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COMMENTARIES 



AMERICAN LAW. 



BY JAMES KENT. 



BIGHTH BDITION. 



NEW-TOKK: 

PVBLISHBD BT WILLIAH KBHT, 



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BwOwm DMrM eTITmr-Toik, m. 

BE IT BEUMBEBED, Tbtt « tha twntr-mii iij of NoTcmbw, A. D. ISM, In the 
tltr-tat jtti or Um IndrpeDdana* of Ifaa United Slilta of Asieris, 3uat Kbit, 
(LB.) Gt (be Bid diWrtet, h« dvporiled In tlitt offloe Ibe UUe ofa BoiA, the ii|3it irhcraur 
hedalnu Bantbor, In the «crdi toDovliif , lovU; 

" OofnmaDlarica on AnHvleui Iav. Bj JAm KsBT, TaL T-" 
Ib aiBbnnUr to the Act of (be CDii«Te« of Iha nmied BIitB, edOtled " Ab Ae( Or Oe enxuff- 
agiinaBI of kinlngi bj aeanrlng lbs aoplB d Ibp*, Obuti ud fio>^ to Ibe aWbon and 
prciirleMnofMahoiqilaa,dailnt lhetiHiaalbanin>>callo»d." ADdataDtoaDA(t,enlUI*d,An 
Act, NiiplamanUuT to an Aot, aBtUad, An Act lor the tpec mm tnMM of lewnlic, bj aerarlni 
Iba eDplea of Ibpa, Cbute and BooVi, to (he iwbon aid pRfirlatan of lacb oopM, darlDf the 
timet Ibenlnmedtiaied, and BUendlnc Ibe baieflli UuTeoftolbeBitaof dcel|nlB|^ capailn( 
aud aUhlnc UBiwtcal and olbai prialL 

JAKES DILL, 
OlMk of Iba BoBOien SMrtet oTNavTerk. 



Entered aemrdlnf to the ActotC!oiifnia,ln IhaiearonelboaBnd eight himdred lod thirty - 
nro, W JJMM Knn, In the Caaffi Ofke el Ae Dlitrtol Gamt <a Iba United Blalee, fee the 
Sonlhern Dtatlll* of SeT-Toifc. 



Entired aaecvdlnf to the AM of Omgnaa, In the jear ooa (bonaand elgbl hundTed and fiwtj, 
bjiaim Knra, tn the Chrt'iOfflMOflbaDttttlol Court of Ibe United BiBia, tor the SoDllMini 
DMrWofHew-Tak. 



Entered aoecrdlDg to the Aet of Congreea, In the rear one Ibonnnd elgU hiuidred end lohj- 
fdgblthjiriuuii KsrTitnUieCleikHOflleeDf Iba DlitrlelCeiiittf the United Blale^ftr Ibe 
eoBlbtnlrUrictoflleir-Tcefc. 



Kitiied ■aDocdlnilotlie Aetef Oongrc^ tn the jtti one thenaand d^l hnndnd nkd Bft)'- 
OM,bT y/auiit Km, in the Oktfc'i On» «f the SMilct Conit of the United BlaU^ &« Iba 
Baothccn I>laliM of Hew-Tak. 



Entsed aoordlnf to (be Act of Googrea, hi (be Jta one thouand eight hundred and tnj. 
fCni.b/ VauAM Km, In Ibe Cteik') Office Of the DlMrM Court of the United Btatea, Sir (be 
Soolbcn DlatrM of Naw-Yoit. 



r, Pilnler, No « 



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ADVERTISEMENT. 



Thb BeTen& edition of Kent's Commentaries is the first 
that haa been publisbed containing an;r additions or altera- 
tions not made "bj tlie Author. As Uie work tiaa become, in 
agreatdegree, a Digest of American Law, of practical use to 
tiie lawyer as well as the student, the Editor haa endeavotired 
to collect the principal decisions and statutory enactments 
that have been made since the appearance of the last edition. 
In some few instances, he has attempted, in a very limited 
manner, to illnstrate or qualify some of tiie doctrines of the 
text 

The Editor is aware that this mode of collecting authori- 
ties is incompatible with exact method, and is, indeed, con- 
demned by the Author himself; and it is quite possible that 
the original notes to the Commentaries, which were made 
at successive times, without regard to strict order,' might be 
advantageously regulated and compressed. But, on reflection, 
he has not felt himself anthorized to impair, in any degree, 
the integrity of the Commentaries, and the text and notea are 
presented in this edition, as they were leit by the Aathor. 

The great increase of the work has rendered the Author's 
index altogether too limited, A new and enlarged index haa 
accordingly been added ; and, as a necessary effect of this 
index, a new nnmbering of the pages has been adopted. For 
the convenience of those possessing the previous publications 
of the work, the original numbers of the pages have been 
placed in the margins of the volumes. 



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It TemamB only for the Editor to mentioii, diat tlie present 
e^tion haa been prepared bj him, with the ibll and eqoal co- 
operation of his friend, Borman Bridgman Eaton, Esq., who 
has recently become a resident of ITew-York; and whose 
learning and talents must hereafter, in their independoit ex- 
ercise, become manifest to the profession. 

WnXIAM KENT. 
Bnr-ToB^ Hat, 1B6L 



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"WTLLIAU: JOHNSON, Eao. 



DEAS BIB, 

In compiling these Tolmnes, (originaU;' intended, and now 
pablished, for Uie benefit of American atadeuts,) I have &e- 
qnentlj been led to revisit the Bame groond, and to follow 
out the same paths, over which I have so often passed with 
70a OS a companion to cheer and delight me. 

Yonhave reported every opinion which I gave in term 
dme, and thonghtworth reporting, daring the five and twen^ 
years that I was a Judge at Law and in Equity, with Ike ex- 
ception of the short interval occupied by Mr. Coines' Beports. 
Daring that long period I had the happiness to maintain a 
free, cordial and instmctiTe intercourse witlt yon; and I feel 
nnwilling now to close my labours as an anthor, and with- 
draw myself finally from the pnblic eye, withont leaving 
some memorial of mj grateful sense of the valae of your 
friendship, and my reverence for yonr character. 

In inscribing this work to yon, I beg leave, sir, at the same 
time, to add my ardent wishes for yoor fdtore wel&re, and 
assure yon of my constant esteem and regard. 

JiJiES KENT. 



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PREFACE 

TO THE FIB8T VOLTTHB OF THB FIRST EDITION. 



Haviks retired from public office in the sammer of 1823, 
I had the hoaour to receire the appointment of Profesaor of 
Lav in Colnmbia Ckillege. The trnatees of that institution 
hare repeatedly given me the most liberal and encoaraging 
proofi of their respect and confidence, and of which I shall 
ever retain a grateful recollection. A similar appointment 
vaa received from them in the year 179S ; and this renewed 
mark of their approbation determined me to employ the 
entire leisure in which I found mynelf, in further endearonrs 
to discharge the debt which, according to Lord Bacon, every 
man owes to his profession. I was strongly induced to ac- 
cept the trust from want of occupation ; being apprehenrnve 
that the sudden cessation of my habitual employment," and 
the contrast between the discnaeionB of the forum and liie 
solitude of retirement might he nnpropitiouB to my health 
and spirits, and cast a premature shade over the happiness 
of declining years. 

The following lectm^s are the frnit of the acceptance of 
that trust ; and in the performance of my colle^ate dn^, I 
had tiie satisfaction to meet a collection of interesting young 
gentiemen of fine talents and pare character, who placed 
themBelves under my instruction, and in whose fiitm^ wel- 
fare a deep interest is felt 



r of New-York b Ibrd^ 17al, ■ 
until Aogttrt, IBiS, I wu eoMtwitly cmploj«d in judidil 4atim 



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Harmg been enconraged to suppose that &e publication 
of Hie Lectures miglit render them more eztensiTely oseM, 
I have been indaced to sabmit ibe present Tolnme to the 
notice of stadents and of the junior members of the profes- 
sion, for whose ose ihej were originally compiled. Anetiier 
Tolnme is wanting, to embrace all the material parts of the 
Lectures which have been composed. It will treat, at large, 
and in an elementary manner, of the law of property, and of 
personal rights and commercial contracts ; and will be pre- 
pared for the press in the course of the ensuing year^ unless, 
in the mean time, there should be reason to apprehend that 
another volmne would be trespassing too far upon the 
patience and indulgence of the public. 

ITcw-Tou, NoTWHB tS, 18!S. 



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PREFACE 

TO THE 8B0OHD VOLUMB. 



Whek the fint Tolnme of these Oonunentaries was pub- 
lished, it was hoped and expected that a second would be 
snfficientto inclade the remainder of the Lectures which had 
been delivered in Columbia College. But in revising them 
for the press, some parts required to be suppressed, others to 
be considerably enlarged, and the arrangement of the whole 
tp be altered and improved. A &ird volume has ac- 
cordingly become requisite,* to embrace that remaining por- 
tion of the wort which treats of commercial law, and of the 
doctrines of real estates, and the incorporeal rights and privi- 
leges incident to them. 

It is probable that in some instances I ma; have been led 
into more detail than may be thought consistent with the 
plan of the publication. My apology is to be found in the 
difficulty^ of being really useful on some branches of the law, 
wiUiout going far into practical illnstrations, and stating, as 
far as I was able, with precision and accuracy, the established 
distinctions. Such a detail, however, has been, and will 
hereafter be, avoided as much as possible ; for the knowledge 
that is intended to be commnnicated in these volumes is be- 
lieved to be, in most cases, of general application, and is of 
that elementary kind which is not only essential to every 



■ Tbia k]^>Mr«d ia 18!S, wad ft feurtli toIdiiw wu rcqmrMl, Mid appeared it 
ISSO. 



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person whoptuanes. the science of the lav as s practical pro- 
fession, bnt is deemed nsefol and ornamental lo gentlemen in 
every ptusnit, and especially to thoee who are to assnme 
places of public tmst, and to take a share in the bosinesa 
and in the councils of onr aoantrj. 

Net-Tobi, ITonun 11th, 18ST. 



Son Bt TBS AvTBO*;— TDMn Om jit. T. Revi»ed BtatiU* va cited ia tha 
woi^ tb« Ant editwn of 18f9 ii geDtnllj reTsmd to ; mad if tha lul edition of 
184e be refored to, it ii dtad u Jftm-Tort Smtti Slatulu, 3J atSliott; ud if 
. tlie dttliaii of the Hd *dition b« bj the page, the refarenu b to the new paging Kt 
the top of each leaC 'WheneTar 1 hkre had occaaioD to refer, in thii new edition 
of the Oommeotariea, to any of the New-Tork Btatnter^ I bava alwaja dted from 
the 8d edition ; bnt^ in other respecte, the refereoee to the lat editica of the TTew- 
Tork ReTiud Statotea ramaina nadiaturbed ; and I h«re not thought it wactii Um 
trouble of altering that reference imamticb aa the pagii^ to the fint edition «f 
the lUtote* b {msarrad in the margin to the Sd edition. 



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CONTENTS. 



r THE LA.W OF RATIOSB. 



Liontu J.—0/tka Fotmdatiim aitd Bilory of Ou Lam of Natiim* I 

Licnu llr~-OfOu Rightt oKd Ihdia ofNationt in a Slate ef Peaet, 31 

1. Higlit of iDterference iritlioUi«r itBtM, !S 

3. JnrwBctioD OTcr adjaiiuiig mu, S8 

S. Bigbta of commerce, Si 

i, right nf piMign nrnr linil, ST 

5. Right of MTigftblfl riven, id 

6. Smrmder of fogitirca, S9 

1. AmbMNdorl, 44 

B. Coorali, 4S 

iMtna BL— (y titt J}t<iaratt«* and BarJy M—mrtt of War, S6 

1. Aiutance to lUiei m vuv 68 

t. DeeUratioD of wir, 60 

I. nvtMtinn to enemj'i pr<q>«tt7 M 

4. OonfiicmtioD of propartj,, .. ., S7 

G. OonSMatka of debt^ 10 

5. iDUrdidioD of CMninereev 74 

litciBKtTV.—OftU9aTim*Hn<UofFr<iptrt3liatiU to Caplttrt, 81 

1. I)(»nidl k th* cnemj't cotntf?, 83 

S. BaudcDce ID it, 84 

S. ColoiiUtnLd^ 88 

4. Propert; in irannfv, tS 

Liorau \^Cft3t*RigiU*<^BMigtTtiiU, 9t 

1. Mod«r«tioD m dut^, 97 

1. I«ir of raUlktioD^ 101 

8. Pri<n>t«ericig; 104 



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LtorunYt—O/tiuSighUandDtdUtofifitUraU, ItO 

1. Ifeutnla must be impuiial, li 

2. Neutral Urritor; inTiaUble, isa 

8. Eacmj's prapertf in ueatral vcueU, IIS 

i. Seatnl fwpmtj ia kn eneiDja Tetscl, IBS 

LtoTuuVIL— Of AMtricftMUKpon Jirniirof 3¥aA, lU 

1. OontnilaiidofWBrr U. 

S.Btocku]e^ 146 

3. RightofKucb^ ISi 

Ltoto»,KYUL—0/7}nietl,PattpoHta«d TreaiU* of Peoet, ISS 

1. Of buiM,. Id. 

a. PsMpoTti, 1«6 

S. TreUies of Peaee^ 1«B 

4. Of Tenitoriescfdador uquired, 180 

Lkucbi JX^-Of Offtnctt agamtt the Lav of Jfaiiont, 184 

1. VioIaUoD of pmporU, IBS 

2. TioUlioD of Bmbundon, M 

8. Piracy, 180 

4. SUtb trade IM 



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OF THB OOTEBNICEln' AND OOHHTITUTIOHM. JUBtSFBUDEITCE OF 
THE imiTED ffTATES. 

Fact 
ljWfimx^.—0/HfBulori/i^UuAm4ncaKrUiiiim, a>7 

iMammXV—Of Oviigr—t. Jt7 

1. Of tlw^viEMoiiito tTohooMt, tia 

t or Um Santa ttO 

S. ortheHouMofRapraMolatiTMi, lU 

4. Privil«geiof tlM tvoboiiM^ S4S 

5. ItMimeT ot pmmag law^ ibt 

t. PtnidaDt'i negfttiva, , SH 

Jjtotm^l^ni^-Of JitdieUl OiHUlTiKtioni a/ a* Peiairi o/ CengrM*. US 

1. Orpriod^ofpsTmcDtduinedbT tlMUiiit«dSUtMh.... Ti. 

3. Powgr to iDoorporato a bwik, 2SB 

8, TucatioD, 478 

4. Pre-emplMD of iDdun laixk, Vlt 

t. EBeetofttetejadgmaiU. VJ9 

t. Town at oaigimB over the militia, 2S3 

1, Power of oDDgren ai to intctDtl impToremenUp.. SSt 

LwiMB XIIU-0/ IA« Pr«nA»i Ml 

t. Unitf of tb« office, H 



4. DDnOiDDottlwoffio^ )00 

6. Sappoit, ^ 

8.Pow«, Ml 

1. Hi* rMpoD^btlity, 808 

■ JJ.y^O/ A4 Jy^aary Dipttrtrnm, 810 

1. Oftbeai^Mtemeiit, taonreMtd Mi[^»oct oTtbejudgt*^... Ill 

1. Its general powers, S19 

8. Juriidictiiio of the Soprema Court, 8S8 

4. JmiMlietkn of the Circuit Covt^ 8S) 

B. JurudietioDoftheDiitrictGoiuta, 8SS 

B. Joriidiction of Ibewniliarj State Coort^ 8)0 

1. Of attomeji and oouunl, MS 

8.0rdeA* 88B 

f. OfH 



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L^DiOU ZV. — Of (A« (MffituU tmd ApptUali JuritdUHon «/ tit Bupnnu 

Omrt, M! 

1. lu original joTudictino, 143 

5. Its appellatsjnriailictioliin cues peDdioginBUtc Courtly. S46 

a. lUpoweniD amtt at mandaiMa, ttO 

4. ItaongiEMljuiMictiiia vbcreaaUteiikpMrty, t62 

6. ItB appellmta jnrisdictioo r^rulated hj oeagreai, SfiS 

4. Its appellate jmudicttoDconfiotd to catMnitdertlMeocMti- SC8 

totjoi^ tTMtia and laws, BM 

T. Its appellate jurisdictioD to matter appearing on record,. . SCE 
8. lit appellate jurisdiction eu>lH,thaogb a >tat« baa paitj,. 8S6 

LacTUKi XTI — Of tht JurUdiclioii of tit Ftdtral Cmui* in mptel to thi 

Commpn Iims, and in ntptel to Partiti, 180 

1. Common law jmiadiclion in criminal cases, Id. 

5. CommoD law jiirisdietjoa indril cases, STO 

g. Jurisdiction when an alien U a par^, 814 

4. Jarisdictton between dtiietM of different itate^ 876 

5. JnrisdieUon wben a state i» bterested, 861 

JjtpimMS.'VU.— Of tkt District and TnrriloTud ComUcfth^ Unittd&att*, 8B4 

1. Of the Watrict Court M a Prize Court, 887 

2. Its admiralty criminal JurisdicUon, S90 

S. Limits of its admiralty jurisdiction, 198 

4. JuriedictioQ as anliutaoce Court of Admiral^ 414 

B. Civil juriadictioa of the District Courti^ 41S 

e. Temtorial Court* of (be United States, 4il 

LnxDBE XTIIL— 0/ tht ConaiTTtTit JurttdiclUm oftha State Govenvuntt, 4t0 

1. Of ooncuTTentpowtra of legislation, Jd. 

2. Of concurrent judicial power, 414 

LnmiBK 'S.lS.^Of C<MaitMion<a Rftrimitmi en the Pmter* tf Oa BIMm, . 447 

1. Of bills of credit, 448 

i. £e piMl /(Klo laws, 460 

8. Tbe atatee cannot oontrol tlie exercise of federal power,. . 461 

4. Nor impair tlieobtigatioti of eoDtrads, 46B 

G. Nor pass natmaliiation laws, 461 

5. Nor tax national banks or stocky „ 4B8 

7. Nor exerdss power over ceded places, 47S 

8. Powar to r^ulate eonunerce, 476 

9. PrcfTcnoftlMiMtieiid jurispmdeoce^ 480 



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OF TBB VASIOUB SODBCES OF THE IfumOtPAL LAW OF THS 
BETEBAL STATES. 

PM* 

Lboioti XS,—Of Elatult Laae, 498 

1. Iawi repogiuuit to i1i« eowUtatioD Toid, 4M 

S. Power of the Judiduj to decUre Umih Tcdd, i96 

5. Wbeo a atktute takes effect, SOI 

4. ActspobUcMkd |wi»ta, 506 

6. Bulea for the ioterpretKtioo of ttatatM, 60) 

t. SSeetot tempomijttatattt, S15 

T. Statute peoaltiei, BIT 

LnTTCU XSL—Of EtporU of jtuEciat Jttitioiu, S!S 

1. Source of Uia commoD law M. 

5. Forcflof adjudged euea, ti6 

t. Notice of thapriodp*! repocta at law, G3S 

4, Notice of tlie prioeipal report) in equity, MO 

G. lutereitii^ duract«r of reports, 547 

Lrcniu XXIL— 0/ Ih/i Prittdpal PiMiealiotu of U« Cammtm Laie, BSO 

Lacnu XXIII— 0/ the Ciril Lmb, BOO 

I. Earl; RoqudUv, Btt 

t. Tbe twelT« taUei, 671 

i. Tlie Pnetoriaa Uv 571 

4. B«apoiias prudeatmn BSO 

G. Imperial racripta, 661 

'iOode, 687 



HoTek, GSl 

7. Ldm of tlie ciril law Id. 

8. lUreriTal, 69B 



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OF THB LAW OOKCEBNIHa THE BIGHTS OF PEaSOlTS. 

l^MsmMxS.n.V.—0fthtAbKitittRi3)UiafPnt«<u, Eff» 

Thefautorjoftlwbillofiigbti, M. 

1. Of penooal Mcuritf BIO 

2. OfdudrrtwdUbeU, 619 

S. Orp«noii»l Uber^, 6S1 



(I.) Writ of h«beai oorpua, 

(t.) HomiDercfd^iuido,... 

(S.) KeexMt, 

I. Of religknu i^iiwow wad vontup,. . 

APPENDIX. 



ooftlM United Stetca, «4» 

Atneadraeola to tha Conatitotion, US 



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TABLE OF CASES. 



Abenrombia V. Dajnnik 8' 

AbcrfoTle,. 4 

Abigkil.Th^ 1 

AlingdoD'i GM«, S 

ActiCTbe, 1 

AduDB •. Hafbrd, S 

..Keld B 

Adelude,Tbe, 1 

Albrccht >. Suwiiiui, 

Aldrich ». KinDBj,. 8 

AlerU, Brig e. BIm Uonui, I 

Alexauder^ ] 

Alexander v. Wellingtoo, S 

». Wilmii^^ B. Co,. . . 4 

Allen ■ FuTow 6 

Almj •. Hwria,. G 

Anicdie. Th«, 201,! 

American Ina. Co. ■. Canter,. . 377. 4 

AmiaUe iKsbella, 1 

NiDcy.Tlie, 890. 8 

Amary «. UcOregor, 

Andereou*. DuDD, I 

Andrews *. Ema Co., * 

AiM]a,Tba. US. 1 

AiunOatbariiH, Tbe,. ...Bi SS. 88. 

Vrow, 88. 88. ISO. 1 

Anka Uaria,.. ,.,,.». ,.•- 1. 

The, 1 

Ann, Brig, EOl. 0' 

Autelc^. Tbe. 164. S' 

AntboD B. ruber, 114. 8 

Antobe v. HiH-ebead, 

AntoDto JiihimDa, Hw,. 

AraUUa.'Hie, 8 

Aiiidne, The, 

AnniMad de Rue^ 11«. 1 

Anaatrantt.Oenerid, PttTaUei',.... 1 

Arnold >. n. Ina Co, 86. 

AiT(igaot« BarMloncit 1 

Artbnr.Tlie, 1 

Aapinvall ■. Queen'i Pro«tor, 

AUlanta,- 187, 1 

AtlBa.Tbe, 130.4 

At^jQen.!. GaT.ofClMlMa, 5 

- I . f. Le Merdian^ 4 



AtfjOea.*. Puiter, G04 

Aubert*. Haie, 608 

Aurora, The,. 88. 40S 



B 

BaJiH r. Scboonar Jame\ 408 

Baldwin ■. Pavne, 46! 

Blltimoro B. R Co. V. NnbiC,.4G6. 602 

Ballard v. BeU 380 

Bamaay V. All«gro, 417 

Bwikof Alabama*. Dalton, 4«1 

..Adger, !66 

of Aogustaa.Earle, 877 

of U.S.«.a.8t»t», 821 

>. DcTauz, 877 

(.Balitead 878 

B. Plantaa'Bank,..,. 181 

Barber V. Wbarton, 898 

Barbuit'Bcaw,^ 04 

Bilker 1. Esty, 611 

Barnogton'i cue, 601 

Barron v. Baltimore,. 447 

But; v. Ucrceio, 862. 884 

BaTtlett •. Viner 617 

Bates V. DeliTan, 281 

Bajlii V. lAWrence, 688 

Beanv-Smilli, 831 

Beatton r. Farmera' Baak, SSS 

BecquUf^HcCartby, 281 

Bedlord c. btulJing, 60t 

B«en V. HanghUo, 87S 

Bell*. Bdd, 88 

Bella Guidita. 77 

Bellu CoTranea,Tbe, 62 

BelLoTBAPeek,Expane, 2«B 

Bendv.BDyt, 601 

Bennic r People, 688 

Beoab; ■. Kgnole 617 

BeoUo >. Bwgh, 281 

Beotion V. Bovl«, 82 

Bereni v. Rntjter, BB 

Bernardi *. HotUan^ 168 

Berne, Citjof >. Bank of Ei^lud,. 27 

Beraey D. Tax Collects, 470 

Bern™, The 84 

BetKy, The. 148 

BeUe; Caina'e eaaa, 896 

' Biddla *. OotaiiHHiwealtli, 488 



.y Google 



TABLB OF OABBB. 



Klboa, Packet de, 

Billie adi Staw <■ 

Biugliun V. Ckbot, 87 B. S 

BulionThecBMof, i 

Biuell V. Bri^H, ! 

Blacknell'ts Alderman, case, S 

Black HaTilE, The, 4< 

Blancbard V. Buuetl,. 4 

R 4 

dr.Galdy, 6 

jd. Matter ol;.: 4 

Bleaknev IF. F. 4 M. Bk, 6 

BoedeeiueU «8. 

Bonrdiu s. IVioitj Cbiutfar E> 

BoTlman, Eic parte, S 

Boobam's. Doctor, ca»«, 4 

BooD E, Juliet, G 

Borden ('. Fitfh,. 2 

Baswell'a oue, 6 

Boultoai. BulU 609. B 

Bowman v. HiddletOD,. 4 

Bojce «. Holmea, 6' 

Bradnliav v. Heath, 2 

Braabeir v. UawKk, S 

BreedloTen.Nioolet, t 

Breilhaup V. Bk. of Qeo^is, S 

Brent D. Bank of Wadiington, 3 

Brewster v. Hough, 4. 

Briggi V. Freocb, 876, S 

Briscoe v. Bk. of KcDtuek^,. . . 448. 4. 

British Prisoners, The, 

BruDWD V. KeoM 4B1. 4 

V. Newberry, 4 

Brook D. Montague, 6 

Brooker v. Coffii^ S 

BroVD V. HarjlnDd, 4 

D. United Sut«^ ... 61. 73. 1' 

V. Union Ina. Oa, 1 

Browne tr. Strode, ft 

Bruce, The. 8 

»,W»it, 2 

Bruen B, Ogden, 4 

Brunswick v. LitehGeld,. B' 

Bacbanan V. Eucker, 2 

Budd g. Slate. 6 

BuftilD R. RoadiF. Buffido, S 

Bulhtrd V. Bell S 

Buuigardner v. Circuit Court, 4' 

Bordett B. Abbott, » 

Bnron «. Dennian, SOS. S 

Bushby v. Muoday, 4. 

Butler V. Famsworlh, 8 

«. Palmer, B< 

V. , 6 

V. PeoQijlTaiuft, 4i 



Cabrera. Ex parte, 4B4 

Caledonim The, 99 

QOkerD-BuU,...; 4SS. 4B0 



CalTin'iease, 180. fiSB 

Campbell V. Hall, 180 

Caoal Apprusere •. The People,. . ISO 

Co. tt. Bwl-Road Co_ 428 

Cannon v. Brjce. BIB 

Carlo Alberto, The, 1«0 

CarloUa, HB 

Carolina, The, 7T 

Caroline. Tlie, )B4 

C*n-B.Hood 8!7 

Cairell v. F. & U. Bank, 4E8 

Caniogton v. Hercbaots' Ids. Co,. . IBS 

CartleU *. Pacific Ina. Co, 878 

Car; V. Curtis, BOl 

Caw<>. Clark. 87S 

»;Woolley 40fl 

Caabrngre «. De Woir„ 40B 

Caatle'acaaa. GIB 

Caterins Eliaibetli, The, 161 

Cliadvicku. Moore, 4BS 

Chamberlaiov. Chandler, S90. SBi 

Cbappedelaine «. Decheneux, 879 

Charln R. Bridge v. Wamn E, BOS. BOS 

Charlotta ChriitUM, IM 

Charlton's case. Sit 

Cherokee Nation «. Geoipa, SSI 

Chester. Sloop, B8 

Chew V. Bandolph, SBI 

Cbildreasv. Emory 879 

Chirac V. Chirac, 4SS 

Chisholm v. Oeo^ia, SED 

Christr. Ex parte, SB4. 4S1 

Obnrcbv. Hubbard >4 

Oburcbillv, Hunt, 6£0 

Citj Council e. Abieos, 4S3 

Clark v. Baxadone, 8B8. 414 

•.Bioaey, 680 

If. Haryood,. 84B 

». U. States, 181 

Olarke «. Mathewsoo. 881 

Clement v. Chiru, 6B0 

Oochran v. Filch, 281 

Codviee v. Sauds. 481 

Coffee t. Planters' Bk, S80 

Cohen «.H<.ffi BIT 

Cvheni«.Virt[tnia,...3ie.8S6.47g. t>!4 

Oollea ■. ColUtt, 467 

Collins «. Smith. filS 

Oolqubnon n. S. Y. F.Ina. Co,. ... VS 

Ooltfln V. Brian, 486. E04 

Columbia. 147. 149, 1B3 

CotumUanGoT'nt v.Kothachild,. .. 821 

Comet, The, 111. 148 

Cnramercen, The, 91, 148 

Commercial Bank E. Chamber^ 459 

CommonTeatth v. Baldvio, SOT 

V. BlaodinK 6BB 

ip.Cha«, 634 

r.Clapp, 687 

».CIai7, 474 

, «.ChuTdiiIl, 616 

V. Deacon, 40 



.y Google 



TABLE or OASKB. 



CDaiTnoDw«*mi •. DoMia,. . 



».Fox. J28. 634 

--.Puller, 41 

— t. Hikrruoix. H 

— t. Kerper of debtors, Bl 

— V. Koowltoiv 61 

-B.Konloa; ) 

-^LeMh. 6i 

-«.Lackej^ fl! 

'D-Ltwis, it 



1>>J >. Smwe,.., 
Debrcczia, 'Ria, . . 



Omardv. 



-tL Tracy 

— v. Waterbofoogbr . 

aolic IdsTOo.,.. SSS 



t. Atlaolic h 

..Nicoll, 2 

CoDBublfl'* ewe. ses.a 

Oook, lore, i 

Cooler 0. Bowd of WirdMU, * 

Goods D. OalUuter. S 

Oooptrv. Barber, ( 

— — K Oalbrailli, i 

V. GreelT, < 

B. Weei fl 

Copenhageii, The. I 

OorfiEldtf. OcMTdl, 4 

CoruhuTtae Muridij, 4 

Comer B. Staokburae, 1 

ComiraUv Rtchardsoo, fl 

Cosmopolite. The, 1 

Cotton V. VaiUd SUtet, S 

CouriM a. Stemd S 

Crug ■. Utsnjuri tSS. 448, 4 

». U-aiM-Oo, 

». WiOieaioiD^ e 

Onuie. Ei parte, S 

Onwronl V. Wm. PcDD, "Hie, 1 

Creole, The, 

Creapiirny B. Wellibj fl 

Crcnbj's cut, B 

Cruwetl 0. RsnctelU 8 

Oam^ierlud, Bit a. Wiltiv- . 



Duhmi^TIm. , 

DarringtAO t. Bank of Alabsnia,. . 
Dartniiiuth Colle^ ■. Woodtrani,. 

Dull ■. VsD KleeLk. 

Darids-a >. ClaylaiKl, 

D.»i*.. Child 

1. Sew Brig, 

V. PuckanU 

». Folioe JufTp 

Davuuo ■, Ubftplin. 

Dtj e. Hemuk Mm. Oo^ 



□e B^ta V. Armistead, . . 

De Halwr >. Quee6 of Portugal,. . . 339 

De la Fonf* erne, fit 

DelAfield •. IlliDois, 43) 

Ds LoTio*. Boit, 401 

Del. CoL V. Arnold, 107 

Deo K Jones, 298 

Dcapatoh. Tlw, leo 

DiaiM,The, 84.136.801 

Diss *. Privateer ReTengc^ 101 

Dicksy B.Tompiteroad, S8T 

DIggs ». Woleott 4fi3 

DLmmick ■. Brooks, 280 

Dingley «. Mcxre, Slfl 

Dobbios *. Coinm. of Erie,. 41S 

Dodge.. Perkins,. 87J 

D»« «. N*;k)T, 516 

Dolee.Ljon, sm 

Doremus v. Walker, 264 

Dm Hermaoos; 88. IDS, 104 

Douglas n. Forrest. 881 

». Howlaod, BIS 

Ormeo, Brig, 4H( 

Dree Gebrosders, BS 

Driakirater V. SpMtM, 404.411 

Dudley'* eu^ 4S3 

DufPr V. People, 610 

DultoD «. Huwell. b!5 

Diiooaiiib« V. Daniel, 637 

Duone. Vul, 4es 

DUTDOSMMI •. U. StiitM, 8M 



Eakm v. Ranb, SOS 

BsrleofAilesburye. Patterson,. .. EIS 

EriuUnnan v. Joae«. SSI 

East Hutiiinl v. Hutfijrd Brii^e,. 4Ge 

E. lodU On. «. Oampbellr 40 

Edward, The, 146. 160 

eiii»betJi, TTWi S3 

Elin Ado, The, Ill 

El««b«^Th« loa 166 

Ely ft Pe<4. 442 

BiaanueU llie, S9 

Bmaloiu, The, 61. 386 

Essex, The. n 

Estrells, lie, Ill 

Ecrosco, Tba, 116 

Evans *. HoatgooMry, 4S1 

Everett •. Stone S6I 

Ever*. Coffin, iso 

ExduDge, dchoooer *. U'Fadden. 168. 46 
" "laoge. 161 SIS 



3 Fairfax tt Hunter,. . 
S Fairiee*. Ourintb,,. 



„Google 



TABLE OF CABK8. 



VWnnaD «. h^ 6S8. tVl 

Falcuo, Tie, 

F«ma, Tht, 

TenJoa'a PatilioD 

YrrfoaoBt. Oa»aof, 

Field *. Tin People, COS. Eie 

11*b«r *. Btigfai, U9. 482 

..CoakertU 

t-Uot., 

FiliiniDiMn r. Newport^ IM^ 1B1 

Flad Owen, 110 

T)«tdMr >. Pttk S7«. 4BI. 466 

ABbodaldwl, 

Fdtiott «; Ogdoi 

Forbci V. CMhnnc, 

Fnrga* ■. Ootir«<L. 

fanjib «. Muburr, 

. 9. U. StktM, SM 

PortuM,Tbe, 1(6. JOS 

Foeter, Exjwrtc^ 

■. CotniiKniwealtlin 

■. EwfzBank, 

— g. Gwdiiiw, 

FoBtcr*! can, 

Fowler e. IJodtej, 

Foi >. State of Ohio, 

FntDM^TbA, , B8. 96 

Fruiklin.l'fae.... ^9.146 

Frtderick ilolke^. ... 147,1*8 

Freti •. Bull 414 

FrienilihAlt, Tbe, 8C, 86,67 



Oaioe* «. Bt\t, 878 

GwT •. Bi%btt 4S9 

Oedney B, L'AiTBuiUd, tm 

GelBton e. Hoj t. !7 

Geooa ahipi, The, 88B 

Geoeral AmMrot^. IS-' 

GnuHMce Cbief >. Fitibnglv 414 

George, Due of tlie, 890 

Georgiao*, Tbe, 104 

Gerard heira v. Philadelphiar 624 

Oerlmde. lie, 14 

Gibbooa «. Ogdeo, 47ft, 477 

GQbert i. Peopl 687 

Gilea V. I^OTer. Sti 

GilleD V. Henidoo, 486 

Olaee v. Sloop Belwjr, 110. 886 

Gleaaon v. Dodd, !B1 

Globe, TTie, 281 

Golden r. Prince 427.488 

Gordon ■. Appeal tax court, 4GS 

«. LoD^eat. 880 

Goeheo v. BbmingtoD 608 

Goee e. Witlieri, 109 

Got. of Georgia «. Madrazio, 866 

Gr»Tea v. State, 446 

Greai t. Kddle, 461 



Green ■. BamDiiah, 4BS 

Greene V. Briegs. SIS 

OriawoM *. nadittiglon, 77 

OrovM V. SlauBlitfr 486 

Oute Etnarlung, 1 he 100 

Gw^Dv-Breedluie, 87! 



HaabetThe. 144 

Bale; v. Ooodxitl, 40t 

BbII v.T(ning, 66 

». Williann, asi 

Halatnid IT. LjoD ^ 860 

Uamilton.Ei parte, 826 

HamtnoDd 0. Eifes Co. 417 

UamptotiB. UcCoDDell tSO 

H»nrj «. Sharp, 448 

Harriet The, !»• 

Barrii V. Dennie 166 

BarriNP v.Sterry, 2B1 

(.Uraan, 877 

Barmd v. Baretto 281 

Barirood v. Attinj B27 

Batch V. Putter, E24 

HavelDck«.Rookwood Ill 

Bajbnme'e ewe, 497 

Eratlifield t. CbilluB, 1 

Heleu.The 187 

Belena,The, 198 

Bematead V. Bead, 466 

Benricb A Haria, 110, III 

Bepbum V. Cnrti, 603 

B. EHiej, 880. 424 

Hennan, The 88 

Herelelder, The Ill 

Bejdon'i ease, BI4 

Beyer e. Wave 417 

EeTWHid. Halter of, 689 

Bickie e. Gtarke 866 

Bickg V. Botchkin, 464 

Biram, The,. 98 

EubhoQH'i CBBe. 886 

V. Bowerbank, 37G 

Hoflnung. The 147, 148 

Hoke V. HenderaoD, SS8. 800. 61! 

Bolbruok v. BenderaoD 46 

Holmes, Ex parte, 40 

V. JenniKin, 40. 321 

Holt p. Allova; 280 

Bome s. Earle Gandeii, 108 

Bonier v. Battrn, 881 

Booker e. Booker, 602 

Boop,Tlie, 76. 114 

Bope, IIm, 416 

Ine. Co. V. BoardmuD 877 

BopkinB V. StocktoD 4DS 

BopDer V. Appleby,. 129 

BouatoD V. Aootf, 284. !8S. 869. 427. 
480. 487. 44G. 468 

Bowardd. Qoaaet, 180 

e. MaijUndr 484 



.y Google 



TABLI (^ ClaBB. 



ZXUl 



H«w« *. Sheppard, 

Howdl •. ««rjl«Dd _._ 

H«ri« *. Vrigfat, !80 

Bojt,Exput^ ""■ 

HudaoD V. Uaestier 

HuDtw >. n. St>t«a, 

.The. 

HuDtreui, The, 

Hunt *. HeKeil S76 

ButaoD a. Jordw, 

Hylloii V. U.BtMbm, 

I 

Iiiiiiiuiu«I, Tb«k 

IndiaiK, Ths, SS. 81 

IndimD Cbiet; GS. 76. 8S. 8G, 86, 81 

Inmao V. FotUr S94 

iDriociblg, V _ IDS 

IiraiiMiblB, the, SIG 

J 

Jadi V. Hartii^ MS 

Jackuo «. Cktlb, G07 

V. LwnfUr*, COB 

*. Fhalp^ BOS 

».Row, Ui 

v.3tet«oo, 620 

v.TwtatjniMa, blG 

Jan Fredeiii^ M 

J'Aiuon «. BteTUt, 6» 

Jaekar *. HoDtgomery, 

JeoningB >. Otuioil,.... ... 

Jenualem, The 

JeuM Eogenie, U, 

Jobsmia Tholra 

JohoSt, nutter oF, 

JohiMoa V. Hclotoih, 

«. ShippsD, 

Johnatoti V. l^ad, ..~..,.. 

Jahoatoae *. SottoD, 

JooH •. Stereiu, GOg. 680 

».Wooteo, 60S. GOS 

Jnng*^ Clu^D^. -.... 

JobUKWl. 

MBrnretlir*, 

PiBlM. IS, 76 

TobiM. 146 

J«M Femin la« Suitoi,. 1 '" 

Joseb SesnDda,, 

JoMph ATineida, 

.Tht, 16.10* 

JoMphitM, Tli^ W 

JdStov, Huu Sdiroeder, 141. IGS 

, Cktbuina, 

Julia, The, 76. 08 

K 

Eaiin,/nrw, 

Ksnu*D,The,...; 



EeanieT, Ex putc Si6. 164 

Kecklev ■. K«^le7, iM 

KtadaA V. SViae 61S 

•.U.SUtM, SGI 

Eeimedj V. Cuillis, 464 

Keatuckj Bk. v. Wiatcr, 88! 

Eilburn e. Woodvorth. !80 

Ekg. Tbs >. AJleo G07 

•. Bwlow, 617 

■.Burdett, 6!S 

- — ». ClelneDt, 881 

c. Crunif^ 261 

v. Faulkner, SIS 

V.49 caaki, SM 

».49 casks, 89 

*.Or«y, 688 

«. lob. of Cumb. 601 

e. IeL of Derby 611 

The ». Justiea of HDomoutb, 861 

of Spain V. Macbado, StI 

t. Hajor of UutiDga, 617 

of SpaiD (.Olifer, 891 

•.Sol^nard, 899 

r.Tharatoo 604 

». William.. eo» 

Eirk,UaUero( 640 

Eitteredge *. WacTtt^ 664 

Kittredgev.EmenoB £64.46! 

Koppel v. H^oridu, 381 

L 

La Dams Cecile, 889 

LamberlaoQ «. Hi^an, 469 

LaocaitcT loititutioa ■. Reiiart, 46! 

I^oe V. ColtoD, I>9G 

v.TowiiMDd 872. 418 

Ijmgdon V. StniDK, 603 

I^DUDK V. North RiTcr Cd, 464 

LatleH s. Holmes, 606 

LeBreloQ V.Morgan, 600 

Xjs Cauz s. Eden, S90 

Lm V. nilotaoD, 61S 

UgH Tender. 116 

Leicester «. Walter. 6«0 

L'EoK 889 

LeTyfcMilne. 6S0 

Lewis c. Brackentidge, GOS 

o.Fi«k, 481 

D.aarrett, 614 

LilUetr.Prin, 680 

Liodu E. Rodney 69. 1 88. 384. 387 

Lindsay v. Charlestoa Cam, 408 

Uan V. BL of Ulinoi*, 449 

L'Invineible, lU 

LiMtte.Tbc, I6S 

Little Belt. The, St 

Little v. Watson, _ 610 

Livingston V. JeSeraoD 618 

V. llsrine Ins. Oo. 161 

•.Maryland Ins. Co,.. 8t 



.y Google 



TABtS or OASES. 



linugatoD >. TBodnier, 84B 

V. Vw logta *80. «6 

Locke V. Due SOS 

LockiogtoD, Cue of, 440 

Log* of UabogaD;, 417 

LimduD dtv, Cu«of, 896 

B. Wood, 4M 

Lormui t. Clarke, j STS 

Iiaushbaivagh ■. Blake, S74 

Loi^le, 88. 164,165, SOS 

LouuviJIe K. R. Co. v. Letmi, S7B 

Lucu e. Mairia, 4S1 

Lucy D. LeTington, 6ffl 

Londy, Ohm of, 40 

Latticre.BordeD 4*7 

Lynch, Ei pftTU^ SS4. B 



UabiT v.H«rocloii, ! 

HcCayo v. N. O. IiM. Co, 1 

UcCoDoel n. Hector, 

MoOliiDy V. SiUinuu, 4 

UeCorniick «. SaltiTaiil^. S 

HcCuen adt. Ludlum, S 

MeOuUocb ■. St of Maryland, !8H. S' 

4 

UcCrackea v. Haywood, 4 

McCreeij'e out, 2 

M'DoDODgh >, DaoDery, 1 

Mclatyre v. Wood, 81!. 8 

HcKJm V. Toortuea, 4 

McLearav McLellai^ 6 

UcLcod, Caw of, 3 

0. Burrougb^ 6 

HcMillun t>. UcNoll, 4 

UcHair V. Raglaod, S 

UcNeil V. Holbrook, 8 

McNutt V. Blaod, 8B0. 4 

ilodniEO c. Willed i 

Expart^ 8 

MagdalcD College cae^ 6 

Mager v. Qriina, 4 

Ua|{oiTe v.Msguire, 4 

UauBODOure V, KeallDg, 3 

UBJUand V, Qoldney, t 

Ma)Ianv.Hay S 

Malay v.Shattack, 

Ualooe V. Stewart, e 

Maahattan Co. V. ETertsoD 1 

Manilla, The, 

Mapo» B. Weela, S 

Usrbury v. Hadisoo, 807. S44. 3S0. 4 

Margarethra, Vrow, 

MBna,Tb«, SS. 138.165, 1 

UariaDDB, Ttia, 

Flora, The,.. 29. 128.166, 11 

8 

MarioD.The, 4 

Markle V. Akron, « 

Martin v. HuDtcr, 810. MS. 41 S. 486. 6 
«. Mott, i 



MaiT, Tbn IB. 418 

MaMxi cFiDcb, 610 

v.Haile, 608 

Hatlier V. Biufa 4M 

Mathev* «L Huntley ftSO 

V. Offley, 61 

ii.ZaDe, 601 

Mattuon V. The State 444 

Maifleld<r.L«»y, 376 

Mayer v. Foulkrod, 87S. 3S0. 88S 

Maybew v. Tbatcber, S8D 

Mayor of SaTanoah b. State, 609 

Hayrant V. Ricbutbon, 827 

Mead V. Merritt, 464 

Hederioa v. Hill, .~. ISS 

Melcbero. Boston 47S 

Hoietone e. Qtbbune, 414 

Mentor. The 178 

Mercuriua, The, 146. 15S 

Meredith V. t:. Statei, 267 

Merioo, The, 166 

Merrell v. Sherburne 60S 

Uetuer, In matter of, 173. 824 

Michigan State Bank lI.HutjDg^.. Sit 

Miller o. Kerr, BSS 

B. Miller, lia. 2S1 

B.SichoK 3BS 

0. TTie Resolution, 118 

Miller'i c««e, B16 

MU1««. Duryee M9 

B. Wilkin, BOB 

Miners' Bank V. lova, 886 

Miuia B. U. States, 618 

Mitchell B.HanDonj,... 119. 880. 618 

B.U.Statea 180 

Mollao v. Torrance 3B1 

Wolly.The 171 

Molyne'B ewe, 607 

Montague V. Bath, 641 

MoBlalet V. Murray, 376 

Montesquieu B. Suidys, 641 

Montgomery v. Hernandez, 8S9 

Moore b. Bouelon, 888. 4S0. 437 

V. Illinois, 446. MO 

B. McKay, B41 

Morgan *. Motgao, 881 

Morretl b. Martin, 888 

Uoiris B. Vanderen BSS 

Mosmiao v. Higginsoa S7G 

Muudeo V. Duke of Brunmriek, ... »2i 

Huns t>. Dupoot, 880 

Morray i. Schooner Betsey, 88 

Murray's case «8« 

Mum B. Kay 40 

MyTickB.H»«ey, BU 

N 

Nancy, The, 161 

Knibno v. Louiuana, 4BS 

Nayade. The, 78 

Haylor ». Taylor, 161 



.y Google 



TABLX OF OABEa. 



