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So much has been said and writ- and so many pens have been bran. ten on this subject of late, that we dished, so much blood and ink have cannot presume to tax our readers been spilt. The basis on which Byn. with a renewal of the irksome dis- kershoek leaves it is unexceptionacussion. Everyone knows that a bly just, and should be universally blockade, by law and common sense, satisfactory. But we especially remust be actual and enforced: but joice at the unqualified and quasi every one likewise knows that over- territorial property of ships, which whelming power, the intoxication of is established by the coincident opi. success, and desperation of disaster, nions of Hubner and Byknershoek, have driven off what ought to be, and as explained by Mr. Duponceau. substituted what is, a system of paper, that enchains the world more “ We will now proceed to consider the effectually than cannons, fleets, and second question, whether the enemy's armies.
goods themselves, taken on board of a
neutral vessel, are liable to confiscation. Before we leave this class of chap- Some will wonder, perhaps, that any doubt ters we must not forget to remark should be entertained about it, as it is that Bynkershoek, in the 6th, quotes clearly lawful for a belligerent to take the the answer of a Roman emperour to property of his enemy. And yet, in all the the king of Persia, in these words: treaties which I have cited in the preQui enim Dominus est ejus qui im- press stipulation that enemy's goods,
ceding chapter [p. 103] there is an ex. perat, quomodo nec Dominus erit found on board of neutral vessels, shall be ejus quod ei subest? which Mr. Lee free;' or (as we commonly express it) that translates (page 98] “ How is he free ships shall make free goods, except, howmaster of him,
who commands, when ever, contraband of war, when carrying to he is not to be master of that, which the enemy. And what will be thought is subject to him?" which being treaties, there are four to which France is
more astonishing, is, that among those exactly what the original does not
a party, and, according to them, even mean, Mr. Duponceau has taken enemy's goods, laden on board of neutral care (page 48] to set it right. vessels, are not liable to confiscation; CHAPTER XIII-XIV.
much less, therefore, ought the neutral To the advocates of neutral rights they are shipped. So that it must be said,
vessel to be confiscated, on board of which these chapters are peculiarly gra- either that the principle of the old French tifying. They discuss the belligerent law, which I have above mentioned, has claims to neutral goods found on
been entirely abandoned, or, what is more board enemies' ships, and enemies' probable, that those treaties are to be goods found on board neutral ships; this may be, we are bound, in the discus
considered as exceptions to it. However and after an analysis of the law, sion of general principles, to attend more deduced from treaties, writers, and to reason than to treaties. And on rational usage, and a luminous develop- grounds, I cannot see why it should not be ment of the abstract merits, con
lawful to take enemy's goods, although clude by an expression of the au
found on board of a neutral ship; for in
that thor's opinion, in both cases, against still the property of his enemy, and by the
what the belligerent takes is those unjust pretensions, which have laws of war, belongs to the captor, been occasionally advanced by pow. “ It will be said, perhaps, that a belli. erful belligerents, in moments of gerent may not lawfully take his enemy's triumph or pressure; but upon the goods on board of a neutral vessel, unless injustice of which all writers, at itself, that he cannot do this without com
he should first take the neutral vessel least, are agreed. The first has ne
mitting an act of violence upon his friend, ver been so much contested, as in order to come at the property of his the second, the long agitated ques- enemy, and that it is quite as unlawful as tion whether free ships make free if he were to attack that enemy in a neu. goods, about which so many swords tral port, or to commit depredations in the
territory of a friend. But it ought to be CHAPTER XV-XVI.
The law of Postliminy, explained by the flag merely, which may be fraudule in this chapter, is mostly of munilently assumed, but by the documents cipal regulations. themselves which are on board, whether she is really neutral. If she appear to be CHAPTER XVII-XVIIIsuch, then she is to be dismissed, other.
