing for the position, that this right is an incident of sovereignty ; it certainly is not an incident to sovereignty. In several other countries the sovereign has no such right. In France, for example, aliens can hold lands without entitling the Crown, and can transmit them to their heirs; this was abrogated by Ordonnaux, 13th October 1814; the droit d'aubaine having been abolished at the Revolution; and the proviso of reciprocity at the Restoration introduced (provided the law of their own country gives the same right to French subjects then seised of lands). Besides, if reference be made to the prerogative of the English Crown, that prerogative in other particulars is of as high a nature, being given for the same purposes of protecting the State ; and it is not contended that these branches are extended to Bengal. Mines of precious metals, treasure-trove, royal fish, are all vested in the Crown, for the purpose of maintaining its power, and enabling it to defend the State. They are not enjoyed by the sovereign in all, or even in most countries, and no one has said that they extend to the East Indian possessions of the British Crown.
III. Can it then be contended that the general introduction of the English law, draws after or with it that branch which relates to aliens ? This is the third question proposed, and to this an
MAYOR OF LYONS
answer, or the materials for an answer, have already been furnished. For had the negative position only rested upon want of instances where the rights of the Crown had been enforced, it might have been said that the general application of the English laws implied that of the portion in question. But the acts of the power which alone could introduce this portion, and which alone introduced the English laws generally, show that it was introduced not in all its branches, but with the exception of this portion at the least. This must be admitted, unless it can be maintained that there is no possibility of introducing the English laws at all, without introducing every part of them, which clearly cannot be asserted; for, notwithstanding the extent to which these laws have been introduced, it is allowed on all hands that many parts of them are still unknown in our Indian dominions.
The argument to which we are adverting assumes, that the English laws regulating real property generally have been introduced; and for this position the case of Freeman v. Fairlie is cited; but that case only decided, that the estate in lands and tenements of a British subject in Calcutta was of such a nature as to descend to him according to the English law of succession; that it was freehold of inheritance. It is true that this conclusion was reached by the adoption of the larger position, that the English law had been introduced into the settlement; but whatever went beyond the point of the land being freehold of inheritance, was obiter, and cannot be said to have been decided. It must further be observed, that the grounds of the more general position were chiefly the practice of settlement, in regard to the mode of conveyances, viz. by lease and release, with the course of succession,
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and also the charters of the Company, with the Acts of Parliament referring to them; the charter of the 13th Geo. 1, being the one principally cited. Now no one who reads that able judgment can entertain a doubt, that the same learned judge, had he been called upon to determine whether or not the law extended to alien incapacities, when he found the practice wholly against this extension, without any exception, and when he also found the language of the charters, especially that of 1726, as well as the provisions of the Regulations of 1793, and of the act passed in 1828, all proceeding upon the supposition of aliens being equally capable with subjects of holding and of transmitting real property, would have decided against extending and applying to the law of alienage the proposition which he had laid down upon the facts then before him, and upon the branches of the English law connected with the case under his immediate consideration.
If, indeed, the whole English law of real property, or even all its principal provisions, have been introduced into these settlements, an event which must have taken place many years back, how came it to pass that, as late as 1819, there could have been any question made, whether or not wills, to pass real estate, must be witnessed according to the provisions of the Statute of Frauds ? Yet it was then, and while Freeman v. Fairlie was pending, before the same court, for the first time determined, that those provisions extended to Calcutta,-determined, too, upon a full inquiry into the facts, and examining evidence of persons conversant with the Indian law. And it is plain, from the inquiry which Sir William Grant had directed, and from what Sir Thomas Plumer afterwards says, in giving
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v. East INDIA COMPANY,
judgment, that the mere proof of property being fee simple, and inheritable by the English law, was not deemed sufficient, but a further inquiry was directed, whether it passed by will without more than two subscribing witnesses. Nor can any distinction be taken between that case and the present, upon the ground that there the question related to the introduction of a statute, and that here the introduction of the common law is in dispute; for in Freeman v. Fairlie, and in almost every question that can be raised, touching the application of the forms of conveyance known in our law, the argument is confined entirely to assurances, which are the creatures of statute. No instance has ever been produced of land passing in Calcutta, by the common law conveyance of feoffment and livery. The introduction of the English law is proved by showing, that the mode of conveyance is adopted by lease and release, that is, upon the Statute of Uses.
Reference has been made, both here and in the Court below, to the opinion of Sir F. Norton, in 1764 ; and the true account of that opinion was given here, though it does not seem to have been accurately understood below. It holds very distinctly, that the subjects of a conquered or a ceded territory, are only to be considered as not being aliens, by virtue of the treaty which gives them the rights of subjects, and that none but such as can claim the benefit of the treaty can hold or transmit lands. We say this is the purport of the opinion, and that it was so represented here; for indeed the argument maintained by the Crown requires the proposition to be carried thus far, that upon a conquest or a cession, all the inhabitants continue aliens after the change of dominion, unless and
1836. MAYOR op Loss
until the conqueror or purchaser grants their naturalization. But this position seems wholly untenable; for all the authorities lay it down, that upon a conquest, the inhabitants, ante nati as well as post nati, of the conquered country, become denizens of the conquered country, and to maintain that the conquered people become aliens to their new sovereign, upon his accession to the dominion over them, appears extremely absurd, -almost as inconsistent with common sense as it would have been to hold the English inhabitants aliens under James I., at a time when there was even a question raised whether the ante nati of Scotland did not become, by his accession, denizens in England. The Court below, it must be observed, distinctly admit, that conquest operates what they term a virtual naturalization. But Sir F. Norton holds that, without express provision in a treaty, the subjects conquered are aliens. Even if all the rest of the argument be admitted, still it cannot be denied that the Crown may relinquish its prerogative. Indeed, whenever the inhabitants of conquered provinces are held to obtain the rights of subjects by treaty (and even Sir F. Norton has no doubt of this being possible), those who hold the doctrine the most rigorously, must say that the treaty is a voluntary abandonment of a right of the Crown. It evidences the will of the sovereign to exempt the conquered territory from this branch of his prerogative. But the same will of the sovereign may be collected from other circumstances, and the like abandonment of the prerogative be thus evidenced. The charters, regulation, and the Act of Parliament to which reference has so often been made, appear sufficient circumstances from which to collect this will of the sovereign, and so prove the