HriUoo «. Lagow^ 879 

NrptUDiu. 88. 1S». 14e, ll«. IS! 

HaviilcTbe, lOS. 183. 18S,UT.iei.l66 

NmUt, Brig, 417 

HeuCrnlitat, Thfl, U6 

Ne»a»».3colt g7B 

Nevburgh T. On. I. Miller, B17 

N. Jeracy S. If. Oo.t.iienix'bf Bk, 408 

B. New- York, 811 

• Wilaoo, 4BS 

HewtoD.TV 180 

■ — ■ v.Tibbota, 4ei 

New-Orlama ■. Vmtcr, 88a it* 

v.Oaniieelicirt, 868 

Hew.Vorice.Milo. 48« 

MichoUi WitMT, liw, 400 

Horria v. Boat<Hi, 4S4 

o 

Owu^Tbe, 84. 148 

Id*. Co. K FuUeji, SSt 

Octaru.'nie. 410 

Oddyr.Bo.ill, ui 

O'Douoghue v. HcOovern, ixt 

Ogden v. Btrker, iss 

tr. BlBckledge, 00* 

Olinr K Alexuxler, tU 

Oli**™ o. Uehhi Ina. Co, 148 

Oneida, Judge nfv. The People,... SSI 

OoeWr bemi, The, SSS 

Oriental Bunk e. fteeee, SOS 

OrleaoB Stwunboat o. Phrabu*, 414 

0»boni g. U. a. Bk,..B72. 379. 881. 471 

Oibiinie B. Huger, 603 

OdVFli V. Vigoe, SBO 

OTenlfeet «. SbMiDOD, sei 

Owinge V. Norwood, SM 

P 

Pecht ot BgTpl, Ckm 0^ 812 

P«dflc Tt^ 40fl 

Palmyra. The, S90 

PuituD V. WtlliaiiK, 827 

P«rker ». Oommoowealt^ 4SB 

Putridga V. 3tnDg«, 604 

Fetch II. MiuBheU, 404 

Patin V. Prejean, (02 

PaUnvoo V. W71HI, S14 

P«uline,The, 898 

Paup» Drew, 4e< 

Pliwliug (P. Bird, 281 

PeaeoctThe, gSV 

Ptgfty.Thci 170 

Fenluilou g, Don- SSS 

B-Dorae, 217. SSS 

PetmeylTania b. Konloft 344 

People V. Breoki^ 486 

t.C»me\t, ese 

i p. Commg 611 

tiOToaw-U, 611.628 



People «. QodlVey, 474 

B, HantiDgton, 481 

». LvDcta, 441 

B.Ptilip^ 610 

•.Flaw, SOO 

B. Potter, 808 

, The B. Judges of DuUliM*, 861 

^^^ The B. aoirtter, 607 

B. Uticft loa. Co, GIO 

PerdTBl B. Hidiie. 398 

Fe^roiixB. Howard, 414 

Pbiltlpa B. Scattergood, 417 

Phn!dx.Tbe. n 

PhjaiciaM, College o( S16 

Pteqaet v. Swan. Vjt 

Pierce *. NewHampebire, 481 

Pike B. Jenkins 617 

Pilotage, Coma, gi) 

Pitt, The, 40G 

Pimrro, The, jea 

Planten' Bk. b. Shupe, 461 

PlumerT.ffebK 8«. 400. 404 

Polt B. Douglas 87! 

Pollock B. Pnltt, sss 

Pollj.Tbe. 92 

Pomona, The, 389 

Pooder *. Grabam, 469 

Poole, Ex parte, 44s 

PopoB. Lewu, 618 

Portland, The, 87, 88 

PoBtmaner-GeDcralB. KobUiu,.... 164 

Potter B. Ocean Ina. Co., 61 

Potta B. Bell, 76 

Poubon, Ei parte, 828 

PrmyB,Edie. 619 

PresidellC, The, 8! 

Prigg V. CoDimoDwealdi, 444. 840 

Prime, Matter of; eSe 

t.Bartlett, ifll 

PrioceM, The, 88 

PriDs Frederick. ijB 

Proinielon b. Ken. Pnr. 601 

PivTJdeooaBk.*. Billioga,. ... 46G. 466 

Public OpinioD, The, 899 

Polliam B. ChrutUn, S4B 

PurUalma CoDceplion, 118 

Q 

QoBckeabodi B. Dank^ 463 



Radcliff B. U. bia, Co 147. 150 

lUndolphi cue, BBS 

Randolph, Biparte, 288 

Rangely B. WelMter, 281 

Benger.The, 146 

Unpid, The, 76 

RawMo B. The State, GIG 

Begina v. Inb. of DeDKn, 61S 



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TlttT.V C 



. ses 



Rcgioa V. HcGrrgor, 

Rendcbo^, 1^ 

Retpublica b. LongchampB, . 

B««i-.Bai. 

e. Croebj, 

V. Hutehii 

». Kimberlj, 

». Loidale 61S 

e. RuWoson, 61B 

JUjaold E. Svain SSB 

Rhode Isluid V. Masuchiuctts, Sen 

Bicsrd c. Bettenbim], 113, 114 

Kichaniaon tF. Beebe, 640 

V. MnriiM Ice. Co. 144 

Robert Pultoo, The. 417 

Robert Morria. The 400 

Rockwell «. Eubbtll, 461 

Rogeri V. ColaniBH, SBl 

Ronlm A 6«tt; 1C3 

Ro« ». Himelj, 27 

ROMR DUT»1 87! 

Rumlle E. Delaware A R. Co. 378 

Runk V. Majer, iSi 

S 

Sackett e. Sackctt, 6U 

Saddler v. Boorer, 334 

aaliv Ann, The 48 

,The ]80 

OnflJlH 94 

Ban I u el. The, 409 

Biuida Coicfiirt. Cose 0^ 410 

Baota Crus, The, 74. 118 

Ban JuM iDdiooa, 68 

Santvaima Tiiuidad, !7. 1S8. 144 

Sarab.The. 410 

Barton V. HamiltoD, 6S 

Batterlee v. UaCthemol].. 4GI. 460. SOS 

Safings Inat. tF. Makin. H2 

Scliolefleld v. Eichelberger, 71 

ScbiMiiier 'HliBr. 406 

Scbmeder ». Vaui, 166 

Scutt e. Jooes, 49S 

Scovilte V. Caofiald 4S 

Sflltrs V. OomriD Sflfl 

Sere s. Pilot, 391. SgO 

8(tua D. Hauhaa 880 

Sewall V. ChomberlMO, SS4 

Sbeldun k Sill, 331 

r8b«pherdeBe,'lh«, 163 

iSheppard u. Oomold, 614 

». Taylor, 417 

-Sherwood •. Hall 8W 

^hipinnD *. Heobett, S16 

fibnmway V. Stillman, !80, SRI 

.fiiai«rs. The, eC 

Slocum *. Haj'beny 4S2 

Smart «. Wolf, Ill 

fimeta*. Williaina, 381 

&aiUi,£z parte, 642 



g CABBB. 

Smith *. Oordon, i 

r Helmer, ! 

.J,.Ca««o^ S 

•.JsokeoD. 888.348.8 

«. Eeruodiaii, 3 

.MatteroK "1- 6 

c The Fekis, 4 

B. Turner, 4 

Snjder V. Wiae, 2 

Soaoe ■ Enigbt, 6 

SuCLetjforOu»pe]s.N.HaTeD,.lTg. 6 

V. Wbeeler, B 

Sophia, SchooDcr, I 

Sophie, The, 1 

ScboODCT, 1 

Sparenburg v. BanontyDe, 

Spencer ti. Brookway 2 

Sperrj «. Delaware lea. Co., 1 

Spei A Irene, 1 

Spieres ». Parker B 

Rtawlt Embden 1 

■Stace;, Mnttcr of, 4 

S [RC J e. Thrasher. S 

Btate E. Bank of Maryland, 1 

V. Bermude^ E 

f.BuChBDBn. B 

B. Burgine. 4 

ti. Burtiham, 6S4. 6 

e-Cole 

». Denton 6 

t.DoTer, S 

o.Feei;f 4 

B.Fleming, 4 

B. Fletcher, E 

*. Hand e 

».Hardle, 6 

V.Harris,. . .. ! 

B-Hajward. 4 

D. Ingersoll, & 

B, Killery, (I 

B. McBride, S 

B,M«», S 

IP. Morgan. 6IS, « 

B. New -Orleans, 4 

t. PembertoD, 2 

B.Baudel1 4 

B. Rol1iQ^ 5 

V. SchleDim 4 

B. Simon. 6 

B. Tombeckbee B-k * 

B.Taff: 4 

.. WelK * 

B. Wheeling Co, 378. 366. 4 

B.Williama, B 

Spragioa e. Eongbton, i 

Springer c. Foster. G 

Stanley v. Stanley 4 

Slaiibcipe's case f 

Slsrbuck B Murray. ! 

Steamboat Co. b. Livii^toii, 4 

Steele B.Tbatcher, 400. 4 



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TABLE OF 0ASB8. 



StMk«.8au(l]«Id(. 631 

Btcn,Tbe, 146. U8 

SUw«ft «. Uird, (14 

BtocLdale V. Baofonl, SBO 

Storm V. Widdell !S4 

Sto*Blli'.Zo«Mli, ei4 

Stov t. CoDTene, ABO 

8tnwbriilg« «. Curtu^ STe 

Strang ■. Slat% 4ei 

Strolfaer*. Lucu, ISO 

Sturgns ■- Crowmiuhield,42l. 44S. 463 

SuUiianv. Fulton St.Co, STS 

KTlm 889 

. ITS 



U 



SatloD's HcHpital, SOB. SoS 



l^lbnt «. JRiweo, lOT 

Tarpic; d. Banur, 4S2 

Tutcv. StmilfcKHi COS 

Tajkts *. Thumpaoa, SH 

TavloT *. BarcUj' M 

u. DeUDc«7, 6!0 

e.Purter 818 

«; RvjalSuoD. 401 

TmI .. Felton, !B0 

Terrrt B. Tsjlor, 467 

TerriEorjii. Ifi^oil, fiSS 

Thamei Bk. ■. Lorell, 480 

ThelluMin D. Smitb, !AS 

TbiUult «. OibuD, el8 

TfaomMe-Uoe. SS7. 400 

Tbampaon «, Powlea, !7 

Tbnni e. BLuiclMn^ 626 

Tlurber e. Blackbnnie !80 

Tborluw «. UMaacboMUs, 48t 

'^lIn^ SdHwDcr, Tfaa 404. 40S 

Totiiifto, The 96 

ToUnil V. Spnmt, SSa 87S 

ToWerrj «. Coft, Bll 

Tulere. WLite, 61 

Town of Piialet v. Clark, SU 

Towns ■. Smith, ISO 

T..W0Mnd «. ToWDMod 60B 

TrwDcr t>. IV Superior, 416 

Treat ■. Browoii^, 624 

Trihuoe, Sdiooaer, Ttw, 401 

Trotter V. MDU, 609 

Triqiiet V. Batb, 1. 19 

TQnicr*. Blof Amcrica,S3e.843. 874 

V. Eniille, 874 

Turrill V. Dollowaj, 608 

Twee Oehroedei^ tl. 124. IBS 

TwoFrieod^ 118.887-9 



UtMlervood «; Lillj SOS 

DDioDBaokKSUtM, 470 

United States Baok s. Halitead, . . 431 

0. Ain«s 474 

•. B't ofMetrajwlis, 821 

V. Barker, 474 

>. Baniej, 1151. 463 

r.BcDoer, 1S6 

*. Bevaua, 843. 868. 869. 

391 

». BrigsDtiiw Wbl,. 476 

B. Barr, 868. 888 

». Campbdl, 443 

e. Caul Bank, !flt 

B. Cair, 824 

». Clark, afll. 381 

V. Coombs . . . 184. 414 

■.Ciwlidg«,l96,396. 868 

». CDmea, 47» 

». Crooki^ank, S64 

1. Dkt'u, .. 4a 89a 400 

».lMge. 440 

tp. Feireir*, 316 

». FUbcr, 60B. 119 

•.Oate^ 613 

V. Oibert, 611 

>.QoMfinK; 198 

*.QaM)l>iD, MS. 854.615 

». QordoD,, . . , 864. 888 

*.Onuh, 398. 899 

cOuillom ISO 

■.Back. 264 

■.Hand. 47 

>.HaotM, 893 

v.Har^ 463 

9. Ha»kiii% . . !SI. 121 

•- Hayward, 181 

v.Jhwt^ 601 

B. Uukoea,. ... 190. 394 

>,Hoo4 860,861 

".Hojt. 266 

«. Budwni, 348. 869. 896 

■ >.J>ck*aa, 4S3 

v.Keta. 611 

B. Kendall 422 

v.Keader, 186 

■.KliDbMk, IM 

B. letUiron 441 

B.LiN.T, 187 

' ». La VengeaDce, , . 408 

B.LTDdi, 394 

" *. Maekouie,. . 868. 869 

S7a IM 

— .1 . . B. MePaniel, RSI 

B, McOai, 391 

V. HcLellaiid, 281 

KUariRold, 416 

B.Haldt AtUwl, ... 1«« 

B. Hecbauo'Baoli,. 263 

«.ller^ 42* 



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TABI£ or CUES. 



New Badford 

Bndgs,.. *0i. i 

Nouraa, i 



Palmer 27. ! 

PHMmare, ( 

PercbmsD 1 

Perry, t 

Peters, 1 

Petenon, i 

Pirates, ISO. 4 

PUuten' Bulk,. . S 
I 

Polioar, 1 

IVerton, ( 

Ravara, M. I 

Riogold, 1 

RcbesoD, 1 

RoberU, I 

RabiDeon, 4 

Roet, 4 

Sally, Scbuooer, . 4 
BeUey, Schooner, 4 

Smith, 189. ! 

Steuabaat Morri- 



- ». Villaslo 

-•.Wells, 

- ». WilkiM, 

- V. Wiltberger, S63. ! 



V«]iaDt, Ite, SS 

Van Hook f. WMUoek, fill 

Van Uom V. DoiroOM, 49B 

Tao Nesa «. Hamiltuii, 620 

Yaa SantToord v. J. E Cole*, sa9 

Vease T. Moore, 476 

Velocity, tlie, !8i 

VeoiM^Tlw, 11. B8. 86 

Vercte Maitr^ MaU«r ot 8SS 

Temoo'eeas^ bIS 

Vichsbu^ ffk K 3lo«ainbk 878 

Vkturia,Tb«, Ill 

Vkilaotia.llie, 87 

Villen V. MoMlty, 6!0 

VlTgiDie, The, 84 

Viveuh *. B«cker, M 

Votaala, II 140 

VoIuule«r, Tbe, 408 

VuH t. [T. loa. Co, 151 

Vre«d« Sdioltye, Th^ S8 

Viw Juditb, 148 



Wadleigh •. VeaaJa, 4 

Waldrun v. Cuombe, 

Wallace B. McConiiflll, 4 

Walley «. Scboooer Liberty 

WailuB B. U. Slitea, i 

War, Onakaa 1 

WarburttiD b. Luielaod, I 

Ward B. Bonurd ( 

*. JeLkiuP 4 

B. Uaoo, 4 

Warr*. Joliy ( 

B. Hilton, ] 

V. Hyltoo 

Waring * Clark 4 

Wairi-ir. The, 4 

Warwick b. Foulkei, ( 

Washburn, Matter of; 

Washii^ftoo Bridge Co. ». Stewart. ! 

Watkins, Ex parte, 8ES. 9S4. I 

V. Otis. S 

WaUon >. Buck, { 

B. Mercer, 481. ( 

B. McOartliey ( 

WarmM y. Southard, g7a. < 

Webaler b. Reid 622. 6 

Weiser B. Goal-boat, 4 

WellMlej's ease, i 

Wellnum, Aire ( 

Welraart Van Pillau, I 

Weniwag b. Pawling, i 

Westoa V. City of CbarlestoD, 821. 8 

Whealoo V. DoD^dson 1 

Wheeler b. Koberts, { 

Whiuwuib V. Rood ( 

Wliiloey, Jacporl*, £ 

B. Wabh S 

B. Whiloey, I 

WbitliogtoD B. Polk, 4 

WilcockaB. Wain, S 

WilkiusonB. Leland, ( 

WillardB. Dorr, 4 

Willkm The, 

Harris, Tbe, 

Wltlianu a. Armroyd I 

■. B'k of MkbigaD, 4 

B. Norria. J 

» (MiT«r, S 

B.Smitli, ] 

Wllliamsoo «. Field, E 

Willisoo R PaUrsoo, 7B, 

Wiltod B. BwDum, E 

B. Black-Bird CreekCo,... 4 

V. Hardesty, t 

B-MdCemie, *.,..'. ...Vll. 8 

».Nil«, i 

». Thadmniy, 4 

B. Steaoibuat (Miio, 4 

WiMart B. Dauehy ! 

Wolff ».Oilwlm. 12. 



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TABLE 07 OASES. 



Tood*! AHoD, cue, ... 

Wood, Jk parte, 

B.AiredoDdo 818 

ft Hartford F. In. Co., 871 

Woodlin *. Hooper, *tl 

Woodruff IT. TrapDeL 46fl 

Woodward *. Dovaing, eso 

r. lAoden, SJ7 

Wotb1«7 ■. ad Mntiidp«%, 484 

WrigU «. DucoD, 444 

" - " " ■ 401 



1, DIl I Wynne r. Wright, . . 



TatM,OM«o^ Bsa «)< 

Teatoo%.Fi7...".'.'.!!'.'.'.!".''.X! Ittl 

■. IT. States, »ll 

Toong «. Bi7»4 »1- >81 

YriaNRW ■. OUmoiti, ST 



Vol.! 



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„Google j 



PART I. 
OF THE LAW OF NATIONS. 



LEOTTJEE I. 

OF THX FOUSDATlOir AITD mSTOBT OF THB lAW OF Si.TiaSB, 

Wbzs the United States ceased to be a part of the British 
empire, and asemued the character of an independent nation, 
tiiej became enbject to that ejvtxm of rules which reaaon, 
morality and ciutom bad established^mong the civilized na- 
tiong of Europe, as their public law. During the war of the 
American revolution, congress claimed cognizance of all mat- 
ters arising upon the law of nations, and they professed 
obedience to that law, " according to the general usages of 
Enrop6."> Bj this law we are to understand that code of 
pablic instruction, which defines the rights and prescribes the 
duties of nations, in their intercourse wi& each other. The 
fsithM obaerrance of this law is essential to national charac- 
ter, and to the happiness of mankind. According to tiie ob- 
servation of Montesijniea,!' it is founded on the principle, 
tiiat different nations ought to do each other as much 
good in peace, and as *little harm in war, as possible, *3 



* OdioHiMof tlie4thDaeaiiba',1181,relatir« lomaiitimawptmm JoMiMb 
«f Cbnyrm, toL tH. IBS. TV Sigliili jmlgM htva froquMitly deohnd lint tha 
lavofiwtiaMirMpartoftliecoiiuiMiiUwofBli^lBod lUjcat t. Bath, B Jmt. 
UTB. HtatlidUdT. (»ulton,4A. SOIB; indituwdl Mttled tlMtdM«an«Ma 
kv of Bi g l M>d,w> br u It maybe OMMtrtMit with th« oond i t oli oMof thheomfay, 
■ml nonkw inwlt«nd by itatnte, i« an awDtial pwt of A 
FM» infra, pf. S4S. 4TS, 41S. 

T01.L 1 



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a OF THE LAW OF ITATIONS. [Put L 

withoQt injtuy to their true interests. But as the precepts 
of this code are not defined in eveiy case with perfect preci- 
sion, and aa nations have no common civil tribunal to resort 
to for the interpretation and execution of this law, it is often 
Teiy difilcult to ascertain, to the satisfaction of the partiea 
concerned, its precise injunctionH and extent; and a still 
greater difficulty is the want of adequate pacific means to se- 
cure obedience to its dictates. 
Nuond ud There has been a difference of opinion among writers, con- 
oTNuiDiu.* ceming the foundation of the law of nations. It has been 
considered bj some as a mere system of positive institationB, 
founded upon consent and nsf^ ; while otheis hare insisted 
that it was essentiallj' the same as the law of nature, applied 
to the conduct of nations, in the character of moral persons, 
susceptible of obligations and laws. We are not to adopt 
either of these theories as exclusively trae. The most nseM 
'and practical part of the law of nations is, no doubt, instituted 
or positive law, founded on usage, consent and agreement. 
But it would be improper to separate this law entirely from 
natural jurisprudence, and not to consider it as deriving much 
of its force and dignity from the same principles of right 
reason, the same views of the nature and constitution of man, 
and the same sanction of Divine revelation, as those frvm 
which the science of morality is deduced. There is a natural 
and a positive law of nations. By the former, every state, in 
its relations vrith other states, is bound to conduct itself vrith 
justice, good fail^ and benevolence ; and this application of 
the law of nature has been called by Yattel the necessary law 
of nations, because nations are bound by the law of nature to 
observe it ; and it is termed by others the internal law of 
nations, because it is obligatory upon them in point of con- 



• Valtd, FnliuL »ec 1. Omnii oaiCan in rt eanwruio nnntinn ffmlium Ltx 
rtatmra jnUaitda oL die. 1\ik. JHtp. 1. IS. HdiMcdiu, in his EUmmla JutU 
Natmn It Ofntiian, b. 1. ch. 1 anil g, (and which is very excellent u to the fint 
branch oftbeealiJMt,) and all tbe other ffreat Eoasten of ethicai and oatioDBljiiru- 
[mdence, place the foundation of Qie lav of nature in tLe will of Qod, disoavenible 
by ligbt reaeon, and aided hj Divine revelation ; and it« principles, when applioa- 
Ue, applj wiQi eqnal obli^tion to individuala and to nationa. A reoant Frawh 
writer (Jf. Vtetar Fouchfr) dividei tbe taw of natwiia into two bcaocbes, (I.) 
PuUU iotematiMitl law, which regulate* the political relation of nation to nation ; 



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I«A. L] OP THB LA.V OF NATIOITS. S 

We onght not, therefore, to separate the science of public ucni ob- 
Uw from ihat of ethics, nor encourage the dangeronB b£u!^ 
•snggeetion, that govenunentB are not bo strictly bonnd *3 
by the obligations of tmth, justice and humanity, in rela- 
tion to other powers, bb they are in the management of their 
own local concerns. States, or bodies politic, are to be con- 
sidered as moral persons, having a pnblic will, capable and 
free to do right and wrong, inaamnch as they are collections 
of individoals, each of whom carries with him into the service 
d the commimity the same binding law of moralily and re- 
li^on which onght to control his conduct in private life." 
The law of nations is a complex system, composed of variooa 
ingredients. It consists of general principles of right and 
justice, equally suitable to the government of individuals in a 
state of natural equality, and to the relations and conduct of 
nationB ; of a collection of usages, customs and opinions, the 
growth of civilization and commerce ; and of a code of con- 
ventional or positive larw.^ In the absence of these latter 
regulations, the intercourse and conduct of nations are to be 
governed by principles fairly to be deduced from the rights 
and duties of nations, and the nature of moral obligation ; and 
we have the authority of the lawyers of antiquity, and of some 
of the first masters in the modem school of public law, for 
placing the moral obligation of nations and of individuals on 
similar grounds, and for eonffldering individual and national 
morality as parts of one and the same science.° 



■od (3.) private bUrDatdonnl IftW, wMcb, tboogb bued npoa tlie first, regoktM tLe 
tcdprocal aod penoul r«l&tioiii of the inhabitant* of different itfttef. 

• Dr. FiBDCis Uabar, in hii "UmimJ of PolitiMl Ediica," a yah. Boston, 1B39, 
bwibovn with greet lbrca,uidb7 the mottitcikiDg and appMiteilliub»tion% the 
original Kinnection between right end momlitf , and the reuon and Deceeut; of Uia 
application of the primaplei <^ eUuci to the idence of politic* and the admimibv 
tJonafgoTenunent. The work b •zceUent in ita doctt^iea, and it ii enriched with 
TarioQi and pttiibnad erodition. 

' 2 Jfaton'i Jttp. 448. Stoij, J. 

* A writer in the Edinburgh JRmtte for Ajoil, 184S, eoDiidera the eleDunta ot 
which the Uw of nation* i( composed, as ooausting (L) of inltmatiottai morality,. 
being the rnles commanded bj the Deity, and which maj be called the divina or 
natonl Uw of natioos ; (S.) of inlemaiional law, bang rnles of conduct aanctioiied 
b; the public opinion and luagas of dviliied nations, and which maj be called the 
buinaa, the actual, Ihe received, or the positlye law of JUtioas. The one tinta tbft 
law «t natioui at a tdeuce, and the other as a ijsteai of poailive rule*. 



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4 OF THE LAW 07 VATI05& [Put L 

"Dxa law of natiouB, so &r as it is foTmded cm the principlea 
of natural law, is equally binding in every age, and npon all 
mankind. Bnt the Chhstian nations of Europe, and their 
descendants on this side of the Atlantic, by the vast saperi- 
ority of their attainments in arte, and science, and commerce, 
as well as in policy and government ; and, above all, by the 
brighter light, the more certain troths, and the more definite 
sanction which Ghtistiani^ has commmiicated to the ethical 
juriflpmdence of the ancients, have established a law of 
*4 nations peculiar to themselves. They *form together a 
commnnily of nations united by religion, manners, morals, 
hmuanity and science, and united also by the mutual advan- 
tages of commercial intercourse, by the habit of forming alli- 
ances and treaties with each other, of interchanging ambassa- 
dors, and of studying and recognising the same writers and 
systems of pablio law.' 

After devoting the present lecture to a cursory view of the 
history of the law of nations, I shall enter upon the examina- 
tion of the European and American code of international law, 
and endeavour to collect, with accuracy, its leading principles, 
and to discuss its practical details. 
uwBtvt- The law of nations, as understood by the European world. 
It eraMa. and by us, is the offspring of modem timee. The most refined 
states among the anci^ts seem to have had no conception of 
the moral obligations of justice and humanity between nations, 
and there was no such thing in existence as the science of 
international law. They regarded strangers and enemies as 
nearly synonymous, and considered foreign persons and pro- 
perty as lawful prize. Their laws of war and peace were b4r- 

* Tb«1*worutDTa,b7tlMal)Iig»tiaf>tofirhieliiiidiTidiwliaiiditat«*u«boiiDd, 
ii id«t]tiMl wtdi llie will of God, uid that trill is ue«riaiiied, nji Hr. Muunug, 
ttther bj coBmlttng Dirine reTeladou, wliers tJuit ii dteUnitorj, or b; th« kppli- 
Oktirai of hnmao naaon, where reTelntion ii nIenL Obiutikiutf , in the worda of 
Bntlv, " ii an audioiitatiTe pabticKtkia of tatnial rdigkn,'' Mid it b ft«in the laoo- 
tioD whidi KTelatioa gir«a to iwturml law, Uiat we tniut expect tin gradual in- 
ereaas of tlie rtepeet paid to Jiutlce between natioDt. OhiMiaiii^ rcTeali to ni « 
feoecal ayitam of nwntlit;, but the applicatioo to tba det«la of practice ia left to 
be dilooTered bj hmnaii reaaoo. See CommaifariM on M> Lou of J/aiiotu, bf 
Vfm. Oke Uaoiiiag, Ewj., London, 1839, b 3, eh. 1. "HiU work ie the fint Ei^liih 
trMtiae which I bara aeta, contaioing a regular and didactic diaeuaaioQ of the 
Ki«DM,Mid it iaawork of j;re*t exceUenoe; and Ib^ lesre to noonmeod H 
■brooflj to the attentioo of the AmeriBan itadent 



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Lm^ I] OF THB LAW OF NATIONS. 5 

barona and deplorable. So little were mankind accnstomed 
to regard the righta of persons or prop^ty, or to perceive tihe 
valne and beanty of public order, that in the most enlightened 
ages of Hie Qrecian repablics, piracy was resided as an hon- 
ourable employment lliere were powerM Grecian states 
that aTowed the practice of piracy ; and the fleets of Athens, 
the best disciplined and most r^pectable naval force in all 
antiqni^, were exceedingly addicted to piratical excuTBions. 
It was the received opinion, that Qreebi, even as between 
their own cities and states, were bonud to no dntdes, nor by 
any moral law, withont compact ; and that prisoners taken in 
war had no rights, and might lawfully be put to death, or sold 
into perpetual slareiy, with their wives and children.^ 

•Hiere were, however, many feeble efforts, and some *S 
enccessM examples, to be met with in Oredan history, 
in favoor of national justice. The object of the Ampbictyonic 
council was to iustitate a law of nations among the Greeks, 
and settle contests between Grecian states by a pacific adjnst- 
ment. It was also a law of nations among them, and one 
which was very religiously observed, to allow to the vanqtdshed 
tiie privilege of burying their own dead, and to grant the re- 
qniaite truce for that purpose. Some of liiese states had public 
mimsiers resident at the courts of others,^ and tliere were some 
distingbisbed instances of great humani^ shown to prisoneiB 
of war. During a cessation of arms in the course of the Felo- 
ponneeian war, Athens and Sparta agreed to an exchange or 
mutual sorrender of prisoners.^ The sound judgment and 
profound reflections of Aristotle, naturally raised his sense of 
right above the atrocious maxims and practicea of bis age, and 
be perceived the injustice of that doctrine of Grecian policy, 
that, by the laws of war, the vanquished became the absolute 
pn^rtf of the victor, "Wise men," he observed, "entei^ 
tained different opinions upon that subject Some considered 

■ ThtteyJideM, b. 1. Ma 6. Midori* EiUory ^ Qrmt*, Sto. «dit toL fi. 86i. 
ToL tL IOT. ISS. «t poMint. Itoeraia, Oral. PmuiHu. Optra, ai&L WoUu, |>. 
SSe.— Soriort nohira («*ml AoffM. Wmri* Inqmy into At Eittory ef tk» Ltm 
^iTofiaiUiToLL I1T— 1S3. Od^ut^t Or^iw ib*X«u, (te.,part a,b.S. Chntitu, 
k r e 7. /MhV* StL I. 4S. e. ■. LalroebtiKm tuan* glvtiotmt AoMolur. 
PeUt^t JitfjjWlin ^ Orttei, b. 1. o. 10 and IS. b. 4. c CI. 

* Mtafart, miloiy,fo\.y.t19,tl%. 

* T^neyi 1. B. a 18. 



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OF THE LAW OP NATIOITa [Put L 

Boperiority as a proof of Tirtae, because it ia ita natural effect, 
and they asBerted it to be just that the victon should be mas- 
ters of the yangnished ; whilst odiera denied the force of the 
argament, and maintained that nothing conld be truly just 
which was inconsistent with humanity."' He th^i proceeded 
to weaken by argument the felae fonudationa on which the 
law of slavery, by means of capture in war, waa eBtablished ; 
and though he does not write on the subject -very distinctly or 
forcibly, it seems to be quite apparent that his convictions 
were against the law. 
at l^e Itomans exhibited much stronger proo& than the Greeks 

of the influence of regular law, and there was a marked 
*6 difference between those nations in their intercourse *widi 

foreign powers. It was a principle of the Koman go- 
vernment that aone but a sworn soldier could lawfiilly fight 
the enemy ; and in many instancee the Bomans showed that 
they excelled the Qreeta, by the observance of better princi- 
ples in their relations with other nations. Hie institution of 
a college of heralds or priests, charged with the fecial law re- 
lating to declarations of war and treaties of peace, was evi- 
dence of a people considerably advanced in the cultivation of 
the law of nations as a science ;!■ and yet with what littie 
attention f^^were accustomed to listen to the voice of justice 
and humanity, appears but too plainly in their haugh^ tri- 
umphs, their cunning interpretation of treaties, their continnal 
violation of justice, their cruel rules of war, and the whole 
series of &eir wonderful sncceeeee, in the steady progress of 
the conquest of the world. The perusal of Livy's magnificent 
hifltoiy of the rise and progress of the Koman power, excites 
our constant admiration of the vigour, the skill, the valour and 
tlie fortitude of the Koman people ; yet, notwithstanding the 
splendour of fiie etoiy, and the attractive simplicity of the 
writer, no reader of taste and principle can well avoid feeling 
a thorough detestation of the fierce spirit of conquest which it 



• eWM ArilUUt PtlUia, ytl ii. SB, St. 

* Xtvy, tx 1. 0. 88. A. h >. c. e. A. 80. o. 8. Oiem de Off. 1. 11. Tlw 
eeUtghoH ftcialiwH vu iiiatitiit*^ MOordiDg to legeixUij ttorr, «• MU'Ijr u Um 
raigD of Noma FomjHlini, and tlia tSkaej at that imtitaliot] oa the riglits of war 
ii deelarad bj Ck«ro, — Mli ogititM Mmttitttiit) ftcMi p«ptJi Bonutni Jan prt- 
teriptatit. 



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Lm; I] 07 THB LAW 0? NATIOKS. 7 

displays, and of the barbaroos international law and cnstontB 
of the ancients. 

A pnrer system of pnblic morals was cultivated, and insen- 
siblj gained ground, in the Boman state. The cnielties of 
Msrins in the Jugaithan war, when he put part of the inhab- 
itants of a Komidian town to the sword, and sold the rest for 
slaves, were declared by Sallast* to be a proceeding contra 
jua idli. At the zenith of the Boman power, the enlarged 
and phUoBophical mind of CSc^t> was stmck with extreme 
disgost et the excesses in which hia conutrymen indnlged 
their military spirit. He jostly discerned that mankind were 
not intended, by the law and constitntion of their nature, ae 
rational and social beings, to live in eternal enmity with each 
other ; and he recommends, in one of the most beantifnl 
and perfect ethical codes to be met with* among the re- *7 
mains of the ancients, the virtnes of homanity, hberality 
and justice, towards other people, as being fonuded in the 
nniversal law of nature. Their ancestors, he observed, applied 
ihe term enemy to that man whom they regarded menly as 
a fbreigner ; bnt to deny to strangers the nse and protection of 
the city, would be inhuman. To oTertnm justice by plnnder- 
iug others, tended to destroy ciril society, as well as violate 
the law of nature and the institnttons of heaven ; and by some 
of the most happy iUnstrations and pathetic ezamplea, Cicero 
vindicated the truth, and inculcated die valne of the precept, 
that nothing was truly nseM which waa not honest^ In the 
latter ages of the Boman empire, when their mmiicipal law 
became highly cultivated, and adorned by philosophy and 
science, the law of nations waa recognised as part of the natu- 
ral reason of mankind. Quod vtro naiurtUia ratio inier omnea 
hommea conatitmt, id apud orimee gentea perapie ouatoditury 
voeatwr quej^ta genUtpm, quasi quojva'« orraiea gentea 'utattiar.'' 
The Boman law was destined to obtain the hononrable dis- 
tinction of becoming a national guide to future ages, and to 
be appealed to by modem tribu^Is and writers, in cases in 
which usage and poeltdve law are silent, as one aathoritative 
evidence of the decisions of the law of nations. 



*^ SaLJi^.th. 91. 

^ qr.tkl. ■M;IS.b.S.Me.0,0,7. II. IkZ 

• Stg. 1. L 9. IntL 1. i. 1. 



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g or THB LAW or NATIONS. [Put L 

It must be adoutted, however, that the sagee from whose 
works the Fandecte were compiled, apeak veiy indialmctly 
and imperfectly on the subject of natdonal law. Tliey must 
be read with much discrimmataoQ, as Grotiiu observed,^ for 
they often call that the law of nations which prevailed, and 
perhaps by casual consent, among some nations only ; and 
many things which belonged to the law of nations they 
treated indiscriminately with matteis of mere mnnicipal law. 
The Soman jmisprudence, in its most coltivatect state, was 
*8 a very imperfect transcript of the precepts of natural ^ns- 
tice on the subject of national duty. It retained strong 
traces of ancient rudeneas, from the want of the Christian sys- 
tem of morals, and the civilizing restraints of commerce. We 
find the barbarous doctrine still asserted, that priscmers of 
war became slaves ^'ure getMum /i" and even in respect to for- 
eini nations with whom the Somans were at peace, but had 
no particular alliance, it is laid down in the digests, that 
whoever passed from one country to the other became imme- 
diately a alare. iTcun H ffum gente aU^ua aamciHam, negae 
hotpiiAwOf nejue feed/at amimtifB cteuta faoium habemau : 
hi hoitet guidon twnswit. QuodoMtenyeanoatroadempar' 
vemtjiScriim^: etl/3)er homo noaterabei8C(^>tu»^aerov» jit, 
et eorum. Idemgue est si ^ iHit ad not aUgtiid pervmiat." 
It is impossible to conceive of a rule of national law more di- 
rectly calculated to destroy all commercial intercourse, and to 
maintain eternal enmity between nations. 
LawarH>- The irruption of the northern tribes of S^thia and Qqt- 
middi* tftt. many, overturned all that was gained by the Boman law, 
annihilated every restraint, and all sense of national obliga- 
tion ; and civil sodety relapsed into the violence and eonfu- 
sion of the barbarous ^ea. Mankind seemed to be doomed 
to live once more in constant dlBtmet or hostility, and to re- 
gard a stranger and an enemy as almost the same. Piracy, 
rapine and ferocious war&re deformed the annals of Emupe. 
The manners of nations were barbarous, and their maxims of 
war cmeL Slavery.waa considered as a lawful conaeqnence 



" FToUg.aea.6t. 

' Int. 1. S, 4. D^. lib. 1. tiL B. aea G, and lib. *9. tit IB. di. It. Me. 1. 

• JHg. a. IS. B. S. 



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I«B. L] OP THS LAW OF NATIOira. 9 

of captivity. Ur. Barringtott* has, indeed, cited the laws of 
tiie Visigoths, Saxons, Sicilians and fiararians, as reetraining, 
hj the sereiest p^ialties, the plnnder of shipwrecked goods, 
and the abuse of shipwrecked seamen, and as extending the 
rights of hospitality to strangers. Bnt, notwithstanding 
*a few efforts of this kind to introdace order and justice, *9 
and though municipal law had nndeigone great improre- 
ment, the law of nations remained' in a rude and nncnltiyatod 
state, down to the period of the 16th centmy. In many in- 
etancea, shipwrecked strangers were made prisonere, and sold 
as alaree, without exciting any complaint, or offending any 
public sense of justice. Numerous cases occurred of acta of 
the greatest perfidy and cntel^ towards strangers and ene- 
mies. Prisoners were put to death for their gallantry and 
brave defence in war. There was no reliance npos the word 
and honour of men in power. Reprisals and private war were 
in constant activity. Instances were frequent of the violation 
of embaasiee, of the mnrder of hostages, the imprisonment of 
gaeeta, and tlie killing of Jieralds. ^e victor in war had his 
option in dealing witJi his prisoners, either to put them to 
death, or reduce them to slavery, or exact an exorbitant ran- 
som for their deliverance. So late as the time of Cardinal 
Bichelieu, it was held to be the right of all nations to arrest 
strangeiB who came into the conntiy witlioat a safe c<Hiduct.^ 
The Emperor Charlemagne made distinguidied efforts to 
improve the condition of Europe, by the introduction of order, 
and tile propagation of Christiauity ; and we have dieering 
examples, during the darkness of the middle ages, of some 
rec(^;;nition of public law by means of alliancea, and the sub- 
miaeaon of disputes to the arbitrament of a nentral power. 
Ur. Ward enumeratee five institutions, existing about tlie pe- 
riod of the 11th century, which made a deep impression upon 
Europe, and contributed, in a very essential degree, to im- 
prove the law of nations." Ilieee institutionB were the feudal 
system, the concurrence of Europe in one form of re- 
ligions worship and government, the *eetablisliment of *10 
chivalry, the negotiations and treaties forming the con- 



■ OUarratiaiM ca tba SlatDtM, diiaflf Om mora iximU p. SL 

* Want* Si*lmj «/lh» Lam e/HraOtm*, ^ 7. 8, S. 

* AtcLLMS— >ts. 



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10 OF THB L^W OP mATlOVa. [F>ii 1 

TentioDAl law of Europe, and the settlement of a scale of po- 
litical rank and precedency, 
cf Of all these cansea of reformation, the most weight is to be 
' attributed to the intimate alliance of the great powere as one 
Chnstaan commnnity. The influence of Cbristianity was 
very efficient towards the introduction of a better and more 
en%htened sense of right and justice among the gOTcrmnents 
of Europe. It taught the duty of benevolence to strangers, of 
hmnanily to the vanquished, of the obligation of good &ith, 
and of the sin of murder, revenge and rapacity. The history 
of Europe, during the early periods of modem history, abounds 
with interesting and strong cases, to show the authority of the 
church over turbulent princes and fierce warriors, and the ef- 
fect of that authority in meliorating manners, cheokiug vio- 
lence, and introducing a syBtem of morals,, which inculcated 
peace, moderation and jostice. Ihe church had its councils 
or convocations of the clergy, which formed the nations pro- 
fessing Christianity into a connection resembling a federal 
alliance, and those councils sometimes settled the tides and 
claims of princes, and regulated the temporal afiaiis of the 
Oiristian powere. The confederacy of the Christian nations 
was bound together by a sense of comnum duty and interest 
in req>ect to the rest of mankind. It became a gener^ prin- 
ciple of belief and action, that it was not only a right, but a 
duty, to reduce to obedience, for the sake of conversion, eveiy 
people who professed a religious fiuth different from their 
own. To make war upon infidels was, for many ages, a con- 
spicuous part of European public law ; but this gross perver- 
sion of the doctrines and spirit of Christianity had at least 
one propitious effect upon the Christian powers, inasmuch as 
it led to the cultivation of peace and union between them, and 
to a more &ee and civilized intercourse. The notion that it 
was lawful to invade and subdue Mahometan and Pagan 
countries, continued very long to sway the minds of men ; 

and it was not till after the age of Gtrotins and Bacon, 
*11 that *thiB error was entirely eradicated. Lord Coke' 

held, that an alliance for mutual defence was nnlaw- 
fiil between Christians and Turks ; and Grotius was very 



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Lta.L] OF TOS LAW OF NATIOira. H 

cantioits as to the adnuBsioD of the lawiiilneeB of alliances with 
infidels, and he had no doabt that all Christiiui nations were 
boond to assiet one another against the attacks of in£dela.> 
Etmi Lord Baconi> thought it a matter of so much doubt, as 
to propound it serioTisly as a question, whether a war with in- 
fidels was not first in order of dignity, and to he preferred to 
all other jnst temporal quarrels ; and whether a war with in- 
fidels might not be midertakeu merely for the propagation of 
the Christian &ith, withoat other caoae of hostility. 

The inflaence of chivalry was beneficial upon the laws of of<»niiT^ 
war. It introduced decIaraticoiB of war by heralds j and to 
attack an enemy by sorprise was deemed cowardly and dis- 
honourable. It dieted humane treatment to the ranquiahed, 
courtesy to enemies, and the -virtnes of fidelity, honour and 
magnanimity in every speciee of war&re. 

'Die introdaction and study of the dvil law must also have otum cmi 
contributed largely to more correct and liberal views of the 
rights and duties of nations. It was impossible that such a 
refined and wise system of mimicipal and ethical jurisprudence 
as the Boman law, could have been taught in univendtiefi and 
sdhools, and illnsbvted by a succession of eminent civilians, 
who were worthy of being associated with the Roman sages, 
without at the same time producing a great effect npon the 
public mind. This grand monument of the embodied wisdom 
of the andentB, when once known and examined, mnst have 
r^ected a broad stream of lig^t upon the feudal institutions. 



* 0V«(nii^li,8.e. lB.Ma.n,lZ. HwimiTtmlf of 8alamHM«,UMri;MiaE0, 
dtcidtd in &TOIIT of l«* Ohm iqwD the Ottaa mamfauiied bj Stpalred*, and n- 
foUd b; Lm Omu, tlut it TBS % ri^t (iid duty b> mtlt w apon P*g«iM and 
Heroes, in order to propapita the bue Uth. But tha miad* of men in Catholie 
oonotriei Temained long uoNttled on thk point, and the dodrlnei of SepulTcda are 
atid to luTe been Muwtiooed within the pwlod of the laat SAj jem, by the Bojal 
AcadetD; of Hidoi7 at Madrid. i_l}icLBi*t.art.Btpiilwtda. VarpUui^t JHteayrm 
bifoT4 Ott Nta-York BUtorieal SoeUty, 1S18.) ETeo ag late le 1118, the Emperor 
Obarle* TL oommisaioned two shipi of -max to emiie " through anj aeas, far and 
vide, to follow and punne anj audi ae are the enezniea of our angngt boose, tut 
tltufhi tlu jiumtM of A4 Chriilia» Hdou." Hie commiaaion was dated at Vienna, 
Jnlr It, ITIB. But aftwwarda the ooDuniMon irae rastticted b; an additional 
loBbDdioD, dated at Bnuaal^ SSth Stptamber, 1118, to war " agaiust the Spaniards, 
bat not •gjdiMtacij'othM' power, (JloiyA MM nuimw (oris OkristjoKMami;' Sea 
n at large in CmmiM>t V«yagtt, toL iiL 447. UO. 
s Works, Tol. iiL 411. 491, 



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IS OF THI LAW or HATIONS. [PntL 

and the public cooncUs of the Eaix^tean nations. We ftccord- 
ingly find that the rnles of the civil law were applied to 
*13 the goTenunent of national rights, and they have 'con- 
tributed TcOy materially to the erection of the modem 
international law of Enrope. From the 18th to the 16ti!i 
century, all controverBies between nations were adjndged by 
the rules of the pivil law. 
otttniim. Treaties, conventions and commercial associations, had a 
stiU more direct and visible influence in the formation of the 
great modem code of pablic law. Iliey gave a new character 
to the law of nations, and rendered it more and more of a 
positive or instituted code. Commercial ordinances and con- 
ventions contributed greatly to improve and refine public law, 
and the intercourse of nations, by protectiug the persons and 
property of merchants in eases of shipwreck, and against 
piracy, and against seizure and arrest, upon the breaking out 
of war. Auxiliary treaties were tolerated, by which one nation 
was allowed to be an enemy to a certain extent only. Ilins, 
if in time of peace, a defensive treaty had been made between 
one of the parties to a subsequent war and a third power, by 
which a certain ntunber of troops were to be ftimished in case 
of war, a compliance witii this engagement implicated the 
auxiliary as a party to the war, only so/iw as her contingent 
was concerned. liie nations of Emvpe had advanced to this 
extent in diplomatic science as eaiiy as the beginning of the 
13th century, and snch a refinement was totally unknown to 
the ancients.^ Treaties of subsidy showed also the progress 
of the law of nations. The troops of one nation, to a definite 
extent, could be hired for the service of one of the l)elligerent8, 
without affording ground for hostility with the commnnity 
which supplied the specific aid. Hbs ri^ts of commerce 
began to be regarded as under the protection of the law of 
nations, and Queen Elizabeth complained of the Spaniards, 
that they had prohibited commerce in the bidian seas, con- 
trary to that law. 