XIX-XX. wise, she may be captured. And if this is lawful, as on every principle it is, and as These chapters are fraught with it is generally practised, it will be lawful, useful learning on subjects of every also, to examine the documents which day's occurrence in all maritime concern the cargo, and from thence to
countries; learning, which is more learn, whether there are enemy's goods concealed on board, and it any should be applicable now in Great Britain and found, why may they not be captured by the United States, than it was in the law of war? The Dutch' lawyers, Holland at the time of publication; whose opinion I have already cited, and because of the vast progress of mathe Consolato del Mare, in the chapter ritime adventure since then. They above referred to (Consil. Belg. ubi supra] treat of pirates and privateers, of are equally clear upon this point. Accord. ing to them, the neutral ship is to be re.
the forum for the punishment of the Jeased, but the enemy's goods are to be first, and of the relative rights and carried into a port of the captor, and liabilities of the latter, their owners there condemned."
and associates; altogether of muni. Here again we are obliged to ex- cipal cognizance, and therefore not
to our present purpose. pose Richard Lee, esq who ushers in the 14th chapter with the follow
CHAPTER XXI. ing formidable absurdity: Si navis amici (says B.] mei hostium res ve- Ensurance of enemy's property hat, et capiatur, duplex erit inspec- and the conclusiveness of foreign tio; altera, an ipsa navis amica, al- sentences, which are the subjects of tera an res hostiles recte public this chapter, are also without the centur ! “ If the ship of a friend scope of our design. We will there[says L.] carries the goods of ap fore content ourselves with expresenemy, this occasions a double in- sing our unfeigned joy that these spection--one whether the ship it- once sturdily asserted doctrines are self belongs to my friend, the other, now nearly exploded, and on the whether the enemy's goods may be high road to overthrow and obilvion, rightly condemned ?" Without the a consummation of justice to which aid of the original, this would be the authority of Bynkershoek avail. unintelligible: and with that aid it ed much in England, and we will is plain Mr. Lee has totally mista- add, the labours of Mr. Duponceau ken and perverted his author. haye not been in vain in America.
* It is worthy of observation, that our author, while he supports the belligerent principle, on the long agitated question, whether free ships “ do or do not make free gools,” tacitly admits that neutral vessels are entitled to be considered as neutral territory, a prop:sition which Mr. Hvibner thought so self-evident, that he did not think it worth while (though he professediy wrote in favour of the neutral doctrine) to devote a single page of bis work to its proof and development. Hubn. de la Saisie, &c. vol. 1. p 211. This principle being admitted, the question is reducedo the single point: " Wliether the right of taking enemy's property on board of neutral vessels, necessarily follows as a consequence of the right of search, for the purpose of ascertaining their neutral character." On this point alone, the whole of our anthor's argument turns, and he maintains the affirmative; but like Hubner, he takes his pro. position for granted, without taking any pains to demonstrate it. On the whole, he must be considered as having made a very important concession in favour of neutrals; and having greatly narrowed for them the field of that celebrated controversy: T.
We ask leave here for a transient
CHAPTER XXII. deviation from our plan, merely to in
The United States have been no sert a note of Mr. Duponceau's in
less disturbed, than, as we are inwhich, with a national pride we hear. tily reciprocate, he notices the de. formed by Bynkershoek, many of the cided superiority of the reason given European states formerly were, by by judge Johnson, of the Supreme disputes concerning the expatriaCourt of the United States, over that
tion of citizens, and extradition of given by lord Ellenborough, for the deserters, which, together with the capture of a neutral for having vio
right of enlisting men in foreign lated his neutrality.
countries, are the subjects of this
22d chapter. Of all the points in “ According to the above decisions, the .capture of neutral vessels by the cruisers
controversy between Great Britain of Great Britain or her co belligerents, is
and the United States, this is the considered as a prohibited risk, ‘because,' one least susceptible of any settlesays lord Ellenborough, it is repugnant to tlement, and most liable to vexatious the interest of the state, anzi has a tendency difficulties, of perpetual recurrence. to render the British operations by sea ineffectual. Kellner v. Le Fesurier, 4 in all his views of this particular, we
As Bynkershoek is very satisfactory East, 402. This is certainly correct, on the ground of state policy; but, another rea,
abstain from any comment, and son, founded on the broad basis of the leave him to the reader. law of nations, is afforded by our own judge Johnson (one of the judges of the “ I enter upon the discussion of a quessupreme court of the United States, and tion which has been, and is still, the cause presiding judge of the courts which com. of much disturbance in many of the kingpose the 6th federal circuit) a neutral,' doms and states of Europe: Whether it is says he, 'who is captured for having vio- lawful to enlist men in the territory of a lated his neutrality, is considered by the friendly sorereign : Let it not be imagined, belligerent as an enemy waging an indivi- that I mean to contend, that it is lawful to dual war against his nation, and is aban. entice away soldiers, by bribes or solicitadoned by his own government as such.' tions, from the service of another prince, in Rose v. Himely, Bee's Admiralty Reports, order to enlist them into our own. I know 322 It follows, from this principle, that too well, that those who promote deserall risks of capture, by the armed vessels tion, are not less guilty, and do not deof the nation to which the ensurer belongs, serve a less punishment than the deserters may be properly classed within the gene themselves;f and, indeed, among some ral prohibition against ensuring enemy's nations, that crime has even been con. property. And, indeed, according to the strued into high treason. The question formula which is used at present by the which I am about to investigate, is of a courts of admiralty of Great Britain, what. quite different nature. It is, whether a ever may be, in point of fact, the speci- prince may, in the territory of a friendly fick ground of condemnation of a neutral sovereign, enlist private individuals who vessel or cargo, no other reason is assigned are not soldiers, and make use of them in in the decree, but that it belonged, at the war against his own enemies ? It is certime of capture, to the enemies of that tain, that if a prince prohibits his subjects country.-Horne's Compend. 148.”
