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So much has been said and writ. and so many pens have been branten 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 Bynwith 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- ceding chapter [p. 103] there is an ex.
press stipulation that 'enemy's goods, 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
vessel to be confiscated, on board of which To the advocates of neutral rights they are shipped. So that it must be said, 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 thor's opinion, in both cases, against still the property of his enemy, and by the
that case, 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 bellierful 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
he should first take the neutral vessel injustice of which all writers, at
itself, that he cannot do this without com. least, are agreed. The first has ne.
mitting an act of violence upon his friend, 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 observed, that it is lawful to detain a neutral vessel, in order to ascertain, not by the flag merely, which may be fraudu. lently assumed, but by the documents themselves which are on board, whether she is really neutral. If she appear to be such, then she is to be dismissed, otherwise, she may be captured. And if this is lawful, as on every principle it is, and as it is generally practised, it will be lawful, also, to examine the documents which concern the cargo, and from thence to learn, whether there are enemy's goods concealed on board, and it any should be found, why may they not be captured by the law of war? The Dutch lawyers, whose opinion I have already cited, and the Consolato del Mare, in the chapter above referred to [Consil. Belg. ubi suprà] are equally clear upon this point. Accord ing to them, the neutral ship is to be released, but the enemy's goods are to be carried into a port of the captor, and
Here again we are obliged to exRichard Lee, esq pose who ushers in the 14th chapter with the following formidable absurdity: Si navis amici [says B.] mei hostium res vehat, et capiatur, duplex erit inspectio; altera, an ipsa navis amica, altera an res hostiles recte publicentur ! "If the ship of a friend [says L.] carries the goods of an enemy, this occasions a double inspection-one whether the ship itself belongs to my friend, the other, whether the enemy's goods may be rightly condemned ?" Without the aid of the original, this would be unintelligible: and with that aid it is plain Mr. Lee has totally mistaken and perverted his author.
These chapters are fraught with useful learning on subjects of every day's occurrence in all maritime countries; learning, which is more applicable now in Great Britain and the United States, than it was in Holland at the time of publication; because of the vast progress of maritime adventure since then. They treat of pirates and privateers, of the forum for the punishment of the first, and of the relative rights and liabilities of the latter, their owners and associates; altogether of municipal cognizance, and therefore not to our present purpose.
Ensurance of enemy's property and the conclusiveness of foreign sentences, which are the subjects of this chapter, are also without the scope of our design. We will therefore content ourselves with expressing our unfeigned joy that these once sturdily asserted doctrines are now nearly exploded, and on the high road to overthrow and obilvion, a consummation of justice to which the authority of Bynkershoek availed much in England, and we will add, the labours of Mr. Duponceau have 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 goods," tacitly admits that neutral vessels are entitled to be considered as neutral territory, a prop sition which Mr. Hubner thought so self-evident, that he did not think it worth while (though he professedly wrote in favour of the neutral doctrine) to devote a single page of his work to its proof and development. Hubn. de la Saisie, &c. vol. 1. p 211. This principle being admitted, the question is reduced o the single point: Whether 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 the neutral character." On this point alone, the whole of our author's argument turns, and he maintains the affirmative; but like Hubner, he takes his proposition 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.
We ask leave here for a transient deviation from our plan, merely to insert a note of Mr. Duponceau's in which, with a national pride we hear tily reciprocate, he notices the decided superiority of the reason given by judge Johnson, of the Supreme
Court of the United States, over that given by lord Ellenborough, for the capture of a neutral for having violated his neutrality.