• 1JaderHeiir7lII,in]840,tb«FUiiuDg««bUiMdlMT«tocan7<iiitii«irtnde 
u OMul, nhn AtgUod ud Fnuee were at war, m> loog u tb^ took no oUmt 
pwt in the ir*r Uiui wbal thtir «vl, nadir In* bndal nUioo to tba orown of 
France, wai eatlcd npoo bj Ttuan of Lit heUMga ta pcrfcia.— Awti^« Sari]/ 
ymai BitlOTyv/S»gliiitd,niLl ISO. 



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LmiL] of ^ LAW OF NAnom. 13 

Tlie efforts ibat were made, upon tlie revival of commerce, 
to suppress pirac7, and protect shipwrecked properly, sliow a 
retomiiig eense of the value, and of the obligations o£ national 
justice. The case of shipwrecks may be cited, and dwelt 
iq>on for a moment, as a particalar and strong instance 
*of the ieeble beginnings, the slow and inteirapted pro- *13 
grees, and final tmd triiuaphant snccoee of the principles 
of pnblic right. Yalin^impateethebarbaroascoBtomofplnn- 
dering shipwrecked proper^, not merely- to the ordinary 
cnpidi^ for gain, bot to a more particalar and peculiar 
canse. The earliest navigators were almost all pirates, and 
the inhabitants of the coasts were constantly armed against 
their depredations, and whenever they had the misfortone to 
be shipwrecked, they were pnrsaed with a vindictive spirit, 
and deemed jnst objects of pnniahmenL The practice of 
plundering shipwreckB has been traced to the Bhodiana, and 
from them it passed to the Romans ; and the efforts to re- 
strain it were veiy feeble and gradual, and mixed with much 
positive injustice. Hie goods cast ashore first belonged to 
the fortunate occupant, and then they were considered as be- 
longing to the state. Tim change from private to public 
appropriation of the property, rendered a retnming sense of 
right and dn^ more natural and easy. The Emperors Ha- 
drias and Antoninus had the honour of having first renounced 
the claim to shipwrecked property in &vour of the rightful 
owner.b Sat the inhaman customs on this subject were too 
deeply rooted to be eradicated by Uie wisdom and vigilance 
of the Soman lawgivers. The laws in &vour of the unfortn- 
nate were disr^jiraded by succeeding emperors, and when the 
empire itself was overturned by the nordiem barbarians, the 
laws of hamanily were swept away in the tempest ; and the 
continual depredations of the Saxons and Normans induced 
the inhabitants of tfie western coasts of Europe to treat all 
navigators, who were thrown by the perils of the sea upon 
their shores, as pirates, and to poniah them as such, without 
inquiry or discrimination. 

The Emperor Andronicus Comnenus, who reigned at 
Gtmstantinople in 1188, made great efforts to repress this 

> CbM.MrOr^tam.iL6l»-eS7. 

* PlM>totefiMlliU3.tifc1.*rt47.iMt«8. PWta,*A«^ 



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14 OF IBB LAW OF HATIOBS. [Put I. 

inhaman practice. His edict was wordiy of the high- 
*14 est upraise, bat it ceased to be put in execntion after 

his death. Pillage had become an inveterate moral 
pestilence. It reqnired ecmiething more ^ectnal tiian papal 
bulls, and tite exeonunonication of the church, to stop the 
evil. The reyivat of commerce, and with it a sense of the 
value of order, commercial ordinances, particolar conventions 
and treaties between eovereigns, contributed gradoatly to sup- 
press tiiis criminal practice, hj rendering the regulations on 
tiiat subject a branch of the public law of nations. Yalin 
aaTB, it was reserved for the ordinanoea of Louis XTV. to put 
the finishing stroke to this species of piracy, by declaring that 
shipwrecked persons and property were placed under the spe- 
cial protection aAd safeguard of the crown ; and the poniah- 
ment of death, without hope of pardon, was pronounced 
against the guilty.' (1) 

The progress of moderation and humanity in the treatment 
of prisoners, is to be imputed to the influence of Cbristianity, 
and of conventional law, establishing a general exchange of 
prisoners, rank for rank, and giving protection to cartel ships 
for that purpose. It is a practice of no very ancient introduc- 
tion among the states of Europe, and it waa not of very fami- 
liar use in the age of Grotins, and it succeeded the elder 
practice of ransom. From the extracts which Dr. Eobinson>> 



■ He unM of juatice in rcapect to ahipwradm and pirat^, hu made its waj into 
the kingdom of Siam, in EMUra India ; and bj a tr«at;r ^'^ ^^ Umted States, 
io April, IBSS, penoDB and property in Anwrkaa veawla, mfftring Bhipwnok in 
Ibe Siamcw dominioii^ ot taken by piratM and fanmglit tlnrdn, are to tie a»- 
fiiUj ]«ot«cted, presored aod r«atored. Bj Um li«a^ of ooraiiMrce and nariga- 
tiiHi between the Vtdted Statee aod HftoOTer, HajSO^ 1S4D, art. 8,aaBiitanceisto 
h» girtn to Om ihipwrteked and atianded veneli, and no more than the ordioarj 
■alTag«ordiitiei^oiiimla(fiDgtliecargofbrrepaii«bBucliGaaai,aIiall be demanded 
The treaty likewiM (f»edaUj deoUrei^ " that the aadent and barbarous light to 
wreck* of the lea shall ba enluelj aboliahed, vith reapeet to ths property of tha 
aubje«ts or dtiiens of the contntctiiig parties." Such a itipuktioo between two 
dnliied and Cbriitian iiatioas, neai the middle of the 19th eentniy, soucda oddly, 
and might as well have been spared. 

* 8 lieh. Jt*p. Appendix A. 

0] Pilndiil» of eDUgbtaned JoMIm sod gcovou polleT wan sppUed to the Inleipretstlon of 
OieSeTeiiiisLawi c/lh«Unlled aii(ca,lDsIila cueordilpirrMk. It n> held Ihat goods, 
I taken tram a BittUi tcmsI wnoked on our oosil, nd Isodsd md Hid vlUKial a pcnaH tbMB- 
' Sir, wwenottiiWtedtotheUnUnlBlKw The Oettnide, B ibryi £«i. «. 



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Ltd. L] OF THE lAW OF KATIONa 15 

gives ^m Bellas, who was a judge or asseesor in the armiee 
of Charles Y. and Fhilip IL, he concludes that no practice so 
general and so favonrable to the conduct of prisoners, as a 
public exdiange in time of war, was known in the 16th cen- 
tniy.' The private interest of the captor in his prisoner, and 
his right to claim ransom money, continaed through that pe- 
riod ; and the practice of ransom, founded on the right of 
property claimed hy the captor, succeeded to the Greek and 
Boman practice of killiug piisoneiB, or selling them as slaves. 

The custom of admitting resident ministetfl at each sove- Adm 
redgn's court, waa another important improvement in the don. 
seourity and &^lity of national intercourse ;^ and tliis 
led *to tbe settlement of a great question, which was *15 
very frequently discussed in die 15tb and 16tli centuries, 
concerning the inviolability of ambassadors. It became at 
last a definitLve principle of public law, that ambassadors 
were exempted from all local jur^iction, civil and crimi- 
nal ; though Lord Coke considered the law in his day to be, 
t^t if an ambassador committed any crime which -waa not 
merely mo^i^m ^ohibitwn, he lost hjs privilege and digni^ 
as an ambaaeador, and mi^t be punished as any other pri- 
vate alien, and that he was even bound to answer civilly for 
his contracts that were good, Jure ffenHum." 

Tims stood the law of nations at the age of GrotiuB. It had etMi 
been rescued, to a very considerable extent, fr^m the cruel 

■ When Sir Richard Hawkiiu. in hU anntd ihip Dainty, «u captured in th« 
Sootii Saa, kftar ft deap«g«t« eDgageniHit, in IfiU, Uia Spanidi commaiideT, Den 
Baltno, an officer of grttX galtantry, oourtM; and Immaiii^, claimsd, MTerthaleM, 
a property in hii ptisoaBr, and the right to a raniom. OaUtttdtr'i Feyajw, toL il 
lid. tM. The coetom of entUring prisaners of war vaa continued in Europe 
tknn to tbe IStli ceotor;, and wa* then extingiuafaed, though awerted eren bj 
Oiotiiu, Da An BJii, lib> t. ch. 1. to be eraformaUe to the law of natioM. It 
vaa dacoDtkined aadtt the infliMiiee of Ouiitiaiiity, tlioDgh tlie ri^ to the 
raoMHii of [siaooeia aa tlie nitject* of property, waa coodaued to a much later 

* Ferdiaand, the Catholic, it eaid to have inlrodDced the practice of reiideot 
ulniateta. Prtteiti BitL of Fer^nmd and Itabdla, jtA. L SSS. The right <rf 
•eodmg pnUio miniataiv to the eonfedeiMe itatea, and to Ibrttgn itatei, ii preaetred 
to all the ptiDce* and atate* compoaii^ the preteot Oennanic ConfederatioD, 
(1S44,) and so it ia in that of the Swim Oantona ; bat the priril^e is visel j 
tftkeo away from Hu eerentl state* by tbe OonatitatioD of Um Umted States of 

• 4 iiML IBS. 



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18 or THE L4W OF NAnOITS. [F*itl 

luagee and practicee of tlie barbarians. It had been restored 
to wnne degree of Bcience and cmlitj- b^ tbe inflnenceof 
Chrietiamtf^, the etnd^ of the Boman law, and the spirit of 
commerce. It had grown in valae and efficacy, from the in- 
timate connection and constant interconise of tlie modem 
nations of Enrope, who were dwived from a common origin, 
and were governed by similar institations, manners, laws and 
religion. But it was still in a state of extreme disorder, and 
its principles were little known, and lees observed. It con- 
sisted of a series of Tindigested precedents, without order or 
authority. Grotius has, therefore, been justly considered as 
the iatter of the law of nations. He arose like a splendid 
luminary, dispelling HfrTlmowi and confusion, and impartiiig 
light and security to the intercourse of nations. It is said by 
Barbeyrac,* that Lord Bacon's works first suggested to Grotius 
the idea of redndng the law of nations to the certainty and 
precision of a regular science. Grotius has himself fully ex- 
plained the reasons which led him to undertake his necessary, 
and most useiul and immortal work.<> He found the sentiment 
universally prevalent, not only among the vulgar, but among 
men of reputed wisdom and learning, that war 
*16 * was a stranger to all justice, and that no common- 
wealth cotdd be governed without injustice. He saying 
of Euphemus in Tltncydides, he perceived to be in almost 
every one's mouth, that nothing which was useM was anjost 
Many persons, who were friends to justice in private life, made 
no accomit of it in a whole nation, and did not consider it as 
applicable to rulers. He perceived a horrible licentiousness 
and cruelty in war, throu^out the Christian world, of which 
barbarians might be ashamed. When men took ap arms, 
there was no longer any reverence for law, either human or 
divine ; and it seemed as if some malignant fiuy was sent forth 
into the world, vith a general license for the commission of 
all manner of wickedness and crime." 

"Hie object of Grotins was to correct these iklse theories and 
pernicious maxims, by showing a community of sentiment 
am<mg the wise and learned of sjl nations and ages, in favonr 
of file natural law of morality. He likewise undertook to 



• PrcUff. Me. t and tS. 



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Lm; I] OF THE LAW OF JTATJOKa IT 

show Aat justice was of petpetnal obligation, and eBsentialto 
the well being of every society, and that ihe great common- 
wealth of natitHiB stood in need of law, and the observance of 
faith, and the practice of justice. His objectwa8,to digest, in 
one systematic code, the principles of pablic right, and to snp- 
ply authorities for almost every cam in the conduct of nations ; 
and he had the honour of reducing the law of nations to a 
system, and of producing a work which has been resorted to 
as the stuidard of an&oritf in every succeeding age. l^e 
m<xe it is stadied, the more will our admiration be excited at 
die consummate execution of the plan, and the genius and 
erudition of the autlior. lliere was no system of the kind ex- 
tant, that had been produced by the ancient philosophers of 
Qreece, or by the primitive Ohristians. [Rie work of Aristotie 
on the rights of war, and the writings of the Bomans on their 
fecial Uw, hod not survived the wreck of ancient literature ; 
and the essays of some learned modems on pablic law 
were *niost imperfect, and exceedingly defective in *17 
illustrations from history, and in conitting to place their 
dedsons upon the true foundations of eqnity and justice.* 
GrotioB, therefore, went purposely into tlie details of history 
and the nsages of nations, and he resorted to the works of phi- 
losophers, historians, orators, poets, civilians and divines, for 
the materials out of which the science of pablic morali^ 
should be formed ; proceeding on the principle, that when 
manj men, at different times and places, unanimonsly- 
afSrmed the same thing for truth, it ought to be ascribed to 
some univeraat cause. i> His unsparing citation of authorities, 
in support of what the present age may consider very plain 
and undisputAd troths, has been censured by many persons as 
detracting &om the value of the wwk. On the otiior hand, 
the support that he gave to those troths, by the concorrent 
testimony of all nations and ages, has been justiy snppoeed to 
contribute to that reverence for the principles of international 
justice, which has since distinguished the European nations. 

Among tiie disciples of Ctrotius, Puffendorf has always held 
the first rank. His work went more at large into the princi- 

■ Fnltg. e/ GraL «ec. M, VI, 88. 

k Onat i» ft ammntto oiwuyni gtnUwa In MAtrw pulMjm nt, Ci«. 7h«o«t 
«iiM(.llb.l.<kl>. 

ToL-L 3 



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18 OF THK LA.T OF HATIOlTa [pMt L 

pies of natural law, and combined the science of e&iee vith 
what ma; be more strictly called the lav of natdona. It ia 
copiosB in detail, bnt of very little practical value in teaching 
ns what the law of nations ia at this day. It is rather a treatise 
on moral philosophy ihan on international law ; and die eame 
thing may be said of the works of 'Wolfiiifl, Bnriemaqni and 
KutherforUi. Tlie Btunmaiy of the law of nations, by Profea- 
Huuni. Bor Martens, is a treatise of greater practical ntility, but it ia 
only a very partial view of the ^tem, being confined to the 
customary and conventional law of tiie modem nations of 
Bneko' Europe." Bynkershoeck's treatise on tiie laws of war has been 
received as of great authority on that partieolar brandi of the 

science of ihe law of nations, and the sobject is by him 
*18 ably and copionsly •discnflsed. Ite woit is replete 

witii practical Ulnstration, thongh too ezclnaiTe in its 
references to the ordinances of his own comitry, to render his 
anthority very onqneetionable. The most popnlar, and the 
T*ttd. most elegant writer on the law of nations, is Yattal, whose 
method has been greatly admired. He professed to have 
followed the volnminons work of "Wolff on the Law of Nature 
and Nations, and to be enlightened and gnided by his learning, 
with mach improTcment npon the doctrine and arrangement 
of his great master. He has been cited, for the last half cen- 
tury, more &eely than any one of the public jnrists ; but he is 
very different in philoeophical precision. His topics are 
loosely, and often tediously and diffusively discussed, and he 
is not sufficiently supported by the authority of precedents, 
which constitute the foundation of the positive law of nations. 
There is no work which combines, in just proportions, and 
with entire satis&ction, an accurate and comprehensive view 
of the necessary and of the instituted law of nations, and in 
which principles are snfficientiy supported by argument, au- 
thority and examplee. Since tiie age of Qrotins, the code of 
war has been vastiy enlarged and improved, and its rights 
better defined, and its severities greatiy mitigated. Tbe rights 
of maritime capture, the principles of the law of prize, and 



• WbMlMV ia bii BMitry of lit Law of Xatiom, tdit N. Y, IBlfi, mti tint 
tlu tTMtiM at TSttUot, of whidi > third editioii in Fnaiii appaarMl ia ISSl, Prt- 
ciiduZhoUdu On* Jtodfm** dt rEitnp* fimdi itr U* Ttaili* tt tU»ag% hM 
bMooM a jortlj MtMOMd rouiMl of the kEbdcs. 



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Xm h] of the LA.V or hatioks. 19 

the dnties and privileges of neutrals, have grown into very 
important titlefl in the aystem of national law. We now ap- nadn ■>■ 
peal to more accurate, more aathentic, more precise, and more S^TLT^of 
commanding evidence of the mles of pabtic law, by a refer- ^'"''■' 
ence to lihe decisionB of those tribou^ to whom, in every 
coimtry, the administration of that branch of jori^rodence ia 
apeciaUy intrusted. We likewise appeal to the official docu- 
ments and ordinances of particnlar states, which have professed 
to reduce into a systematic code, for the direction of their own 
tribunals, and for the information of foreign powers, the law 
of nations, on those points which relate particidarly to the 
rights of commerce and the dntiee-of neutrality. Bat in die 
absence of higher and more anthoritative sanctions, the ordi- 
nances of foreign states, die opinions of eminent statesmen, 
and the writings of distingaished jurists, are regarded as of 
great consideration on questions not settled by conventional 
law. In eases where the principal jurists agree, the preeomp- 
tion will be very great in favour of the solidity of their 
*mazimB ; and no civilized nation, that does not airo- *ld 
gantly set all ordinary law and justice at defiance, will 
vulture to disregard the uniform sense of the established 
writers on international law. England and the United States 
have been equally disposed to acknowledge the authority of 
the works of jurists, writing professedly on public law, and 
the binding force of tiie general usage and practice of nations, 
and the still greater respect due to judicial decisions recogni- 
ung and enforcing the law of nations. In all our foreign ne- 
gotiatioQS and domestic discussions of questions of national 
law, we have paid the most implicit respect to the practice of 
Europe, and the opinions of her most distinguished dviliaus. 
Is England, the report made in 1753, to the king, in answu- 
to the Prussian memorial, is very satisfactory evidence of th» 
obedience shown to the great standing antiioritiee on the taw 
of nations, to which I have alluded. And in a case whichi 
came before Lord Kansfield, in 1764, in the E. S.,« he reared, 
to a decision of Lord Talbot, who had declared that the law 
of nations was to be collected fivm the practice «f di&rent 
nations, and the authority of writers ; and who had argned; 



' Triqmt T. Bi>a^ 1 Burr. W9. 



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so OF TEB LAW OF NATIOHSl [Put 

from Boch anthoritiefi as Grotias, BarbeTrac, Bynberslioeck, 
Wiqnefort, &c., in a case where Britisli anthorily was silent. 
Hie meet celebrated collections and codes of muilime law, 
ancli as the Comolato dd Matv, the laws of Oleron, the laws 
of the Haoseatic league, and, above all, the marine ordinances 
of Louis AJLV., are also referred to, as containing tiie most 
anthentic evidence of the inuaemorial and cnstomary law of 
Enrope. 
inpntaaog The dignity and importance of this branch of jnrispmdence, 
otoiaAidr, pgjjj^Qj. f^ ^ recommend it to the deep attention of the stu- 
dent : and a thorough knowledge of its principles is necessary 
to lawyers and statesmen, and highly ornamental to every 
scholar who wishes to be adorned with the accomplishments 
of Tariona learning. Many queetious arise in the conree 
*20 of commercial transactions, which reqmre for *their so- 
lution an accorate acquaintance with the conventional 
law of Enrope, and the general doctrines of the prize tribunals, 
^ongh we may remain in peace, there is always war ra^ng 
in some part of the globe, and we have at the present mo- 
ment^ neutral rights to exact, and neutral duties to perform, 
in the course of our Mediterranean trade, and in the trade to 
the Brazils, and along the ^ores of the Pacific A compre- 
hensive and scientific knowledge of intematioual law is highly 
necessaiy, not only to lawyen practising in onr commercial 
ports, but to every gentleman who is animated by liberal 
views, and a generous ambition to aasnme stations of high 
pnblic trust It would be exceedingly to the discredit of any 
person who should be called to take a share in the comicih 
of the nation, if he should be found deficient in the great 
leading principles of this law ; and I think I cannot be mis- 
taken in considering Ae elementary learning of the law of na- 
tions, as not only an essential part of the edncstion of an 
American lawyer, bat as proper to be academically taught 
My object, therefore, in some succeeding lectures will be, to 
discuss all the leading points arising npon the rights and dn- 
Jaes of nations, in the several relations of peace, of war, and 
of neutrality. 



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•LEOTXJKE 11. 



cr TBB siotcn nm mnaa or hatiosb m a statb ov pkack. 

A Tixw of the rights and dnties of uationa in peace, will 
lead OS to examine the grotmds of national independence, the 
extent of territorial JEtrisdiction, the righta of embasBy and of 
oonunercial interconise. 

INations are eqoal in respect to each other, and entitled to J^jg^ 
claim eqnal consideration for their ri^ts, whatever may bedn^Tik^ 
their relatiTe dimensions or strength, or however greati; thej 
may differ in government, religion or manners. Hiis perfect 
equality, and entire independence of aU distinct states, is a 
fdndamental principle of pnhlic law. It is a necessary conae- 
qnence of this eqnality, that each nation has a right to govern 
itself as it may think proper, and no one nation is entitled to 
dictate a form of government, or reli^on, or a course of ioier- 
nal policy, to another. No state is entitled to take cc^ni- 
ance or notice of the domestic administration of another 
state, or of what passes within it as hetween the govenunent 
and its own subjects.* The Spaniards, aa Yattel observes, 



«.4.*ccH. XmliirftrtKt iuth. t. 0.9. At pm^da of iM»4rtateMiea tridi 
tba ioUnukl ptiiej Mid getmaatat of otlia' itata^ wu omphaticaltj dadircd bj 
Kigland and Fnnea id Um Batntan of IBtO, and nev itrciigtli and wotiUftj wtn 
tbtnb; giTCD to natiawl freodom and indcpeodoiea. Bat the right of btarru- 
tka einU vhol impeoAig danger raqnirai i^ ■■ wban it i( Daeeaarj to prarat 
■nrcaaoobjpraTaitingUiedaBgeiMiiacciimalatiaaofllHmeanBvf attadi: An 
JDtiricrcDca to praaerra the bdaooe of po««r amoiig nclgbbotviaf Btttoo^ m an- 
otlMr CMa of the ntmoit mooiMit and diffical^, and i tq uii w tba moat gnrc and 
comjrcbniuTa aoDaideratioa. Such iDtcrraitioD has, wiUnn UM lut two Motoriea, 
bacn TB7 frcqnen^ and lad to eztawTo and dolnuiiTe van. But it wai nocea- 
mrj and jnat in aome of tlie inatanMi^ and pra-emioently as with KitgUml m I80S, 
and wilh Anatria, in 1S1>, va6tr the daogerooa pnpaodawoet and inretenta 
aggraaaioiia of FrmDCe. * Ho goTanuncati^' Mid Ococnd WaiUngton, [^arU 
Writhtg* ^ WaMttftm, to), il p. SSi,) ■ oogfat to ktttttn with the intcnHd 



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33 OF THE lAW OF HATIOira. [P«jt L 

* violated all mles of right, when tbey eet ap a tribunal of their 
own to judge the Inca of Peru according to their laws. 
*33 If he had broken the law of nations *in respect to them, 
they would have had a right to punish him ; hat when 
they undertook to judge of the merits of his own interior ad- 
ministration, and to try and punish him tot acts committed in 
the course of it, they were guilty of the groeeeet injustice. No 
nation had a contention within itself, but the ancient Romans, 
with their UBual insolence, immediately interfered, and with 
profound duplicity pretended to tske part with the oppreesed 
for the sake of justice, though in reali^ for the paipose of do- 
minion. It was by a violation of the right of national inde- 
pendence, that they artfully diaaolTed the Achtean leagae, and 
decreed that each member of the confederacy should he go- 
Temed by its own laws, independent of the general authority.* 
But BO surprisingly loose and inaccurate were the theories 
(^ the ancients on the subject of national independence, that 
the Greeks seem never to have qneetioned the right of one 
state to interfere in the internal concerns of another.^ Ve 
have several instances within time of memoiy, of onwarrant- 
able and flagrant violations of the independence of nations. 
The interference of Huaeia, Prussia and Anetria, in the inter- 
nal government of Poland, and first dismembering it of large 
portions of its territory, and then finally overturning its con^ 
stitatiou, and destroying its existence as an ind^endent 
power, was an aggravated abuse of national right lliere 
were several cases which preceded, or which arose during (he 
violence of tiie French revolution, which were unjustifiable in- 
T^ons of the rights of independent nations to prescribe their 
own forms of government, and to deal in their discretion with 
their own domestic concerns. Among other instances, we 
may refer to the invasion of Holland by the Pmseian anus ia 
1787, and of France by the Prosnan anus in 1792, and of 



omoani of txaHur, treept />r tht —airitg tf mAof ■« Au to AtmtdvaC War 
majb« «]g^edin,iiibehftUof onrDdgfabMin,if it ba TujeeituD that tc mut 
BOffar bf thw rain. ISm rw a^tm, paritt gtntm pnaanu ardtt, Htinttt. SUm. 
Ar. jnn. tt Omt. b. 1. c B. HO. lOT. 
■ Xwjr, b. S8. c. ta Fhnu, b. 1 e. 7. llimUtq, AmmL Mr It* Oumh i» la 

» Miyorii Sitt, ^ enict,joLj. IS?. 



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Lte. n.] OF THB lAW OF HATIQirS. 33 

van fomented or declared against all monarchical forma 
of govermnent, by the French mleiB, daring *the early *23 
and more intemperate stages of their revolntion. We 
may cite also the invasion of Kaples by Austria in 1821, and 
tlie inraaion of Spain by France in 1823, under the pretext of 
pattuig down a dangerous spirit of internal revolution and re- 
form, as instances of the same violation of the absolnte eqnal- 
i^ and independence of nations.^ 
Every nation has an ondonbted right to provide for its own 



■ TIm Britidi go* enimsDt dedinad being ft ptrty to the pcontilgAted doctriiiM 
and pTDCMdingi of Iha ooagreat of Um great power* of oontiMntil Boropa at 
TWppaa and lAjtatdi, b IBSI, ■Ddat'V'(raDa,iiil8tl,ii)dvUdigk*eMUMtio«to 
tha innikDi of Safi»t and Spi^ It vat not mppoaad faf Great Britaid that 



to Uie aafatj of other itatea, at to warrant, Dpoo priDdplea of intenationa] law, a 
firdble interfemtceL The allied •oTereign* wbo awembled at leiytMch and 
Tenna, do Dot t^ipear to hare dilfcred tmtatltlif with Oreat Britain aa to Aa 
gmenl pnadpim wUdi ought to regnbte the mtarftrenoe of oUmt atatea in tb« 
intarnalaffiunaf KapleaandSpahi, bat theydifhrad in the ^ifdiatiaa of tboee 
|irindple« to tbecaMebefi)Te them. lliejjiutifledtb^iDtarfareDoeon tbegKHnid 
that it wia ■■Nceaaaij (or protado^c Ital; from & g«Mial I n aM reetfan, Hid tha 
neigfabooriiig itataa from the moat innbeat dangen.'— " nat tbwa arirtad a vait 
aonapva^ againrt all eatabli^ed power, and afloat aU thoa* tiglila eonaaarrtad 
lij that aocial ordar nnder whidi Eon^ had tqjojad ao maoj oentoriaa of gkcy 
tad bapiKoeaa." — "Tba^kreapeeting the rigfatj and iodapeDdcoce of all legitimate 
power, tintj regarded a( diaavowad bj tha prindplea which oonstitate Uh paUic 
rigb of Enrope, all preteoded reform operated bj revolt and opeo hoitilttj.' 
lUr oljtct waa to protect the pMtoe of Europe 'i^anittlwaediBaatToaaattainpti 
which wodld q)read the borroc of oDlranal anardi; orer the dviliied world" — 
" yif^t a '■■"■'■'"■■" ibr innoTatioi^ which would iood hare rendered tha exUtenea 
of ai^ paUio order whaterer, proMematical.* — 'Tliat they were far from wUlung 
to ptotoog ttb iotarfHaoM htjoni Om Itnuta of abiet mwi^tj, and would aver 
fTMarfba to tbonaeltea the pMtetratioffl ot the iod^Modeooa lai ot tb* rigfata of 
each atala." <SrcWar Dapattk auf DtdanUim if tht Soutnign* of AnHria, 
Snuia and PnitM, I«jbadi, Uaj, 1S!1. Amtiial JBtgitltr tat ISSl, p. 609. 
The qnadraple alliaaee b 1881,betw*ea Franca, Spain, Onat Britain and Portugal; 
wat made far thepnrpoeeof pottinganaod toawar b regard to the anooeaaaa to 
the crowD of Portogal, waged between the Onpenr Don Pedro, eoDtanfiog tbrllM 
right* of the Queen of Portngal, Donna Haria id, aod tb* Infctite Don ICgnd, lAo 
had uiiirped the throoe, and al*a, far the potpoee of expeUiog from lb* PenbtDla 
the In&nta Don Oarloe, who diipnted with Qoewi liabella 3d the aunadon to 
tba trovD of Spun, wd ii another iutaooe at ioterfereoce with the bteraal ood- 
oetna of natioDt. The object of Uie intaftnoee and qmUlnipl* alUaoee wa* «dhetad 
bj the czpaUoa of the two Inbntea. So hr, the anned interlneoea b tid* eaaa 
wcot on the coomentoQ* qpertioM of djiMwtT and eancewkio, and oa ttw preteoee of 
U dril war. 



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94 OP THB LAW OF NATIOHB. ' [Put I. 

safety, and to take dne precaation against distant as well as 
impending danger. The right of self-preservation is para- 
monnt to all other consideratjons.' A rational fear of an 
imminent danger is said to be a justifiable canse of war. 
Potae moinum in^iediri, ne m stto solo, tvru aiut cantta aua- 
gueevidmUiviilUate, mummeniwmncbisjn't^nn^uwmaetrwii, 
ami aiivd g^uid facuU, utule jtuta/ormido jterimiU oriatvr.* 
Hie danger mnst be great, distinct and imminent, and not 
reet on vague and uncertain Bospicion. Hie British gorem- 
ment officiallj declared to the allied powers in 1821,<> that no 
govetiunent was more prepared than their own, " to uphold 
the right of any state or states to interfere, where their own 
secority or essential interests were serionsly endangered by 
the internal transactions of another state ; — that t^e assnmp- 
tion <f[ the right was only to be justified by the strongest ne- 
cesfflty, and to be limited and regulated thereby ; — ^that it 
could not receive a general and indiscriminate application to 
all revolutionary movements, without reference to their imme- 
diate bearing upon some particular state or states ; — ^that its 
exercise was an exce5)tion to general principles of the great- 
est value and importance, and as one that only properly 
grows out of the circumstances of tlie spedal case ; and ex- 
ceptions of this description could never, without the utmost 
danger, be so far reduced to rule, as to be incorporated into 

the ordinary diplomacy of states, or into the institatce 
«• *S4 of the law of nations. *The limitation to the right of 

interference with the internal concerns of other stat«e, 
was defined in this instance with uncommon precision ; and 
no fbnn of civil govamment which a nation may think pro- 
per to prescribe for itself, can be admitted to create a case of 
necessity justifying an interference by force ; for a nation 
under any form of civil policy which it may choose to adopt, 
is competent to preserve its finith, and to maintain the rela- 
tions of peace and ami^ with other powers. 

* r«M«I, b. £. & 4. ■«& 49, U. ElalMr, i>ro>I if tfmi, C I. p. IS. Grotiia, 
h 3. c. 1. 

* EiAtT it Jur* tnitatU, lib. S. c. 1. mc 4. 

* Lord Cattitnagh'i CirailaT Sttpateh a! Jiit\»rf 19, ISSl, ind of Ua^, 1811. 
AnMial ttigitttr, toL Izt. PtMie iJocMMmd. See, mlao, Ut. BeattAij Cuming'B 
OommnnieatiiuM b JBauaiy aod Mirdi, 18SS. Annual StpiiUr, toL Izri 
PdUmX 



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IM n.] OF THX LA.T Of SATttOIB. S5 

It ii BCnnetimes a reiy grave qneatioD, when and how &r 
COM nation has a right to aaeiBt the Bubjeets of another, who 
have revolted, and implored that aaeistance. It is eaid," that 
aasiatance raa,j be afforded, consistently with the law of na- 
tions, in extreme caaee, as when mlers have violated the prin- 
ciples of the social compact, and given just canse to their 
Bnbjecta to consider themselves discharged from their alle- 
giance. Yattel mentions the case of the Frinoe of Orange as 
a jnstifiable interference, because the l^ranny of James II. 
had compelled the English nation to rise in their defence, and 
call for his assistance. The ri^t of interposition most de- 
pend npon the special circnmstances of the case. It is not 
ansceptible of precise limitations, and is extremely delicate in 
the application. It must be submitted to the guidance of 
eminent discretion, and controlled by the principles of justice 
and Bonnd policy. It would clearly be a violation of the law 
of nations, to invite subjects to revolt who were under actual 
obedience, however just their complaints ; or to endeavour to 
produce discontents, violence and rebellion in neighboniing 
states, and, under colour of a generous assistance, to consum- 
mate projects of ambition and dominion. Hie most unexcep- 
tionable precedents are-those in which the interference did 
not take place until the new states had actually been esta- 
blished, and BufiGcient means and spirit had been dis- 
pkyed to excite a confidence *in their stability.^ "Die *S6 
assistance that England gave to the United Nether- 
lands when they were straggling against Spain, and the as- 



• VitUl, h 1. c 4. Mc se. RMnforik, b. t. e. S. Sm, abo, Omiiu, in>. 8. o. 
SCmcS. Pii^. b.&e.S.>M.lt. Tie Amoican S«(T*laT7 of SUte, (Ur. Web- 
«<T,)blni letter to Lord AihbnrtoD, of April t1, 1 Ml, declared, thititirM-K 
MMJtMt Mid gKiM Impropriety Ibr inliTidaU* to Migage in Iba dTil taoSSeiM of 
•tlMritata, and tlna to ba at irar, vhile tbor goreramat ii at peace ;" and that 
"IIm Mriataiy doctrtna of notHnterrntioD b; ona MtioD with Ite a&in of others 
la liable to ba iwiiiliallj impabvd, iC wbiU tbe gorenniint rafraiiiB frian intv 
fmoca, iDtailannM !• Mil] al1ow«d to ib allgectl^ bdiridnallj or m mtmrmf and 
that " tb« Umted StatM bare bean the Bnt uaoog cifDiMd oationa to Miforce tbe 
ohaaraDeaof tfaejnatrtileof DCotralityaDdpaaiM, bj ipMial ud adeqoata kgal 
(eactdMoti agakit aHawiag mdiTidnala to m^e var on thair own aoth ori t y, or to 
Bdogb lberos«lT«a in tba bdl%ar«at opantiaM of otbar oationa.' 

» Tba Chmm. TJatt^to-rtmam, In iia Oatirt tU DraU PtMie.Umi* iLfp. t,"!. 
V«i7 deddadly jnrtifiw tba raoogmtkin, vbu tb« rvTcltad people bare Mqured 
■q(lirtaU%. 



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26 OF TEM LAW Of NATIO]r& [Ftet L 

fiistance that Fraace gave to liiia conntrr during the war of 
OTU* revolatioii, were jiistifiable acts, foimded in wisdom and 
policy. And equally jnetifiable was the interference of the £a- 
ropean powers of France, Great Britain and Knsaia, in &Tonr of 
the Cbeeks, against the Ottoman Forte, hj the treaty for the 
pacification of Qreece, concluded by those three Christian 
powers in 1837, and by means of which a ferocioos and de- 
stmctave war was terminated by the independence of the 
Greek state ss a new kingdom, and a recognition of that in- 
dependence by the Ottoman Forte, in 1832. So, also, there 
was a Bocceesfol interference in 1840, of fonr c^ the great 
Eoropean powen, Austria, Great Britain, Pmssia and Buasia, 
in the civil war between the Ottoman Forte and Hahemet 
All, the Pacha of Dgypt. These, as well as other acts and 
padfications, have effectoaUy placed Turkey within the pale 
of the pnblic law of Enrope. And lastly, there was a measio- 
rable interference of the five great £nropean powers in the 
Belgic revolution of 1830, which ended in the separation of 
Belgium from Holland, and the establishment of the former 
as an independent state. The several cams have given re- 
cant and practical illustration of the principle of international 
law, in its application to the preservation of the public peace 
and second of nations, against internal as well as eztinnal 
violence and oppresedon. It has been well observed,' that 
non-interference is tlie general mle, and cases of justifiable 
interference form exceptions, limited by the necessity of the 
case. It was stated, on the part of the British ministry, in 
Parliament, by Lord Palmerston, in 1847, as a role laid down 
by writers on the law of nations, that when civQ war is regu- 
larly eetahlished in a country, and when the nation is divided 
into conflicting armies and opposing camps, the two parties 
in such war may be dealt with by other powers bs if they 
i were separata communities, and that such other powers may 
I take part with one side or the other, according to their sym- 
', pathies and interests, just as they might in a war between 
. separate and independent nations. Sach interference, how- 
ever justiflable and safe, will be rare, and requires the exer- 
cise of eminent discretion. It is not to be doubted that the 



> Wht«l«n't SlmmdM, p. isa 



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Im. U] of TBI LAW OF TIATIOSa. ST 

gOTenuoent of the TJoited Statoe had a perfect right, in the 
year 1823, to consider, aa it then did, the Spanish provinces 
in Sonth America as legitimate powei^, which had attained 
KofiBcient solidity and strength to he entitled to the rights and 
privileges belonging to independent states." 

Prior to the recognition of the independence of aaj of Hie 
Spanish colonies in America, and during the existence of the 
civil war between Spain and her colonies, it was the declared 
policT' of the government of the United States, in recognking 
the independence of the Spaniflh American republics, to re- 
main nentral, and to allow to each of the belligerent parties 
the same rights of a^lnm and hospitalily, and to consider 
them, in respect to tlie nentral relation and duties of the United 
States, as eqnally entitied to the sovereign rights of war as 
against each other.^ Tbis was also the jndicial doctrine of 
the Supreme Court, derived from the policy of the government, 
and seems to have been regarded as a principle of intona- 
tional law.* 



• Fr*tUiaf$ ttutof*^ Cengnuo/ ilhtf Martk,'^n%aKd atl 1/ Oongrm 

■ UniUd Slatoi r. P«]m«r, t Wkealon R. SIO. S14. Tba Suitiadma TriakUd, 
1 IPKMtM, S8S. SSI. S«a,alM>,W>Jle7T. BdHxner Liberty, IS XoMinona ADS. 
■n* n^fcmi poHcf ud pootiM of Iha Unitad BtabM, u d«^Md bj Praadtnt 
JaAnn, in tu Mmiagi to <?tmgTtM of tlu !l«l Dten^tr, ISU, 1« to axoid tU in- 
UrfmM In diiputM which mnrij relate to tha intemil goTenuDCDt of olhcr 
HUioD), and sTOituallj to reoogniM th« authoritf of the preTalling patty, without 
niereaee to tbt neiila of the origitnd tootnrtrwj. AH qoeatioiM relatiTa to th«>, 
gDVanCMBt of fci^Bn naliooa, wbatttar of the old or new worid, hi 



uMWm reiatiTa to tnei, 
«ld, hare been tnatedi 
■• antiooilT abatainedf 



b^ the Unilad Stataa u qoMtloOi tf/met onlj, and thej hare antiooilf alatBin«d| 
from deddtm upon them, until the deareit efidtDoe wm in their poaeeeaon toj 
coafale Amu to decide correctlj.' It wm (nithra oUerred b; the American 
Secmarj of Stat^ (Mr. Fonfth,) b I8>7, in hii anawer to At Tenn Eotoj, that 
h iliilwiiiiiilm with napeet to tb* fadapeodeooa of other oonntriee, the United 
State* bart nenr taken die fUMffoK 0^ fifltt between the oontaodiDg partiee into 
CMirfdacatian. Tbej bare daamad it a £etata of dn^ and policy to decide npoD 
the qoeetiaa at one offset merely. It belong! to the JegieUtiTe or ezeeatire power, 
(aeeording to the dtancter of the fOTtntment,) to raoognbe the independence of t, 
paofde in rerolt froia th^ fbrdg^ eorereign ; and mtil mcli •ADOwledgment be 
made, annta of Jnttlee are bomd to coDrider the ancient itata of lUoge aa remain- 
ing imalterwL Oty of Bene t. Bank of Oigtend, » Vntf, Ml. TU Hanina, 1 
JUai Aim. K, 1. TriiMn] t. CUnMOti, 8 Bimiikam, 41t. IVmpaui t. Fowka^ 
S Mmm% im. ttejSat t. Bardaj, A tlL So** t. Bimelr, 4 OtmA, tl4. 
OalitM T. Hejt, It /pfawM^ SSI. llBitAd Statea t. Pnhaar, S WiMlom, SIOl 



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98 OF THB LAT OP SXTKOtB. [FWt I 

Kations are at liber^ to use dieir own resonrcM in lach 
manner, and to apply them to mch pnrpooea aa they maj 
Mtdeem beat, provided they do not violate the perfect ri^ts of 
other nations, nor endanger their safety, nor infringe the in- 
dispensable dntifls o£ humanity. Hiey may contract alliances 
with particular natima, and grant or withhold particular pri- 
vileges in their discretion. By positiTe engagements of this 
kind, a new class of rights and duties is created, which forms 
the conventional law of nations, and constitutes the most difiu- 
sive, and, generally, the most impcn^nt branch of public 
juri^rudence. And it is well to be understood, at a period 
when alterations in the constitutions of governments, and 
revolutions in states, are familiar, that it is a clear position of 
the law of nations, that treaties are not affected, nor positive 
obligations of any Mnd with other powers, or with creditors, 
weakened, by any such mutations. A state neither loeee any 
I <^ its rights, nor is discharged from any of its duties, by a 
j change in the form of its civU government The body politic 
is still the same, thou^ it may have a different organ of 
communication.' So, if a state should be divided in respect 
to territory, its rights and obligations are not impaired ; 
*26 aod if they have *not been apportioned by special 
agreement, those rights are to be enjoyed, and those 
obligations frdfilled, by all the parts in common. >> 

The extent of jurisdiction over the adjoining seas, is often a 
question of difficulty and of dubious right. As &r as a natitm 
can conveniently occupy, and th^ occnpancy is acquired by 
prior possession or treaty, the jurisdiction is exclusive. Navi- 
gable riven whi<^ flow through a territory, and the sea-coast 
adjoining it, and the navigable waters induded in bays, and 
between headlands and arms of the sea, belong to the sove- 
reign of tiie adjoining territory, as being necessary to the safe^ 
of tilie nation, and to the nndistnrbed use of the neij^lwnring 



* OnUi^ A At% &lx 9. c. 9. MO. 8. Pu^. I>rM it la Jfotttr* tl dn Otn*,par 
Sarttgrae, toma &. lir. 8. o, IL aao. I, t, Burlamagm, JToL aitdPet. lam, toL iL 
put 4 c g. MO. IB. MvAtt/oT^t IntHluUt, b. I. «. 10. FoU*^ h. 2. ms. 86. 
Protocol of Ibt Atb gTMt powwi «f AtHtri*, Qr««t Bntain, Ftvica, Prnna Biid 
BuMM, b;llMupl«nipoUntiiriM*tLoDdati,D*MtiitMr,18ao,itaUdia Wlimt«m'» 
f iifefy D/lA* X<M» i/iTaiiMH, N«w-ToA, IBtf, PPL fiS8-~«4«. 

» JitUin/atiJt, b. E. e. IOl 



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I«a n.] OF THK UW OP KATIOHa 29 

shores.* < llie open sea is not capable of being possessed u 
prirate property. The free use of tiie ocean, for naTigadon 
uid fishing, is common to all mankind, and tihe public jurists 
genially and explicitly deny ^at tiie main ocean can ever be 
appropriated. Hie subjects of all nations meet there, in time 
of peace, on a footing of entire eqnality and independence. 
No nation has any right or jurisdiction at sea, except it be 
over the persona of its own subjects, in its own pnblic and 
private Teasels ; and so iar territorial jnrisdiction may becon- 
mdered or preserved, for the vessels of a nation are, in many 
respects, considered as portiona <^itB territory, and persons on 
board are protected and governed by the law of the conntry 
to which the vessel belongs. Hey may be pnnished for 
offences against the mnnicipal laws of the state, committed on 
board of its public and private vessels at sea, and on board of 
its public veaaela in foreign ports.* This jurisdiction is con- 
fined to the ship ; and no one ship has a right to prohibit the 
approach of another at sea, or to draw roond her a line of 
territorial jurisdiction, within which no other is at liberty t» 
intrude. Every vessel, in time of peace, has a right to 
consult its own safely and convenience, *and to pureue *27 
its own course and business, without being disturbed, 
when it does not violate the rights of otheia.° As to narrow 
seas and waters approaching the land, there have been many 
and sharp controvereies among the European nations, concern- 
ing the claim for exclusive dominion. Hie questions arimng 
on itaa claim are not very clearly defined and settled, and 
extravagant pretensions are occasionally put forward. Tho 
subject abounds in curious and interesting discussions, and, 
fortunately for die peace of mankind, they are, at the present 
day, matters rather of speculative cnrioaity than of use. 

Grotins published his Mare 1/iierum against the Portu- 
gese claim to an exclusive trade to the Indies, through the 
South Atlantic and Indian oceans, and he shows that the sea 



■ 0fa«i4tkS.a.S.Maia^-ii.&ue.T. i>^. b, S. ft & Ma. 4.— b. 4. & S. sM 
itdi. ratnl, b. 1. e. at, tL 

* Orotiut, k &. ft I. MO. 10 Mid IS. Ruthtrfitrtk, k S. e. •. Valbl, K 1. & 19. 
MB. *U. FotbM T. OoAnat, 3 BotimmU and OrmmO, 448. mMlom'i SUmtmU 
Kfbam>m<»>taiLom,tAtM.Wl. JBiMwyA JtmimifarJiiff,lS41,pp.l«4,SH 

• n* HttkDM non, 11 Wluatait, U. 