from transferring their allegiance and en
† The important question respecting the delivering up, or as it is called, the extradition of deserters from one country to another, has been the subject of much controversy in America as well as in Europe, and is not yet at rest. It has been but slightly touched upon by some of the writers on the law of nations, and hy others not at all. Vattel says nothing upon it. Hubner lays it down as a general principle, that “ a neutral sovereign may receive in his dominions, and even among the number of his subjects, deserters from either of the belligerent armies, unless he is obliged to deliver them up by a special convention, called a cartel. 1 Hubn. De la Saisie, &c. p. 39. But Galiani distinguishes and contends, that if the army froin which the soldiers desert is on the neutral territory at the time when the desertior takes place, as for instance, if it has been allowed tie right of passage, the neutral sovereign is bound to deliver up those who have deserted their colours within his dominions; otherwise, it will be considered as a violation of the laws of hospitality. Galiani, De' doveri, &c. 1. 1. c. 8. 94. T, tering into the army or navy of another means of procuring an honest livelihood, sovereign, such sovereign cannot, with and why may he not do it by entering into propriety, enlist them into his service; the land or sea service? In the United but, where no such prohibition exists (as Provinces there is certainly no law to preis the case in most of the countries of Eut- vent it, and many Dutchmen, formerly, rope) it is lawful, in my opinion, for the as well as within my own recollection, subject to abandon his country, migrate have served other sovereigns by sea as into another, and there serve his new so- well as by land.” vereign in a military capacity “! It is lawful, I repeat it, if there is no
Thus with fidelity and impartialaw that prohibits it, for a subject to lity, the utmost merits to which we change his condition, and transfer his al- aspire, we have reviewed this translegiance from one sovereign to another. lation, which well deserves to be
The writers on publick law are all of this entitled a treatise, chapter by chapopinion; nor does Grouius dissent from them; but he adds, that expatriation ter, exhibiting such prominent feais not lawful among the Muscovites; and tures as in our opinion, deserved to we know, that it is unlawful also among be displayed; and extolling those the English and Chinese. We know like. principles of international law, which wise, that Louis XIV. king of France,* it appears to have been the object declared, by an edict of the 13th of August of both the author and translator to 1669, that those of his subjects, who inculcate, and which we conceive it should, without the permission of the government, emigrate from his dominions, both the interest and honour of this with the intention never to return, should country to defend and maintain. We be punished with the forfeiture of life and should not have been so patriotick, if goods. Before that period, it was lawful the intrinsick worth of those princito emigrate from France, and it is so wherever the country is not a prison.t identity with the neutral policy of
ples were not as clear, as is their And if it is lawful for a subject to pass under the dominion of another prince, it the United States: and we are cermust be so likewise for him to seek the tainly rather the warmer in our eu.
* This edict was made with a view to the Protestants. It was in the same year that Louis the XIV. began to violate the edict of Nantz, by abolishing the chambres miparties, tribunals consisting of judges of both religions, which that edict had esta. blished-llénault, Abregé de l'Hist. dle Fr. sub anno 1669. He foresaw the immense emigration which its final repeal would produce, and thus vainly endeavoured to prevent it.