"According to the above decisions, the capture of neutral vessels by the cruisers of Great Britain or her co belligerents, is considered as a prohibited risk, 'because,' says lord Ellenborough, it is repugnant to the interest of the state, and has a tendency to render the British operations by sea ineffectual. Kellner v. Le Mesurier, 4 East, 402. This is certainly correct, on the ground of state policy; but, another rea, son, founded on the broad basis of the law of nations, is afforded by our own judge Johnson (one of the judges of the supreme court of the United States, and presiding judge of the courts which compose the 6th federal circuit) a neutral,' says he, who is captured for having violated his neutrality, is considered by the belligerent as an enemy waging an indivi dual war against his nation, and is abandoned by his own government as such.' Rose v. Himely, Bee's Admiralty Reports, 322 It follows, from this principle, that all risks of capture, by the armed vessels of the nation to which the ensurer belongs, may be properly classed within the general prohibition against ensuring enemy's property. And, indeed, according to the formula which is used at present by the courts of admiralty of Great Britain, whatever may be, in point of fact, the specifick ground of condemnation of a neutral vessel or cargo, no other reason is assigned in the decree, but that it belonged, at the time of capture, to the enemies of that country.-Horne's Compend. 148."
The United States have been no
less disturbed, than, as we are informed by Bynkershoek, many of the European states formerly were, by tion of citizens, and extradition of disputes concerning the expatriadeserters, which, together with the right of enlisting men in foreign countries, are the subjects of this 22d chapter. Of all the points in controversy between Great Britain and the United States, this is the one least susceptible of any settletlement, and most liable to vexatious difficulties, of perpetual recurrence. As Bynkershoek is very satisfactory in all his views of this particular, we abstain from any comment, and leave him to the reader.
"I enter upon the discussion of a question which has been, and is still, the cause of much disturbance in many of the kingdoms and states of Europe: Whether it is lawful to enlist men in the territory of a friendly sovereign: Let it not be imagined, that I mean to contend, that it is lawful to entice away soldiers, by bribes or solicitations, from the service of another prince, in order to enlist them into our own. I know too well, that those who promote desertion, are not less guilty, and do not deserve a less punishment than the deserters themselves; and, indeed, among some nations, that crime has even been construed into high treason. The question which I am about to investigate, is of a quite different nature. It is, whether a prince may, in the territory of a friendly sovereign, enlist private individuals who are not soldiers, and make use of them in war against his own enemies? It is certain, that if a prince prohibits his subjects 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 by 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 from which the soldiers desert is on the neutral territory at the time when the desertion takes place, as for instance, if it has been allowed the 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. l. 1. c. 8. § 4. T
tering into the army or navy of another sovereign, such sovereign cannot, with propriety, enlist them into his service; but, where no such prohibition exists (as is the case in most of the countries of Europe) it is lawful, in my opinion, for the subject to abandon his country, migrate into another, and there serve his new sovereign in a military capacity
"It is lawful, I repeat it, if there is no law that prohibits it, for a subject to change his condition, and transfer his allegiance from one sovereign to another. The writers on publick law are all of this opinion; nor does Grotius dissent from them; but he adds, that expatriation is not lawful among the Muscovites; and we know, that it is unlawful also among the English and Chinese. We know likewise, that Louis XIV. king of France,* declared, by an edict of the 13th of August 1669, that those of his subjects who should, without the permission of the government, emigrate from his dominions, with the intention never to return, should be punished with the forfeiture of life and goods. Before that period, it was lawful to emigrate from France, and it is so wherever the country is not a prison.†
And if it is lawful for a subject to pass under the dominion of another prince, it must be so likewise for him to seek the
means of procuring an honest livelihood, and why may he not do it by entering into the land or sea service? In the United Provinces there is certainly no law to prevent it, and many Dutchmen, formerly, as well as within my own recollection, have served other sovereigns by sea as well as by land.”
Thus with fidelity and impartiality, the utmost merits to which we aspire, we have reviewed this translation, which well deserves to be entitled a treatise, chapter by chapter, exhibiting such prominent features as in our opinion, deserved to be displayed; and extolling those principles of international law, which it appears to have been the object of both the author and translator to inculcate, and which we conceive it both the interest and honour of this country to defend and maintain. We should not have been so patriotick, if the intrinsick worth of those principles were not as clear, as is their identity with the neutral policy of
the United States: and we are certainly 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 established-Hénault, Abregé de l'Hist. de Fr. sub anno 1669. He foresaw the immense emigration which its final repeal would produce, and thus vainly endeavoured to preT.
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." S Dallas's Laws of Penn. p. xxii.
The question, "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.