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80 or THS LAT or KATIOira. [Put L 

vM not capable of private dominioiL He vindioates the £ree 
navigatioii of the ocean, and the ri^t of conunerce between 
mttionB, and justly exposes the follj and absordi^ of the Foi^ 
tngnese claun. Selden's Mar* Clautwn wan intended to be 
an answer to the doctrine of Grotias, and he ondertook to 
prove, by the laws, osages and opinions of all nations, ancient 
and modem, diat the sea was, in point of &ct, capable of 
private dominion ; and he poured a flood of learning over the 
subject He fell far short of his great rival in the force and 
beanly of his ai^tuneut, but he entirely surpassed him in tlie 
extent and variety of his citetions and researches. Having 
established the fact, that most nations had conceded that die 
sea was capable of private dominion, be showed, by numerons 
docoments and records, that the English nation had always 
asserted and enjoyed a sapremacy over the surrounding or 
narrow seas, and thi^ this daim had been recognised by all 
tlie ueigbbooring nations. Sir Uatthew Hale considered the 
titie of the king to the narrow seas adjoining the coast of 

England, to have been abnudantly proved by the treatise 
*38 of Selden ; and Batier speaks of it *as a work of profound 

erudition.* Bynkershoeck has also written a treatise on 
the sune contested subject, in which he c<Hicedefl to Selden 
much of his argument, and admits that the sea was susceptible 
of dominion, though he denies the title of the English, on the 
ground of a want of nninteiTapted possessicaL He said there 
was no instance, at that time, in which the sea was subjept to 
any particular sovereign, where tiie snrronnding territory did 
not belong to him.^ 

Ihe claim of dominion to dose or narrow seas, is still the 
theme of discnssion and controv«!sy. Pnffendorf^ admits, 
that in a narrow sea the dominion of it, and Uie right of fish- 
ing therein, may belong to the sovereigns of the adjoining 
shores. Yattol also' lays down the position, that the various 
uses to which the sea contiguous to the coast may be ap- 
plied, render it justiy the subject of properly. People fi^ 
there, and draw from it shells, pearls, amber, &o. ; and who 



* DU-rUUU it DomtiiM JTiru, Bffik. Optra, tone IL lEi. 

• i>n>M lb 'a iUl<(ff«iu^ lib. <.&»■■«& (—10. 
t RLcSS. 



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Lm. n.] or 1HK LA.W OF NATIONB. gl 

can doabt, he obseires, bat that the pearl fisheries of Bahram 
and Ceylon may be lavfolly enjoyed as proper^ ! Chitty, in 
his v(H-k on wmtneinial kno,^ has ent(a«d into an elaborate 
Tindicstion of the British title to the fonr seas snrroanding the 
British Islands, and knovn \>j the name of the British seas, 
and, conseqaently, to the ezcInsiTe ri^t of fishing, and of 
controlling the naTigation of foreigners diwein. On tiis other 
hand, Sir Wm. Scott, in the case «f the Twee Oebroedav,*' did 
not treat the claim of territ^oy to contigaons portions of the 
sea Trith mnch indulgence. He said the genwal inclination 
of the hiw was against it; for in the sea, ont of the rei^ of 
cannon shot, nniTersal nse was presomed, in like manner as a 
conunon ose in riveTB flowing through conntenninons 
states Tas preenmed; and yet in both cases, *tbere *28 
might, by legal possibility, exist a peculiar property, ex- 
cluding the nniTersa], or the common use. The claim of 
Bnssia to sovereignty over the Pacific ocean north of the 51st 
degree of latitude, as a dose sea, -was considered by oar go- 
Tcmment in 1839, to be against the rights of other nations." 
It is difScolt to draw any precise or detenninate conclusion, 
amidst the variety of opinions, as to the distance to which a 
state may lawfully extend its excluBi-re dominion over the 
sea adjoining its territories, and beyond those portions of the 
sea which are embraced by harbonrs, gnl&, bays and estuaries, 
and over which its jarisdiction unq^neetionably extends.^ All 
that can reasonably be asserted is, that the dominion of the 
sovereign of the shore over the contigaons sea, extends as tax 
BB is requisite for his safety, and for some lawfiil end. A 
more extended dominion must rest entirely upon fi»ce and 
maritime saprema<^. According to tiie current of modem 
authority, the general territorial jurisdiction extends into the 
sea as &r as cannon shot will reach, and no &rtber, and this 
is generally calculated to be a marine league ; and the con- 
gress of the United States have recognised this limitation, by 
authorizing the District Conrts to take cognizance of all cap- 
tares made within a marine league of the American shores." 



■ Vol L Bs— IOC * a Jb»& AA». Rtp. in. 

• Mr.A&>miIMltrtoOuRiadMllMifltT,1UrAt,fit^\i%t. 

* Anmi OK (A* MarUim* Lam ofSarep*. toL i p. lOtf. 



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82 or IHB L^V OF NAITOBB. [Fut L 

Hie executiTe antliori^ of ihja coontiy, in 1T&3, considered 
Uie whole of Delaware bay to be wittun our territorial jnris- 
diction ; and it rested its claim upon those anthoritiee which 
admit that gnl&, channels and anns of the sea, belong to the 
people with whose lands they are encompassed. It was inti' 
mated that the law of nations would jostify the United States 
in attaching to their coasts an extent into the sea, beyond the 

reach of cannon shot* 
*30 ^Considering the great extent of the line of the Ame- 
rican coasts, we have a right to claim, for fiscal and de- 
fensive regnlations, a liberal extension of maritime jurisdic- 
tion ; and it would not be unreasonable, ae I appreh^id, to 
assume, for domestic purposes connected with our eafe^ and 
wel&re, the control of the waters on onr coasts, thou^ in- 
clnded within lines sti^tching from quite distant headlands, 
as, for instance, from C^pe Ann to Oape Ood, and from Nan- 
tucket to Hontank Point, and from that point to the capes 
of the Delaware, and from the south cape of Florida to the 
MiaaisBippi. It is certain that our government would be dis- 
posed to view with some uneasiness and sensibility, in the 
case of war between other maritime powers, the use of the 
waten of onr coast, &r beyond the reach of cannon shot, as 
cruising gronnd for belligerent purposes. In 1793, onr go- 
vernment thought they were entitled, in reason, to as broad a 
margin of protected navigation as any nation whatever, though 
at that time th^ did not positively insist beyond the distance 
of a marine league from the sea shores ;^ and, in 1806, onr 
I government thought it would not be unreasonable, considering 
i the extent of the United States, the shoalnees of their coast, 



t1»4,ce0. 'nnSingt.r^itj-t^mtkMotBnaijtiBagg.Aim.Il.iVt. Bj 
IL* ooUTWtiDii at LandM of Ou IStb July, 1S41, bttVMo OrMit Britkio, Fnnoci. 
A-iutiu, Pnuoa tnd Rmna, and the Ottoman Porto, it wu dBcUrad aod agreod to 
b« KD cataUuhod prindpU of public law, tliat no ibip* of var of fbre^ powan 
■boald tnter into tb* SInita of thi DHdanellM ud of tbo Bo^iboiiii, ibitnbf 
[da^ig Ihs tamtorial juriidietiaa of tha SoltHi oTer A* ait«rior watora of Ua 
cmpiiA nodra tlia piotcctioa of tb« wiitton publk kv of Earoph maaten't 
BUtory of tin Lm afNattoiu, Nar-ToA, 1B4B, p. l»L, 

> C^'nion «/ (A* AUon^ GfMtral eon«imittf iMd -itw* o/ liU Aip O r mf t , 
iaUd mh »f Mf, ITU, and tin IMir of tlu BtenUry o^ jSM* to ti* Frtmek 
JfiMMtn-, (f lUA Mag, 1191. 

* Mr. J^mpiit LttUT to Mr. Cf*»H, AwmOm- ilk, lltZ. 



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I*Oi n.] OF THB LAW OP SATIOSB. Sg 

and the natnrftl indication fmiu^ed by tile veil-defined paUi \ 
of the Qolf Stream, to expect an immunity from belligerent { 
vaifare, for the qwoe betwecm that limit and the American I 
shtwe. It on^t, at least, to be insisted, that the extent of the 
neutral immnni^ sfaoold correspond vith the claims main- 
tained by Great Britain aroond her own tenritoty, and that no 
belligerent right should be exercised within " t^e chamben 
formed by headlands, or anywhere at sea within the distance 
of four leagoes, or from a right line from one headland 
to another."' In *&e case of &e LUa« Belt, which *Z\ 
was croiging many miles from the shore between Oape 
Henry and Oape Hatteraa, onr goTemment laid stnea on the 
circumstance that she was " hovering on onr coaets ;" and it 
was contended <hi the part of tiie United States, that Ihcy had 
a right to know the national character of armed ships in such 
a sitoation, and that it was a right immediately connected 
witii onr tranqiulli^ and peace. It was further obflfirred, 
that all nations exercise the right, and none with more rigoor, 
or at a greater distance from the coast, than Qraat Britain, 
and none on more justifiable grounds than the United States.)* 
There can be but little donbt, that as the United States ad- 
vance in conunerce and naval strenglii, onr govemmmt will 
be disposed more and more to feel and acknowledge the jostioe 
and policy of the Britidi claim to sapremaey over the narrow 
seas adjacent to the Btitish isks, because we shall stand in 
need of sinular accommodation and means of aeonrity.' 

It was declared in the case of Z0 I/mit,^ that maritime 
statee claim, upon a prinoiple just in itself and temperately 
applied, a right of viaitation and inqoiiy widiin those parts of 



• Mr. IMitem't IMtr U> Mmr». Xmtf mA Pkutm^' •'■'«' '•« l^"^ ^BM. 

yovmbtr iOt, tSlL 

• Id pladi^ the oommerca ud Darigatiaii of itatca, bj trtatici of oomm■IC(^ m 
Sie bMu of cqoalitf , it u aometiniM d««nMd adrinMe to araapt in axpraM t«rni* 
Am eaaling Irad^ at coottmim nmtifiili»», of tha rMpMtln pMtUn, and to iia wia 
tlM r^nlatioo of l^at tnda to tha aepanta kwa «f aaoh natioa 8«« tha oooTan- 
tioD of MOuncNe aodiMTi«atb)D batwan tha Unitadatatea and tb* P<ra-BolMaa 
OonfiadarMkiii, H&7 tS, lStB,aiid batwaao thus Bod the kingdoa of Onmn, Aognat, 
IBSB, and batweao then and pMrtngal, April, 1841, ai>d batwaoi b«i and Iha 
BepoUw of Boudor, Jima ISIh, 18S9. 

• % JMiBiit AAk. Rif.%a. 

TouL 8 



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34 OF THB LAW O? VAITOirS. [Fkrt L 

t^e ocean adjoining to their ahores. Iliey were to be consid- 
ered BB parts of the territoiy for Tarions domestic pnrpoHee, 
and the right was admitted by the conrteey of nations. Hie 
English hovering lavs vere founded upon that ri^t Hie 
Btatate 9 GK». IL c. 35, prohibited foreign goods to be trans- 
shipped -within fonr leasee of the coast withont payment of 
dnties; and theactof congreeBofUarch2d,1799, c.128, sec. 
26, 28, 27. 99, contained the same prohibition ; and the exer- 
cise of jariBdiction, to that distance, ior the safety and protec- 
tion of tiie rerenne laws, was declared by the fiapreme Court, 
in Church v, Hvbbca-d^*- to be confoimable to the laws and 
usages of nations. 
I ft As the end of the law of nati<ms is the happiness 

*S2 and perfection *ofthe general society of mankind, it eur 
joins npon every nation the pnnctaal obserrance of 
benevolence and good will, as well as of jostice, towards its 
neighbonrs.'* lliB is equally the policy and the duty of na- 
tions. Hiey ought to cultivate a free interconise for commer- 
cial purposes, in order to nipply each other's wants, and pro- 
mote each other's proeperily. The variety of climates and . 
productions on the surface of the globe, and the' facility of 
commnni catiwi, by means of riven, lakes and the ocean, in- 
vite to a liberal commerce, as agreeable to the law of natnre, 
and extremely condndve to national amity, industry and hap- 
pineB8,B Hie nnmerons wants of civilized life can only be 
sapplied by matnal exchange between nations of the pecnliar 
prodactions of each ; and who l^t is fEtmiliar with the Eng- 
Ush dasfflcs, has not dwelt with delight on the description of 
the extent and blessings of T^nglifih commerce, T^tii Addi- 
son has given, with snch gracefol simplicity and snch en- 
chanting elegance, in (me of the ^>6ctator'8 visits to the Boyal 
Exc h an g e I* But as every nation has the right, and is dis- 
posed to exerdse it, of judging for itself, in respect to the poli- 
cy and extent of its commercial arrangemenlB, the general 
freedom of trade, however reasonably and strongly it may be 
inculcated in the modem school of political economy, is but 



> % OMMtft, 18T. 

' raU«r> PnliH. MC. 11, It. b. S. e. I, B 

• ra(KI)La.<.E.Me.!L 



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tu. n.] OF THB LAW or NATIONS. gfi 

an imperfect right, and necesearilj sabject to snch regulations 
and reetrictiona as each nation may think proper to preBcrib« 
for itself. Every state may monopolize as much as it please 
of ite own internal and colonial trade, or grant to other nations, 
Tith whom it dials, BQch distinctions and particular privi- 
leges as it may deem conducive to its interests.^ The 
celebrated English ^navigation act of Charles IL con- *38 
tained nothing, said Martens, contrary to the law of na- 
tions, notwithstanding it was very embarraBsing to other 
conutries. "When the United States put an entire stop to 
their commerce with the world, in December, 1807, by laying 
a general embargo on their trade, without distinction as to na- 
tion, or limit as to time, no other power compluned of it ; 
and the foreign government most affected by it, and against 
whose interests it was more immediately directed, declared to 
our government, >■ that as a mnniclpal regulation, foreign 
states had no concern with it, and that the British govern- 
ment did not conceive that they had the ri^t, or the preten- 
mon, to make any complaint of it, and that tiiey had made 
none. 

No nation has a righ^ in time of peace, to interfere with, 
or interrupt, any commerce which is lawful by the law of 
nations, and carried on between other independent powen, or 
between different members of tiie same state. The claim of 
the Portuguese, in the height of their maritime power in In- 
dia, to exclude all Enropeon people from commerce with 
Asia, was contrary to national law, and a just cause of war. 
Vattel called it s pretension no less iniquitous than chime- 
ricaL" ^e attempt of Kussia to appropriate to herself an 
exclnmve trade in the North Pacific, met with a prompt re- 
sistance on the part of this country ; and the government of 
the TTnited States claimed for its citizens the right to carry oit 
trade with the aboriginal natives, on the northwest coast ofi" 



*A^.L4.e. S.MO. 10. FitfOi, b. 1. c B. no. 91. M, M<Krt*n/ Smtmary <^ 
OuLmie/yalioiu, Ut.ua. \ OhiOy on Oommntial Lmi, 'J«—S\. Mr. Can- 
mm^i Letten to Mr. CoUdfift, of September 11th ud Novemlw lltlvHSfl. Mr. 
OalUainto Mr, Canning, S«pt«iaber !2d*iidDecaiib«r SSth, lBSV*ad'Jri'. Cloj/j 
lo Mr. OatlaiiH, Iftnemhm llUi, IBiS. 

^ Mr. Omnin^t Lttttr to Mr. Pindnuy, S^tmbM it, ISOB^ 

''B.i.e.i.-a.U. 



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86 OF TBI LAW OF SATIOHS. [Fwt L 

America, without the territorial jnriBdictloii of other uatioDB, 
even in arms and moiiitioiifl of war.* 
i|^ TVeaties of commerce, defining and estahliahing the rights 
and extent of conuaercial intercourse, have heen found to be 

of great utility i &nd thej occupy a very important title 
*34 intiiecodeofnatioiiallaw. ISiey were coiiaider«d,*e7eii 

two centoriee ago, to be so conducive to the public wel- 
fire aa to overcome the bigotry of the times : and Lord Coke^ 
admitted them to be one of die four kinds of national com- 
pacts tiiat might, lawfully, be made with infidels, Thej 
have multiplied exceedingly within the last centory, for it 
has been found by experience, that the general liber^ of 
trade, resting solely on principles of common right, benevo- 
lence and aoond policy, was too vague and precarious to be 
consistent with the safety of the extended intercourse and 
complicated interests of great commercial states. Every na- 
tion may enter into such commercial treatJes, and grant sQch 
special privileges, as they think proper ; and no nation, to 
whom the like privileges are not conceded, has a right to 
take offence, provided those treaties do not affect their perfect 
rij^ts. A state may enter into a treaty, by whicll it grants 
exdnaiTe privileges to one nation, and deprives itself of the 
liberty to grant similar privileges to any other. Thus, Fai^ 
tugal, in 1708, by her trea^ with England, gave her the mo- 
nopoly of her wine trade : and the Dutch, formerly, by a 
treaty with Ceylon, engroesed the cinnamon trade, and, lat- 
terly, they have monc^lised the tiwle with Japan.' These 
are matters of strict legal right ; but it is, nevertheleBS, in a 
moral sense, the duty of every nation to deal kindly, liberally 
and impartially towards all mankind, and not to bind itself 
by b«a^ with one natiiw, in contravention of those general 
duties which the law of nature dictates to be dne to the rest 
of the world.' 



Fonytk't LtUt In Ai ^ouruoM Miniil*T al 8l F^mburf, NoTcmtMr Sd, 1S8T. 

k 4 /flK. lt>6. 

• 1 (May on OnwuntrtUl Lou, 40, 41, 41 

' It bM b««D Ihi poU(7 of tba Uiiittd Statn t» soecntrv*^ "■ 't* dip1om>tk 
intcMOUTM vitb oUmt natwi^ tlw mnt pofcct freedom ud cqtwiity in reUtioD to 
tbo rigliU and inUnrtt of namgalioi^ Tbii i« tb« prindple oeotaiiwd in the ooca- 



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iM. It] OF THB LAW OF K ATIOHS. 87 

EreTj nation is ^nnd, in time of peace, to grftnt a passage, ftaw 
for lawfdl parpoeea, over their lands, riven and seas, to tiie tmwr. 
people of other states, whenever it can be permitted without 
inconvenience ; and bnrthenBome conditions ought not to be 
annexed to the transit of persons and property. If, how- 
ever,anygovemmentdeemBtheintrodnctionof*foreign- *35 
tm, or their merchandise, injnrions to those interests of 
their own people which they are a,t liberty to protect and 
promote, they are at liberty to widihold the indnlgence. 
TSxe entry of foreigners and their effects is not an absolute 
right, bnt only one of imperfect obligation, and it is subject 
to the discretion of Hie government which tolerates it.* Hie 
state may even levy a tax or toll npon the persons and pro- 
perty of strangers wi transitu, provided the same be a rea- 
sonable charge, by way of recompense for the expense which 
ihe accommodation crestea.<> Hiese tihings are now generally 
settled in commercial treaties, by which it is nsnally stipn- 
lated, that there shall be free navigation and commerce be- 
tween the nations, and a free entry to peisons and property, 
subject to the ordinary revenue and police laws of the country, 
and the special terms and conditions prescribed by treaty. 

A nation poesesBing only the upper parts of a navigable UMoru^ 
river, is entitled to descend to the sea without being embar- 
rassed by useless and oppressive duties or regulations. It is 
donbtleea a right of imperfect obligation, but one that cannot 



iMKial treatf betVMD Um Unitod StatM and the fsderalioa of Central America, 
of 0M Btb December, IStC. Bj that btatj, wbaterat cao b« impnied ioto, or 
•xportad Irom, the potti of tlie one eoontij, in ita own Tanela, ma;, ia like maimir, 
and apon tbe same temu aod oonditiDaa, be imported or exported in tlia veaeeli ef 
the other txyantry. lie lame rule !■ eoDbuued io the treatiee of tlie TTnited 3laUa 
-with Denmark, Svedeti and Ui« Buiseatic dtiea. 

■ A^.b.8.G.S.aacS,a,7. RvtherfrrtK,'b.i.a.%. FoMiI, h. B. a. 7. eec 9<.— «. 
S-ietlOO.— c».iecl!8. laO,— «.10. aec.132. 1 CSliUy, 84— 89. M.PitJuiro- 
Ftmira [Coun de DtM Public, toue u. pp. 19, SO) complaini Tchemeatly of tha 
diect* created bj paaaporta and the preratire police of the eontinental goTero- 
tneoti of Europe, upon emigiatioD aod Che tnuuit aod aojoum of IbreigDen. Ha 
caHi it I^al tjrauDj, and contraata inch policy vith that of IIm Usitad 3tatea, 
•"theelaamelandafciTit libertj* But I am of optnioc^ notwiChatanding, that CTciy 
goTenuneat haa the rigtit, and is bound In dutf , to judge for itael( boir lar tha 
imlimitad poirer of emigration, and of tiie admiwion and reaideoce of atrai^era and 
etDigranta, nw; be coniiateot with ila own local intereat% inttitatlooi and aafetj. 

* Suthttforth, b. t. a 9. Vatt^, b. 2. e. 10. aao. I!4. 1 datij/, 108—100. 



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88 OF THK LAT or NATICnrB. [FutL 

be jnstly withheld without good caase. When Spain, in the 
year 1792, owned the moath, and both banks of the lower 
HiBsiaaippi, and the TTnited States the left bank of the upper 
portion <^ the same, it waa strongly contended on fhe part of 
the United States, tihat bj the law of natore and nations, we 
were entitled to the navigation of that river to the eea, subject 
only to sach modificationB as Spain might reaeooablj deem 
neceeeary for her safe^ and fiscal accommodation. It was 
iurther contended, that the right to the end carried with it, 

as an incid^it, the ri^t to the means requiate to attain 
*S6 the end ; such, for instance, as the right *to moor ves- 

B^ to the shore, and to land in cases of neceesity. 1^ 
same clear right of the TTnited States to the free navigation of 
the Missiasippi through the territoriee of Spain to the ocean, 
was asserted bj the congress under the confederation.* The 
claim in that case, with the qualifications annexed to it, was 
well grounded on the principles and authorities of the law c^ 
nations.^ Tiie like claiiDa, and founded on the same principles 



i to Mr. J^ UtllSU, and Offaiti in llii. RfulvliiMo/aM- 
ffre»*«/8*pltmlitr,lt8S. RipcrteflluBtent«rs^8taUletStPmiinit,M»r«k 
ISA, ITSt. 

* ffpDiuti, lik t. 0. L Hbll, 19, II. IB^-ft 8. MC 13. Pijjr. lib- >■«■>■ Me. B, 
S. 8. Vnm, h 1. Mb agt^b. S. MC. IS^. 11». llli Bj the trattj of pMO at 
Fui^ b IBIS, It WM MlpnlaUd tha Ota nangatloii of Uw BhiiM mmI Hm SduUt 
■lioaUb«frMi*DdatdieOoiignMa(yi«DDi,iii ISIS.ttwBllMdioTaraigDaagnw] 
to Um fi«a navigatloa (4 tli» prtol n«a^aU< Wmti «/ ffMSuny owi oMJMii ^"010*4 
to tiufr mootbi^ io fcToor of rH who (bonld ooalbrm to tb* NgnUliooa niider wUdt 
tb« aflfawchiaenwot vu to b«gmit«d. TbadaUHtd dooTMiliaiH aaoMqD«nt€0 
fiw act of Oongna of Vunna, hsTo ^iptiad tlw [iriDciplM adopted hj tba ooogww, 
fcnndtd oD Om Ibniofr of Baton Ton HomboJd^ to regnhta tbe naTigataon of the 
BluDe,tlM BdMldt, tlM UeoM, Om UowU^tlM Elb«,tlM Odn-, tb« Wmw, Um 
Tatola, Um Dunbe ibcI th* Fo, villi tbair ooaflntiit liren. 71m EmUdi gOTCtn- 
mtet, ao late aa 18S0, eontiDiMd to aaatt a ri^iti iiiid«r tlM tnafy of Tiaana, or 
fodanl act of IIIB, to tb* frM Dangatioa of tba Bhloa, and to hold tbat it waa 
•ccMobla to the T aa aa l i of aU nalioaa, to Um ostcot of ita narigatioo, anljact to 
modeiat« dotia^ brtiMprMvratuiaofUwpaQiioii tbandMof Uk river, and br 
tha maiutcDaiMW of tlw proper pofica. And t^Uta oonvmtioDooDcIudad atMajaoM, 
VatA Slat, ISSl, betweao all the riparian ilat** of tin BUne, th« DarijiatioD of 
tiMt rivw vaa dadirad fr*^ frmi tba poiot vbera it baoomaa naTigable into tba 
aea, bdndlog ita two pfibdpal onlleti DT moaUii in tba kiogdom of tlia Netiwriai>d% 
tbe X<ei and tba WmI, pMdng li^ Betterdani and Briel, tbiou^ tbe fint Huned 
oiitlet,aDdb7Docta«ehtaDd EdToaMnT^ flirotij^ tb« latter, vilb Ibe o*a of tbe 
Htifioial canal of Toona and Hol<ro«ttlDji. 71m ooonotkn ]voiJd«a nfnklieoa 
irf poliee and toll dntiai oa Teeaela and mectiiandiae paasng to and Icom tba aaa, 



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iMklL] OP TBS LAW Oir NATKnm. 80 

of natural law, and on the authority of jnristo and the conTcm- 
tional law of nations, has been made on behalf of the people 
of the United States to navigate the 8t Lawrence to and from 
the sea, and it has been discoased at lai^ between the Ameri- 
can and British goTemmmtB.^ 

When foreigners are admitted into a state npon &ee and 
liberal tenna, the pnblic &iUi becomes pledged for their pro-' 
tecti<»L The conrts of justice ought to be freely open to them 
as a resort for the redress of their grieTancea. Bnt strangers 
are equally bound with natives, to obedience to t^e lavs of 
the country during tJie time they sojourn in it, and they are 
equally amenable for infractions of tibe law. It has sometimea 
been made a question, how &r one goTemment was bound by 
the law of nations, and independent of treaty, to surrender, 
npon demand, fogitivee from justice, who, having committed 
erimee in cme conntry, flee to another ibr shelter. It is de- 
clared, by some of the most distinguished pnblic jurists,^ 
that every *state is bound to deny tm asylum to crimi- *37 
nals, and, upon application and due examination of the 



ttnragii the VtOmAait, and b^ th« difbrtot porta of tka nppv atitm ta Ihm 
Blma. mMlM>'ijranMnti^Ail«nM«lM<iI£<M,MwiiLt4S— Ml. WtBitltr^ 
^iJu La» 0^ Jattnum Arap* mUAmmea, Stw-Yvk. 1848, {^ tW— W<^ 

• Hr. Whwloc^ in hii JImmmI* •/ /at«r>MltMUiI Z<Hi M •difc S4S-->n, Md h 
bit auur) «/ tin Lm of JVMom, pp. tOS. S17, hu gim the rabrtuM of tlw 
■[gominta,fraiid aim, hifcM from flBBgr— momI docqiMrti of Iha ttwk am of IW 
ndlSsa HwM b JitiJ.cn tUpftofOwat Britwii. IhU thw itfit of pMip 
WM M>t u alwclata natona ligfat, but an imp««Nt iJgH KiMatod to tba ri|U of 
tnawt te pntpoaw of innownt ntil^, to b« extlaMvalf iltjwiiiliitil bf tba to«tI 
nnnigiL TbeoanuiuMiaowauddifilomithtaof tbt UmtMl Stat«i,m I80B,i^ 
aftwwanb, itaimA, m • pnc^ of nAwMtiMwl kw, dMt vLm taj Buiopwa 

wofity iifaptof>wiw «t ,ft>t po w iwi wt«Dd«d iota Mm 
MoftlMriTtnMiptriiisinta tbat ecMt ud ts (biir 
moatbii irilli th* baja ind MitniMM IbniMd \^ iLia jnnctiaD vitb Sm ms, (od to 
•UtlMtribid«7*«wnioTlniidH^>adtlMeoautiTthve»T«nd>. TbcMrthoii^ 
of Vatial, h I. p^ f M, N ID tOHwrt of that pifcic^ in » qMlifl«d dagr*^ mod it to 
beeMdDMltoaMiiitnw>rMa«|rjbvM((AH(a«l(rritonr. Hr. Wbaatoo, in 
Ito AwMRlt^ Jii(«iMtf«Ml iio^ Sd tdiL lS4t, TBj jwtiyeDoflDM nil K ohfai 
of dontoiM of lb« itoto to lb* MM wd rivan milrii^ i^MlMiij «Mm t(« JiHib. 

* n«lfa^b.l.C.ll.Me.a,4,B,.MidAW«M>>>M Omn. b. b J«rf«M^ nd. iL 
rtrt4.e.S.MCkSS— SO. AtfAff/brtA, li a. & 9. ToL ii. p. 4*0. FoftfAkLftS. 
■n1<,1T. BwQMHlioiuiii)nrfl,titAraiV*r,f«'jr«rIfii, fadMMrfoMgn 
tUi oobjoat in Fnnoe. F. Ymt, ii ButuA*, p. »T, Mj^.dMt tb* iKnadw of 
omnfaali ii dwoiad MoordbiK tolba tMagaof aliniMt all AntiannatHM^ttMtptiB 
«HM of bomMa^, (mil tm AmmIM^) and UartMM ii af Uia avna opUan. 



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OF THB lAM or VATIOn. 



case, to Bumsider the fngitiTe to the ftweign state where the 
crime vas committed. The langoage of those authorities ia 



M»Ttmi^ L<M </ lf«litiu,h. S.e.B.Mo.St. n* Enijub (Ucuiod* in ai^iort of 
tk* riglit tod pnclica of nnraidcr of fiipliv«s cbirged vith ftlivdoui oimea, 
w^ Bex T. EatchiDMn, ■ XtU^ T86. OMeof Lmxlj, i Fm^ S14. KeiT.Eim- 
bwle^. At. 84B. 8. 0. Bamard; E. B. vol L atS. .Re^ 111, Eut iDdia 
Oaapaof t. OtmplMU, 1 r<My, iU. Htatli, J. in If dm t. Eaj, 4 T^nntai, H. 
Xumoanu, Dialog. 8. Mc, ST, Setgewt HUP* opiniaa (and hii wiliiori^ md leain- 
iogw > laiTTOT vera pre-emiiMDt) giTOD to goTenuDHit in HBS. See Edin. Jittitm 
Ho. 88, pp. IIS, 180. 141. Lord Coke, bovevBr, held Uut Uie lOTereign wu oot 
bomul to loirtDder np fbgitire crimiiuilt th>m otiier eoantriei. 8 Aul. 180l Hm 
Annicu ikdikiiM oo Uu qotatioD an, fai th* matttr of WMhbivn, 4 Jtkn*. <7k. 
Ap.106. O<HDiik>nwMlll>T.D«M»B.10&ry.AJU>aJ<,ia8. B«x t. Ball, dwaded 
t^ Ch. J. B«id, tt Montreal, aod reported ia Awitr. Jitr. SVT. Oau of Joie Fer- 
ine Joe. Saoto^ 2 Bnieh4ai»urgh, 402. Two of thoM, vis, Uut in 4tli JabiuoD 
aadbelbra Qb.J. B«id,are fort^ duly of nnraider, and tbe other two «g»in«t !^ 
iBil«M ipociallj pmlded br hj tzmtf. Mr. JtMtiM Btcrj dt«a the ooaffiotiBK 
authorities both Ibreign ai>d dom«ali<^ od thii interMli^ (joeatioa ; bat iotiinatM 
no o^tuon. Gntm. on Ui (^nttitvtitm, tot iu. pp> BTS, fit, Cimm. ok lit 
Oonjliet q/ Lout, pp. S20— BBS. But att«rwB^d^ in the tToited Slatea T. Dane, 
1 BimmiT, 486, Judge Btoij aiprened great donMa whether, npca principlei 
of ioteniBlioDal law, Kkd iodepeodttit of etatat* or tr««^, anj oonrt of joetH* 
ia snthwised to ■dirender a fugitiTe from jnetice. In tLe epring of 188S, 
Gtorgt Sahtt, being charged vith the orime of murder, committed in Lower 
Oanada, fled into the etate of TannoDt, and Ii^ nurendfr was dBmaiided by th« 
GorafDor Qcneral of OaoKda. Apt^Jottop wMmMkhfaMhoiity, iDTannoDt,to 
ttwIi:«iideatoftha UidtAd BtBtM,who decHtted to act tfaioi^ n> alleged want 
of power, and the caM cmim ImIc tD tb« Oorenior of Termmt After hearing 
«onneelaoclgitiogtb«ratj*et great eoDeideraliafi, GoramiR Jeonieoo decided that 
It wMhia duty to mmiider tbe fiV<tiT^ Hw case was afterwardi, and beibre any 
Brctnal nomdm, canM op b«fcre die Supremo Oonrt of that atate upon Aofteai 
eorpw, and dabont^ aigned ta July, 1389, and the d«d«on of the gorvnor 
•fflrmed. The case wai afterwarda carried np to the Snprone Oonrt of tbe United 
Statoi^ in tbe wmter of 1840, and the oonrt declared that they had no jnriediatioa 
hi the oaw. HofanM t. J«nim), 14 Prttr** B. 540. Hotme* wt« tlwreapon 
brongbt op befcto the Snpreme Oonrt of Termont by Aoieu MrpM, b Aptfl, 1 S4<h 
•tid the qnertloD eolennly argued, and tbe dwUMi wae, that the etata had no 
aothof)^ to Borraider the ptiaoner, and he wae aoconllo^ diMharged (tarn eoetody. 
One «> porfe Boimn, 11 Vtnhont B. 880. It may be here property obeerred 
«bat aeoordiag t* Iba dBdal iqinian of flie AttuDey Gwital of ft* Valtsd StatM 
IIVT, it waa Um J^ of Hm Unitad atatN to dallTW opt on dM ^MDM)! bdnotu 
oAndHB, bcng A^tttree from Oie domUoM of Spain, and that at tba exiatng lawa 
(iftbe1TnioDhadDotBMdeaD7Bp*d>eprDVi*ioDlbrtbecM«,the deCaot oi^ to 
be enppfied. OpiaMne af tin Attemty Qtntral, toL L 48. But afterward), in 
leit, tbe then Attonay Qeoenl of the United Btatai, fai an ^aboraU opinioa 
l^m lo the Praaid«at declared that tbe modera OMge and praotioe of oatiaaa had 
ben ooDtiaiy to A* dootrinea of tbe eariy JoiMa, aad that it waa not now (be law 
■ad w»t* ^ nalioiM to deUnr up fbgUina fton jvtieak vhatenr may be the 



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iMi IL] <V THB LAW OT ItATKfm. 41 

dear and explicit, and &e law and mage of nations, bb daclared 
hj tbem, rest on the plainest principles of jastice. It is the 
Anty of the goveniment to Bmrender tip fngitires npon de- 
mand, after the civil magistrate shall have ascertained the 
existence of reasonable grounds for the chaise, and sufficient 
to pat the accused npon his trial The gnilty party cannot be 
tried and punished b^ any other jurisdiction than the one 
irhose laws hare been violated, and, therefore, the duty of 
Borrendering him applies as well to the cose of the Bnbjects of 
the state sorrendeiing, as to the case of subjects of the power 
demanding the fngitive. He only difficulty, in die absence 
<^ podtive agreement, consists in drawing the line between 
the class of offences to which the nsage of nations does, and 
to which it does not apply, inaamnch as it is understood, in 
jHVctice, to apply only to taimes of great atrocity, or deeply 
affecting the pnblic safet}''. Tha act of the legislature of New- 
Tort, of the 5th of April, 1823, c. 148, gave facility to the 
surrender of fugitives, by aothorizing the governor, in his 
diBoretion, on requisition from a fonaga goromor, to surrender 
up ftigitiveB charged with murder, forgeiy, larceny, or other 
Climes, which, by the laws of this state, were ptmishable with 
death or imprisooiaent in the state prison ; provided the evi- 
dene« of criminality was sufficient, by our laws, to detain Uie 
party £»■ trial on a like charge." Snch a legislative provision 
was requisite, for the jndicial power can do no more than 
cause the fugitive to be arrested and detained, until sufficient 
means and opportamtj have been afforded for the dischaige 



aifar* or atradty of th« oAot, tnlaM it bt h pnnDaoee of > trMtf itipaktioD. 
Opbdmu, St, ToL i. 884— SBl. If then b* no trMtj, h* wu of ofAiioD that Qm 
pw« niui«]t of Qm United Statea eonld oot act on the nljert, wttlMOt ftntiwri^ 
embtred bj in aet of ooDgreN> utd vUdi it \rou1d be expaifieot to gmit, ■■ tlw 
kw b inpaftat u h ttaodt. Ibid, vol B. Wt MS. Whw it b dodarad u fiie 
«*ltl«d rnla, th«t Ibe TTidtod Statei are Dot Jiutlfied in tba imrcndtr of fugItiT«i 
ftonJiit(iM,«>MptfapimiMoeeof a trea^ atipoktioii, Ibe TTnited StatM an thui 
. tB«Aeti}oeland,b]rBattoiMlai)daMeanUiorili«i;tol«aaahai7lam]brallKirta 
of crimiDali, from dl gorcniiMata and t«critari«^ Dear or diiburt. So,alao, all llie 
Ugfa lav mtboriUo* fai Wariniiiutw Hall, fa tba case etlh* Onelt, gtrt their opio- 
koa, fa tba Brllub HoDM of Lorda, Id February, 1S4S, diat the Eoglldi law and inter- 
Batioaat lav did oat antboiiie Uie amanderof fJigitiTeeKniiDalaaf anjd^ree, and 
Art ttN right to demand and emTMider miwt ba Ibtnidcd on trMtj, or it doee not ezbt 
'•Om y. r. lUritd Blatutu, toI. L lU. eec. S, 9, 10, II, tttre ftdopted utd 



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OF THS LAW OF VATtOSa. 



of this doty, to the proper organ of commaiiicatioii with the 
power that makes the denumd.' 



■ The onwtitution af tlie TJnitad Stattm bu proridad (bi the larraoder of tagidwm 
from joitiM H AsfwMii tAt mtral ttaln, in cuai " of treuoo, feloaj and other 
erimo;" but it hu not deagnaUd the epedfieerimMliif vtuchanrreDderutoba 
mftde,uidtliMbMl«dtodiJBeiiltie«Mb«tirseiitlM>tateA Tbne.foritMUno^io tUV, 
the GoTCtnor of Virginia made ap^icattoo to the GoTcntor of New-Tcel fot the 
•nrrender of three roeo, eba^ed bj affidaTit ai beii^ fagitiree from joetiee, in 
/(jeMiouIy ttealitiff and laJcbtg away from au Oality, ut Virginia, a lu^ni (toM, 
Iiiae, lAt proptrtjf o/ OalUy. ^e ap[dieatian wai made nndv the aetofoongreM 
of FebnHjy It, ITes, e. T. ««^ 1, fatmded on the oooilitatiaDorthe United Stateo, 
art, 4. Mft. 2, aa being a caeeof 'treaMn, felooy, or otAn- crnM," «ithi& the ooMti- 
totioa and the law, and ovtified ai the itatote directed. Tin QorenioT of tTew- 
Tod rsfuied to inirender the enppoeed hgitiTe*, on the ground that ilaverj and 
property m elaTee did not eziit in ITew-Tork, and that the oSoooe irai not a trim* 
known to the laws of If ew- York, and eoneeqaentlj not a crime within the meaD- 
ingofthecomtitationandBUtateorthennitBdStatea. But theLegidatnreoflFew- 
Tork, bj cmonnrent re»lutiocu of tlie Ilth of April, I84t, declared their o^mm 
to be, that itealiag a ilare within the juriadiction and agaimt tlie lawi of Vlt- 
finia, wae a orime within the meaiking of the td lectioa of the 4th aitide of Am eoD- 
■t&otion of the United Stateo. Tbe aMcatire and legiilaliTeaDthaiitiea of Virginia 
aleo oouidarad the oaae to be witlun the pTOTiuon of the eonetitotion and the lav, 
and that the refneal wuadatiial of right, Itwaaoontended, that the oooatitatiMi 
of the United State* reoogtuMe the lawful exiitetioe of elarea ai propartj, br it 
IQiportiona the rep(«MOlatiaa ama<% the ttatee on the baiii of diitinWon between 
free penoo* and oiha person*; a)iditprorid*B,inart. 4,*eaS,lbc thdr immda, 
lAio — t'^ ^°> ""* it*^ *" another : — that alaree were regarded by law at 
proper^ in nearly alt the itatee, aod prot«et«d M ineh, and pariicoUrly in ITew- 
Tork,when the eonatitntion wai made ; that the repeal of thoee lawi, and reooooia' 
tionof that ipedee of property, in one •tate,daeenat affect the ralidity of the lawa, 
aod of that epede* of proper^, m another itata ; and that the refonl to «iimiid«' 
feloDi who iteal that property in Vuginia, and flee with it or without it to ITew- 
Tork, 00 the gtomid that blacki are no Isogar regarded ae propoty in New-Toik, 
i* a Tiolation of the federal oompaot, and of the act of eoogreee fonnded thereon. 
Tlie case and that of SoIhum, mentioned in a preeeding note^ iotolTe very grara 
oonnderationB. I hare read and oomidered every aathorily, docnment and arga- 
meot on the entiject that were within my command, and in my btunble view of the 
^iMitiDiu, J cannot but be of opoioD, that the elain) of tbt Oaoadian anthoiitiae 
In (he one case, aod of the GoTenior of Viiginia in the other eaaa, were equally well 
foonded, and entitled to be reoogniied aod enG>rced. In the oaae from Canada, the 
joriadictiao of it belor^ed ezoliuiTely to the anthorilies of TermouL The United 
8tateahaTenojuri«diclioDinBnehcaaee,aEBeptanderatreatf pioTieion. Thedn^ 
of ■nrrenderii^ on dne demand Emm the (brdgn goTemment, and oa dne preUnunary 
proof of the crime charged, ii part of the eonmoalaw of the land, fonndedoolha 
law of nation* h port of that law ; and the state ezeoatire is to eanse that law to 
be ezecntad, and to be assisted by jndicaal process, if neoessaiy. Hie itatDte of 
New-Torkia dednTeeTideoeeof the leueofthatstat^ and it WM In erery reqieat 
an expedient, jost and wise proTiaon, in no way repugnant to the ooaetitD- 



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Jm n] OF THR UW OP NATKOn. 48 

The European nations, in earlj pariods of modem histoiy, 
made provision hj treaty for the mntnal sarreDder of crimi* 
nalfi seeking refiige from jnstice. Treaties of this kind 
were made between England and Scotland in 1174, *and *38 
England and France in 1308, and France and Savoy, in 
1S78 ; and the last treaty made special provision for the sur- 
render of criminals, thongh they shonld happen to he eabjects 
of the state to which they had fled. Mr. Ward' coDsideni 
these treatiefi as evidence of the advancement of society in 
regularity and order.^ 



tioD or kw of tba Vmtad StatM, for it wu " ao igraacMnt or "Tf^f^ with k 
tar^fa power.* TIm whol* mliiiset u a pcoptr m»tt«T o( dkt* ococcni, under tb* 
gniduwa of mmudpal Uw, (itipoktioM in Dktioiial tr««t)i« alwaji exoept«i) ind 
if tlwra be no t s pnm itatnta pn>Tiaaii, the azodH of the power miNt net in 
•oond legal diecratiao, MtotlMiwtDreof the crime and u to the eaffiden^of tlw 
proof Tbt law of oatioDi ii not (affidentlj preoM to diqMMa with the exarde* 
of that diKretioa But prirate mimlrr, ai in the Tcnnoot caie, ii free of iD 
^fficoltj, and it would b« dealing mgiiitlj with the aggriered fcreipi gararomtM, 

sotboritiee, to give m a^Jnia to ftigitiTet loaded with endi atrod^. If Iber* be 
no atiUiorily Id tUa ooontr^r, itat* or aatkwB^ to BDmoder aicb a tbgitiTi^ tbM it 
ie idb to talk about the anthoritr of the law of natwD* m part of the ootnmon kv. 
IVp " pnblie law, the pewwdflcaligo, Kiitwei^ofiiafa]n]JDitiee,baconMaamM« 
tuDOiti^, the beanlifal figment of [ADoeopbei^ and deMitnte of all real indiMDe* 



• SiiLoftfu Lam o^ JVafioa^ ti^ ii 118— StO. 

^ Bf the tualfj at ami^, eanmcree and nanption betwt«i Oreit Britain and 
Oe UDbMlStetee, io NoTember, lln, ft was t^ the !7that1ide agr««d, that 
panoaa diaifMl with morder ot iHgcf;, eeetdn; an aajlum in the dominioiw of 
vlhea' par^, aboald ba ddiyared Dp oo doe rcqoiiitioD, prorided the eTJdwee of 
~ ' t to JMtify apprehemiaa and oonunitmeDt lor trial, if tha 



Ihii tna^, so tU* aod olber poiole, expired bf it* own limilalioa after the espiratkn 
of twdre jean. The pcoririoD waa bapptlj renewed bj the trea^ betwem the 
Untead Statea end the United Elngdcan of Great Brilaia aod Ireland, ^ed at 
WaABigton,Aiwn)teth,]MI,andanarward>dulyi*tifled Thiilreatjterminatea 
theqaeetaoo, eobirMtha two eooDtriea are eoDeciDad, which had long embaimeed 
tba aKHnh and ooorta in Ibii ooontrj. Bj the lotb Miide of the treaty it k 
dedbvett that the two poweca reiqwctirelj, npoQ reqoiationi fay the dne antboritaaik 
ihonld ddver up to Joitioa all pvaoo^ who, b«^c charged with the aiou ^ 
■nnntar, or pita^, cr anon, or rofabMT, or forgoy, or the vttcraoee of ftiged 
p^ien^ ooowdlted wtthio th* jarieAction of eilhw, AoQld eeek BD a^lum, or iboald 
ba bond wiUnodMlttiiloriee of tba other i proridad Uvt tUi Aogld onlyba dooa 
spaa aDcli erideiwa of ariDilDBlity at, ateerdinf to flia lawi of tba pkca wbM« tba 
loiitiTa or pMBoB BO dMtgad iboaM b« foiai^ WDDld jMliiy Ue apprdMoAn aod 
aoni i n i l ment fctrt4tflhanimaiiro<fciiiii»tMjltlMiT«liMn«i niMlB « H , AnduIh 



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OP THE LAW OP HATIOira. 