T. † By the first constitution of Pennsylvania, made on the 28th of September, 1776, it was declared, [c. 1. § 15] “ that all men have a natural, inherent right to emigrate from one state to another that will receive them.” 1 Dallas's Laws of Penn. Appen. p. 54, The present constitution merely provides (art. 9. § 25] “ that emigration from the state shall not be prohibited.” 3 Dallas's Laws of Penn. p. xxii. The question,
is whether it is lawful for a citizen to expatriate himself," has been brought several times, and in various shapes, before the Supreme Court of the United States. It was made a point, incidentally, in the case of Talbot v. Jansen, mentioned above. (p. 136] In that case, it appeared to be the opinion of the court, that expatriation is lawful, provided it is effected at such time, in such manner, and under such circumstances as not to endanger the peace or safety of the United States. “The cause of removal,” said judge Patterson, “must be lawful, otherwise, the emigrant acts contrary to his duty, and is justly charged with a crime. Can that emigration be legal and justifiable, which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member?" 3 Dallas's Reports, 153.-" That a man,” said judge Iredell, “ought not to be a slave; that he should not be confined against his will to a particular spot, because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere; much less where he must starve in one country, and may live comfortably in another; are positions which I hold as strongly as any man, and they are such as most nations of the world appear clearly to recognise. The only difference of opinion is, as to the proper manner of exercising this right.” Ibid. 162 Judge Cushing concurred in the general principle, that expatri. ation is lawful, and approved of the doctrine laid down on this subject by Heineccius,
logium, because a sense of propri- of the original; by enlarging his ety and the spirit of patriotism hap- notes, and indulging himself in any pen exactly to coincide. We will such transposition or phraseology, as now briefly notice such demerits as will make the style and even the appeared in the retrospect. There are work his own. in the book itfelf some assertions, to In the 4th chapter the Latin word which we cannot subscribe; but as mores is given by the English word their authority is imposing, and to manners; a meaning, which howecontradict them would have opened ver it may sometimes be proper, too long a discussion, they were not does not belong to it in this place. noticed. But with the translation we Bynkershoek's expressionis « in ipso may
be more free. In the first place Belgio Federato leges moresque rethen we will observe that though pugnare, abunde persuadebunt, quæ fidelity is indispensable, we would hoc et sequenti capite proxime dihave been better pleased if in this centur,” which is thus translated by instance it had been less adhered to, Mr. Duponceau, “what I shall say because Mr. Duponceau has great in this and the next chapter will funds of his own, and need not abundantly prove that this custom is have feared to draw on them. We repugnant to the laws and manners trust that the reception of this work of the United Provinces.” In the will be such as to induce him to fa- beginning of the 5th chapter “ moyour us with others of the same ribus gentium obsolevisse” is again character. And if a future opportu- translated “ have become obsolete nity should offer for improving this, by the gradual change of manners." we respectfully suggest that it might In both these instances the English be done, by not only, as he almost term should be usage or practice. apologises for doing, shortening The Latin root mos, and the French Bynkerhoek's Ciceronian periods; word mæurs branch, in English, into dividing his paragraphs; and ad- two distinct terms, morals and manjusting his phrases to our idiom; ners, perfectly distinguishable in but, provided he preserve the spirit our acceptation. In the beginning of
Elem. Jur. Nat. et Gent. I. 2. c. 10. "But,” said he, “the act of expatriation should be bonâ fide, and manifested at least by the emigrant's actual removal, with his family and effects, into another country.” Ibid. 169. In the case then before the court, no such removal had taken place.
In that of Murray u. The Charming Betsey, it was decided, that a citizen of the United States who has bonâ fide expatriated himself, is to be considered as an alien for commercial purposes. One Shattuck, a natural born citizen of the United States, had, for many years, resided with his family, and had been naturalized in the Danish island of St. Thomas. It was objected to him, that he had traded from that island with the French colonies, in fraud of an act of congress, by which all trade was interdicted to the citizens of the United States, with the dominions of France. But the court were of opinion, “ that an American citizen may acquire, in a foreign country, the commercial privileges attached to his domicile, and be exempted from the operation of the general prohibitory laws of his native country.” The court did not, however, deter. mine, whether a citizen of the United States can devest himself absolutely of that character, otherwise than in such manner as may be prescribed by our own laws, nor whether his expatriation would be sufficient to rescue him from punishment, for a crime committed against the United States. 2 Cranch’s Reports, 120.
And lastly, in the case of M'Ilvaine v. Cox's lessee, it was determined that a citizen of New Jersey, who had gone over to the enemy during the revolutionary war, and had, since that time, remained in England, enjoying the privileges of a British subject, had not ceased to be a citizen of New Jersey, and was entitled to claim lands by descent, in that state, because several laws had been made by its legislature, some before and others after his emigration, by which emigrants of that description were declared to be fugitive citizens and traitors, punishable as such, but were not considered as aliens. Cranch's Reports, vol. i. p. 280. vol. iv. p. 209.