1- Ambassftdon form an ezeeptioti to the general case of for- 
eignera resident in the conntiy, and they are exempted aliso- 



wnrMtioD mi imuls betwaan flie UmM StatM and PnuKa, and ntiSwl at 
WadvigtDii, April 1£, 18U; but Uw proriiioD vm axUodad to the crinu of n 
nttMupt to oommit mard«r, aad to nip«^ Mid «mb«Bl«meiit bj paUk officen, wban 
Ibe laiiic u ponUhtblo witli iD&inoBi ptiDiihitieDt He treaty proTwou would 
•Mm to Taquire lUtote prorkiafM of tlia WTwal goivtniaenU to carry tba tre&tJei 
fcr nrraMlariiig ftigitlTCs mora promptly ioto effiect (1) "nia act of 8 and 9 Plrf. 
dSO, baa >ucb a proTuioD in reapactto thatieatjorWulikigtoi^ klSiS, wiUnBt 
aoj ipedal praTuian □□ tbe mbjact ; the power aod datj of duly curjing tato effect 
toaatiea of that Idod, irouU bekog, exduaiTO of Iba atata autboritiaa, to tbe coork 
aod migiatrataa of federal joriidictioa. He le^tiUlure of tbe kingdom of Belf^um, 
hj a law of tlie fint of October, IBSS, autborixed tbe luirendar of fugitiTea from 
foreign caoDtriat upon the cbai^ of murder, rape, araoi^ cooaterfeitiDg tbe cnrreot 
otHD or for^iog public bank paper, paijury , robbery, tbeft, pacalatkKi by poUiii 
tnutoai and fraudulent baoknipta ; but with the proviso, that tbe law of the 
fcreign country bo reci^ocal b the caw, and that tbe judgment or judicial accuaa- 
tioD be duly autheaticated, and tbe demand be made within the time of limitatioa 
praacribed by the Belgic law. M. PitJuiTO-Ftrrtira aarerely oondemni this law, 
and contonda for protection to the fugiUTt^ and that the tribonali of the ooontry to 
which ha reaorta, abould take oognuance of mminal caaaa equally aa of motteis of 
ooatract I See Omrt dt Droit Public, par Le Cottuh. B. PinAriro-^nrRro, Paria, 
ISSO, tome iL pp. 24 — 84. jRevut Stranfferib L^Ulatiim,et SSentiomu Politiaut, 
ITo. S, Parii, December, 18S9I. Soma other ibraign jnriat^ of mora eatabllsbed 
reputatioD, maintjun Iha lama dodrioe, aod bold, that crime* committed in one 
atate, may, if the criminal be found in anotjiar atato, be, uptm demand, pumabed 
tbere. Huriiia, it OoUU. lay. P. Vott, dt SiaiuL cited in Slory'i Ctmm. en On 
Oonflia of Lam, 61S— G20. MarUni Lax of Nation; b. 3. c. 8. aec. SS, 2S. 
GtoHtu, Jt Jurt A <£ P. b. t. e. El. aeo. 4. Tbe Uttor aiya, that every gorenimeot 
il bonndto puniih the {hgitiva criminal on demand, or deliver him ap. But the 
better ojMrai now li, both oo prindple and autbori^, that tha prMaeotian and 
poniahment of Crimea are left axdnairely to the tribunal! of the country where they 
■re committed. Kaimei Prinnp. of Squily, vol. ii 926. Mtrlin, Stperloirt 
Sotmrainltt, lac. 5. n. 7. pp. 16'!, f SB. Pariamu, Droit Comm. tome v. art 14ST. 
I^ indeed, the fugitiTe ii to be tried aikd puniahed for a crime coomiitted outof tba 
tairitoiy, the puniabmant miiat be aeoording to the lav of the place where the 
ofience waa committed. jDiiictafvniiMhirjuxtamontloeitomniitndelieli, at not* 
loei mU As crimifM eogna*atm. Sarlholui, cited in Henry on Forugo Law, 17. It 
il, however, a decided and aettlad principle b the Enghah and American law, that 



crdHadlniooirtHlf IvaatalamicMniM Tbe vpUaaUiii auf be made by tta BriUdi mlDia- 
lar, alUioatb there hu been no ladlitewDl fbond bj Oie Brlllih Dibimali, nor anjr -aunnt 
iMoed amO«B ; the ofltr f(r Oe •DrrasdH' nuf be ricned bf Ihe SeoieluT ot State. Tb» 
BrUtA PitoMWi, 1 Woad A Mlmelu B. M. 

On Bw Ulb Aoc 1U8, aa aM wai pMHd bf Og^mm iMbc <<Mt ta trai« «%iaalla« «Uek 
artWed, « Uumnv mli^ eiM, with an; iDraliy (oremmanl fbt tbe ^VrduadOD and ddlra* 
rj otraglllTca. The ptoMedloc* maaUaiad above would wem lo ba wunnled ondar the aoL 



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imH] or the law otvationbl 45 

faitely from all allbgiaQce, a nd from all regponsibilHj to the 
^^ lya q( the conntr r to wliiclt they are deputed. As they are 
TepresentatiTeB of their Bovereifpifl, and requisite for negotiar 
tioDs and friendly interconrse, their persons, by the consent dT 
all nations, hare been deemed iaviolable, and the instances 
are rare in Thioh popular passions, or peitidions policy, have 
violated this immnni^. Some very honourable examples of 
reelect for the rights of ambassadors, even when their privi- 
leges vonld seem in jnstice to have been forfeited on accooni 
of the gross abuse of thera, are to be met with in Ae ancient 
BoDjan annals, notwithstanding the extreme arrogance of their 
{Nreteneions, and the intemperance of their military spirit* If, 
however, ambassadors should be so r^nardleas of their dn^, 
and of the object of their privilege, as to insnlt or openly at- 
tack the laws or government of the nation to whom they are 
seat, their frtnctions may be suspended by a refusal to treat 
with them, or ^plication can be made to their own sovweign 
for their recall ; or they may be dismissed, and required to 
depart within a reasonable time> We have had instances, 
within onr own times, of all these modes of dealing with 
ministers who had given offence, and it is not to be denied, 
diat every govenunent has a perfect rig^ to judge for itself 
whether the language or conduct of a foreign minister be ad- 
missible. He writers on public law go still farther, and 
allow force to be applied to con&ie or send away *«n *39 
ambassador, when the safety of the state, which is sape- 
lior to all odier conmderations, absolutely requires it, arising 
either from the violence of his conduct, or the influence and 
danger of his machinations. This is all that can be done, for 
ambaasadon cannot, in any case, be made amenable to the 

ILb ftaai kwi of m cotiatzj do not rush, io tbeir diMtnlitiea, oi penal effect^ 
Ujmd th« jindictiaa vbve Uuj ara catsblubed. YoOoti v. Ogdei^ 1 E. Slaekt. 
UL lU. Jiord ElUnborongh, Wolff T. Ozbolm, S ifcHJ* i! iMw. 9«. Conunoo- 
walA of MiwrfiMrtti T. QfMU, 17 Jfaw. Sip. 614. Ma— S4t. StoriUe t. Can. 
BM, 14 Jakn*. B^ StS. >40. 

* In 1791, it wu eowidcrad I7 tlw AtbjfiMj Qeoeral of tlie Fnited Stataa, in 
Ui Uttar to tk BtattMij of State, to be a oootempt of (lie goTennneot, &r a I 
ftnipi nuDuttr, wUl« a Hndent uiniittr ia Um Cnited StaUo, to communicate 
hM aoiinianta t» Hm pei^ of tba United Stalei Uirot^b Uw pr«M. Hi* intw- 
niaiiai mil ccfnapandeuoaof tbatloDdi* to be with tlie execotiTe departHMnt of 
tka goTanoMBt endiMiTelj. Optaioia ttj Ou Mlonug OtnertI, roL i. iS. 



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46 OP THS LAW OF NATIOBS. [FwtL 

civil or criminal joriBdiction of the coantiy ; and this has 
been the settled rnle of public law, ever eince tlie attempt 
made in the reign of Elizabetti to subject the Scotch and 
Bpanieh amhassadorB to criminal jurisdiction, and the learned 
diBCOBoions which that case excited.* By fiction of law, an 
ambaaaador is considered as if he were out of the temtoiy oi 
tli6 foreign power ; and it is an Implied agreement among 
nations, that the ambassador, while he resides within the for- 
eign atate, shall be conndered as a member of his own conntiy, 
retaining his original domicil, and the govenunent he repre- 
sents haa exclusive cognizance of his conduct and control 
of his pereon> An ambassador is also deemed under the 
protection of the law of natiouB in his passage through the 
territories of a third and friendlj power, while npon his public 
mission, in going to and returning from the government to 
which he is deputed. To arrest Mm under such circumstances 
would be a breach of bis privilege as a ptiblic minister.* Hie 



■ ffr<)riiHb.S.e. IB. aeQ.4. Byiil.di Fore £egalormn,<}. 6. 11, IB. FoUal, b. 
4L c .1. «««. 91—10). War^i EUtory, toL ii. pp. tSA— BBS. HtnUi; Oh. J., in U>C 
cuaoftheSdimiiMrBxdBiiKeT. HTrnddcDil CVoNcA, IBB, Ur. Wbcatoo, io Ut 
m*t«ry e/ tlu Law <^ IftUietu in Snrcp» md Aauriea. "Stm-ToA, lB4fi, ppu 
SSt — 261, hu giTBD u «»ljiU or nnunMj of BjDkenboeek'* (iMtiM J)i Ferv 
£«(ra(<>r<«i,UK] whidi u jotd; regarded ■■ ui cxcaQeot work aiid of bigti Kntliori^. 
It M coDtaiued in 111* Sd r^ume of BTnkcnhoedi'a vork, puUiihad In 9 Tolnmet, 
£dfe, at Lejiao, IIBT. 

* Ondut, bu t. c. 18. tea. 1—6. Wleqnalbrl, tb UniotMitM-, Kt. 1. mc ST. 
VM^, b 4. c 7. «m. 81— IBS. Bfni. A .Poro LfgaL & S. If an ambaMador be 

I coDMmed in trade, hii propu^ id tliat trade is EaUe to Mimre, u in the cue of 
' aoj individual. Sgni. da Aro Zagat, e. 14. FuUd, h 4. & 6. 

• Vatta, b. 4. 0. 7, eec. BS. 64. Holbtook ead otban T. Heodamn, NtwYvrie 
B»p*Tier Cvurt, Decembtr Sd, ISBS. In Ihii cue, f «iid(rMii, the rnnuiter from the 
R^nUie of T«xu to lYance, vu uraited in New-Tork lor debt, while on hie 
return from Fniwe to Texas, \>j tie way of Kew-Tork, and the oomt diacharged 
Mm frtnn the arrest It vu held that an entij into the oonntry in time of pcaoa 
did not require, for t]ie protection of the penoD,a poaeprai, though the lav aaramea 
that paaaporta ma; be granted hj the QoTemmetit of the Unitad States. Act of 
Oongrut, April SO, HM, aeo. ST. Aaaporta, though named in oor lav, are 
nnkiiown in piwctiee. lie pratadioD is im[yiled {7 natural and monidpal lav, and 
It is the dntjofdia eouita of juatace, wtien cases arise before them, to «if[R«e the 
]mm of nations on this subject, u part of the lav of the land Hie doctrine of 
intematioDal lav, «■ laid down 17 Tattel, ia fonoded in good senae and publio 
poliej, and sustained hj the int«rest« and oourtesy of natioDS. Grotiua txjt, b. S. c 
16. aeo. E, that tli« obligation to protect ambasaadora extends oolj t« tte povw to 
iriMm tlie ambaM; It t«nt^ and does not extend to the pawtr throngb whose tenl- 



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Lm n.] or TEE LAW OF HATIONB. 47 

sttendanfa of tlie ambuBador attached to his perBon, and the 
effects in his use, and the hoose in which he reeides, and his 
domestic serrants, ore under his protection and privilege, and 
equally exempt from the foreign jurisdiction, thongh there are 
strong instances in which their inviolability has been denied 
and invaded.' The distinction between ambassadors, minis- 
ters plenipotentiazy, envoys extraordinary, and resident min- 
ifiteiB, relates to diplomatic precedence and etiquette, and not 
to their essential powers and privil^^i> 



toriw tin imhi— Hnr .fnaoiius to pui without * paapott But ttat ia«L and 
DMnw nlc U wnr jnrtl; ccplodad. 

• Rvlhttfer'th, b 2. 0. S. TTonfi EUtory, Tol ii. CfiS, SGI. VaOd, b, 4. & S. 
Mc lis. United StattM t. Hud, S Wash. Cir. Rip. iSS. OjyinioM of Uu 
Attonuy Otjurai of tlu UniUd Slattt, V/attoDgbio, IMl, id. i. 8»— tl. The 
immnnitNoof apnblic aaritttr m couidand m not azUoding to dobhm, u to 
d«bto iDcamd prior to thair Mttriog into tba mwrnjir't terr ier nor to IbgitiTe 
davw, lur top«nona wl» were noder -BTwioM doli« » — aoldieHi wilon, kpprwtiMit 
■ninoi^ ft wifg, Ac, dot doee tba ptiwlty «f Immnnif.y protect ■ Iftbourer (iligig«) 
to wtA ui tlie garden kttoched to Uw nuniatw'a rwdoiM. — Ji. The dntica and 
privHagM of K poUic ininittw «ra debuM »t 1h^ 1^ Mr. TrhMtOD, in tda Jlnnanfa 
rf Inttnational Lam, Id oditiDO, ppL SU — SOT, and aftwvaida in hii brg«r votk 
ott tba HUtOTji ofllu lam o/yatioat in Smrvpt atiJ Aotetiea, Neir-Y<^ 1S4S, 
pp. SSfl — IBl ; and from liii loi^ reaidcim at two of Uie European oourta in ■ 
£|)kan*tio ebarMter, faw anthoritj on tba aabjcct Boqniraa additional ten*. 

* Narlmt, pp. *0I— IDT. VaU*l, Vi-ci. Ch»rgi iAffmn* ia a di[dMnatie 
t^yeaitadTa or mimatai of the 4tli giade; aod a nriimtt anautar aaatna not to 
be aqoal to a minuter j><mJpDl<Hltar|r. Bor ii a niiniatar pleripoteotiaiy of eqaal 
tank and diymtj witfa an tuKbiuiaior, who re^eaenti tba panon of hia «oT«re^ 
nie graat poweia, at tbe omgreaa at Vianna, ia ISIS, aod of ih. la Chapell^ is 
1818, b;r ■<' anrangemen^ dirided diplamalie agenta inlu fonrdaaaea : 1. Arnbaiaa- 
dm, papal legates, or Dimcaoa. !L Enroja, miniatei^ and otber ageota acireditad 
to tba BOTsreign*, I. Miniiton reaidant accredited to aorerdgoa. 4> Cbarg^ 
fafiurei^ accredited to tliedepaitnwit of fcrdgarelatioiMt A miniatar oxtnor^ 
■ar; baa not by tbat title any aqi«rioiitf of luk. Hie Oxnm. Hnbaro-Ferrens 
tba FMii^aaa poblkiat, and bimialf a aMaut/r if f<a^ in bk Cmra ifa i>roiJ /'oUi^ 
dawea together eKargU i^atrn, auntdnv rtmdtKt, m limfdy anniafn'* or mi' 
Amti, aa dipkmatb ^mta of the third daaa lie United Stotas are nandlj 
repraaepted at the comti of tba graat powan of thafint daaa by miniatert phoi- 
potantiaiy, add at thoae of ao inferiiH daaa by a eharji ^tffmrt; aod they have 
saro' lent a paraoo of tba rank of ambaaaadfT in the diplnmatir aenae. Tba 
Prince of Oiaaga one* axpraaaed to Ur. Adama hia mrfriee that the United Statea 
had not pot themaaln^ in that re^eo^ mi a krel with the avwnad beadh 
Difkmtutic OorrMpendtnet, edited by Mr. Bparic^ fd. nL 10& The qoaatiMw 
Moacnung praeadaooa amoof the iDMDban ^ (he diplomatio onpa at fineign oooiti, 
war* aU bapfily aettied by the eongreaa of Tknn, n 1810, and aignad by the 
re pM aantaltrea of the ei^t priocipal Zuropaan powafa. It waa i^raad that 



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48 <» THB LAW OF SiTSOSB. [firtL 

*40 *A gOTenunent may, in its discretion, lavfiillj refiue 
to receive an ambaaoador, and without affording any 
just oaiue fin- irax, thoagh the act woold, probably, ezeite 
unfriendly dispodtion, nnle» accompanied with concilifttMy 
explanations. The reftual may be npon the ground of the 
ambasBador's bad character, or fonner eSeneive condnot, ot- 
beoanse the special subject of the embassy is not proper, or 
not convenient for discnseitHL.* A state may also be divided 
and distracted by civil wars, so as to reader it inexpedient to 
acknowledge the sapremacy of either party. Bynkershoeck 
says,*' that this right of sending ambassadors belongs ta the 
ruling party, in whom «t«i m ojfendipotettiu. This is placing 
the right where all foreign govemmentB place it, in the go- 
vernment de facto, which is in the actual exercise of power ; 
bnt the goverament to whom the ambassador is sent, may 
exercise its discretion in receiving, or refusing to receive him. 
It sometimes becomes a grave qaestion, in national discns- 
dons, how far the sovereign is boond by (he act of his mims- 
ter. This will depend upon the nature and terms of his 
anthority.o It is now the usual course for every government 
to reserve to itself the right to ratify or disB6Dt from the treaty 
agreed to by its ambassador. A general letter of credence is 
the ordiooiy letter of attorney, or credential of the min- 
*41 ister ; and it is not understood to confer a power *apon 
the minister to bind his sovereign conclmively. To do 
so important an act. would require, at least, a distinct and 
special power, contaimng an express authority to bind the 



difdaiiMtieigaotiortbarai{Mcti*«elMw«tal<« rank Moordi^ to tihe daU of Om 
odkulDottuof their urinl, and ttflrt the radar of ■gnatora ^roioMtar* to td» 
or tr«tf»a b«tWMli MT«nl powen liatalhnrof thaalt<nat,diaiitdb«datMlliiD*d 
bj lot AwMJf Jm FUtta (^kitlUt, taam liiL So. IT. Wlmtfiii Jtatnft ^ 
/olfma^MMJ Law, p. SM. Bit BMrrf af O* Law of JVofisM w Jtmnp* ami 
Arnarim. Vew-Tork, 184E, p. iW. 

• JiKlAfr/brtA, )>.«.«.». Byitk. dt Aro Ltffolvrmn, c IB. ua 7. 
^ dattt. I. PMh, llh 1. c. S. 

• Tha diHsratiaB ■iHlreaerve'withwUdiapDbliciDiiiiaterongtit to actkraUtlMi 
to tbt ootntry to wUdi b« TMidoi, is i)»ae^f exmn^ifiad in Hm cm* of tlu Sallj' 
Add, (AMHTfa Her-Jdn. £tp. sel.) It ma bald, tte a Keoaa gmitad b^ Ifaa 
Britiibl[iiMeratN*w-To(fc,Bfter tbeesmoi«ao«Mntoflb«war«f IBlt, to an 
.AMi«ri«aii cWho to azport projUoM to a BrilU idand, m* inoaadatwt witt Ua 
dIptMulie <iiaTaetar aitd doty, and Toid ; and tba daddon wm dadarad to b« oor- 
FMt Bad pnpw bf tb« Iiordt OoMmiHiMMn «D appaaL 



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£m. a] OF TH8 LkW OF VA-TlOSa. 48 

piincip&l definitively, without tlie right of review, or the ue- 
ceasitf of ratification on his part" TIub is not the ordinary 
or pmdent coarse of bomnesa. Ministers always act under 
instmctionB which are confidential, and which, it is admitted, 
they are not boond to disclose ;*> and it is a well-grounded 
custom, as Yattel obserTes,^ that any engagement which the 
minister shall enter into is of no force among Bovereigns, tin- 
leaa ratified by his principaL Ihis is now the nsage, although 
the treaty may have been signed by plenipotentiariefl.^ 

GoDBolaare commercial agents, appointed to reside in the i 
seg^rts of foreign countries, with a commisaion to watch over 
the commercial rights and privilegee of the nation deputing 
them. The establishment of consuls is one of the most useful 
of modem commercial institutions. They were appointed 
about the 13th centory, in the opulent states of Italy, such as 
Pisa, Lucca, Genoa and Venice, and their origin has been 
ascribed to the neceesi^ for ezbwirdinary asmstance in those 
braoches of commerce formerly carried on witl^ barbarous 
and qncivilieed nations.* The utili^ of such a mercantile 
ofScer has been perceived and felt by all trading nations, and 
the Mediterranean trade in particolar, stands highly in need 
of each accredited agents.'^ Couauls have been multiplied and 
extended to eveiy part of the vorld, where navigation and 
commerce can sQCCtiesfhlly penetrate, and their duties and 
privileges are now generally limited and defined in trea- 
ties of commerce, or by the ^statute regulations of the *42 
country which they represent In some places they 
have been invested with judicial powers over disputes be- 



• BydL. Q. fyr. PKi.Ub. a.& T. 

' Wutqueferti L'Amb. tome i. Me. 14 JTartnu, p. 317. 

• B, 4 c a. tec IT. 

• Si/nicmbin^iTa. F«U«{,b. !.«. 13.i«e. lec Karlnu,b.l.e.l.wte.». Hw 
V!at».ABix,lI)ed*im'iAAn.Xtp.m. BotbTatUlandEliibw-igrM.UMtatrMtj' 
om>clDd*d under ■ Inll pomr, cuoDt, io boDonr, b« Mj«et*d wUioDt wvj tnfflfwni 
r«MMW, M by Tiolation of initroctkMM^ motoal tnwr, * monl or pbjMml impoMi- 

Sd «dit. p. SSfi, > rcfvcDCa to tit mort raipecUUfl mitan on dipkiDMtio hutofj. 

• 1 CkiUy on OmuFurnaJ Laia, tB, t9. 

• Jaabflw ttn rt« OoMm i rtt ^ tht MiHUrrtnuai, f.ZQ.t.A. Cmvnti w«« not 
noknoini to the udBat Athcniuii, and th^ h&d them in the commardal porta in 
vliich tliej tnded, to protect the iiit«real« ud property of Atbetuan mercfaMiU. 
St Jcto'f Biliary vf Vt» ifoniwre onJ Automt e/ AattMU Ortaet, vol iiL SSt. 

YoL-L 4 



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(!0 OP THS LAW OF SATttfSB. [Fut L 

tveen their own mercIumtB in foreign ports ; but in the com- 
mercial treaties made by Great Britain, there is rarely any 
stipnlatioa for clothing them with judicial antliority, except 
in treaties with the Barbaiy powers ; and in England it has 
been held, that a consnl is not strictly a judicial ofiBcer, and 
they have there no judicial power," It has been nrged by 
some writers, as a matter highly expedient, to establi^ rolee 
requiring merchants abroad to submit their disputes to the 
judicial authority of their own consuls, particularly with refer- 
ence to shipping concerns. But no goTemment can invest its 
consols with judicial power over their own subjects, in a for- 
eign country, without the consent of the government of the 
foreign country, founded on treaty ; and there is no instance 
in any nation of Europe, of the admission of criminal jurisdic- 
tion in foreign conBala.>> (1) The laws of the United States, on 
the subject of consols and vice-consuls," specially authorize 
them to receive the protests of masters and others relating to 
American commerce, and they declare that consular certifi.- 
cates, under seal, shall receive £uth and credit in the coorto 
of the United States. It is likewise made their duty, where 
the laws of the country permit, to administ^' on the personal 
estates of American citizens, dying within their consulates, 
and leaving no legal representative, and to take charge of and 
secure the effects of stranded American vessels, in the absence 
of the master, owner or consignee ; and they are bound to pro- 
vide for destitute seamen within their consulates, and to send 
them, at the pnbhc expense, to the United States. It is made 
the dnty of American consols and conunercial agents, to re- 
claim deserters, and discoontenance insnbordination, and to 



■ llaiuasld, Ch. J, ia WkldiDD T. Ooombe, S Tmnt.IUp. 102. 1 Cltiay,S0,6\. 
^ Pardunu, aMH-fifai)nM< amm.tonMT.ua IWO, MSI, 5tli«dit Opmimu 
efthiAtlemm/tOtntralofth* Unittd BtaUt, yoL L ':96. 
• .lc<f d/Ohvtw of lUh April, lies, CS4, Mid of FabrnuySS, 180S, c 62. 



{l)BTUuti)rCaDgmBDfADg.tllb,lM8,UieOaiuiil^iHHrudCaiinliorUHi;iilledSI*M, 
I tppotatta to nrids In CUiu, wa InieMsd wUh Ugfa JniUd*] pnwo) u 
u or tlw UoUed BUM I 



DMT flu CUneM pnttt. Ths tewi or the Unllad StiUi, 
nejOendtdMMMhJiirlsdliiflDat; ■ndlTdalMM 
n. Th* praTUon oT thli mot lit aittiidad to 




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Lh n.] OF THE LAT OF NATIONS. SI 

hmd it«ir aid to the local authorities for that pnrpose, and to 
dischai^ the seamen croellj treated.* It is also made the 
duty of maaterB of American vesBels, on arrival at a foreign 
port, to deposit their registerB, sea-letters and passports with 
the consul, rice-consni or commercial agent, if anj, at the 
port, though this injunction only applies when the Tcesel shall 
bare come to an entry, 'or transacted hnainesa at the pcot.^ 
I^ese particular powers and dnties are similar to those pre- 
Bcribed hj British consols, and to consuls under flie con- 
sular ^convention between the United States and *48 
France, in 1788 ; and they are in accordance with the 
Qsages of nations, and are not to be constraed to the ezclo- 
sion of o&eis, reanltang from the nature of the consular op- 
pointment.c The consular convention between France and 
this coontry, in 1778, allowed consuls to exercise police over 
all vessels of their respective nation, *' within the interior of 
the vessels," and to exercise a species of civil jurisdiction, by 
determining dispQtesconceming wages, and between the mas- 
ters and crews of vessels helonging to their own country. 
TiiB jurisdiction claimed under the consular convention with 
Prasiee, was merely voluntary, and altogether ezclosive of 
uiy coercive autiiority ;* and we have no treaty at present 
which concedes even such consular fonctions." The doctrine 



> ^ef I7:5.!0tli Jal7,lS10bO.SS,H0.11.lT. 8eflin/ra,ToL iiL 199,tlietrMtj 
between U. 9. tad HtnoTcr, to Uia «iii« effect. 

k Toler T. White, War/t Rtp. S77. Matthew* t. Offlef, S Antiwr, IIB. 
Ameriean oooKila, hanng do jodkiil potrtr, anoot take oopikaDoa of the offaoea* 
of aaamen in toreiga ports, nor exempt the master from his own reipooaibili^. 
The Wm. Hairu, U. a D. OoBrt of Uaioe, Warit B*p. 867. Bnt when en, 
Amarican Tenet puts into a port of naceesity for repsin, a snrreT' to aaeertaio tli» 
damage may, it seems, according to naage, be directed t^ tke American oodso], m 
part of Ua official dn^. Potter T.TheOceaaIna.Oo.O.O.n.a.lorHaaBachnaettr,. 
Oetaber, 1837, S Simnur, i1. Tlie Ei^iah PrerogalJTe Oourt, before &i Berbert 
Jenner, in 1889, in the case of Aspinwsll t. The Qoeen's Proctor, S OurUU, Ml, 
bdd, that an American eotMol was not in that capadtj permitted by lb* law of 
EDgland to sdmimrter iiponthepanoDaIe«t«l*of a domidled dtisen of Ifaa United 
States djing in Eagland lie Otdwd Ukea diarge of the proper^ ix knst, be 
payment of debts and dutribntion, acoordii^ to tfae law of the owner's -Vrii^ 

• fMot^ L. il. lit Oonsols, pp. 29!, 29S. 

' Mr. Pidcering io Mr. Puiejhwy, January 10th, I79T. 

• By the treaties of oommerce and tMrigatioo between the IJoited States and the 
Kingdom of HanoTsr, Hay 20th. 1810, article 8, ud between the United Statee 
and pMtogal, of f 8d April, 1841, it wm prorided, that eootnl^ *k*«>Dsnls and 



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.-/ 



SS OF THE LAW 09 NATK)Ha [Ihvt I. 

of QUI conrta is,' that a foreign confinl, dalj recogniBed by our 
government, may assert and ^e|Biui.je JK"'n'pfitent p arty, the 
f rifihta of propert y of tEe in dividatdB of hJa nation, in the courta 
<^ the nitlted f3tet^,Ainirmayinatituto suits for that purpose, 
-without any special authority from the party for whoee bene- 
fit he acts. But the court:, in that case, said that they could 
not go BO £u* as to recognise a right hi a vice-consul to receive 
actual restitution of the property, or its proceeds, without 
showmg some specific power for the purpose, from the party 
in interest 

Ko nation is bound to receive a foreign consul, unleae it 
has agreed to do so by treaty, and the refusal is no violation 
of the peace and ami^ between thenatjons. Consuls are to 
be approved and admitted in tlie usual form ; and if any con- 
sul be guUty of illegal or improper conduct, he is liable to 
have bis exequatur, or written recognition of his character, 
revoked, and to be punished according to the laws of the 
country in which he is consul ; or be may be sent back to hia 
own country, at the discretion of the government 
*44 *whieh he has offended. The French consuls are for- 
bidden to be concerned in commerce, and, by the act of 
congress of February 28th, 1803, American consuls residing 
on &e Barbary coa^t are forbidden also ; but British and 
American consols are generally at liberty to be concerned in 
trade ; and in such cases the character of consul does not 
give any protection to that of merchant, when these charac- 
ters are united in the same person.'" Though the functions of a 



oommtTcikl •gcots, diflaU hare tlie ri^t, ai taeh, to dtae judges and arlntiatiin 
io differcnaei bstir««n Um mutcn tnd cr«w> of tlw veueli bdof^fing to tlie natioa 
vhou iotfrMti vere committed to tbeir diar^ witfaont tb« iaterTsrerice of tbe 
load KOtborilJci, onlcM llw oooduct of tlie crewi or of the tiptiin iboiiM duturi) 
tbe tnnqnfUitj of the country, or tlie oonrali ihould reqnire sach uuitaoce, to 
CUM tbeir decirioiu to be canHed ioto effect or nipported. Bj the ume treaties, 
foreign coosali maj apply for the arrest and siiiTeDder of eeamcD deserting from 
their pabltc aod priTate vessels ic port See, aUo, Iraatie* to the like effect with 
Sweden, Pnnsia and Riusia. 

• Ca*e of tlie Bello Oorrunes, t Whtaion, 1«B. 

^ Btatoti L. M. vol i. tJt Conmili, p. SSI. 1 Clutts. 67, SB. Tlw InJiaii Chief; 
t RiA. Aim. Rep. !T. VaUtl, b. 4. aec. lU. Airraid and Ramsey t. TT. Ids. Oo. 1 
JoAtuvM's Catn, S6S. "nie treaties of commerce and naTigatioa botweeo the Utdted 
Slates and BsDorer, Hay ^0(l^ 1840, art S, u>d between the United States and 
Poitogal, of i8d of Api^ 1841, art 10, aflbrd a sample of tlie (tjpulatioa iMual b 



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Ue. IL] OF THE LAT OF KATIOITS. i$ 

consnl would seem to require that he Bhonld not be a Bubject 
of tlie state io which he resides, yet the practice of the mari- 
time powers is qnite lax on this point, and it is osnal, and 
thonght most convenient, to appoint sabjects of the foreign 
coTiDby to be consals at its ports. 

A ctmsnl ia not such a public minister as to be entitled to i 
the privjteges appertaining to that character, nor is he under j 
the special protection of the law of nations. He is entitled 
to privileges to a certain extent, snch as for safe condnct, bnt 
he is not entitled to the Jus gentium. Yattel thinks' that his 
functions require that he should be independent of the ordi- 
nary criimntd juTTsdiotion of the country, and that he ought 
not to be molested, unless he violates the law of nations bj 
some enormous crime ; and that if guilty of any crime, he 
ought to be sent home to be pauiBhed> But no such immn- 
nities have been conferred on consals by the modem practice 
of nations ; and it may be considered aa settled law, that con- 
suls do not enjoy the protection of the law of nations, any 
more than other persons who enter the country under a safe 
conduct In civil and criminal cases they are equally snb- 
ject to the laws of the country in which they reside." 

eoDUMrcuO trcalicHODtliixuliject: "If an; of the vid coiunls ahill cury on tndti 
ttwj eball be labjectad to the mne taws and unge* to which print* mdrndiMb 
of tbdr natiati are aul^ected to tbe Mtna plaea." Am«rictui codmiI* abroad have no 
Mkiica, aod aie paid bj fesa of office, eieapt the cooaul at London, who luw a 
mkij of $i,000. A Migg««UoD wa» raad« m CoagT«M ia Utud^ 184(^ that it would 
ba adTlsabl* I4 chaiig« our ooiunlar ijeton io tbat napec^ by oonfiiiiog ooomU* to 
tlidTbiinDewofoaDnili, and Co allow tbemnlarica. The Sacretary of Stat* of tbe 
tTnited States iabia report to oongreeaof Iba IStb Deoember, 1B4S, atamigly 
rMommended a rennoa and ameDdmeiit of the oonialar ayatam of tbe TTnited 
State* ; aod that tbe Dnmber, appwDtmeDt aod compeniatioiiofeoiiiDla be regulated, 
and tbeii datiea and fees defined. He recommended the eatabliahment of cooMiIt 
general, eipecially in retpect to the Barbaiy States and lome of the porta in Um 
LcTant ; and be luggested a proiinon for 14 conanla and ii vica-oomnla, and alao 
for Dunnilar agenta ; and that thole in the more important jyiitt ba paid by aalariea 
ont of the pahlie treantry, and with a prohibition to eofage in tnercantile pnnuiti. 
American oonenls were geoenUy oommisuon merefaanta roitdiiig abroad ; and fordgn 
commerce ought not to taxed with oontular fee^ except for limited poipoaei -, and 
the fees onght to be regulated by the tomiBge of the TeneL AcDMolar oodeonght 
to define the powen aod dntiea of oopanli. 

• B. 2. 0. I. lec Si. 

• De ate<£, EiMoi tar let Oannit, aeo. 1. p. flS. BerHii, 11M; dnwa Ow aame 
coneluHOD, from tbe commercial treallea b Enrope rince 1664. 

• Wietpufotti VAnh, b. 1. & G. Bpilc <b Foro LtgoL 0. 10. JfortMu' Anun. 



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M OP THE LAW OF NAUOBS. p^utl. 

*45 The same doctrine, declared b^ the pnbUc "jnrJBte, has 
been frequently laid down in the Engli^ and Ameri- 
can coorte of justice.' It Beems, howeTer, from some de<n- 
Bions in France, mentioned by Mr. Warden,'' that foreign 
consuls cannot be proeecnted before a French tribunal, for 
acts done by them in France, by order of their government, 
and with the anthorization of tbe French govemnent, and 
that in general a consul cannot be prosecuted without the 
previous consent of his gor«niment. Consular privileges are 
mach less extensive in Christian than in Mahometan coun- 
tries. In the latter they cannot be imprisoned for any cause 
whatever, except by demanding justice against them of the 
Porte," and Uiey partake very considerably of the character 
and importance of resident ministers. They are diplomatic 
agents, under the name of consuls, and enjoy the rights and 
privileges which the Ottoman Forte recognises in relation to 
the foreign ministers resident at Constantinople.^ By treaty, 
an entire immunity is nsnaliy given to the persons, domestiGS 
and effects of the rmident consuls, and no consuls reside with 
the Barbary states but under the protection of treaties.* 



k 4. c t. MC a £mkm' il jr. toL L tic Cooaoli. Bubuit'i cue, TaJUft Ouu. 
381. Vaiin'l Ori, toL L Ut. 1. tit. 9, A Omtuli. ParJnnit, Droit OmnareiiJ, 
tnoMiT. 148. let. Opiinmio/ llu Atlormij/i Qtntrai of tlu Uitited SMa, roLl 
4S. SOS. WMhu^too, 18il. 

• TiTMah T. Backer, S Mimlt it iMw. S84. C\»A t. Cr«tka, I TmaU. Rip. lOt. 
ITnitad State* v. Bann, S DdUa*, !«1. The OommoDwedUi t. Konlo^ S Berg. A 
RaKU,6<i. De I« FoDfi cMek a JVoM i£ iT'CWiJ, SIT. 

* On CiMtiiU, pp. 108— lie. < 1 cutis, ''!■ 

' Oallisre, th la MtMUr* i* iltgoeier mte In EamtrainM, part L p. V4, Loodoa 
edit. ITCO. Thavbola Frank quarter ofSmjnuu at tluidajuaderQiejuTiadidion 
of European eoiuul*, and all matten toucliitig die righU ot Ibrelgn reudsnb Ul 
noder IIm esoluute aognuance of the reapectire ooneul^ 8o the cooaula of 
Baroekna, b tb« middle age*, were dothed villi many of ttie fuoctioiu of modem 
rewlMit mioiiteta. Id thenegotiatiiHwof the Aiiieric»nUiiHit«T, Mr, CiialiiDg,iritli 
Sm OlmnH goremmaii; in ISU, the (bnner obaerrod, tliat in tbe intercoime 
between (Buiitiaii and UahomeUo States tlie Cliriatian fiireigner waa exempted 
Iniin ths juriadictioii of the local antlioriUti, and aobjected to tlie juriidictii»i of tlia 
mimiter, connl or otber antboritiei of his own goTermnent It wai obaerred, in 
the tepMt of the Sacretarj of SUte, in 1846, alreadj referred to, tliat bv treaties 
of tba Tnited State* with ^Wkej aod Chioa, oSencea oommitted bj American 
dtixeo* b tboea oonntrie^ were to be tried and pimidied bj the eoiuul* ; and the 
gorammenta of the oomitnea, when requirei^ were to affi>rd and to enfbrce aouular 



• akaitftSktUktm/ Algin*,^.W.lVJ. Bj the treat; of uiii^ and < 



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Im. U] OF THE U.W OF HATIONS. 65 

Considering the importance of the consolar fonctiona, and 
the actiTity which is required of them in all great maritime 
ports, and the approach which cobboIb make to the efficacy 
and digni^ of diplomatic charactera, it was a wise provision 
in the conatitatioa of the United States, which gare to the 
Supreme Coort origin^ jnrisdiction in all cases affecting con- \ 
Bula, as well as amhaseadors and other public ministeis ; and \ 
the federal jnrisdictioa is imderslood to be exdosiTe of the 
state courtB.* 



betrev Hm IFmted StatM ud the SulUn of HtMcat, b AibUb, ntifiMl on th« 
SDtli at JmM, 188t, Amnkaa ootxnU mi,y b« appcnoted to raade io th« port* of 
die SaltAD, when Ilia princiial oonuncrea ii curied on, {tai vhidi, of oootM^ maj 
inolude porta on tlie **r"-" ooait Mid in tlic iilutd of ZuKbu, wjlluii tb* domuna 
of the Soltaa) Sod) codmI* ar« to bs udcIiimt* jadget of all dispntaa in mita 
whtrtJD Atameut dtiiaM sball ba engaged vitb each othar, and to i-eeeiT« tha 
proper^ of AnMnean dtiaeDa djing witliia hii dDminioiii ; aod Um panons and 
ptopeitj-oftliacoinulsaDdof thairboiuehold^ara tobainriolata. Tb« oooaoW 
eatahlinhment of tba Unifad Statea ia raiy imparftct, aod e^adaQf in ralatioD to 
tb« eoQutriaa ia tba Eaat Indiao rtgiooi, Um olainu of OMnmaroe, aa vaU m tba 
dianetar of tba United Btataa, would aeem to raqmra that tbe fnnctiona of ood- 
mh, and tbe proriaoo for tbeir nippnt, abonld b« better rtgnlated, aod that tbef 
ongbt not to ba left to the nece wi t y of making tbdr oatNiilar dntiea nibndiary to 
tbA bnaioeaa aa mardianta uid bebon. See a Talnable jdan ki relation to oto- 
anlar eataUUnneot* in tbe comitriea aaat of tbe Oapa d Oood Hope, ki a pain- 
pblat entitled -OnUine of a Ouaolar BAbHduMDt for tba United Stataa of 
ADMriea b EMtam JuU,' and vbich ia noticed b tba Serik AnurieaK Bttitu br 
October, 1 BS8, fbUovrod by mdh judidom refledtom on the mtijeet 

Oonanla rending in lbs fire ft«« portaof Cbin»,ertal)KJiadbylheteaatrof pMea 
between Orcat Britab and Obina, b IMS, bare, b^ tba aabeaqoeid comnumal 
ta«a^ io 1848, between thoae powen^ enlarged oanaalar taoetioot, iodndiiig ftoi* 
^adi am b aome reipecCa jndldal and ezecntiTe. 

• CoauDonwMlth t. Eoriloft 6 Berg, i RtnoU, MS. Hall t. Toimg, ■ Fielttr- 
i»g, sa DaTiB T. Packard, T P*tri U. B. Rap. 176. Baiti»i t. Hiimlton, I 
gTmtiN,J.R4p.lVl. 8m, aiMi, te^ i^ 198. sot. 



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LECTURE III. 

OB THB DXCLAJtiTKOC, ASD OTBEB EABLT K&ABUBEB 07 A 8TATX 
or WAS. 

Br the last Lecture, we considered tlie principal rights and 
duties of nAUoOfl in a state of peace ; and if those duties were 
generally and doly fblfilled, a new order of things would 
arise, and shed a brighter li^t over the history of haman 
affairs. Peace is said to he tlie natural state of man, and war 
is undertaken for the sake of peace, which is its only lawM 
end and purpose.' War, to ose the language of Lord Bacon,'' 
is one of the highest trials of right ; for, as princes and states 
acknowledge no superior upon earth, they put tbemselTes 
upon the justice of Oroi by an appeal to arms. The history 
of mankind is an ahuost Dnintermpted narration of a state of 
war, and ^ves colonr to the extravagant tiieory of Hobbfls,<: 
who maintains, that the natnral state of man is a state of war 
of all against all ; and it adds plausibiU^ to the conclusions 
of those other writers, who, having known and studied the 
Indian character, insist, that continual war is the natural 
instinct and appetite of man in a savage state. It is doubt- 
less tme, that a sincere disposition for peace, and a just ap- 
preciation of its blesfflngs, are the natural and necessary result 

of science and- civilisation. 
*48 *The right of self-defence is part of the law of our 
nature, and it is the indispensable duty of civil society 
to protect its memheis in the enjoyment of their rights, boUi 
of person and property. This is the fundamental principle of 
the social compact An iujoiy, either done or threatened, to 



* <Se.4tqf.l.nuiAit. 0ratita,b.l.ci. AtrioMOTVi, put 4. e. 1. • 
VaUtt, b. 4. «. 1. 

^ SaooiCi Workt, toI. iu. p. 40. 

* XmaCAan, part 1. c. II. 



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I*e. m] OP THE LAW OF NATIOHa BT 

the perfect righls of the nation, or of anj of its memherB, and 
SDBoeptible of no other redresB, ia a jnst canse of war. The 
injury may consist, not oply in the direct -violation of personal 
or politici^ rights, hat in wrongfully withholding what is dne, 
or in the refusal of a reasonal)l6 reparation for injuries com- 
mitted, or of adeqnate explanation or security in respect to 
manifest and impending danger.* Grotins condemns the 
doctrine, that wu* may he ondertaken to weaken the power 
of a neighl)onr, nnder the apprehension that its fnrther in- 
crease may render him dangeroos. This woold be contrary 
to justice, unless we were morally certain, not only of a capa- 
city, Init of an actual intention to injure ns. We ought 
rather to meet the anticipated danger by a diligent caltivation 
and pmdent management of onr own resources. We ought 
to conciliate the respect and good will of other nations, and 
secnre their assistance, in case of need, by the henerolence 
and justice of our conduct. War is not to be resorted to 
without absolute necessity, nor nnless peace would be more 
dangerons and more miserable than war itself. An injury to 
an individual member of a state is a just cause of war, if re- 
dress be reflised ; bnt a nation is not bound to go to war on 
so slight a foundation ; for it may of itself grant indemnity to 
the injured party, and if tbis cannot be done, yet the good of 
the whole is to be preferred to the welfare of a part"" Every 
milder method of redress is to be tried, before the nation 
makes an appeal to arms ; and tills is the sage and moral pre- 
cept of the writers on natural law. 

*If Oie question of right between two powers be in *49 
any degree dnbions, they ought to forbear proceed- 
ing to extremitieB ; and a nation would be condemned by the 
impartial voice of mankind, if it voluntarily went to war upon 
a claim of which it doubted the legality. Bnt, on political 
subjects, we cannot expect, and are not to look for the same 
rigorous demonstration as in the physical sciences. Policy 
is a science of calculations and combinations, arising out of 
times, places and circumstances, and it cannot be reduced to 
absolute simplici^ and certainty. We most act according to 



> 0rofiiu,b.t.O.1*iid!S, A>fA«r/MA, K <. & e. FatH )>. 8. e. 8. m 
k ffn>ltM^bL2.<.tl— SB. SulhtrfMlk,h.2.c9. 



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56 OF THS LAW OF N ATIOVa [Fwt L 

the dictates of a well-informed jadgment, resting itpOD a dili- 
gent and careful examination of facts ; and every pacific mode 
of redress is to be tried faithfiillj and perBeveringly, before 
the nation resorts to arms. 
IDS If one nation be bound by treaty to afford Hssistance, in a 
case of war between its ally and a third power, the asaistance 
is to be given whenever the oasia /asderu occurs ; but a ques- 
tion will sometimes arise, whether the government, which is 
to afford the aid, is to judge for itself of the jostice of the war 
on the part of the ally, and to make the right to assistance 
depend upon its own jadgment Grotiua is of opinion,^ Hiat 
treaties of that kind do not oblige us to participate in a war, 
which appears to be manifestly nujnst on the part of the ally ; 
aud it is said to be a tacit condition annexed to every trea^ 
made in time of peace, and stipulating to aSard saccoora in 
time of war, that the stipulation is only to apply to a just war. 
To give assistance in an unjust war on tiie groond of the 
treaty, would be contracting an obligation to do injustice, and 
no snch contract is valid. >> But to set up a pretest of this 
kind to avoid a positive engagement, is extremely hazardous, 
and it cannot be done, except in a very clear case, without 
exposing the nation to the imputation of a breach of public 
&ith. In doubtful cases, the presumption on^t rather to be 

in favor of our ally, and of the justice of the war. 
*50 *The doctrine that one nation is not bound to aeeiHt 

another, under any circumstances, in a war clearly un- 
just, is similar to the principle in the feudal law, to be met 
with in the ^oot of Feud*, compiled from the usagea of the 
Lombards, and forming part of the common law of Europe 
during the prevalence of the feudal system. A vassal refus- 
ing to assist hia liege lord in a just war, forfeited his feud. If 
the justice of the war was even doubtful, or not known affirmr 
atively to be unjust, the vassal was bound to assist; but, if 
the war appeared to him to be manifestly unjust, he was under 
no obligation to help his lord to carry it on offensively.' 

A nation, which has agreed to render assistance to another, 
is not obliged to furnish it when the case is hopeless, or when 

> a t. c. se. 

* Fa««l,b.t.e.lS.Ma.ie8.— hS.e.e.M«;H,ST. 

• Aud. libs, lib 2S.ieal.. 



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Ue. m] OF THE U,W OF HATIOKB. 69 

giving the sacconni would expose the state itself to iamuneiit 
danger. Such oztremfl cases are tacit exceptions to the obli- 
gation of the trea^ ; but the danger must not be slight, re- 
mote nor contingent, for this would be to seek a friTolons 
case to violate a solemn engagement.^ In the case of a de- 
fensive alliance, tiie condition of the contract does not call for 
the assistance, unless the allj be engaged in a defensive war, 
for in a defensive alliance, the nation engages only to defend 
its ally, in case he be attacked, and even then we are to in- 
quire whether he be not justly attacked.^ The defensive al- 
liance applies only to the case of a war first commenced, in 
point of £act, against the ally ; and the power that first de- 
clares, or actually be^ns the war, makes what ia deemed, in 
the conventional law of nations, as qff'enaitM war.^ The treaty 
of alliance between France and tiie United States, in 
1778, was declared, by the second article, *to be a *51 
defensive aUiance, and that declaration gave a cha- 
racter to the whole inatrament ; and consequently the guaranty, 
on the part of the United States, of (he French poesessionB in 
America, could only apply to future defenmve wars on the 
port of France. Upon that ground the government of this 
country, in 1793, did not ctmsider themselves bound to de- 
part from their neutodity, and to take port with France in 
the war in which she was then engaged.' The war of 1793 
was first actually dedarad and commenced by France, against 
all the allied powers of Eorope, and the uatore of the guaranty 
required us to look only to that iact* 



■ Vailtl, II I. c. B. Mc 92. * ValUl, h S. c S. H& TS. 83. 00, 

* A wmr nikj ba dt^rnwiM in it* priodpI«i^ thongh effauite in it* aparattona, •■ 
idwre attack m tha bert uode to npelamtt»MdiDrauoD,ai>dth«canit/iBilir{« 
of ad«^«iuiwaIUaDM wiUapplj. Ha who fint raodBi tha applkktiMi of fbtoa 

I — i j ia lliii amticiii, tliiiimli 1 laj mil liiill iiiiatiii Hut «rtii»llj ifiiliw 

H. raU<l,b8.o.<.««c91.100. j;fw. JI«n«w; No. 19, pp. 244, 245. 

' Soa Pae^Uut, vritteo m 119S, "by Hi. TTamiltni], thao Saerabuj of Um Ttm- 
warj ; Mid aae tl>« Iiutneliem from Iht Btentary of Btati lo IMt JjmnitaH 
ItiniMtn lo Front*, July ISth, llvl. 

■ Saiaral inataiiaai an maiitkmad in WAtaton'i SltmntU of Inttmationat iMt, 
Id edit lis— U4, of tha ooeurrMtM of tha eoMUjWnit b tha caia of a del«n«va 
alliiDM. A Aitinctioo ia outde b tha latat irritwa on puUk lav betweio tha 
laa ^ tMflom acd inlfnutfional loie, or^D«tii% it ia aaid, vilh Jvaaj BaatbuD. 
Hum Mr. Wbeatoi ealla ooe of U* work* tha HUtorg of tis Xow ofNatmu, aod 

. of I 



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60 OF THE LAW OF HATIOira. [PutL 

« In the ancient republics of Greece and Italy, the right of 
declaring war resided with the people, who retained, in their 
collectiTe capacity, the exercise of a large portion of the Bove- 
reign power. Among the ancient Germans it belonged also 
to the popular aBsemblies,* and the power was afterwards 
continned in l^e same channel^ and actnally resided in the 
Ssxon Wittenagemote.>> Bat in the monar^ies of Enrope, 
which arose upon the rains of the feudal system, this import- 
ant prerogative was generally assumed by the Iting, as ap- 
pertaining to the dntdea of the executive department of go- 
vermnent. Many publiciats" consider the power as a part of 
the sovereign anthorily of the state, of which the legislative 
department is an essential branch. Hiere are, however, 
several exceptions to the generality of this position ; for- in 
t^e limited monarchies of England, France and Holland, 
the king alone declares war, and yet the power, to apply an 
observation of Vattel to the case, is but a slender prerogative 
of the crown, if die parliaments or legislative bodies of thoee 

kingdoms will act independently, since the king cannot 
*62 raise the money reqninte to carry on *the war without 

their consent. Hie wild and destructive wars of Charles 
XII , led the states of Sweden to reserve to &eniselves the 
right of declaring war; and in the form of govenunent 
adopted in Sweden, in 1773,^ the right to make war was con- 
tinued in the same legislative body. TTiis was the provision 
in those ephemeral coiutitntions which appeared in Poland 
and France the latter part of the last century ; and as evi- 
dence of the fdrce of public opinion on this subject, it may be 



DoliMd tli« duti<Mti(m between At inltr Gmtt* and Ai Otnlhmi atUr Outtatu. 
Intemaiional Uw Menu to relate mora ptuticukrl; to ri^ila (nd dntiM irim^ 
from aadal, eonniMcial lai padfie inttivoane between diffbnat oatioiM, ud niaj 
be nibdiTided ioto pnblio ud prirnte iotenwlfcwJ bw. 
■ TUci/. d»Jf O.tll. 

* Millar'* Viirw of Uu ExglUk OoMnmnO, b. 1. e. 7. la the capitDlatJoD or 
great charter, ogaed bj Ohriitophn' IL, King; of Denmark, oa his electloD to tlie 
IliroiieiD 1310, bj the diet or anembl j of the DoUea, it waa, among other things 
dedared, that he ekoold not make war without the adrke and oooMot of the pre- 
latei and beat men of the Idl^^dom. Sithop Mulltr'i Andatt Bttlon/ and Cotuti- 
lution ef Dmmart, reTiewed b the I^ereiffn QuarUrlg Rtvimi, No. SI. 

• Ptiff: b. B. c. e. leo. 10. VaOil, b. S. & 1. eec. 4. 

' ArL 48. Bat thia free eonetitatioB of aweden wai oTertnmed liefbre the end 
of the year lITt, and a aimple deepoUmi estaUhhed m ita itead. 



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Im. m.] OF THS LiLW OF NATIOKK fll 

observed, that in the constitution proposed by Bonaparte, on 
h^ reascenaioQ of the throne of France, in 1815, the right to 
leyy men and money for -war was to reat entirely npon a law 
to be proposed to the House of RepresentatiTea of the people, 
and assented to by them. Jn this country, the power of de- 
claring war, as well as of raising the supplies, is wisely con- 
fided to the legislature of the Union ; and the presumption is, 
that nothing short of a strong case, deeply affecting oar essen- 
tial rights, and which cannot receive a pacific adjostment, 
after fill reasonable efforts shall have been exhausted, will 
ever prevail upon congress to declare war. 

It has been usual to precede hostilities by a public decla- 
ration communicated to the enemy. It was the custom of 
the ancient Greeks and Bomans to publish a declaration of 
tlie injuries they had received, and to send a^ herald to the 
enemy's borders to demand satisfaction, before they actually 
engaged in war; and invasions without notice were not 
looked upon as lawful.* War was declared with religions 
preparation and solemnly. According to tJlpian,i> 
they "alone were reputed enemies against whom the *63 
Homan people had publicly declared war. During the 
middle ages, a previous declaration of war was held to be re- 
quisite, by the laws of honour, chivalry and religion. Louis 
IX. refused to attack the Sultan of Egypt until he made a 
previous declaration to him by a herald at arms ; and one of 
bis successors sent a herald, with great formality, to the go- 
vernor of the Low Conntries, when he declared war against 
Spain, in 1635." But, in modem times, the practice of a 
eolenm declaration made to the enemy has fallen into disuse, 
and the nation contents itself vrith making a public declara- 
tion of war within its own territory, and to its own people. 
The jurists are, however, divided in opinion, in respect to the 
necessity or justice of some previous dedaiation to the enemy 
in the case of offensive war. GhY>tius'' considers a previous 



^ J'iMtt'iAiitiguiHtte/ CfTtttt,h.Z.e.1. £i*y, b. I. a St. die. <h Of.}!. I. 
e. 11. Dt Btpui. lib S. y 

^ Dig. it. IS. 24. Cic«R> mljs. Oat aoder Oit BomknWgt it wm iiutitnted 
k«, thit tba war wh unjut aod impiou*, aiil«M dceUr^ Mid proeliUDMd hj ths 
bcnlik michr rcligiooi MiMtiotL Ih BtpiA. lib. S. IT. . 

" ' t, TVatU iH. 2m p. 061. * 9. Let. MO. i. 



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69 07 THE LAW OP NATI058. [Part I. 

demand of satisfaclioD, and a declaration, as reqnisite to a 
Bolenm and lawful war ; and Puffendorf^ holds acts of hosti- 
lity, which have not been preceded b^ a formal dedaration of 
war, to be no better than acts of piracy and robbery. Emeii- 
gon^ is of the same opinion ; and he considered tiie hostili- 
ties exercised hj England, in the year 1755, prior to any de- 
claration of war, to have been in contempt of the law of 
nations, and condemned by all Enrope. Vattel sfrongly 
recommends' a preTions declaratirat of war, as being required 
by justice and humanly ; and be says, that the fecial law of 
the Romans gave snob moderation and religious solemnity to 
8 preparation of war, and bore such marks of wisdom and 
justice, that it bud the solid foundation of their future great- 
nees. 

Bynkersboeck has devoted an entire chapter to this 
*64; question,'' *and he maintains that a declaration of war 
is not requisite by the law of nations, and that though it 
may very properly be made, it cannot be required as a mat- 
ter of right The practice Feots entirely on manners and mag- 
nanimity, and it was borrowed from the ancient liomana. 
All that be contends for is, that a demand of what we con- 
ceive to be due should be previonsly made. "We are not 
bound to accompany that demand with threats of bostilily, or 
to follow it with a public declaration of war ; and he cites 
many instances to show, that within the two last centuries, 
wars have been frequently commenced withont a previous 
declaration. Since the time of Bynkersboeck, it has become 
settled by the practice of Europe, that war may lawfully exist 
by a declaration which is nnilateral only, or without a decla- 
ration on either side. It may begin with mutual bostilitiee.* 
AAer the peace of Versailles, in 1763, formal declarations of 
war of any kind seem to have been discontinued, and all the 
necessary and lefptimate consequences of war flow at once 
from a state of public hostilitieB, duly recognised, and expli- 
citly announced, by a domestic manifesto or state paper. In 
the war between England and France, in 1778, the first public 
act on the part of the English government was recalling its 



• B. a e. e. MC. 9. • B. 3. e. «. MC. 61. 

^ TVoil J da. Am. toma L |k SS8. * Qual. J. Fui. b. 1. a. I. 
'BirWm. BmO, 1 JMUottt AOol Jttp. W. 



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Lm. nL] OP THE LAM OP NATIONS. 83 

miiUBter, and lliat single set vas considered by France as a 
breach of the peace between the two coontries. There was 
no other declaration of war, thongh each government after- 
wardfl pablished a manifesto in vindication of its claims and 
conduct. The same thing may be said of the war which 
broke out in 1793, and again in 1803 ; and, indeed, in the 
war of 1756, thongli a solemn and formal declaration of war, 
in the ancient styloj waa made in Jane, 1756, vigorons hoetil- 
ities had been carried on between England and France for a 
year preceding. In the war declared by the TJnited States 
against England, in 1812, hoetilitieB were immediately 
commenced on our part *as soon as the act of congress *55 
was passed, without waiting to commnnicate to the 
English government any notice of our intentions. 

Bnt, though a solemn declaration, or previous notice to the 
enemy, be now laid aside, it is essential that some formal 
public act, proceeding directly from the competent source, 
should announce to the people at home, their new relations 
and duties growing out of a state of war, and which should 
equally apprize neutral nations of the fact, to enable them to 
OHiform titeir conduct to the rights belonging to the new state 
of things. War, says Yattel,^ is at present published and 
declared by manifestoes. Such an ofBcial act operates &om 
its date to legalize all hostile acts, in like manner as a treaty 
of peace operates from its date to annul tiiem. As war can- 
not lawfully be commenced on the part of the TJnited States 
withoat an act of congress, sneh an act is, of course, a formal 
official notice to all the world, and equivalent to the most 
solemn declaration. 

When war is duly declared, it is not merely a war between Btna o 
this and the adverse government in their political characters. ^^ 
Every man is, in judgment of law, a party to the acts of his I 
own government, and a war between the governments of two / 
nations, is a war between all the individuals of the one, and! 
all the individuals of which the other nation is composed. 
Government is the representative of the will of all the people, 
and acta for the whole society. This is the theoiy in all go- 
vernments ; and Uie best writers on the law of nations concur 



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64 OF THE LAW OF NATIOlTa [Put I 

ia the doctrine, that when the sovereign of a state declaree 
war against another eovereign, it implies that the whole na- 
tion declares war, and that all the Buhjects of the one are ene- 
miea to all the subj ects of the other,' Very important conse- 
gnencea concerning the obllgatioaa of enbjects are deducihfe 
from this principle. 
Bnsmjip^ *56 *When hoatiUties have commenced, the first ob- 
uMMHiDtiT. ' jecta that natnrally present themeelves for detention and 
captore, are the persons and property of the enemy, found 
within the territory on the breaking ont of the war. Accord- 
■ ing to strict authority, a state has a right to deal as an enemy 
with persons and property so found within its power, and to 
confiscate the property, and detain the persons as prisoners 
of war.i> No one, says Bynkershoeck, ever rec^aired that 
notice should be given to the subjects of the enemy, to with- 
draw their property, or it would be forfeited. The practice 
of nations is, to appropriate it at once, without notice, if there 
be no special convention to the contrary. But though Bynk- 
ershoeck lays down this, as well as other rules of war, with 
great harshness and severity, he mentions several instances, 
arising in the 17th, and one as early as the 15th century, of 
stdpulationfi in treaties, allowing foreign snbjects a reasonable 
lime after the war breaks out, to recover and dispose of their 
I effects, or to withdraw them. Such stipulations have now be- 
I come an estsbhshedyt^rmufa in commercial treaties." Emeri- 
gOQ*^ considers such treaties as an aflirmance of common right, 
or the pubhc law of Europe, and the general rule laid down 
by some of the latter publicists is in conformity with that pro- 
vision.« The sovereign who declaree war, says Yattel, can 
neither detain those snbjects of the enemy who are in his do- 



■ GroiiuM, b. 8. c 8. »ec: P^-o. 4 see. B. Surlamajui, part 4. c. 4 «•& 80. 
Vatld, b. S, c. B. MC. 70. 

' Orolint, h S. c. 9. MC. 4^-& SI. lec 9. ,BynJc. Qwnt. Pub. J.a.iKoi1. 
Ifarlfiu, b. 8, c. S. Mc S. 

■ A liberal proviNODof lbi« kiuduiiiBcrtadltitlietradyof uaUyaudooiiuiMrM 
b«tT««a tbt Uoited SUtet and the Republic of Colambia, which -nu ratified at 
WubiiiKtoi], Mb7 27, 1821S, end between tlie VolUd States tod tlie Bepnblic of 
Teneinela, bj the tre«ty of fHeodahIp and oommene id Kaj, 1S3S. 

* Tome i. p. 681. 

• VatUl, b. 8. 0. 4 wc 08. AobU, part a. c (. art. 1. iml T, Le Droit PuUm 
AFStmpt.parMaili, (ffinrM, boms tI p. S84, Juriamn^ p. 4 c 1. Mb & 



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Ue. HLJ OF THE LAW OF NATIONS. 65 

miniona at the time of ite declaration of war, nor their effects. 
They come into the country under the sanction of public &ith. 
Bj permitting tiiem to enter Mb temtories, and continue 
*tiiere, the sovereign tacitly promised them protection *57 
and secnrity for their retnm. He is, therefore, to allow 
them a reasonable time to retire with their effects, and if they 
Btaj beyond the time, he has a right to treat them as dis- 
armed enemies, unless detained by sickness, or other insor- 
mountable necessity, and ^en they are to be allowed a fur- 
ther time. It has been freqnentiy provided by treaty, that 
foreign snbjecta should he permitted to remain, and continue 
their business, notwithstanding a mptnre between the govern- 
ments, BO long as they conducted innocently ; and when there 
was no such treaty, such a liberal permission has been often 
announced in the very declaration of war.* Bir Michael 
Foster^ mentions several instances of such declarations by the 
king of Gh^at Britain, and he saja, that aliens were thereby 
enabled to acquire personal chattels, and to maintain actions 
for the recovery of their personal righls, in as foil a manner 
as aUen friends. 

Besides those stipulations in treaties, which have softened the 
rigours of war by the civiludng spirit of commerce, many go- 
vernments have made special provision, in their own laws and 
ordinances, for the security of the persons and property of ene- 
my's subjects, found in the country at the commencement of" 
war.* 

It was provided by ma^fna charta,^ that npon the break- 
ing out of war, foreign merchants found in England, and be- 
longing to the country of the enemy, should be attached, 
" without harm of body or goods," until It be known how 
English merchants were treated by the enemy ; and 
*'if our *merchant8," said the charter, "be safe and *58 



> ratui;b.«.c.4.wces. SMtlntnajofisonimcroebetvAEatlMnDitadStatM 
■od Um BcpnbUe of Chili, IU7, 1 B2S, Mt is, vhkfa aSM* Unt pemuuunt protoctioo. 

' Dueowt ofBigh Ttomm, pp. 18$, 188. 

■ Bj Ihe Spamjh deerM of Febnivj, 1S29, nuiluog Oadu t, fr«s port, it vm 
declared, tint ia ths eroit of wir, (bniguen vbo had <atabliihad thtniMlTW then 
for tb* pnrpoMi of eousmtnt, and becomiig alira «MmlM by maaua of tba war, 
Tcra to be alUnred a propar time to withdrair, and thair propeitj' wa* to b« wcrad 
from all wqaaatntioD or repriML 

'Ch.80. 

ToL. I. S 



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06 OF TflE LAW OF NATIONS. [Put L 

and well treated here, theirs shall be likewise with ns." It 
has been deemed extraordinary, that snch a liberal pro- 
Tision shoold ha^e foimd a place in a trea^ between a feudal 
king and his barons ; and Monteeqnien* was struck with admi- 
ration at tiie &ct, that a protection of that kind should have 
been made one of the articles of English liber^. But this 
provision was con£ned to the effects of alien merchants who 
were within the realm at the couunencement of the war, and 
it was understood to be confined to the case of merchants 
domiciled there. >> It was accompanied, also, with one very 
ominous qualification ; and it -was at least equalled, if not 
greatly excelled, by an ordinance of Charles V. of France, a 
century afterwards, which declared that foreign merchants, 
who should be in France at the time of the declaration of war, 
should hare nothing to fear, for they should have liber^ to 
depart freely with their effects." The spirit of the proTision 
in magna charta was sustuned by a resolution of the judges, 
in the time of Henry Vlll., when they resolved, that if a 
Frenchman came to England before the war, neither his per- 
son nor goods should be seized.^ The statute of staples, of 27 
Edw. lEL c. 17, made a still more liberal and precise enact- 
ment in favour of foreign merchants, residing in England, 
when war commenced between their prince and the king of 
England. They were to have convenient warning of forty 
days, by procliunation, to depart the realm with their goods ; 
and if tliey could not do it within that time, by reason of ac- 
cident, they were to have forty days more to pass with their 
merchandise, and with liberty, in the mean time, to sell the 
same. The act of congress of the 6th of July, 1798, c 73, 

was dictated by the same humane and enlightened po- 
*S9 licy. It authorized the President, in *ca8e of war, to 

direct the conduct to be observed towards subjects of the 
hostile nation, being aliens, and within the tTnited States, an^ 
in what cases, and upon what security, their residence should 
be permitted ; and it declared, in reference to those who were 
to depart, that they should be allowed anch reasonable time 



• Stprit <b* ZoUc, !0. 11. 
k 1 EaUi p. C. SB. 

• Snumlft Abrtg. Chnn, toms L 888, 

• Bn. tit Propect;, pL 8S. Jtnk. Otnt. Ml, c 



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IiM;m.] OP THE L^W 0? NATIONS. 67 

as miglit be consistent widi Hie public safet;', snd according 
to the dictates of hmnanityand national hospitality, "for the 
recoTery, disposal and remoTal of their goods and effects, and 
for their departnre." 

But however strong the current of anthority in &Toar of Bishi«r< 
the modem and milder coDstmction of the rule of national 
law ou this sobject, the point seems to be no longer open for** 
discossion in this coontiy ; and it has become definitiTely 
settled, in favour of die ancient snd sterner rule, by the Su- 
preme Court of the United States.^ Hie effect of war upon 
British property found in the United States, on land, at the 
commencement of &e war, was learnedly discussed and tho- 
roufi^ly conudered, in the case of Brown f and the Circuit 
Court of the United States, at Boston, decided, ■> as upon a 
settled rule of the law of nations, that the gooda of the enemy 
foond in the country, and all the Teesels and cargoes found 
afloat in our ports, at the commencement of hostilitiee, were 
liable to seizure and con£acati<m ; and the exercise of the 
ri^t rested in &e discretion of the sovereign of the nation. 
"When the case was brou^t up, on appeal, before the Supreme 
Court of the United States, the broad principle was assumed 
that war gave to the sovereign fall right to take the persons, 
and confiscate Uie property of the enemy wherever found ; 
and diat the mitigations of this rigid rule, which the wise and 
humane policy of modem times had introduced into practice, 
might, more or lees, affect the exercise of the right, but could 
not impair the right itself. Commercial nations have 
always considerable property in *the poesession of *60 
tiieir neighbours ; and, when war breab out, the qnes- 
tion, what shall be done with flie enemy's property found in 
the country, is one rather of policy than r^ law, and is one 
[voperly addressed to the confflderation of tlte legislature, and 
not to l^e coorts of law. Ibe strict right of confiscation of 
that species of property existed in congress, and without a 
legislative act authorizing its confiscation, it could not be ju- 
didflUy condemned ; and the act of congress of 1812, declar- 
ing war against Great Britain, was not such an act. Until 



• BroiniT.TbenidtodSUtai,S eVauA,llO. 8m, tlio, AU 118, SIB. 

* Tin ougo oftlM lUp Emsba^ 1 OMttam, HL 



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68 OF THB LAW OP KATIOSa [PirtL 

iBOme statate, directly applying to the subject, "be passed, the 
property would contiDue under the protection of the law, and 
might be claimed by the British owner at &e restoration of 
peace. 

Though this decision established the right, contrary to mnch 
of modem authority and practice, yet a great point was 
gained over the rigour and violence of the ancient doctrine, 
by making the exercise of the right to depend upon a special 
act of congress. 
"■ The practice, so common in modem Europe, of imposing 
embargoes at the breaking out of hostility, has, apparently, 
the effect of destroying that protection to property, which the 
mle of faith and justice gives to it, when bronght into the 
coontiy in the course of trade, and in the confidence of peace. 
8ir Walter Scott, in the case of tiie Boedee Lusi,^ explains 
this q»eciee of emba^o to be an act of a hostile nature, and 
amounting to an implied declaration of war, though liable t4> 
be explained away and annulled, by a subsequent acconmio* 
dation between the nations. The seizure is an act at fint 
equivocal, as to the effect, though hostile in the mere. execu- 
tion, and if the matter in dispute terminates in reconciliation, 
the seizure becomes a mere civil embaigo ; but if it termi- 
nates otherwise, the subsequent hostilities have a retroactive 
effect, and render the embargo a hostile measure, c3> miiio. 

The proper^ detained is deemed enemy's property, and 
*61 liable to condemnation. This ^epedee of reprisals for 

some previous injury is laid down in the books as a 
lawful measure, according to the usage of nations ; but it is 
often reprobated ; and it cannot well be distinguished from 
the practice of seizing property found within the tenitoiy 
upon the declaration of war. It does not differ in substance 
from the conduct of the Syracusans, in the time of Dionysius 
the elder, (and which Mitford considered to be a gross viola- 
tion of the law of nations,) for they voted a declaration of war 
i^isinst Carthage, and immediately seized the effects of Car- 
thaginian traders in their warehonses, and Carthaginian richly 
laden vessels in their harbour, and sent a herald to Carthage 
to negotiate. i> But this act of the Syracnsans, near four hun- 

■ Aol.Jbip.iSS. 

* Mi(f. But. of armei, toL t. 40>— 404. 



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I*ft in.] OF THE LAW OP NATIONS. 69 

dred years before the Christian era, fras no more thaa what 
is the ordinary practice in England, according to the obser^ 
vation of Lord Mansfield, in Lindo v. Rodrtey,*- " Upon the 
declaration of war, or hostilitiea, all the ehipe of the enemy," 
he says, " are detained in onr ports, to be confiacated as the 
property of the enemy, if no reciprocal agreement is made." 

Beprisala by commission, or letters of marqne and reprisal, immr 
granted to one ormora injured sobjects, in the name andbyn^S^" 
the authority of a sovereign, is another mode of redress for 
some specific injory, which is considered to be compatible 
with a state of peace, and permitted by the law of nations. 
The case arises when one nation has committed some direct 
and palpable injury to another, as by withholding a jnst debt, 
or by violence to person or property, and has reAised to give 
any satisfaction. The reprisals may be made in sai^rt of 
the rights of a subject, as well as those of the sovereign, and 
for the acts of the subject as well as for those of the sovereign. 
The commission is not to be issned except in a case clearly 
just — inreminime 3uhia; and it authorizes the seizure of 
tlie property of the sabjects as well as of the sovereign of the 
offending nation, and to bring it in to be detained as a pledge, 
or disposed of under judicial sanction, in like manner as if it 
were a process of distress under national authority for some 
debt or duty withheld.^ These letters of reprisals, as being 



* Dmtg,IUp,%\t. 

» Byiik. Q. J. PiA. o. U. raUd, b. 2. & IB. hc 142. M4. 847. IBS. Ft^. 
Dreil it* Qtnt, par Barbeyrae, b; 8. e. 6. tee. IS. a. 1. Faita, Comm. torn* il 
tit Jtt LiUm i> Margtu, pp. 414. 41fl. TVotd iw PrtK*, p. SSI. Buitrigvn, 
Traiti in An. toL I SOP. M MMg« of tbe PrMJdent of tLa United Blatea to Oon- 
gttm, Dteember 1, 1SS4. Tbe right of soTeinmaiit to enfbroe Hie jut dMm of 
iti nibj«eU igHM* ft tetaga ^TenmieDt, for debt* dtilj eootraeted and nojiutlj' 
-withbcld, ianot tobsquMioiied. Itbadmittadbyitat<siieaiiidjaiisti,aadir«i 
•0 «t*t«d by Lord PalnMntiHiin th•B^it■hPBrii■II]SDl,iIlJa17,IS47,tllstgo*e^>■ 
m•Dt■ had a right to enft>ree hj reprinla tbs claima of llieir mbjecta tor debta 
agaioat the tnbjtcta of oU>«t gorgnnoenU, if relMfba dtniad bj tht non-ezecDtJaa 
or Um improper adiDiiuiUatim of tin lawi b the fbraigD courts. Protectioa is due 
fimngoTtnimeDt to iltintjectaln th«irpenotuandprop«rtj; bnt the iuterfo^DU 
00 the part of goTemment to Miforce that AiAj, miut aliraya be a qoMtion of cx- 
padieocj. lie gorernmwit of tbe Uoited 8tat«« eiprenl; acknonledged, and io 
Doa or mora inatMiOM acted apon that prindple. Preddeot Jat^aoa, in 1BS4, tog- 
fpHted nidi a meaaim against Tranee ; and in 1S47, (me grouod of the irar between 
til* ITnited Statei and Uexieo tu the DOfr^Mjmest bj Hexloo of debts doe to 



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70 OF THE lAW OF NATIONa [Fait L 

applicable to a state of peace, have been £Feqtientlj recogniBed 
and reflated hj treaty.* The Frendi ordinance of the ma- 
rine of 1681,^ regaiaXea minutely this remedial proceae, and 
the judicial Banction requisite to the proceedings under letten 
of reprisal, and which Yalin considers to be eage precaa- 
tions, proper to temper the rigour of this perilons mode of 
redress." Qeneral reprisals upon the peisoos and proper^ of 
the sabjecis of another power are equivalent to open war; 
but these special letters of marqne and reprisal, limited to a 
specific object, are spoken of generally, and even in the arti- 
cles of confederation of the United States, in 1781,' as issuing 
"in times of peace." They are, however, regarded by Bar- 
beyrac, Emerigon and other pnblidsts, as a species of hos- 
tilily, an imperfect war, and naually a prelude to open hos- 
tilitiee. The fitvonrable or adverse issue of the hazardous 
e]q>eriment will depend, in some degree, upon the matter in 
demand, and, in a much greater degree, upon the relative 
sitnatiou, character, strength and spirit of the nations con- 
cerned." 
*63 *The claim of a right to confiscate debts, C(mtract«d 
by individuals in tame of peace, and which remain due 



* Sm, for tUi pocpoMk the tnety of Honttcr, bttvMO 8|Mia aod Hidlaad, b 
lata. Tie tn^M brtwMo KigbiKl Kkd HotUnd ID leU and leST. TketrMi^ 
of K;«wlek, art. 9. IIm tt»»tj of Utre^ ut le. Treaty bMwMU tin TTnfted 
StatM ud the Bepnbtk of OolcmUt, in 182G. 

k Ur. 1. a. la i)M lUpritaUUt. 

* In the time of Edwird IL, and tx acnne Mwcee£iig reignt, tbe power of 
gikntrnglettaiofmaniiieandnpriaaUagatiMtllMaabjeeUof afbragn state, Ibat 
nfoMd to reodsr jiutio* to th«iabg«ctaof tliaCTowiiof &igkiHl,w»Teatediii the 
Oonrt of Chanoeij, It ww» in the natun of a jodioal proc«H and of k prirate 
nmed;. Hm capture wae, in tbe nature of a eecuritj, to obtain juatice. Lard 
OaHpMl OK t/u Utu of Q» Lord OtoMMon, toL l tOB. 

' Art. 9. 

* War doe* not niet mve^ on Uis ampMiiioD of tlia ninal rdaliixia of peace. 
Oommerc* Biaj b* mapeDded or iotardicted between the entgecti of different itatea, 
without prodndog a atata of war, Sapiinla and embargoea arc fordble maamrea 
of redna^ bot do noli P**" **i oonatitiite war, nor de«a the funidui^ of ^ledfie 
■HJataTwin to one of tha parttea at war, according to a prenoua rtipulation. ViJ» 
iafr*,^\\i. Mr. Uaodng, in U* OaMMMtariM on (A« XoH a;' JITofioiUh p. 9S, 
after diowing the ImparfMt deSidtioDa gireo hj publidita, definea an opra and 
iolemn war to be ■tit* rtata «f oalHoa amoi^ whom there ii an intamiption 
of all pacific relalioD^ and a gMietal contentiM) bf lores, autlMriied \ij Iba 



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Ue. mi OB THE LAW OF NATIONS. 71 

to enbjecta of the eaemy at the declaration of war, rests very 
mnch npou the same principles as that concerning enemy's 
tan^ble property, foond in the country at the opening of ^e 
war ; dioagh I think the objection to the right of confiscation, 
in tiiis latter caae, ia much stronger. In former times, the 
right to confiscate debts was admitted as a doctrine of national 
law, and Qrotitis, Fuffendorf and Bynkershoeck pronounced 
in fiivonr of it.* It had the coontmance of the civil law ;^ 
and even Cicero, in his Q^ices,^ when stating the cases in 
which promises ore not to be kept, mentions that of the credi- 
tor becoming the enemy of the coontry of the debtor, Down 
to the year 1737, the general opinion of jurista was in favonr 
of the right; bat Yattel says, Uiat a relaxation of the rigour 
of the rule has mnce taken place among the sovereigns of 
Enrope, and that, as the custom has been generally received, 
he who shonld act contntry to it, wonld injure the public 
&ith ; for strangers trusted his subjects only from a firm per- 
suasion that the general custom wonld be observed.' There 
has fi-equently been a stipnlation in modem treaties, that 
debts or moneys in the public funds shonld not be confiscated 
in the event of war ; and these conventional provisions are 
evidence of the sense of the governments which are parties to 
them, and that the right of confiscation of debts and 
tilings in action, is against good policy, and ought *to *63 
be discontinued, lie treaties between the Tlnited 
States and Colombia, in 1825, and Chili, in 1832, and Tene- 
zuela, in 1836, and the Peru-Bolivian Confederation, in 1838, 
and Ecuador, in 1839, contain snch a provision; but &e 
treaty between the United States and Great Britain, in 1795, 
went farther, and contained tlie explicit declaration, that it 
was "unjust and impolitic" that the debts of individuals 
should be impaired by national differences. A very able dis- 
cussion of this assumed right to confiscate debts was made 
by Mr. Hamilton, in the numbers of GatmUug, published in 
1796. He examined tlie claim to confiscated private debts. 



• (7ro(JM^)iiLo,l.Me.fl.— b.l.c8.iac.4 iV- lib- B. cl 6. 1«, 30. Syd. 
lib. 1. & 1. Lord Hilfl •)«• kid it down to b« thi lav of Ei^IumL 1 MM* 

P. a n. 

• Dig. i1. 1 aod ». IS. 

• Ub. 8. e. 26. ' Vallil, k 8. e. fi, tM. 11. 



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73 OF THK LAW OF S ATlOHa \Vvt t 

or private properly in banks, or in public fnnda, on the ground 
of reason and principle, on dioee of policy and expediency, on 
the opinion of jnrists, on usage, and on conventional law ; 
and hia argument against the justice and policy of the claim 
was exceedingly powerfti]. He contended it to be against 
good &ith for a government to lay its hands on private pro- 
perty, acquired by the permission, or upon the invitation of 
the government, and under a necessarily implied promise of 
protection and securi^. Vattel says, that everywhere, in 
case of a war, f\inds credited to the public are exempt from 
confiscation and seizure. Emerigon' and Martensi> make the 
same declaration. The practice would have a very injurious 
influence upon the general sense of the inviolability and sanc- 
tity of private contracts ; and with debtors who had a nice 
and accurate sense of justice and honour, the requisition of 
government would not be cheerfully or readily obeyed. Vol- 
taire has given" a striking instance of the impracticability of 
confiscating property deposited in trust with a debtor, and of 
the fimmees of Spanish faith. When war was declared be- 
tween France and Spain, in 1684, the king of Spain en- 
deavoured to seize the property of the French in Spain, 
*64 but *not a single Spanish factor would betray his 
French correspondent i^ 
Notwithstanding the weight of modem authority, and of ar- 
gument, against this claim of right on the part of the sovereign, 
to confiscate the debts and fands of the subjects of his enemy 
during war, the judicial language in this country is decidedly 
in support of the right. In the case of Sr^vm v. The United 



■ Dt* Am. tame i. Ml. * B. 8. c.S. b«c. fi. 

• Sfai mr bt Jftwn tt VBtprii dn Kaiiont. 

* TlMEi^lidiOMtrtorKR dMJVMl, in tb«cH«of WolffT.Oiliolm, 6 JKwI* 
A 8dm. n, tint an ordinuiM of Denmark, in 1807, penduig boitilitiM witlk GogbDd, 
vbidi MqiiMtared debU dne from Duiuh to Eogluh subjecU, ud caoaed Item \e 
be paid oTcr to llie Daniab goreniiaeot, iraa not a dtfeDce to a tnit JD Ei ^land fo r 
the debt, and Utat Um ordmaaoa wai not oODfonaable (o Die usage ot'^Sattnt, and 

' TTBi void. It vai obaerred b; tbe court, tbat tbe right of confieeatii^ debts, ooc- 
taoded for on tbe aatliorit; of Vattel, b. S. c. 18. sea 344— b. 8. c 6. eec T?, va« 
not reoogmwd \ij Orotioa, (aee Or<A. lib. 8. c T. mc 4.— and c. 8. eec. 4,) and vaa 
impogiied by PuSmdorf (b. 8. ft 6. mc. 19) and othen ; and that no inatance bad 
ooentred of the ezerdae of tbe ligfat, except the ordinance ia ijDeetioi^ tor upvardi 



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Ue. ni] OF THE LAW OF NATIOIfS. 73 

States,^ already mentioned, Jndge Story, in the Oircnit Conrt 
in Masaachnfietts, laid down the right to confiscate debts and 
enemy's property fonnd in the coantry, according to the rigor- 
ous doctrine of the elder j uriats ; and he said the opinion was 
fully confirmed by the judgment of the Supreme Conrt in 
Ware v. SyUon,^ where the doctrine was explicitly asserted 
by some of the judges, reluctantly admitted by othere, and 
denied by none. Chief Justice Marshall, in delivering the 
opinion of the Supreme Conrt, in the case of Btowti, observed, 
that between debts contracted under the faith of laws, and 
property acquired in the com^e of trade on the fiiith of thti 
same laws, reason drew no distinction, and the riglit of the 
sovereign to confiscate debts was precisely the same with tbe 
right to confiscate other property found in the country. 
This right, *therefore, was admitted to exist aa a settled *65 
and decided right, sirictojure, though, at the same time, 
it was conceded to be the univeTBal practice, to forbear to seize, 
and to confiscate debts and credits. We may, therefore, lay 
it down as a principle of public law, so &r as the same is 
understood and declared by the highest judicial authoritiee in 
this country, that it> rests in the discretion of the legislature 
of the Union, by a special law for that purpose, to confiscate 
debts contracted by our citizens, and due to tiie enemy ; but, 
as it is asserted by the same authority, this right is contrary 
to ouivetsal practice, and it may, therefore, well be considered 
as a naked and unpolidc right, condemned by the enlightened 
conscience and judgment of modem times. 

If property should have been wrongfully taken by the state 
before the war, and be in the country at the opffliing of die 
war, such property cannot be seized, bnt mnat be restored; 
because, to confiscate that species of enemy's proper^, would 
be for the government to take advantage of its own wrong. 
Hie celebrated Separt of the English law officers of the crown, 
1753, in ofMwer to the Praagian Memorial, stated, that French 
ships taken before the war of 1741, were, during the heat of 
the war with France, aa well as afterwards, reeitored by sen- 
tences of the admiralty courts, to the French owners.^ No 

■ 8 OrmtS, 110. t 8 Dallat. in. 

■ Ha caM of the Biltiian Itxm cooUim, in Uie ffiMiiuioDi bttwMD the Prouuui 
■nd Biitiah Ooortii, in 17G3, * tnBmonbls Gxpodtion of tha lav of uilloni ea the 



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74 OF THE lAW OF NATTOHB. [Put L 

Bach proper^ waa ever attempted to be confijBcated ; for had 
it not been for the ■wrong done, the property woTild not have 
been within the king's dominions. And yet even such pro- 
perty ia considered to be snbject to the rule of vindictive re- 
taliation ; and Sir William Scott obaerred, in the case of the 
SatUa Crua,*- that it was the constant practice of England to 
condemn proper^ 8ei2ed before the war, if the enemy con- 
demns — and to restore, if the enemy reetoree. 
9i*66 *One of the immediate and important conseqaences 
of the declaration of war, ia the absolute interrnption 
and interdiction of all commercial correspondence, intercourse 
and dealing between the sabjecta of the two countries. The 
idea that any commercial interconrse, ot pacific dealing, can 
lawfully Bulwist between the people of the powers at war, ex- 
cept under the clear and express sanction of the gOTemment, 
and withoQt a special license, is utterly inconostent with the 
new class of duties growing out of a state of war."" The in- 



■n^«ct ofbeUigertatrigbUaaddotiM. ^la Bapott of tlw Iqgli tnd dirtiopiMwd 
bv officer! of tbe crown, in uuver to the Pnuiiati Hemorul, buhIb ia 17S3, wu 
daelarad \sj loah MobMit writan u Vmttd ud Ifonteaqnien, to be an ezcallHt 
aiidvoaHwcisble tncion tb«l«Tof lutioH. Sm tlw lobatuiM of tha dwcwwno 
in WhMtoo'i milarj tf Uf Lan o/KatiaiM, edit 2f. T, ItM, p^ S0»— 311, and 
tha report at large. CM fart a iw a fitriiUaa, toL L p. VS. The oue ii worth; of 
fpada) notiM, not unl; tbr dM authoritf of the work, bat for the rMognitioD of tlia 
■Mti^of private debt* and Motmate^ in optio^tion to the pretaDmnaof tharighta 
ofirarandeoDqiMat IntibateiM,alDaii«finoDer wumadelif Brititheraditon 
to the Enperor of QetnMuif, in \1Zi, and for the better Mcaritf of the pajmeot 
of the loai^ with iiiteTe< he mortg^[ed hii reTeouei of the Duchies of 8ilegi*i and 
wImq SQena waa eonqnered b^ Prania, tlie Empreaa Qaeeo, who had aucceaded 
to tbe aarenign^ of tlie 0000(17 ^"If^f* iti oooqaeat, otded Uia Dochie* to tha 
Elog of PrTMaia, npoo oonditiiM that fta king ifaould Im raaponeitila for the debt, 
and ha NHcmed the pajmaat of it, llie king aAerwuda aaiiad tlia reTtauaa, faj 
waj of rsprial and iodenuut; a^pUMt 1mm« \ij Britiah cniaen, under lawM 
captnre and condenmatioD bj IJm Uw* of war. lie Report ibowad, nounrerablf, 
aa Vonleaqdeu admitted, that the King of Fnuiia oonld not lawfoUj aeiie the 
mortgaged reTeoaea or debt^ bj way of repriMl, and that 1m waa bound bf tha 
law of naliMi^ and arary ptincipla of JnetiM, to pa; th« BritiA ovditatt. Hm 
tOag of Pnuaia, bj treaty io 1756, agreed to take off the aeqaeatratioa laid on the 
Klenan debt, and paj tbe capital and interaat dne to the Biitiah craiUtora. 

■ 1 Rcb.Rtp.ii. 

* The doctrine goea to the extent of hi4diiv it nolawfnl, afltt the eommanea- 
ment of war, except under the epectal lioenae of the gotaminaot, to aend a raaad 
to the oiamT'a oountiy to bring bom^ with their permiaHon, ooe'a own propai^, 
which waa there when the war broke out It would ba liatde to aeinre, in Iroa- 



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Lm m.] OF THE U.W OF HATKHn. 75 

terdictioa flows iiec688arLl7 from the principle already Btated, 
that a state of war puts all the members of the two natitms 
respectively in hostali^ to each olher ; and to soffer indivi- 
doals to cany on a friendly or commercial interooarae, while 
the two goTOTnments were at war, would be placing the act 
of government Bud the acts of individoals in contradiction to 
each other. It would coimteract the operations of war, and 
throw obstacles in the way of the public efiinia, and lead to 
disorder, imbecility and treason. Trading snpposee the ex- 
istence of civil contracts and relations, and a reference to 
conrts of justice ; and it is, tiieiefore, neceeearily, contradictory 
to a state of war. It affords aid to the enemy in an effectual 
manner, by enabling the merchants of Qie enemy's country 
to support their goTernment, and it facilitates the means of 
conveying intelligence, and carrying on a traitorous corres- 
pondence with the enemy. These considerations apply with 
peculiar force to maritime states, where the principal object is 
to destroy the marine resources and commerce of the enemy, 
in order to force them to peace.^ It is a well-settled doctrine 
in the English courts, and witb the "KnglifiTi jurists, that there 
cannot exist, at the same time, a war for arms, and a peaco 
for commerce. Hie war puts an end at once to all dealing 
and all conminnication with each other, and places every 
individual of the respective governments, aa *well as *67 
the governments themselves, in a state of hostility.'* 

•Ok, u tDMOT'i [jtopa^. TbeBaptd.sawioA.lfiS. FMta v. B«II, 8 nrat. A}». 
MS. Iatfaaau*ofthsJnfflvwaiAariD%BA^^dR<.£(p,Ul,*iidofth«HM)p> 
1 Set. ISA, Sir WtUiam Scott bculcited Tvy itrictlf ths dotj of mpph/it^ m lU 
CWM fM* tb« proUdkn of a Ucwim, whan ftopwtj u to be -witlidnivn from tiic 
ooaatrj of tfaa eDcniy, u baing tlie only aadb ooores. Mr. Dner, fo bU TVniliM mt 
JiiMr— M, Tol. b pp. Ul-^U, tUf hmI MWOMifDllj cootoiKl*, tbkt when ft «i)bi«et 
flodtbinualf kuKMiiij'i 000110700 tbi bnakiDgoiitof«u,b« msyratiiiii dU- 
fKitly to hii coiuitiy, HtlA Ait ympTtg, witliotit reodariiig it jiiitt7 liabla to cob- 
fiieatimbf tlMpriuooatttof hiioTDCouDtiy; iLougfatliBlwigiitgeof Mr. Juitioe 
StoT7,inUiseuaoF(ka£apU»dth« iTory, b 1 ti'aUUoK, S0». asi, gou to Um 
«>Uot af Om mtww dNwd of IbU riglit, mdw Mijr dmmMtMMM. If tfaa kdT<n« 
btlUgMTMit allawinoliaTigfa^UiMaMiprWipi M, nml j hia ova oatntry oogM to 
asardaa tb« mant lamtj. Soch wu tli* itoAia of tba SnptUM Court of I{«w- 
Totk, in A&M7 t. UeOngw, IB JohuMt R. M. 

• 1 OkUtyi M OommtreM Laa, IIS. 

* VdOM T. BeU, 8 lin. Btp. 648. William v. FaUMOak,! Awit R*p. 419. 
8*0*7, J., io tbo Joaapb, 1 tfotiiNm, M9, CSO. In tba Julia, Id. 601— S. Jom« 
Piatar, i AA T9. Tba Boop, 1 JUb. 1S9. %\1. Tba BtfU, 1 O^im^ SOS. 



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76 OF THB lAW OF NATIONS. [Pwt L 

^Hiis ia equally llie doctrine of all the authoritatiTe writen on 
the law of nations, and of the niaritime ordinances of all the 
great powers of Europe. It is equally t^e received law of 
this coontiy, and was so decided freqnentlj by the congress 
of the United States during the revolutionary war, and agtun 
by the Supreme Court of the United States during the coarse 
of the lasl war ; and it is difficult to conceive of a point of 
doctrine more deeply or extensively rooted in the general ma- 
ritime law of Europe, and in the univetsal and immemorial 
usage of the whole community of the civilized world. 
dt It follows as a necessary consequence of the doctrine of the 
illegality of all intercourae or traffic, without express permis- 
sion that all contracts with the enemy, made during war, are 
utterly void. The insurance of enemy's property is an illegal 
contract, because it is a species of trade and intercourse with 
tbe enemy. The drawing of a bill of exchange, by an alien 
enemy, on a subject of the adverse country, is an illegal and 
void contract, because it is a communication and contract. 
He purchase of bills on the enemy's country, or the remission 
and deposit of funds there, is a dangerous and illegal act, be> 
cause it may be cherishing the resources and relieving the 
wants of tlie enemy. The remission of funds in money or 
bills, to subjects of the enemy, is unlawful. He inhibition 
reaches to every communication, direct or circuitous. All 
endeavours at trade with the enemy, by the intervention of 
third persons, or by partnerships, have equally failed, and no 
artifice has succeeded to legalize the trade, without the ex- 
press permission of ihe government^ Every relaxation of 

the rule tends to corrupt the allegiance of the subject, 
*€8 and prevents *the war &om fulfilling its end. The only 

exception to this strict and rigorous rule of international 
jurisprudence, is the case of ransom bills, and they are con- 
tracts of necessity, founded on a state of war, and engendered 
by its violence. I* It is also a further con^queuce of the ina- 



i^ ui. tup, Tie Vidian Chia^ I Rob. Rtp. SI. Tfas Jot^ 
tieler, t R<*. Rtp. *9. The Piuklla, S A>4. A^ ISf. 

^ There ia uotber ezceptiai] to tlM genwal rule, Id the cbm of ft war eontrwA 
ariwDg out of ft public mmm!^, created ty tlw mr itaelt TUt i* the caae of ft 
bill of excbaoge dmrn upon AtgUnd bf a Britiah priwaer io Vnxiee, (or hu ovn 
nibusteoce, and endonad to an alien enemj, and -whidi tfae latter, od tb« rctotn of 
peace, va* lUloired to en£uH. Antdoe t. Morelieftd, S TiumL SIT. 



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Lee. HL] OK THE LAW OT NATIOHS. 77 

baity of the aobjects of the two statee, to coummne or carry- 
on aaj correspODilence or bosineea together, tiiat all commer- 
dal pa rtnerahi pB existing between the Bobjects ofrthe two 
parties, prior to the war, are disBolTed b y the mere force an d 
act of the war itaelf ; though ot her contracts^^ ^ting prinr to 
me war are not eitiDgniahed, but the remedy i s only aPB- 
pended, and thia frointHe"mability of an alien enemy to sue, 
or to enstain, m the langnage of the civilians, iperaona ttandi 
injvdido. The whole of this doctrine, respecting the illegali- 
ty of any commercial intercoorse between the inhabitants of 
two nations at war, waa eitenrnvely reviewed, and the prin- 
cipal anthoritieB, ancient and modem, foreign and domestic, 
were accnrately examined, and the positioiiB which have been 
laid down established, in tlie case of Oritvxild v. Waddmg- 
ton,*- decided in the Supreme Ooort of New-York, and aiteo^ 
wards affirmed on error. 

. This strict rule has been carried so iar in the British admi- 
ralty, as to prohibit a remittance of snpplies even to a British 
colony daring its temporary subjection to the enemy, and 
when the colony was under the necessity of supplies, and was 
only very partially and imperfectly supplied by the enemy.** 
The same interdiction of trade applies to ships of trace, or 
cartel ships, which are a species of navigation intended for 
the recovery of the liberty of prisoners of war. Such a spe- 
cial and limited intercoorse is dictated by policy and human- 
ity, and it is indispensable that it be conducted with the most 
exact and exclusive attention to the original porpose, as 
being Uie only condition upon which the intercourse *can *99 
be tolerated. All trade, therefore, by means of sacb 
Teesels, is milawfol, without the express consent of both the 
governments cCHicemed." It is eqnally illegal for an ally of one 
(^tbe belligerents, and who carriela on the war conjointly, to 
have any commerce with the enemy. A single belligerent may 
grant licenses to trade with the enemy, and dilnte and 
weaken his own rights at pleasure, but it is otherwise when 



■ IB JakHt. Rep. 67. Ifl JiJuu. Rtp. US. B. a Sdiokfield t. EkhelbaTKer, 7 
P«Cn^ U. a. Stp. SBB. S. P. 

^ CbM of the BeBft Om^ta, b ITSS, dt«d in ttw om* of the Hoop, 1 Rab. 
R»f.\1A. 

*'amY¥na,^S«l.BMp.^i, Tlw Ouolio^ S Jte& Ap^ lU. 



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78 OP THs LAW or NATIOira [Pwt L 

allied nfttioiu are pniming s common canM. ^e commonity 
of intereete, and object, and action, creates a mntnal duty not 
to prejadice that joint interest ; and it is a declared principle 
of the law of nations, fonnded on very clear and jnst gronnds, 
that one of the belligerents ma^ seize and inflict the penalt^r 
of forfeitnre on the property of a subject <^ a co-ally, engag^ 
in a trade with the common enemy, and thereby affording 
him aid and comfort, whilst the other ally was carrying on a 
severe and vigoroos warfere. It wonld be contrary to the 
implied contract in every such warlike confederacy, that nei- 
ther of die belligerents, without the otlier's consent, shall do 
any thing to defeat tlie common object' 
u In the investigation of the roles of the modem law of na- 
tions, particnlarly with r^^ard to the extensive field of mari- 
time capture, reference is generally and freely made to tiie 
decisions of the English coorts. ^ey are in the habit of 
taking accnrate and comprehensive views of general jnris- 
pmdence, and they have been deservedly followed by the 
courts of tlie United States on all the leacUng points of na- 
tional law. We have a seriee of judicial decisions, in Eng- 
land and in this coontry, in which the usages and the duties 
of nations are eiq>lained and declared with that depth of re- 
search, and tiiat liberal and enlarged ingoiry, which strengtlien 
and embellish the condnsions of reason. Iliey contain more 

inbinuc at^pament, more full and precise details, 
*T0 *more accurate illustrations, and are of more authority 

than tlie loose dMa of elementary writers. When 
those courts in this country, which are charged with the ad- 
ministrataon of international law, have differed from the Eng- 
lish adjudications, we must t^e the law from domestic 
sources ; but such an alternative is rarely to be met with ; 
and there is scarcely a decision in the English prize courts at 
Westminster, on any general question of public right, that has 
not received tlie express approbation and sanction of our na- 
tional courts. We have attained the rank of a great commer- 
cial nation, and war, on our part, is carried <m upon tlie same 
principles of maritime policy which have directed the forces 
and animated the councils of the naval powers of Europe. 



• 11i«ir«rad%4JM.Ji9L»L lh«N*iibiinii,«JM.Jbp.«a. 



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Let HL] OF THE LAW OF SATIOSS. 79 

Wben the United States formed a component part of the Bri- 
tish empire, our prize law and theirs was the same ; and after 
the revolntion it continued to be the same, as far as it was 
adapted to our circnmstances, and was not varied by the 
power which was capable of chanfpng it. The great valne of 
a series of jndicial decisions, in prize cases, and on other 
qaestions depending on the law of nations, is, that they ren- 
der certain and stable the loose general principles of that law, 
and show their application, and how they are understood in 
the conntiy where tiie tribunals are sitting. They are, there- 
fore, deservedly received with very great ree^>ect, and are pre- 
sumptive, though not conclusive, evidence of the law in the 
fl^ven case. This was the langnage of the Supreme Court of 
die United States, so late as 1815 ;•■ and the decisions of the 
English high court of admiralty, especially since the year 
1798, have been consulted and uniformly reepected by that 
court, as enlightened commentaries on the law of nations, and 
affording a vast variety of instructive precedents for the ap- 
plications of the principles of that law. They have also tiiis 
to recommend them ; that they are pre-eminentiy dis- 
tinguished for sagacity, wisdom and learning, as *well *T1 
as for the chaste and classical beauties of their compo- 
sition. 

Many of the most important principles of public law have 
been brought into use, and received a practical application, 
and been reduced to legal precision, since the age of Grotius 
and Foffendorf ; and we most resort to the judicial decisions 
of the prize tribunals, in Europe and in this coontry, for in- 
foimation and authority on a great many points, on which all 
the leading text books have preserved a total silence. The 
complexity of modem commerce has swelled, beyond all 
bounds, the nmnber and intricacy of questions upon national 
law, and particularly upon the very comprehenfdve head of 
maritime capture. The illegalitjr and penal consequences of 
trade with the enemy ; the illegality of carrying enemy's de- 
spatches, or of engaging in the coasting, fishing or other 
privileged trade of the enemy ; the iUej^ty of transfer of 
property in trantUUf between Uie neutral and belligerent ; the 



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80 OF THE LAW OP NAnOira. [Put I. 

roles whicli impress upon neutral proper^ a hostile character, 
arising either from the domicil of the neutral owner, or his 
territorial posseseioDB, or his connection -with a honse in trade 
in the enemy's cotmby, are all of them doctrines in the mo- 
dem international law, which are either not to be found at 
all, or certainly not with any fallnesB of discossion and power 
of argoment, anywhere, hnt in the judicial inveetigatioDs to 
which I have referred, and which have given the highest 
anthori^ and splendour to Uus branch of learning. 



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LEOTUKE IT. 



OF TEm TjIBIOCS SnSBR OF FBOFSSTT IIABI2 TO OAPTDBS. 

It becomes important in a maritune war, to determine phuq, 
-with precision wluit reUlicms and cucmnstances will impreae !^S^ 
a hostile cliantcter npon persons and property ; and the modem 
international law of the commercial world is replete with re- 
fined and complicated dirtinctionfl on this sabjeot It is 
settled, that there may be a hostile character merely as to 
commercial porposes, and hostiliiy may attach only to the 
person as a teonporary enemy, or it may attach only to pro- 
perty of a particnlar description. Hiis hostile character, in a 
commercial view, or one limited to certain intents and puv 
poses only, will attach in consequence of having poBsesBions 
in the territory of the enemy, or by maintaining a commer- 
cial establishment there, or by a personal residence, ca by 
particolar modes of traffic, as by sailing nnder the enemy's 
flag or passport. Ibis hostQe relation, growing out of particu- 
lar drcnioBtsncee, aasmnes as valid the distinction which has 
been taken between a permanent and a temporary alien ene- 
my. A man is said to be permanently an alien enemy 
when he owes a permanent allegiance to the adveiw bellige- 
rent, and his hostility is commensnrate in point ot time with 
his coontjy'B qnaireL But he who does not owe a perma- 
nent allegiuice to the enemy, is an raiemy only daring the 
existenceandcontinnance of certain circnmstancee. Anentral, 
fdt instance, said Oh. J. Eyre,^ can be an alien enemy only 
with respect to his acts done under a local or temporary 
aUe^liance to a power at war, and when his temporary alle- 
giance determines, bis hostile character determines also. 

It was considered by Sir William Scott, in the case of the 



TOL.L 6 



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S3 OF THB LAW OF NATIONa [Put L 

Picenw,^ And igunjintiiecaeeoftiieVrow Anna C^lumna,^ 
to be a £zed principle of maritime taw, that the poeBeesion of 
the soil impressed upon the owner the character of the conn- 
try, BO far as the prodnce of the soil was coucemed, -wherever 
the local resideiLce of the owner might he. The prodnce of 
I a hostile soil hears a hostile character for the poipose of cap- 
I tnre, and is Uie enhject of le^timate prize when taken in a 
I coarse of transportation to any other coimtiy. Tba enemj^s 
lands are supposed to be a great source of his wealth, and, 
perhaps, the most sohd foandation of his power ; and who- 
ever owns or poeseeses land in the enemy's coontry, though 
he may in fact reside elsewhere, and be in every other respect 
a neutral or friend, most be taken to have incorporated him- 
self with the nation, so far as he is a holder of the soil ; and 
the produce of that soil is held to be enemy's property, inde- 
pendent of the personal residence or occupation of the owner. 
The reasonableness of this principle will be acceded to by all 
maritime nations ; and it was particularly recognised as a 
valid doctrine by the Supreme Court of the United States, in 
.fitfnteon V. Boyle." 
Domui IB If a person has a settlement in a hoetiie country by the 
^S^T'^ maintenance of a commercial establishment there, he will be 
considered a hostile character, and a sabject of the enemy's 
country, in regard to his commercial transacticats connected 
with that establishment. The position is a clear one, that if a 
person goes into a foreign country, and engages in trade there, 
he is, by the law of nations, to be considered a merchant of 
*75 that country, and a subject for all civil purposes, *whether 
that oonnby be hostile or neatial ; and he cannot he per- 
mitted to retain the privileges of a neutral character, during 
his residence and occupation in an enemy's country.^ This 
general rule has been applied by the En^ish courts to the 
case of Englishmen residing in a neutral country, and they are 
admitted, in respect to their lonajlde trade, to the privilo^s 
of the neutral character.' In the case of the .Z'omnM,'' the 

■ 6 Rok Rtp. 11. k 6 Act. S*p. lei. • B Oim-A, ISL 

< Wil«aQT.UBn7Bt,B7Win.j:rp. El. U'CooneUT. Hector, 8 Jm^PuAIIS. 
nw \a&ia OtaiO, t Rob. Rtp. IS. Tlia Ann Otthuiiii, 4 Rob. Rtp. lOT. Hm 
FtmMm^ e Bi*. R^. £77. Lord Stowsll, 1 Hagg. AAn. Rtp. 10), 104. 

• IfComiellT.Hector, S&w.^ iVU. 118. He AnuniCl, IJM. Agh 240. 

' Ctttd io 4 R«b. Btp. iSS, note. 



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Lm. it.] or THS LAW OF SATIOSS. 88 

mle WB8 laid down hy the English House of Lords, in 1802, 
in unrestricted terms ; and a British bom subject, resident in 
Portugal, was allowed the benefit of the Portuguese character, 
BO iar as to render his trade with Holland, then at war with 
England, not impeachable as an illegal trade. The same rule 
was aftwwarda applied' to a natoral bom Eritish subject 
domiciled in the United Staiea, and it was held, that he might 
lawfiilly trade to a comiby at war with England, but at peace 
with the United States. 

This same principle, that, for all commercial purpoees, the 
domicil of the p arty, without reference to the place of birth, I 
be come s the test of national chftyacter, has been repeatedly ' 
and explicitly a^iutted in the courts of the United States. If 
he resides in a belligerent conutiy, his prop^ly is liable to 
capture as enemy's property, and if he resides in a neutral 
country, he enjoys all the privil^es, and is subject to all 
the inconveniences, of the neutral trade. He takee the 
advantages and disadvantages, whatever they *may be, *76 
of tiie country of his residence. *> The doctrine is 
founded on the principles of national law, and accords with 
the reason and practice of all civilized nations. Migrana Jv/ra 
amittat ac PrioUegia et vmarmmitUes domicilii pnoris.'^ A 
person is not, however, permitted to acquire a neutral domi- 
cil, that will protect such a trade in opposition to the bellige- 
rent claims of his native conntiy, if he emigrate from that 
cojuxtrj ^offranie hdio.^ Yattel" denies explicitly the right 
of emigration in a war in which his conntty is involved. It 
would be a criminal act' This doctrine is considered as 
settled in Gie United States.! 

Tha only limitation upon the principle of determining &• 



* Bell T. B«id, 1 MatOtASdw. 126. 

^ Out of a« Sloop Obnttt, 1 DdUoi, 41. Mntny t. SckoMin BttMj, E 
Cranek, 84. Ualej T. Bbtttudi, S CVoneA, 18S. liniigiloa t. iSttj]»ui In- 
ranuwa Go. T CVmieA, 606. The Temn, B Qrmuk, S6S, Tb* Trtmesi, S CVoiwA, 
US. 

• r<)tt,Oamm, ad Fond, tome L HI. 

* Tbe Doa Hemuaoi, S WhsalaiL, IS. 

• K 1. C.19. »ee. SSO— li^ 
Sm, iIm), to dM Mine aOact, OraHtu, tik t. 0. &. Me; S. F^mitff pat 

;, b. B. 0. 11. ««a 8. 
Awr 0M Jmhtoim*, ti^ L 621. 



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84 OF THE LA.V OF RATIONS. [Put I. 

character from reside&ce, is, that the party mtiet not be fonnd 
in bostilitj to his native conntiT-. He mnst do nothing in- 
consistent with hia native allegiance ; and this qnalification is 
annexed to the rale hj Bir William Scott, in the case of The 
j&natvudy and the same qualification exists in the French law, 
as well since as before their revolntion.^ It has been ques- 
tioned, whether the mle does not go too fer, even with this re- 
Btriction ; but it appears to be too well and solidly settled to 
be now shaken. 
* It has been a qnestion admitting of mnch discnssitxi and 
difficulty, arising from the complicated character of commer- 
cial q>ecnlationB, what state of facts constitutes a residence so 
as to change or fix the commercial character of the party. The 
animut manetidi appears to have been tiie point to be settled. 
Hie presnmption, arimng from actnal residence in any place, 
is, that the party is there animo manendi, and it lies npon him 
to remove the presumption, if it should be requisite for his 

safe^.i> If the intention to establish a permanent resi- 
*77 dence be ascertained, the recency *of the establishment, 

though it may have been for a day only, is immateriaL 
If there be no such intention, and the residence be involuntary 
or constrained, then a residence, however long, does not 
change the ori^nal character of the part^ or give him a new 
and hostile one.' But the circumstances requisite to establish 
the domicil are flexible, and earaly accommodated to the real 
troth and equity of the case. Hiis it requires fewer circum- 
stances to constitute domicil in the case of a native subject, 
who returns to reaseume his ori^nal character, than it does to 
impress the national character on a stranger.^ The quo ammo 
is, in each case, the real subject of inquiry ; and when the 
residence exists freely, without force or restrwit, it is usually 
held to be complete, whether it be an actual, or only an im- 
plied residence. 

When the reudence is once fixed, and has communicated a 
national character to the party, it is not divested by a periodi- 



PnprHU, Ho. 94, 

* Tbe Bemoii, 1 Rab. Rep. SB. 

• nu DiuHL, B Roll. Rep. 00. Tb< Oecu, S RtA. Rtp. W. 



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I«CL IT.] or THS UW OF NATIOH& S6 

cal absence, or even hj occasional visits to his native cotm- 
try.» Nor is it invariably neceesaiy that the rendence be 
personal, in order to impress a person with a national charac- 
ter. I^e generBl role ondonbtedly is, that a nentral merchant 
may trade in the ordinary manner, to the coimtiy of a belli- 
gerent, by means of a stationed agent there, and yet not contract 
the character of a domiciled person. Bnt if the principal be 
trading, not on the ordinary footing of > foreign merchant, 
bat as a privileged trader of the enemy, aach a privileged 
trade pats him on the same groond Trith their own subjects, 
and he woold be considered as sofficienUy invested with the 
national character by the residence of his agent. Sir William 
Scott, in the case of the Arma CatAarma,^ applied this 
distinction to the case of *a nentral, invested with the *78 
privileges of a Spanish merchant, and the foil benefit of 
the Spanish character ; and this cose has been followed to its 
iiillest extent in this conntry.^ It affords a sample of that 
piercing and unwearied investigation which the courts of ad- 
miral^ have displayed, in unraveUing the intricate process 
by which an enemy's trade was attempted to be protected 
from hostile seizure, and in the application of sound principles 
<^ national law to new and complex cases. On the same 
ground it has been decided,^ that an American consul-general 
in Scotland, committing his whole duty to vice-consals, was 
deemed to have lost his nentral character by enga^ng in 
trade in France ; and it is well settied,' that if a foreign con- 
sul carries on trade as a merchant, in on enemy's country, his 
consular residence and character will not protect that trade 
from interruption by seizure and condemnation as enemy's 
property.' 
A national character, acquired by residence, may be thrown 

• l^<(en,llS. sawuA,414. MuriikU, Oh. J., Tba FrModMlift^ S (PAfatom, 
14 

^ 4 AA A>p. im. 

• TIm lodiuw, a OaSUeii, iU. lo IhU oaM, «ji Hr. Dow, k hit worit on lo- 
•omiM, ToL i. fiST, tlia Uuguags of Mr. JnitiiM Stoiy refl«da the ipiiit Kid nmnUtM 
tlMi^laof UMillnibioaajitdga vbow doabiMi tw idopta mod defiudt. 

' The Dr»e Q«bro«d«ri, 4 Rot. Rtp. !St. 

• ViUia. b. 4. & 8. MQ. 114. The Indiui Ctiiai; 8 Beh. tUp. Si. Albracht t. 
SuBDui, i Vtt,de Bta. SIS, Arnold it Ruucy t. U. L Oompanf, I Jglaa. Cw. 



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86 OF THE LAW OF HATIOOT. [Part L 

off at pleasure, by a return to the native cotmtry. It is an 
adventitioas character, and ceaees by noa-residence, or when 
the party pnts himself in motion lonajide, to qnit the conntry 
aine ammo revaiendi ; and snch an intention is esaentJal, in 
order to enable the par^ to reaasmue his native character.* 
In the case of the Yetms,^ the decinona of the English courts 
on the subject of national character acquired by residence, and 
on the consequences of such acquired character, were recog- 
nised as being founded on sound principles of public law. It 
was declared, that the law of nations dislinguifihea be- 
*79 tween a temporary residence in a foreign "country for a 
special purpoee, and a residence, accompanied with an 
intention to make it the party's domicil, or permanent place 
of abode ; and that the doctrine of the prize courts, and the 
common law courts of England, was the same on this subject 
with that of the public jurists. As a consequence of the doc- 
trine of domicil, the court decided, that if a citizen of the 
United States should establish his commercial domicil in a 
foreign conntry, and hostilities should afterwards break out 
between &at country and the United States, his property, 
shipped before knowledge of the war, and while that domicil 
continued, would be liable to capture, on the gronnd that his 
permanent residence had stamped him with the national cha- 
racter of that country. The hostile character was deemed to 
attach to the American citizen, only in respect to his property 
connected with his residence in the enemy's country ; and the 
. converse of the proposition was also true, that the subject of 
a belligerent state, domiciled in a neutral country, was to be 
considered a neutral by both the belligerents, in reference to 
his trade. The doctrine of enemy's property, arising &om a 



• Tim Indiui Chie( 8 Sab. Jtep. IS. The FrieDduhaft, S WJuaUm, U. 

^ 8 OrmA, S68. 1%* Tmiu. Id tfaia cub, Oh. J. Hmbtll diMeotod from the 
daeUoti of Oat eoazl, uid conUcded th&t ■ oommanial domkil, wbollj Mquircd m 
time of peiM, oeMed at llw oomm«w«DMiit of baadUtJM, which >up«neded the 
motiTei that aloDe bdnced llie Cmifrti rMideoee; that the preeunptioii of ao in- 
tention to rettm to (ha nadTe eoimtiy tit the flnt opportani^, wai bo be entei^ 
taioed; and tliat thb pretmnption onght to >hi«Id the prop«rtj from condemnatioa 
ontil d«l»7 or drmmataDMi ehould iettzoj tliat preeumptioD. Ur. Daw, b hii 
TVwfiw on /luvraMM, toI. L 4S4 — EOS, coiuiden thii opioioo of tlia Ch. J. as «x- 
oeedinglj aU«, and be arideatif cooeon in that opinioD. llien i« do doabt of lU 
nparior lollditf and jnrtio*. 



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Led IT.] OF THB ULTT OP NAUOire. 87 

domicil in an enemy's conntty, is enforced strictlj ; and eqni- 1 
table qnalificstiotis of the rale are generally disallowed, for the I 
sake of preventing frauds on belligerent rights, and to give / 
the role more precision and certainty. 

In the law of nations, as to Europe, the mle is, that men 
take their national character from the general character of the 
country in which they reside ; and this rule apphes equally to 
America. Bnt in AsiaandAfrica an immiscible character is 
kept up, and Europeans, trading under the protection of a fac- 
tory, take their national character from the establishment 
under which they live and trade. This role applies to thoee 
parts of the world from obyioos reasons of policy, becanse fo- 
reigners are not admitted there, as in Europe, "and &e 
western part of the world," into tlie general body and mass of 
the sode^ of the nation, bat they continue strangers 
and sojoumeis, not acquiring any national ^character *80 
under the general soTcreignty of the country," 

National character may be acquired in consideration of the ^ 
traffic in which the party is concerned. If a person connects 
himself with a house of trade in the enemy's coontry, in time 
of war, or continues during a war, a connection formed in a 
lime of peace, he cannot protect himself by having his domi- 
cil in a neutral country. He is considered as impressed wi& 
a hoetile character, in reference to so much of 1^ commerce 
as may be connected -wi^ that establishment The rule is 
tiie same, whe&er he maintains that establishment as a part- 
ner or as a sole trader. ■■ Hie Sapreme Conrt of the United 
States, referring to the English prize cases on this sabject, ob- 
served, that they considered the rule to be inflexibly settled, 
and that they were not at liberty to depart from it, whatever 
doabt might have been entertained if the case was entirely 
new. 

But though a belligerent has aright to considw as enemies 
all persons who reside in a hoetile coontiy, or maintain cton- 
mercial establishments there, whether they be by birth nea- 
trals, or alliee, or fellow-sobjects, yet flie rule is accompanied 



■ Tht Indun Cbiti, t Seb. Rtp. 13. 

^ lie Tigilutim, 1 Bob. Ihp. 1. Hm Poitkcid, S Xei. JZfp. 41. The In&iw, 
3 OallUan, St8. Tbe Antonia Jobuma, 1 TPltatoK, 109. Tic FH«ndtdwf^ 4 
IFfttatoit, 105. 



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88 OF THS lAW OF KATIOHa [PMt I. 

vidi ^liB equitable qn&lificatiou, that thej ara enemiee «ud 
nhx^D only', or in reference to bo mnch of their property' as is 
connected vith that residence or eetabliahment. This nice 
and snhtle distinction allows a merchant to act in two charac- 
ters, so as to protect his property connected with his house in 
a nentral conntry, and to subject to seizure and forfeiture his 
effects belonging to the eetablishment in the belligerent 
coonby. So there may be a partnership between two per- 
Bona, the one residing in a neutral, and the other in a 
*81 belligerent coontrj, and the trade of one *of them with 
the eouny will be held lawful, and that of the o&er nn- 
lawfdl, and consequently the share of one partner in the joint 
traffic will be condemned, while that of the other will be re- 
stored. TbiB distinction has been frequently sustained, not- 
withstanding the difficnltieB that may attend the discrimina- 
tioQ between the innocent and the noxious trade, and the role 
has been introduced into the maritime law of this countiy.* 
u The next mode in which a hostile character may be im- 
pressed, according to tiie doctrine of the English courts, is by 
dealing in those branches of commerce which were confined, 
in time of peace, to the subjects of tiie enemy. There can be 
no doubt, that a special license, gntnted by a belligerent to a 
nentral vessel, to trade to her colony, with all the privileges 
of a native vessel, in those branches of commerce which were 
befin^ confined to native subjects, would warrant the pre- 
sumption that suth Teasel was adopted and naturalized, or 
that such permission was granted in &and of the belligerent 
right of capture, and the propertp'so covered may reasonably 
be regarded as enemy's property. This was the doctrine in 
the case of Serene v. Ru^eer, as early aa 1760.'' But Uie 
English rule goes further, and it annexes a hostile cha- 
racter, and tiie penal consequences of confiscation, to the 
ahip and cargo of a nentral engaged in the colonial or 
coasting trade of the enemy, not open to foreigners in time 
of peace, but confined to native subjects by tiie funda- 



• TIm PoTtbod, 1 Reb. Jttp. il. Hm Herman, 4 Rei. £ap. SIS. The Joi^ 
OImmiw, B Bub. Sfp. t»T. Tht San Jdm Indiano, 3 ChO. B^ BS8. 

klirm.fi/aab/iifp.Slt. Be^ alio, Uib cue ofUiB PttoMM, 1 iioi.!!!. Tha 
Add* Oatharina, i Rot. 107. TlMB«Dd«boif, /iLlSl. The Trow Anna Oatlwrins, 
S Aoi.lI. 



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Lm. it.] of TBI LAW Ot RATIOKa 89 

mental regolatioiis of the state. This prohibition stands npon 
two gronnds : Ist. I^at if the coaeting or colonial trade, re- 
Berred by the permaneDt policy of a nation to its own subjects 
and Teasels, be opened to neutrals daring war, the act pro- 
ceeds from the pressure of the naval force of the enemy, and 
to obtain relief from that pressure. The neutral who in- 
terposes to relieve the belligerent, under such circnin- 
stanoee, ^rescaea him from the condition to which the *82 
arms of the enemy had reduced him, restoree to him 
titiose reeources which had been wrested fi«m him by the arms 
o£ his advenary, and deprives that adversary of the ad- 
vantages which Buccessinl war had ^ven him. This the 
opposing belligerent pronounces a departure from neutrality, 
and an interference in the war, to his prejadice. 2d. If the 
trade be not opened by law, the neatral employed in a trade 
reserved by the enemy to his own vessels, identifies himself 
with that enemy, and assumes his character, ^ese princi- 
ples first became a tmbject of interestiDg discusfflon in the war 
of 1756, and diey are generally known in England, and in 
tlds country, by the appellation of the role of 1756 ; but the 
rale is said to have been asserted before that period. 

In the letter of PofiTendorf to Groningios, published inXHeotiT 
1701," he says that the "F-ngliab and the Dutch were willing 
to leave to neutrals the commerce they were accustomed to 
carry on in time of peace, bnt were not willing to allow them 
to avail themselves of the war to augment it, to the prejudice 
of the English and the Dutch. The French ordinances of 
1701 and 1744,'' hare been considered as founded upon the 
basis of the same rule, and regulations are made to enforce it, 
and to preserve to neutrals the same trade which they had 
been accustomed to enjoy in peace, and to prohibit them from 
engaging in the colonial trade of the enemy. 'Rten is some 
evidence, also, that in the reign of Charles IL neutral vessels 
•were ctmsidered, both by England and Holland, to be liable 
to capture and ctHidemnation, for being concerned in the 
coasting trade of the enemy. The Dutch, at that day, con- 
tended for this neutral exclusion, on the authority of general 



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90 OF TEE LAV OP VAnOVS. [Pirt L 

reasoning end the practice of nations ; and the same role is 
said to have been asserted in the English courts, in the war 
of 1741, and the'ezclosiou of nentral yesaels from the coast- 
ing trade of the enemy was declared to stand npon 
*83 *the Uw of nations.* But it was in the war of 1756 
Ihat the role awakened general and earnest attention. 
Mr. Jenkinson, in his "Disconise on the conduct of Great 
Britain in respect to neutral natious," written in 1757, con- 
sidered it to be onjost and illegal for neutrals to arail thon- 
selves of the preesnre of war, to engage in a new qteciee of 
traffic, not permitted in peace, and which the ueceesitiea of 
one belligerent obliged him to grant to the detriment, or per- 
haps to the deetmction of the other.^ On the other band, 
Hnbner, who published his treatiBe" in 1758, is of opinion 
that neutrals may avail diemselves of this advantage pre* 
sented by the war, though he admits the lawfulness of the 
trade to be a question of some uncertainty. 

Tkxa seemed to stand the authority- of the role of 1756,^ 
when it was revived and brought into operation by England, 
in the war of 1793, and again upon the renewal of war in 
1803. Ihe rule was enforced by her, under occasional relax* 
atioDS, during the long course of the wars arising out of the 
French revolution ; and it was frequently vindicated by Sir 
William Bcott, in the course of his j udicial decisions, with his 
customary ability and persuasive manner, as a rule founded 
in natural justice, and the established jurisprudence of nattons.* 
On the other hand, the government of the United States con- 



' e Rob. Jttp. 74, Doto, ud 3tt, Dat«. 

* In Um Britiah mcmonil, addremd to tlia Dcpntiw of tha BIstM Omenl of 
HoUud, DMcmber tld, 1T68, Um bytMiM of Mvtnli in Mwrniing ttia lanaj't 
ckiTTing toads wm t^«d, nnd it wh daolared ttiat UmIt liiffk m^AluHMa JW 
ntvtr luftrad neh a tradt. Mid tbU it li«d been oppoead in all ooontriea m like 



• D*U SaitU dti BtUwiun* yaUTti. Mr. WhaatoD, in hit SUtory of tkt Zau 
^JfaUmu in K^npo oni jIhutim, ITaw-Tork, 18M, ppiSlt— S9S, hugim s 
aoDunaiyirfllte tvoMoall Tolunieaof EaboeranDealnlngtila; and haiajalliat 
Ibe dodJinea of Hnboar fbnnd but tittle Eitonr wiUi Uiepablicjiiriit^ hii oontam- 
poikrie*. It ia a work of inferior irdglit and snthoritj. 

' It atood upon looie groundi, In point of offldal antiunitj, aeoording to tb« *U« 
examination of Uie documentaiy evidcaca of tb« nilt^ giTeo in a note to Uia firat 
Tolnma of ICr. Whtaton't B^ortt, App. note S. 

• The Emannal, 2 Rob. Adm. Rrp. ISfl, and Rob. Rtp.pauiBL. 



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Ub. IV.] OF THS LAW OF KATIOITS. 91 

Btantly and eameetlj protested a^nst the le j^litj of the mle, 
to the extent claimed by Great Britain ; and thej inaist- 
ed, in their diplomatic interconrBe, that the *rTile was *84 
an attempt to eetabliah " a new principle of the lav of 
nations," and one which sabverted " man/ other principles of 
great importSDce, which have heretofore been held sacred 
among nations." Hiej insigted, that neatrals were of right 
entitled " to trade, with the exception of blockades and con- 
trabands, to and between all ports of the enemy, and in all 
articles, although the trade should not hare been <^Qed to 
them in time of peace."> It was considered to be the right of 
every independent power to treat, in time of peace, with every 
other nation^ for leave to trade with its colonies, and to enter 
into any trade, whether new or old, that was not of itself ille- 
gal, and a violation of ueatrality. One state had nothing to 
do with the circtunstances or motives which induced another 
nation to open her ports. The trade must have a direct refer- 
ence to the hostile efforta of the belligerents, like dealing in 
contraband, in order to render it breach of nentrahty. The 
rnle-of 1786, especially in respect to colonial trade, has also 
been attacked and defended by writers in this country, with 
ability and learning; and though the role would seem to 
have received the very general approbaticm of Brittsh lawyers 
and statesmen, yet it was not exempt from severe criticism, 
even in distingaished pnblicationa in that country. The prin- 
ciple of the role of 17£6 may, therefore, very fiiirly be considered 
as one unsettled and donbtfnl, and open to future and vexed 
diacnsion. 'IDie Chief Justice of the United States, in the 
case of the Cemimereen,^ alluded to the rule, but purposely 
avoided expressing any opinion on the correctness of the 
prindple. It is very possible, that if the United States should 
attain that devation of maritime power and influence which 
their rapid growth and great resources seem to indicate, 
*and which shall prove sufficient to render it expedient *85 
fOT her maritime enemy (if any such enemy shall ever 
exist) to open all hia domestic trade to enterjmsing neutrals, 



■ Mr. JTomW* iMUr to Zanl JTW^vw, d/ Aptankr IS^ ISOB, ud Mr. 
MtuUtf^i Zmtr to MtMrt. MonrM old Pindauy. dafd JTny ITlA, IMS. 
* 1 WKnton, SVt. 



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93 OF TEX LAW or NATIOHa. [Putt 

TO might be indaced to feel more sensibly thtui we have hith- 
erto done, the weight of the ailments of the foreign jnmta 
in &Tonr of the policy and equity of the role.' 
10- Sailing nnder the flag and pase of an enemy, is anotiier 
mode by which a hostile character may be affixed to pro- 
perty ; for if a nentral reaael enjoys the privilegee of a foreign 
character, she mtut expect at the same time, to be subject to 
the inconvenienciee attaching to that character. This mle is 
necessary to prevent the fraudulent mask of enemy's proper^. 
Bat a distinction is made, in the English cases, between the 
ship and the cat^ Some conntries have gone so &r as to 
mAe the flag and pass of die ship conclndTe on tiie cai^ 

• On the Hibjeet of tMDtnl Inde between the eoloof uid the inotlMr coontrj of 
R belligerent power, it VM a queitioD diertimml in the Eogliah admiral^, in tliB 
caee of TM* Peilf, (IBOO,) wbether the bet of » cargo, eotwMiDff of Sfiaindi oakoial 
prodnee^ imported from the BavMina in an American ifaip to the United SUtee, 
and alter being landed aod dntiee paid, re-exported in the eanie Teeeel to Spain, 
wai Mifflcieiit to break the oontinuitj of the rojege from the enemji'* wlooj to the 
motbtr ooontrf, and legatiM the trade hj the noe brndapoient in the Uiutad 
Btatee. SirWiUiamSoott,btbBt caee, tbcn^t that landiiiK the good* end paying 
the dutiee wa« a enffldent teat of the hma jUu of the trannctioa S Rob. A4m. 
Rtp. SSI. But alterwarde, Id the caeea of the Aws end the Jfario, (B Ihid. SSS. 
SS9,) it was held, that merelj taucMitg at the neutral por^ and pajing a nominal 
duty, waa a mere evaeion, and not idBceent to exempt the voyage from the ehvge 
of a direct, cootinned and unlawful trade, between the motlier eountrj and the 
to\aotj of the enemy. He qoeitioD ii ooe of iotent. Did tlie mwmut utportaM^ 
tenninatc at the intermediate port, or look to an ulterior port f Wai it, noder the 
eirounutaoce^ a bcna fid* importalioi^ ending at the intermediate por^ or a mere 
oontriranw to ooT«r the origioal edieme of the Toyage toan ulterior port I TUt 
ii the Inie priodple of the dan^ ai declared by Box WiUam Grant, in the cue of 
the Wiilivii, fi Aoi. B. Si9, and reoogniaed in thii eotntrr, C^pteioM of A$ 
JUonujw OnwroJ 0^ lA* £r«i/nl StoU^ ToL L 86S— >SS. 8H— SB6. ItfaandcT- 
■tood that the Etiglieb and American cammiaeionere at London, in ISOt, came to 
an nndentandiog ai to the proper end deflned teet of a h<ma fiit importation of 
cargo into the oonmon etoek of tbe eoaotry, and ai to the ififTnwDee betwara a 
oootinnoDi and an intampted Toyage. Bnt the Irea^ eo agreed on wae withheld 
\ij Preeideot Jefieraon frnn the Senate of the Hoitod States, and never ratified. 
The doctrine of the Eaglieh admiralty ii jnet and reaeoiuitJe on the awnniptiao of 
the Britiah ralt^ becaiua we have no ri|^t to do ocrertly and inndionily what we 
have no ri(^t to do openly and directly. Tbat rale li, that a direct brad* by neir 
trala, between the mother oountry and (he ncdoniea of her enemy, and not allowed in 
time of peace, ie I7 tiie law of natJooe anlawftiL Bat if that rale b« not well 
founded, all the qnalifiealione of it do not belp it; and in the official opinion of Hr. 
Wiri to the exteatiTe department, «^e be coodemne the legality of the rule ilaal( 
beapproTee,>e joit in theabitnot, the Eogtieh principle of eontinuity. ClpiwioiM 
of iht AtUmtyi Omeral, toL L 804— a»fi. 



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lm. it.] of teb law of NATions. 98 

ako; bnt Uie English coorta hare never carried the principle 
to that extent, as to ca^;oee laden before the war. The Eng- 
lish rule is, to hold the ship bound bj the character impoeed 
npon it by the aathority of the gorermuent from which tio the 
docnmeitte iesne. Bat goods which have no such dependence 
upon the authority of the state, may be differently considered ; 
and if the cai^ be laden in time of peace, thongh documented 
as foreign proper^ in the same manner as the ship, the sail- 
ing under a foreign flag and pass has not been held conelasive 
■8 to the cai^.* Ibe doctrine of the federal courts in this 
country has been very strict on this point, and it has been 
frequently decided, that sailing under the license and paeaport 
of protection of the enemy, in furtherance of his views and 
interests, was, without regard to the object of the voyage or 
the port of destination, such an act of illegality as subjected 
both ship and cargo to confiscation as prize of war.>i 
The *federal conrts placed the objection to these licenses *S6 
on the ground of a pacific dealing with the enemy, and as 
amounting to a contract, that the party to whom the license is 
given should, for that voyage, withdraw himself from the war, 
and enjoy the repose and blessings of peace. ^Hie illegality 
of such an intercourse was strongly condemned ; and it was 
held, that the moment the vessel sailed on the voyage, with 
an enemy's license on board, the offence was irrevocably com- 1 
mitted and consummated, and that the ddustum was not done I 
away even by the termination of the voyage, but the vessel / 
and cargo might be seized after airival in a port of the United/ 
States, and condemned as lawful prize. 

Having thus considered the principal circnmatances which i 
have been held by the courts of international law to impress 
a hostile character upon commerce, it may be hero observed, 
that property which has a hostile character at the commence- 



■ The raimlMtii, 5 Alt. Stp. i. lla Vreada Sdioltji, dted in th« Doto to S 

k Tht Jnlk, 1 CML MS. B. O B OnmA, 181. Tha Anion, lb. lOL Th* 
Hinm,A.444. Tto AriadDs, 9 ITiUHtmi, 148. TIm OaMooit, * WJuttl«n, 100. 

(lliat KB tntamiM b Tud, wImd Diad« eamojtge ■onodsMd ilUgal t^niltag 
mdw u (Omdj'b lloMM, 1* tOBtidetei m Mttlad. Oolqnhoim t. N. T. F. Idl Oo 
IB AAaMM, SfiL Ogimj.BtAtt.iaiiVI. OnJg v. TT. 8. Ii>. On. 1 i'lCtr^T 

aaJi*p.*io. 



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94 OF THE LAW OF NATIONS. \Vnt t 

meut of the voyage, cannot change that character bj aesigD- 
ment, whilo it is «n treaititu, bo ob to protect it fzom capture. 
This would lead to fraudulent contrivancee, to protect the 
property from capture, by colourable esaignmrats to neutrals. 
Bat if a shipment be made in peace, and not in expectation 
of war, and the contract lays the risk of the shipment on the 
neutral consignor, the legal property will remain to the end 
of the Toyage in the consignor.* Dming peace a transfer in 
irantitu may be made ; but when war is existing or impend- 
ing, the belligerent rule applies, and tiie ownership of the pro- 
perty is deemed ta continue as it was at tiie time of the ship- 
ment until actual delivery. Hue illegality of transfer, during 
or in contemplation of war, is for the sake of the belligerent 
ri^t, and to prevent secret transfers from the enemy to nea- 
trala, in fraud of that ri^t, and upon conditions and reser- 
vations which it might be impossible to detect^ So property 
shipped fivm a neutral to the enemy's conntry, under a con- 
tract to become the propertf of the enemy on arrival, may be 
taken in tnmsitu ae enemy's property ; for capture is consid- 1 

ered as delivery. Ibe captor, by the rights of war, stands 1 
*87 in the place of the enemy.* llie prize courts will *not 

allow a nentral and belligerent, by a special agreement, 
to change the ordinary rule of peace, by which goods ordered 
and delivered to the master are considen-ed as delivered to the 
contdgnee. All such agreements, though valid in time of 
peace, are in time of war, or in peace, if made in contempla- 
tion of war, and with intent to protect from capture, held to 
be constmctively fraudulent ; and if they could operate, they 
would go to cover all belligerent property, while passing be- 
tween a belligerent and a nentral comitry, since the risk of 
capture would be laid alternately on the consignor or con- 
signee, as the neutral factor shcjold happen to stand in the one 
or the other of those relations. Hiese principles of the Eng- 



• Puktt D* BnixM, S Roi. AJm. B. IBS, 4. Anna Oatharin*, 4 Id. IIS. 

f Trow Ifagarathn, I JUb. Rup. SIS. Jan Freduick, fi Bob. S^ ISB. S«4 
tlto,l Sob. Rtp. I. 101. Hi. i Reb. Rtp. lat. I Sab. Sep. U, note. * Set. 
Stp. Si. Thg BoadM Lut, fi Rob. tZZ. Stoij, J, in the Ana OrMn, 1 OalUMii, 
SDL 

• IIm Amu Oalharioa, 4 B«b, Stp. lOT. Tbe SaOj CMffittM^ S Bti. S^ 



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Ua. IV.] OF THE LAT OF NATIOlfB. 95 

lisli adiiiiralt7 have been explicitly recognieed snd acted 
upon by the prize coarts in thiB countty. The great principles 
of national law were held to require, that, in war, enemy's 
property should not change its hostile character, in trantitu ; 
and that no secret liens, no fhtnre elections, no private con- 
tracts looking to fntore events, should be able to cover private 
proper^ while sailing on the ocean.' Captors disregard all 
eqoitable liens on enemy's property, and lay their hands 
on the gross tangible property, and rely on the simple title in 
&e name and poaseesion of the enemy. If they were to open 
the door to eqnitable claims, there wonld be no end to discus- 
sion and imposition, and the simplicity and celerity of pro- 
ceedings in prize courts would be lost>> All reservation of 
risk to the neutral consignors, in order to protect belligerent 
consignees, are held to be fraadnlent ; and these numeroos and 
strict roles of the maritime jnrisprndence of the prize conrta 
are intended to nphold the rights of maritime capture, and to 
prevent frauds, and to preserve oandonr and good faa&i in t^e 
intercouise between belligerents and nentrals," The modem 
■eases contain nmnerous and striking instances of the acutenese 
of the captors in tracking out deceit, and of the dexterity of the 
claimants in eluding investigation.'! 



• TbeFnuNM,! 0aauo«,44B. 8 Owteft, tIB. IBS. B. Q 
*T\aJt>tV!^\t»,A]iiA.Rtp.a. TheTotap>.B A.Sia Tb« Muianw, S A. 

14. And tba AiiMrkui cmm, bU titjira. It i* Um genanl rnla and ynOkK iu 
tba adtdnd^, oa qoMtaoDi dapaodiiig npon title to vomIi, la look to tbo l^al 
(Mo, witboBt taking notio* of equtUUfl clvmi. Tba EHaton, S Rob. AAn. ISfi. 
Hh TaliMit, B!«lidi Adm., Julj^, ISSS. 

• The prii« Iftw, m doclw«d bf 'Cb» K^liih ■dminltj ■> eaiij m 1141, aod bj 
tba dodHODs of tlie priM oourti in tlua eoUDtrj, in the cue of prapertj tn tnmtjfv 
daring w*r, !a cleulj ud ooireetly itated, and ably eobrcad, 1^ Ur. I>u«r, id hii 
ThatiM en Imurmut, toL i 4T8 — 1B4. 

• lie pnniMat of •bipa ii *■ brueh of trade nmtndi maj lawftillj engage la 
wluo tbtj act in good biUi, tbongb, fnnn ita nature, it is liable to great luipidoa, 
and tbe arcanutaucei of the caee are examined in tbe priie ooarti vitli ajealoua 
and (harp figilane& Dutr on /nntnuKK, toL L 444, 446. STS. 



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LEOTUEE T. 



OF THE BiaSTS OF BEUJOEKSNT nA-TKOtB IS BEUItOR TO 



The end of war is to procure by force the justice vhicli 
citimot otherwise be obtained ; and the law of nationa allows 
the means reqaisite to the end. The peisons and property of 
the enemy may be attacked and captured, or destroyed, when 
neceeaary to procure reparation or security, latere is no limi- 
tation to tlie career of violence and destruction, if we follow 
tlie earlier writers on this BQbject, who have paid too much 
deference to the violent maxims and practicea of tJie ancients, 
and the usages of the Gothic ages. They have considered a 
state of war as a dissoIntioD of all moral ties, and a licratse 
for every kind of disorder and intemperate fierceness. An 
enemy was regarded as a criminal and an outlaw, who had 
forfeited his rights, and whose life, liberty and property lay 
at the mercy of the couqneror. Every thing done against an 
enemy was held to be lawful. He might be destroyed, 
though unarmed and defenceless. Fraud might be employed 
as well as force, and force without any regard to the meims." 
But these barbarous rights of war have been questioned and 
checked in the progress of civilization. Public opinion, as it 
becomes enlightened and refined, condemns all cruelty, 
and all wanton destruction of life *and property as *90 
equally useless and injurious ; and it controls the vio- 
lence of war by the energy and severity of its reproaches. 
at. Grotius, even in opposition to many of his own authorities, 
" ind under a due sense of the obligations of religion and hu- 
manity, placed bounds to the ravages of war, and menti(med 



9, 1. JurlanofiH, part 4. a S. 



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L«o. v.] OF THE LAW OF NATTOSS. 9T 

that many tilings were Dot fit and commendable, though tbej 
might be strictly lawful ; and that the law of natnre forbade 
what the law of nationfl (meaning thereby the practice of na- 
tions) tolerated. He held, that the law of nations prohibited 
the use of poisoned arms, and tlie employment of aasasmns, 
and violence to women, or to the dead, and making slaves of 
prisoners." The moderation which he inculcated had a visi- 
ble influence npou the sentimenta and manners of Europe. 
Under the sanction of his great authority, men began to en- 
tertain more enlarged views of national policy, and to conri- 
der a mild and temperate exercise of the rights of war, to be 
dictated by an enlightened aelf-interest, as well as by tbe pre- 
cepts of ChristJani^. And, notwithstanding some subsequent 
writers, as Bynkershoeck and Wolfina, restored war to all its 
horrors, by allowing the use of poison, and other illicit arms, 
yet such rules became abhorrent to the cnltivated reason and 
growing hnmaoity of the Christian nations. Hontesquien in- 
sisted>> that the laws of war gave no other power over a cap- 
tive than to keep bim safely, and that all unnecessary rigonr 
was condemned by the reason and conscience of mankind. 
Butherfortho has spoken to the same effect, and Martens^ enn- 
meratea several modes of war, and species of arms, as being 
now held nnlawfhl by the laws of war. Vattel" has entered 
largely into the subject, and he argues with great 
strength *of reason and eloqneace, against all nnneces- *9S 
sary cruelty, all base revenge, and all mean and perfi- 
dions war&re ; and he recommends his benevolent doctrines 
by tlie precepts of exalted e&ica and sound policy, and by 
iUustrations drawn &om some of the most pathetic and illns- 
trioos examples. 

There is a marked ^fference in tiie right of war, carried on I 
by laud and at sea. The object of a maritime war is the de- 
struction of the enemy's commerce and navigation, in order 
to weaken and destroy the foundations of his naval power. 
l%e capture or deetruction of private property is essential to 
that end, and it is allowed in maritime wars by the law and 



• RB.e.4. S.r ' AMiM«rKba.&l.tM.I. 

• Bnprit if Loix, b 16. 0. !. • R 8. a 8. 

• /lut. b. S. ft. ». 

VouL 7 



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S8 OP THE I.A.T DP SA-TWaa. [Pvt L 

practice of nations. Bnt there are great limitationB impoaed 
upon tlie operations of var bj land, tbongh depredations upon 
private property, and despoiling and plundering tlie enemy's 
territoty, are ^iU too prevalent, especially when the vax it 
assisted by irr^^olats. Such coudnct has been condemned in 
all ages by the wise and virtaons, and it is uanolly Bererely 
poniahed by those commandetB of disciplined troops who have 
studied war as a science, and are animated by a sense of duty 
or the love of fame. We may infeo- the opinion of Xenopbon 
on this subject, (and he was a warrior as well as a philoso- 
pher,) when be states, in the C^/roptaUa,* that Cyms of Pei^ 
sia gave orders to his anny, when marching npon the ene- 
my's borders, not to disturb the cnltirators of die soil ; and 
tliere have been snch ordinances in modem times for the 

protection of innocent and pacific pnisuits.!* Yattel 
*92 condemns ^veiy strongly the spoli^on of a country 

without palpable necessity ; and he speaks with a just 



- IAS. 

* 1 BmeriffOK, dtt Au. ISB, 180. 4Sf, nfan lo ordiiiuiCM of I^uee and Hol- 
Uad, in h!mr of protedaoa to flAwmw; uid to tha lOtt aSset wu tli« order of 
tb« Brituh goTtntnoit k 1816, kr ibHaimBf fron battOltiM tgtietlt tb* iuhatit 
Untoof tlie Feroa Iiluids and IcakmL So it ia tha pnetloa of aU (aTiUud natioai 
to oonaider veiaeU emploj«d only Sir tha pnipOM of dUoorarj and adenc^ aa ex- 
eluded from the oparatioiu of irv. Hm Afflcsicao eommieaioner^ (John Adamt, 
Banjamiit Tntiklin and TliMna* Jafltawon,) in 1164, mhoiitted to th» Pnunan 
Hi^rter a pnporitaon to impn>Te tb* )«wa of ««r, bj ft mnttial «tlpaktl(» not to 
inol4atDoiteomb*tant«,aacultintDn of th« tartly fiibaniicn,inendaiitiiBd tradtn 
m unarmed ahip^ and aitiibi and mechaaioi inhabiting and working in open towDh 
Tbeae reafarkriiooB on the righti of war were inierted in ft treatr between the 
Umtea atfttaa and Pnisaia, in 17SB. <3«epo*{. p. 9S.) Oeneral £nnu atated to 
the Ihikf of Tin-i, in October, IlBS, whoi an annistiM In Holland waa n^rtjrtinft 
that if the latter dwnld canM the dike* to be deainiyed, and the conatay to be in- 
undated, when Dot useful to Ma own arnif , or detrtcaanlal to tha eaeaiy't, it would 
be aonbarj to tile lawa of war, and mart draw npon Mm the reprobfttion of ell 
Borop^ Bod at hia own nalitm. Faf, eT«n the abMiaal« defanee of a town, if it 
partake of tha etuaoter of a matcaBlfla plaoe, rather tfatt a lactraaa of abengfli, 
haa been alleged to be oontnrj to tha laws of war. (Sea the eonwqwndeDca be- 
tween Oaoaral lAodobn and the Qorenior of Breilaa, b 11S0. Dadtle^t Aiat. 
Btg. 17Ba) So, tha dastanidion of the fbrta and warlika atoree of tha beaieged in 
tha poet of Almdda, bj the French commander, when he abandoned it with hi* 
gairieon bj- night, in IBIl, ii dedared bj Oanarftl Sanujn, in his hiator; of tha Fe- 
ttlnsalar war, to baTO betn an act of wautranen which jnetl; placed him without 
the pale of dviliied warfare. When a Htunan annj, under the command of 
Ootmt DieUtsd:^ bad penetrated throogh tha paaaea of the Balkao to tha pUina of 



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Lw.T.] or TBE LAV OF KAIIOna Q$ 

utdigoation of the bnnuDg of the Palatmate by Tnreime, un- 
der the crael inatmctaons of Loavois, the var. mimster of 
Louis XIV.» He general usage now is, not totoach private 
property npon land, vitboat making compensation, unless in 
special cases, dictated bj the necessary operations of war, or 
when captured in places carried by storm, and which repelled 
all the overtures for a capitulation. Coutribntious are some- 
tames levied apon a conquered conntry, in lieu of coufiscation 
of property, and as some indemnity for the expenses of main- 
taining order and aflbrdlog protection.'' If the conqueror 



Boiiielu,mllMiumiiiM'of 1829, lli« KoaaUn commander gars k bright exwapl* of 
ih» mitigaUd ruin of modarn -wmrUn, tot ba aMiired Um Muawilman that Ibiy 
^ald be cutirelj Mf« in their panooa and propertj, aod in th« azanaaa of thur 
religion; and tiiaC tbe Muaaulman autbotitiM in tb« cttiea, tavn* and villagcB, 
might eoQtinae in tha ezcrcia« of tbair civil adminiatratioo for tbe protection of 
penoQ and property. Us iohabitants vera required to ^ve np their arms, a* k 
depoait, to be reatorad on the retain of peMe^ and ia eTeff oUmt r«ipect tbi^ 
were to etijojtbeir property and paoifiaparadtaaalbrmerlj. Tlua protectioo mm} 
full aecority to the paraoaa and property of the peaceable iobahitaata of conqnmed 
toiniBaiidproruic«a,araaoeonliag totbedoclnneand declared praolioe of modttn 
dfiliied tMCiona. (See Jhdtle^M Ann. Stg. 117S, f. E7.) 

' FaU«f, liL 8. e. >. sec 18T. 

* VaUtl,h2. cS. ate HI.— 0.9. Me. It6. ScaUiZifio/JfapaUon,Tol^B9. 
Oontributioui exacted from the inh«Utanla by the armiea of an inrader, without 
paymeatviacoDtnrylo tbe ordioaijnai^fle of modem ynilin, though the pnwtioe 
i* not cooujitent Hie campaigna of rerolatiooary Franca, and of Kapoleon, in 
modem Europe, were melancholy eraeptiem, of the Mrerart character. Upon ttia 
iavaauMi of Ifeaeo by tbe anniM of tbe United States in 18U, the American 
Secretary of War (tbray) initmcted Qeoeral Taylor (September S3d, laiS,) to 
afaetam from appcopciatiiig prirata proper^ to the pt^ilic uae^ until purcliaeed at 
a lair pric^ thongh, he a«i4 (hat vaa in eome reipaeta goii^ Iv beyood tbe ocm- 
moa requireoMDta of oiriliiad waiftrt^ and that an inradii^ army had the uDquaa- 
lionable li^tto dmw itaauppliea from the enemy withoiit paying for tfaem.andto 
reqnire contribution* for it* atipport, and to malte the «a«ny fa«l tbe veigbt of the 
war. He further obaerved, that npca the libwal principle* of eiriliied warfare, 
either of tlvee mode* might be panned in relation to obtainii^ auppliea from the 

enemy ; flnt, to j Iia«ii them on audi terau m the inhabitanti of tbe coonlij 

mi^t cluoae to exaeti aeeood, to pay a &ir price, without regard to the enhaooed 
value reaultiiv from the frm*ae» at a foreign «rmy ; and, third, to require them *a 
eontiibutiooa, without paying or eogaging to pay tlierefbr : that tbe laat mode waa 
the ordinary oo*^ aod Oeneral Taylnr waa inatructed to adopt it, if in that way he 
waa mtiafied ha oouhi get abondant anppUee (br hi* force*. The previona inttrae- 
Ujd* in that campaign had been t« abetoio from i4>propiiating private property to 
tha pabliauae witliout pnrchaae, at a bir price; Int Um iiwIruetiMM bad now, in 
tbe pragreaa of the campaign, riaen to a aevere diaiadar. Hie prindple of kind- 
Maa and liberality towarda the eoemr aeami to be of a fladUe (liuacter, and to be 



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OF THS LAW OP NATIONS. 



goes beyond these limits wantonly, or when it is not clearly 
indispensable to the jnst pnrpoBes of war, and seizes pri- 



■wayed bj oooudentioiii of policy wxl drcnnutBiiMi. Tbe Prcaidait of tbe 
United StMXm, (Jama K. PM,) in hia Utl^ to tfa* Secretuy of the Trauuiy, of 
tbe 2Sd U>rch, 1847, ded«rcd tha rigfat of tbe coDqueror to levy cootributiiHw 
opoo tba eminy, in tbtir Haporta, toviN or praiincw, wbidi may be in bii mili- 
tary poMnsoD by ocaqoM^ aixi to apply tbe mum to delny tbe ezpeuu of tbe 
WBT. He turtber declared, tbat tbe conqueror poueiied tbe ligbt to eilabJidi a 
temporary military govenunent oret *u«b eeaporta, tovtia or proTincee, and to 
preacribe tbe temu of tommerce witb lueh placei : tbat be migbt, in bis diKTetlan, 
exdnde all trad^ or impoM t«nna upon it— nicb, for inatance, a* a preecribed rate 
of dutjee oo tonoage aod importa. Tba Freeideot of tbe Dnited Statu, tberefbre, 
vith a view to impoae a bmdeti od tbe eoemy, aod deprive bin of tbe reveoue to 
Ika derived from trade, and Mcnre it to tbe United Statea, ordered tbat alt tbe porta 
and placet in Mexloo, b tbe actual powwwon of tbe land and naval forcei of tbe 
United States, hj conquest ibonld be opened, irbile tbe military oecupelion con- 
tinued, to tbe commerce of all neuttal nations, as veil as of tbe United Statee, in 
articles not eootnbaod of var, upon tbe payment of a jHTscdbed tariff of duties 
and tonnage, prepared imder the iostroctioDS of tbe President, and 'hj hita adopted, 
and to be enforced 1^ tbe militatj and Daval commaiKleTi. All tbese rigbtj of 
irar undoubtedly belong to tbs conqueror or nation vbo bolda foreign places and 
conntHea by oonqueat; but tbe exerdse of tboas rigbts and powere, except those 
tbat temporarily arise from necessity, belong to tbat power in tbe goTemment to 
wfaidi tbe jfferogatire of war ia coutitntionally omfided. He President of tbe 
United States, in bis oSdal letter to the Secretary of tbe Navy, of March Slat, 
1841, cUimed and ezertised, as being diarged hj tbe constitatiou witb the prose- 
cntioa of the war, Ibb belligerent right to levy military contributions npon tbe 
enemy, and to collect ai>d apply the same towards de5«ying tbe expeniei of tbe 
war, and to open tbe Mexican ports tor tbat purpose, on a fooling favourable to 
neutral oomtneroe^ llie whole execution of tbe commerdal r^;nlatioDB was placed 
under the control of the military and nava] forces, and, witb tbe policy of blocVading 
some, slid opening other Mexican ports, to compel tbe whole commerce for tbe 
supply of Heiico to pass under tbe control of tbe American forces, subject to the 
contHbuticnu, exactions and duties to be imposed. (See Pmident PM* Letter ef 
MoTth 81, tS«T, to Uu Bterelary of iht Navg, aod bis Zetttr ef Marth !S<f, 1B4T, 
(o (A* Steretary nf tht Tretitmy. and tbe Letter of Mr. Wallcer, of tht ZOth Mtrek, 
1B41, to thi Praidait, containing a scale of duties to be collected, a* a military 
eootribulioa, in the porta of Mexico, and witb a recotntaendation tbat tbe Mexican 
coastwise trade, Kod the interior trade, above ports of entry, be conBaed to Amsri- 
caa vessels, and tbat, in all other respects, tbe porte of Mexico in onr posseHion be 
freely opened.] Tbese fiscal aod comtDercial n^lationa, issued and enforced at 
4ie mere pleaaare of a Fresideot, would seem to press etrongly upon the eonsti- 
tatlooal power of Coagresa to rot** and lupport armieM, to fay and eolUel (axes, 
iuHe* aikd importa. and to regulate comritree uilk /omjw noftoNt, and to declare 
war, and makeruIss^^tAi^oHranunf and regulation of the land and nma/foreett 
and eoneeming eapturu on land and taater. and to define o^eneet again*t tht fan of 
nation. Tlougb tbe eonstitntion vests tbe executive powtT in tbe IVesideut, and 
declares him to be OommaDder-in-Ohlef of the Army and Navy of the United 



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Im, v.] op tHB LiW OF MATIOSS. 101 

Tate *propcffty of pacific persons for the sake of gun, *Q3 
and destroys private dwellings, or pnblic edificeo, de< 
Toted to civil pQipoBes only ; or makes war npoD monomests 
of art and models of taste, he violates the modem usages of 
war, and is sure to meet with indignant resentment, and to be 
held ap to the general soom and detestation of the world.* 

Cruelty to prisoners, and barbarous destmction of private 
property, will provoke the enemy to severe retaliation npon 
the innocent Eetaliatiou is said by Bntherforth'' not to be a 
justifiable canae for putting innocent prisonere or hostages to 
death; for no individual is chargeable, by the law of nations, 
with the guilt of a personal crime, merely because the com- 
munity, of which ho is a member, is guilty. He is only re- 
sponsible as a member of the state, in his property, for repa- 
ration in damages for the acts of others ; and it is on this 
principle that, by the law of nations, private property may be 
taken and appropriated in war, Retaliation, to be just, ought 
to be confined to the guilty individuals, who may have com- 



States, thsM povers must Decesaarilf b« lubordiiiste to the IsgieUtiTe pow«r in 
Oongreu. It would appeu- to me to be tlie policy or tm* eonstmcUon of tlw 
iimple Aod g^auersJ grtttt at eieeutivs powar to tlie Prendeat, oot to nithr it to 
fatcrTera villi tboM specifio poiren of Oongren whicb u-e more Mfglj dapodted 
ID tlu l^islatire departmeot, uid th&t the poiren tiua uaomed hj tlic Prwdent 
do not betoDg to hita, but to Congress. 

■ To'Hb.S. c v. s«e. tSS. Id \heaueoIOieMarqui*diSomeftulet,iaitiBaTf I 
V\c4-Adm. Rep. 4B2,) tin enligliteDod judge of the Tice-admtnltj court at EftUhz 
ra*tar«d to tbe Aoademj ot Arts, in PhU>delplii«, a «ue of ItaUu paiotii^ u>d 
prints, oaptiire4 b; • Britisli vessel in the var ot 1S12, on thrar pMMge to the 
United State* ; aud be did it " in conformitj to the Uw of natiaui, as precdsed bf 
all driiiied countrisi." and becauw " th« arts and sctMice* are admitted to form an 
ameption to the wrera rights of vufare." Works of art and tatt«, aa in painting 
and •calptur*. have, bj the modem law of nation^ been held aaiawd in war, and 
not dccmsd lawful ipoiU of cooqnett. When Fr«deriek IL of Prossia took pok' 
session of Drasden. as cooqueror, in 17SS, be respectsd the Taluabl« picture gallery, 
cabluela and museums of that capital, as not falling within the rights of a conqueror. 
Bat Bmmpatta, in 1T9S, compelled the Italian states and prince^ inslndbg the 
Pope, to surrender that choicest pjctums and works of art, to ba transported to 
Farii. The clu/iamirm of art of the Dutch and Flemish schools, and in Prusaia, 
ware acquired by Franca in the same Tiulant way. This procesdiug is seTcrely 
coodemnad by distingujihed historians, as an a)Hise of the power of oonqu«s^ and 
a species dF military coatributiou cootrary to the usages of modem civiliiati warbre^ 
Mli-m'i Hillary of Bunip*, roL iiL 4S. Sir WalUr Btotl'i Lif* ^ ifapohm, 
ToL iJL B <— 68. 
k Itut. b. S. c B. 



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lOS OF THE LAW OP NATIOHA [Put L 

mitted some enormonB violation of public law. On this eiib- 
ject of retaliation, Frof«B8or Mai1«ns is not so strict.* While 
he ailmits that &e life of an innocent man cannot be taken, 
unless in eztraordinaiy cases, he declares that cases will 
Bometimes occnr, when the established tisages of war are vio- • 
lated, and there are no other means, except the influence of re- 
I taliation, of restraining the enemy from further excesses. 

*94 Tattel speaks of retaliation as *a sad extremity, and it 
is frequently threatened without being put in execution, 
and probably, without the intention to do it, and in hopea 
that fear will operate to restrain the enemy. Instances of reso- 
Itltions to retaliate on innocent priaonere of war, occurred in ' 
this country during the revolutionary war, as well as during 
the war of 1812; but there was no instance in which retalia- 
tion, beyond the measure of severe confinement, took place 
in respect to prisoners of war.^ 

Although a state of war puts aU the snbjectsof the one na- 
tion in a state of hostility with diose of the other, jet, by the 
customary law of Europe, every individual is not allowed to 
fell upon the enemy. If sabjects confine themselves to simple 
defence, they are to be considered as acting under the pre- 
sumed order of the state, and are entitled to be treated by the 
adversary as lawM enemies ; and the captures which they 
make in each a case, are allowed to he lawfril prize. But they 
cannot engage in offensive hostilities, without the express pei^ 
mission of their sovereign ; and if they have not a regular 
commission, as evidence of that consent, they, run the hazard 
of being treated bythe enemy as lawless banditti, not entitled 
to the protection of the mitigated mlee of modem warfare.^ 

It was the received opinion in ancient Home, in the tjmes 
of Oato and Cicero,* that one who was not regularly enrolled 
as a soldier, conld not lawfoUy kill an enemy. But the law 
of Solon, by which individuals were permitted to form asso- 



y ^lA«£«w e/ JVWottf, b. B. c I, Mc S, note. 

* Jimrnalt e/ Omgm* wider tht OmfideraUoK, vol. H. p. Its. — toI. til pp. 9 
aaA 147.— ToL tSL p. 10. SritUA Orden In Canada, of OdabiT tllA md Dtttn- 
htr llfi, ISIt, and PrtUdtntt Mtaagt la Qmgrm, of DtcttnbeT Itk, 1818, and 
^ Ottubtr auk, 1814. 

■ Sgtdc Q. J. P^A. Q, to. V<AiA, b. S. e. IB. mc ns. Jmrnid* «f Congrtf, 
tdL tU. 181. Marttttt, b. Tin. c S. ««c. S. 

* Li Off. b. 1. c II. 



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Lea T.] OF THE LAW OP NATIOITO. 108 

dationB for plimder, was afterwarda introdnced into tie 
Boman law, and has been transmitted to oa as *part of *95 
their BjBtem.^ Daring the lawless confusion of the feu- 
dal ages, the right of maMng reprisala was claimed and ex- 
ercised withoQt a public commission. It was not until the 
fifteenth centnry that commisaions were made necessaiy, and o 
were issned to priyate snbjecte in time of war, and that sub- «« 
jects were forbidden to fit oat Teasels to cruise against ene- 
nues witbont license. There were ordinances in Germany, 
fVsnoe, Spain and England, to that effect i* It is now the 
practice of maritime states to make nse of the Toluntary aid of 
individuals against their enemies, as auxiliary to the public 
force ; and Bynkershoeck says, that the Dntch formerly em- 
ployed no vessels of war but such as were owned by private 
persons, and to whom the government allowed a proportion 
of the captured properfr^, as well as indemnity from the public 
treasury. Vessels are now fitted out and equipped by pri- 
vate adventurers, at their own expense, to cruise against the 
commerce of the enemy. They are duly commissioned, and 
it is said not to be lawM to cmiae witbont a regular commis- 
Bion.« Sir Matthew Hale held it to be depredation in a sub- 
ject to attack tiie enemy's vessels, except in bis own defence, 
witliont a commisaion.^ The subject has been repeatedly dis- 
cussed in the Supreme Court of the United States,* and the 
doctrine of the law of nations is considered to be, that private | 
citizens cannot acquire a title to hostile property, unless I 
seized under a commission, but they may still lawfully seize I 
bostileproperty in their own defence. If they depredate 
npon the enemy without *a commission, they act upon *96 
their peril, and are liable to be punished by their own 
sovereign; but the enemy is not warranted to consider them 



• iWp; 4T. ai 4. Bynlc Q. J. P»b.h. I.e. is. 

^ Oodt <fei PrittM, tome L p. I. Marltat an FrivatHri, p. 18. RMiuon'i 
OoHadanm Xaritima, p. 21. 

■ SyTit. tii. np. Marltnt, b. 6. e. S. «m. S. Judga Croke, b the case of tlie 
Cnrlew, SttaarC* Viet-Aim. Rep. SSe. 

' Harg. Law T. 2411, !4^ M7. 

• Brown T. United Statea, S Cranch, 132— ISE. The Ifereide, 9 Oranch, 449. 
Tie Dm HerznaaiM, 2 Wheaion, 16, and 10 Wheatim, 804. Hie Aaiahle laabelU, 
e IPilcatoisl. 



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104 OF THB LAW 0? NATIOSa [Parti. 

aa criminala, and^ as respects tlie enemj, they violata no 
ri^te hy capture. 

Bach hoetilities, without a commieeioD, are, however, con- 
trary to usage, and exceedingly irregular and dangerous, and 
they would probably expose the party to the unchecked se- 
Terity of the enemy ; but they are not acts of piracy unless 
committed in time of peace. Yattel, indeed, saya,* that pri- 
vate ships of war, without a regular commiseion, are not en- 
tiUed to be treated like captures made in a formal war. The 
oteervation ia rather loose, and the weight of anthori^ un- 
doubtedly is, that non-commissioned vessels of a belligerent 
nation may at all times capture hostile ships, without being 
deemed, by the law of nations, pirates. They are lawful com- 
batants, but they have no interest in the prizes they may take, 
and the property will remain subject to condemnation in fa- 
vour of ^e government of the captor, as droits qf the adnU- 
ralty. It ia said, however, that in the United States the pro- 
perty is not strictly and technically condemned upon that 
principle, but^'ur^ reipiMica ; and it is the settled law of the 

i United States, that all captures made by non-commissioned 
captors are made for the government >> 
«- In order to encourage privateering, it is usual to allow the 
owners of private armed vessels to appropriate to themselves 
the property, or a large portion of the property they may 
capture ; and to afford tbem and the crews other lacili- 
*97 ties *and rewards for honourable and succes^ul efforts. 
This depends upon the municipal regulations of each 
particular power ; and as a necessary precautiiaiagainst abuse, 
the owners of privateers are required, by the ordinances of 
the commerci^ states, to give adequate security that they will 
conduct the cruise according \o the laws and usages of war 
and the instructions of the government, and that they will re- 
gard Uie rights of neutrals, and bring their prizes in for a^ju- 

• E 8.(1 lG.uci2«. 

^ C»».JK7,titAdtiur>1ty, E.S. iWooi.Ltt.4,t% The a«orgiaiM, 1 Axbon'* 
AJm. Rip. (87. Tb« Btig JoMph, 1 GalL Rtp. MS. The Dos HarmuKM^ 10 
Wheaion, 806. The Americui mmTniinhnim &t the court of Fraoce, id 1718, 
(JEtnyoiniii .FVwnjtliB, Arttait Lm and John Adamt.) ia & letter to the Treaii 
goTemmeot, lud down aecuntel; and with preciaioa the l>v io the text, u to 
mptuKf of toemj'i propeitj wttbont • aommiBviwi — JHphnutit OarrttpoitAiiM, 
Ay /. Sparki, vol i 44S. 



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Leo. v.] 09 THI L&W OP NATIONS. lOJf 

dioation. These checks are essential to the dutracter and 
safety of maritime nations.^ Friyateering, under all the re- 
strictions which have been adopted, is very liable to abuse. 
Hie object is not &me or chiralric warfare, bnt plunder and 
profit Itie discipUne of the crews is not apt to be of the 
highest order, and privateers are often guilty of enormous ex- 
caaees, and become the scourge of neutral commerce. >> Thej ' 
are sometimes manned and officered by foreigners, having no 
permanent connection with the conntry, or interest in its 
canse. This was a complaint made by the United States, in 
1819, in relation to irregnlaritiee and acts of atrocity com- 
mitted by private armed vessels sailing under the flag of 
Bnenos Ayres.^ Under the beet regulations, the business 
tends strongly to blnnt the sense of private right, and to nour- 
ish a lawless and fierce spirit of rapaci^. Efforta have 
been made, from time to time, to abolish *the practice. *98 
.Ja the trea^ of amity and commerce between Pmae ia 
1 and the United States, in 1785, it was stipulated, that in case 
I of war, neither party should grant commissions to any private 
% armed vessels to attack the commwce of the other. Bat the 
spirit and policy of maritime warfare will not permit aach 
generous provisions to prevail. Iliat provision was not re- 
newed with the renewal of the ti-eaty. A simUar attempt to 
put an end to the practice was made in the agreement be- 
tween Sweden and Holland, in 1675, but the agreement was 
not performed. The French legislature, soon after the break- 
ing oat of the war with Austria, in 1792, passed a decree for 
the total suppression of privateering ; but that was a transi- 
t(Mry act, and it was soon swept away in the tempest of the 
revolntion. The efforts to stop the practice have been very 



* Byttl. Q./.Pti&e.ig. /ounuib «/ CtMjrnw, 177S. ToLii. 102.114 AtUef 
Chnfnu of Jmt tfilA, 1S12, c 107, and Apr^ SOrA, 1818, c. B3. hci. ]0. Preii- 
dent'i iiutrucUona to privtW armed TOnelt, E IfAmfun, App. p^ BO. DuiUh 
iMtroetiaiu of March lOtli, ISID. HalttL. J. roLiv. !6S, and App. toS Witeaton, 
tl. VaOel, b. 8. c IS. BAC SSS. Marltiu' Simm. !S9, S90, i»t& Ord. of Bucdn 
Ajrei, May, 1811, b App. to 4 WheaitM, SB. Digttl of the oode of Britiib ia- 
■bnetkois, App. to G IFAaUoh, 129. 

* S^orUofih* VuiUdStai*^ Binr*laiy <^ StaU, ifarek id, Ilai.and Afuilif. 

im. 

* ifr. Aiami Litfr <^ 1*( Jmyury, ISIS, to JTr. D* FoMt, and At* Officvd 
B*port of CBlk AmMiry, ISIS. 



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106 OP TH« UT OF VAtlOlfa [P«rt L 

feeble and frnitleM, notwithstanding that enli^tened and en- 
loi^ed considerationB of national policy have shown it to b« 
for th« general benefit of mankind, to surrender the licentious 
practice, and to obatmct, as littie as possible, the freedom and 
securi^ of commercial intovonrse among the nations.' 
to It has been a qneetiw, whether the owners and officers of 
'' private- armed Teasels were liable, in damages, for illegal con- 
dnct beyond the amount of the secmity given. Bynko^- 
shoeck'' has discossed this point qoite at lai^, and he con- 
dadee that the owner, master and snroties, are jointly and 
severally liable, t» aoUdo^ for the damages incurred ; and that 
the master and owners are liable to the whole ext«it of the 
injury, though it may exceed the value of the privateeT and 
her equipment, though the sureties are bound only to the 
amount of the soms for 'v^cb they become bound. This rule 
is liable to the modifications of mnnicipal regalatione ; 
*&9 *and thong^ the French law of prize was formerly the 
same as the role laid down by Bynkershoeck, yet the 
new commercial code of France' exempts the ownete of pri- 
vate armed vessels in time of war, from responsibilityfca'tree- 
passee at sea, beyond the amount of the security they may 
have given, milees &ey were accomplices in the tort He 
English statute of 7 Geo. n. c. 16, is to the same effect, in re- 
spect to embezzlements in the merchants' service. It limita 
the responnbili^ to the amomit of the vessel and freight, but 
it does not apply to privatews in tame of war ; and where 
there is no positive local law on the subject, (and there is none 
with us,) the g«ieral principle is, that the liability is commen- 
Borate with the injury, llus was the role, as declared by the 



• 1 Emtrigim, da Au. Its— 18S. 4ST. JfaU^« Droit PvUie, & 1 S. Ma. 1. 
JCMniiByh Rmtm, voL Tui pp. IS — IS, Iforth Aouriean EteUa, IT. S. tdL IL ^ 
ISO. During tl)« ««r bttWMii tlie tToited StU«s ud Qraat Britain, the l^*iUtarB 
of Neir-Yorb wentu brtito post ftn act la<fuourajr< privattrring auMiatioiu,hj 
Mitlwriiiiig uy fivB or mor« penoDs, who ibonid be defiroui to form a oompaej 
tat tlie purpoM of Miixij!tig the enemj, and tlieir commarc^ bjr meani of prints 
anned vewela, to ugn and file a c«i1iGcat«, itating tlie muna of tiie ooinpaoy and ila 
■tock, A«., and that the]' and tlieir aaeeaaon sboiild thereapoo b» a baig pelUic and 
corporatt, ^th tho ardinarj coipont« poven, Laat N. T. 88 w». & It. Oct 
Slat, I SI 4. 

• <lJ.Piib.-l.\.t.\i. 

• CM* it Cemmtret, ait !1T. 



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Lm T.] Of THE LA.V Of VLTIOSa. lOT 

Supreme Coort of the United States, in I>d Col v. Arnold;* 
and though that case has Bince heen Bhakeii as to other points,'* 
it has not heen diatarbed as to the point before vs. We may, 
therefore, consider it to be a settled rale of law and .equity, 
that the measore or damages is the valne of the property nn- 
lawfally injnrecl or destn^ed, and that each individui owner 
is responsible for the entire damages, and not rateablyj^ro 
temto.' 

Vattel admits,' that an individual may, with a eafe con- 
science, serve his country by fitting ont privateers ; but he 
holds it to be inezcnsable and base to take a commission irom 
a foreign prince, to prey npon the subjects of a state in amity 
with his native country. Tlie laws of tlie United 
^States havemadeampleprovision on this subject, and *100 
they may be considered as in affirmance of the law of 
nations, and as prescribing specific punishment for acts which 
were before unlawfnL* An act of cong^^ss prohibits citizens 
to accept, within Hie jurisdiction of the United States, a com- 
mission, or for any person, not transiently within the United 
States, to consent to be retained or enlisted, to serve a foreign 
state in war, against a government in amity with ns. It like- 
wise- prohibits American citizens from being concerned, with- 
oot the limits of the United States, in fitting oat, or otherwise 
assisting, any private vessel of war, to cruise against the sub- 
jects of friendly powers/ Similar prohibitions are contained 
in the laws of other countries ;k and the French ordinance of 



■ HMlmi.»U. 

t 1 WJuabm, »t. t Poliu'* Rtp. Ill, to tbt mme poioL 

■ Hm Eumm), 6 JUk JUp. Ml. TIm Awm Harift, a WJualvt, S3l. But tlM 
owMn of m priratser mn not liaUe dTillj bejood th« Mtonritj given by law, and 
ttfl loM of a tmmI, for piratU^ ad« eomimtted hj tt« officcn aod crcv of tlia 
prtTatMT. naj art odIt' liable, tr^ tke maritima law, for the eoodnct of tlia 
Motrt and enyr, vhDa in Iht tienllon of tht bvtlnett cf iMi eniu. Diai t. 
PriratMr ttaretiga, S W«th. Oh. Rtp. SSe, Tbe New-Tork acheme (m« tu;i. p. i 
M. B. a) of maknig |iriTate«iiig compaoie* actual eorpocatlatu or ba^«a politii^ ' 
wonM aeam to exampt tlia mamben from the penooal mpomlbDi^ onSnarilj 
bddeot to tbe ownan of pttTataan. 

* E s. & IB. Mb ese. 

* Thibet T.JaiM0D.Si>aUM;18S. BriK.AIartaT.BUsHoTan,9 OuneA, SB). 

* Aa^ CangntM ofiOtk Aprit, 18IB, & BS. 

' See the AuOriitn OrHnanet of ITfiOraliti/, •yfAvgutt 7, ISOS, art 3, 8. Bj 
tba law of Fljinontli CoIodj, m 1S8S, it waa d«clar*d to b« tAonj to commit 



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108 OP THE LAW OP HATIOIIS. [Put £ 

the marine of 1681, treated such aetB aa piratical. The better 
opinion is, that a cruiser, furnished with commiBBiona irom 
two different powers, is liable to be treated as a pirate ; for 
though the two powers may be allies, yet one of them may be 
in amity with a state with whom the other is at war.* In 
the variouB treaties between the powers of Europe in tie two 
last centuries, and in the several treaties between die United 
States and France, Holland, Sweden, Pmseia, Great Britain, 
Spain, Colombia, Chili, &c., it is declared, that no subject or 
citizen of either nation shall accept a commission or letter of 
marque, to assist an enemy in hostilities against the otiier, 
under pain of being treated as a pirate. 

The right to all captures vests p rimarily in th e sovereign, 
and no individual can have any interest in a prize, wliether 
made by a public or private armed vessel, but what he 
*101 receives "under the gran t of the s tate. This is A 
general principle of public jurUrprudence, hello porta 
cedutU reyjvMiocB, and the distribution of tiie proceeds of 
prizes depends upon the regulations of each state ; and unless 
the local laws have otherwise provided, the prizes vest in the 
sovereign.^ But the general practice, under the laws and 
ordinances of the belligerent governments is, to distribute the 
proceeds of captured property, when duly passed upon, and 
condemned as prize, (and whether captured by public or 
private commissioned vessels,) among the captors, as a reward 
for bravery, and a stimulus to exertion," 

"When a prize is taken at sea, it must be brought, with due 
care, into some convenient port, for adjudication by a compe- 
tent court ; though, strictly speaking, as between the bollige- 



boitiliUM OD th« high MU, undv tli« flig of «nf fbr«ign power, apon Um lolyecU 
or uothet foreign poTsr in unitj with SoglaDd. Bailit£ Bittoricat Xmair, foL 
fl. paut 4. 86. Tlw uune acU irers dtcUred to b« fslonj b; > lav of ths ooUmj of 
N«w-Tork.in 16B9. SmUht tdUiimaf Uu Lam* of th4 OJonji, roll U. 

• Foiitt". 0>«. tome tt. 2S6, !86. ByBiBrAi«t,c. n.andnota byi>»p*»<«i 
to Iu» UuuJfttion, p. 129. Sir L. JadHn^ Workt, 11*. Bee pott, pp. 188. 191. 

» Oro(iu«.b.8.c,e. Ffl««Z. b. 8. c. B. »»c. IB*. TU ^teht, 6 JioL B^ IIS. 
Horn* T. Eul Comdan, S H. Blattt. Rtp. fiSS. At oammon law, tha gooda taken 
trom an menr Ulong to tlM G^>tor. .ftMeA'i X«g^ SB. 178. m(od.Rtr.\W. 
\WiU lUf.2\i. Sea ii^/Va, p. SST. 

* Lord Lou^bMon^ 1 £: fioeU £^ 189— 191. FiMlM't Avid. u. App. 
p. 1, note c and p. 11. 



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LM.V.] OF THE LAW OF NATIONa 10& 

rent patiieB, Hie title pasfies, uid ie vested when the capture 
is complete, and that was formerly held to be complete and 
perfect when the hattle was over, and the sj>es recupera/ndi 
was gone. Yoei, in hie Commentaries upon the Pandects,' 
and the anthers he refers to, maintain with great strength, as 
Lord Mansfield observes in Goas v. Withers,^ that occupation 
of itself transferred the title to the captor ^)er adlam, ocffupa- 
Uonem dominium prvBdtB hostUma acquiri. Tho question 
never arises but between the original owner and a neutral 
purchasing from the captor, and between the original owner 
and a recaptor. If a captured ship escapes from the captor, 
or is retaken, or if the owner ransoms her, his property is 
thereby revested. But if nei&er of these events happen, the 
question as to the change of title is open to dispute, and many 
arbitrary lines have been drawn, partly from policy, to pre- 
vent too easy dispositions of tlie property to neutrals, 
*and partly from equity, to extend the Jita potttiminii *102 
in ikvour of the owner. Grotius,'' and many other 
writers, and some marine ordinances, as those of Louis 
XIV. and of congress during the American war,' made 
twenty-four hours' quiet possession by the enemy, the test of 
title by capture. Bynkershoeck* says, that such a rule is 
repugnant to the laws and customs of Holland ; and he insists, 
that a firm possession, at any time, vests the property in the 
captor, and that ships and goods brought infra prmsidia, do 
most clearly change the property. ButbyAe modem usage 
of nations, neither the twenty-four hours' possession, nor the 
bringing the prize infra prtEsidia, is sufficient to change the 
property' in the case of a maritime capture. A judicial 
inquiry must pass upon the case, and the present enlightened 
practice of commercial nations has subjected all such captures 
to the scrutiny of judicial tribunals, as the only sure way to 
fiimish due proof that tlie seizure was lawi^L The property 
is not changed in &vour of neutral vendee or recaptor, so as 
to bar the original owner, mitil a regular sentence of con- 
demnation has been pronounced by some court of competent 



■ Tnns li p. 116S. * 2 Bvrt. R*p. 6SS. • B. ■. c e. 

' Valin, Kb. 1. tit 9. ui. t. Jounuls of tba OoDfedcntka OoDgT«a, Hucb SlUi, 
1781, ToL Tu. p. SS. 
• Q. /. Put. b. 1. & 4 and E. JTarf^iw' Aa)MMiy,b.a & 8. tM. U.S. P. 



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OF THE LAW OP H ATIOBS. 



[PMtl. 



jorifldiction, belonging to the sovereign of the captor ; and the 
purchaser must be able to show docomentarj eTidence of that 
fact, to snpport lu8 title. Until the captnre becomes invested 
with the diameter of prize by a sentence of condemnation, the 
right of property is in abeyance, or in a state of legal seqnes- 
tration. It cannot be alienated or disposed of^ bntthepoBeeesion 
of it by the government of the captw is a trnat for the benefit 
of those wlio may be ultimately entitled. This salutary rule, 
andoneso necessary to check irregular conduct and individual 
outrage, has been long established in the English admi- 
*103 ralty,» *and it is now everywhere recognised as the 
law and practice of nations.'' 
The condemnation must be pronounced by a prize court of 
the government of the captor, ^tting either in the country of 
the captor or of bis ally. The prize court of an ally cannot 
condemn. Prize or no prize, is a question belonging ezda- 
sively to the courts of the country of tie captor. The reason 
of this rule is said to be,' that the sovereign of the captors has 
a rightto inspect their behaviour, for he is answerable to other 
states for the acts of the captor. The prize court of the ct^tor 
may sit in the territoiy of the ally, but it is not lawful for such 
a court to act in a neutral territory. Neutral ports are not 
intended to be auxiliary to the operations of the power of war; 
and the law of nations has clearly qjrdained, that a prize court 
of a belligerent captor cannot exercise jurisdiction in a neutral 
country. This prohibition rests not merely on the unfitness 
and danger of making neutral ports the theatre of hostile 
proceedings, but it stands on the ground of the usage of 
nations.'' 



•Canh.tii. lOMod-Btp-n. lilIod.Ittp.ia. SSMrr.Jbip.eM. ZJtet. 
Btp. 97, in notU 1 Bet. 189. 

* FUd Oireo, 1 Seb. Bep. 111. Eennck md Harit, 4 Bob. Sep. 4B. VatHl, 
h. S. a. it. tee. 216. ffeineeeii OpeTn,ediLOeDer%,l'!ii,U)meu.9lO.StO. SRob. 
Btp. VM. Doag. B»p. SSI. 8 OwwA, 31S. 4 Wheaton, 198. S Tbun^ Rip. ZS. 
2 Dailat, 1, S. i. Et«7 emut baa tbe rigbt to inqotra into tlM CMapctcocy of the 

/ jurisdiction of a foreign court to OMideiDB captured proper^, and if it baa doo*, Ibe 

j KoteDni is null IIm oooaol of a b«iligerMit in a neutral coautTj baa no power to 

J ca«id«Dui ptuH, &iit t»a«t. Abbot an Shipping, Amer.ediLCtbediL BoitoD, 1B4S, 

pp. 80 — 8S. But a priie carried ioto tba oouotr; of ao ally m^ be CMdemned 

tbere, and eren bf a ooeuuI belongiDg to the counttj of the oaptora. Id. p. tS.- 

■ Bulherforlh't InttUvUi, b. 2. c 9. 

* QlaMT.'nieSloopBetM;, S2>all<u,e. Flad Owaii,l£oi.£ep. 18S. HftTt- 



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IM. T.] O? THE LAW or HATIOS& HI 

Jt vas Jor some tuna Bnpposed that a prize court, though 
■ittiog in the coimtrj of its own soTereign, or of hia ally, had 
no jarisdiotioa over prizes lying in a neatral port, because the L 
ooort wanted that posBeanon which was deemed essential to i 
tlie ezerciee of a jurisdiction in a proceeding in rem. The 
principle was admitted to be correct by Sir William Scott^ in 
the case of the Benriek amd Maria,* and he acted 
*apon it in a prior case.^ Bnt he considered that the ' *104 
English admiralty had gone too far, in supporting con- 
demnations in England, of prizes abroad in a nantral port, to 
permit him to recall the Ticions practioe of the conrt to the 
acknowledged principle ; and the English rale is now defini- 
tirelf settled, agreeably to the old osage and the practice of 
other nations. The Supreme Coort of the United Stat^ has 
followed the English rule, and it has held valid the con- 
demnations, by a belligerent conrt, of prizes carried into a 
nentral port, and remaining (here. This was deemed the most 
oonrenient practice for neutrals, as well as &r the parties at 
war ; and though the prize was in tact within a neutral JTiria- 
diction, it was still to be deemed nnder the control, or avh 
psteatate, at the captor. ■> 

Sometimes circnmstancee will not permit property captured Xhm 
at sea to be sent into port ; and the CBpt»r, in snch cases, may 
either destroy it, or permit the original owner to ransom it. 
Jt was formerly the general custom to redeem property from 
the hands of the enemy by rana»a ; and the contract is nn- 
doubtedly valid, when municipal regulations do not intervene. 
It is now but little known in Ihe commercial law of England, 



Mk r. Rockvoodl 8 Tirm. Stf. 168. Oddj t. BoTill, B Stuft Rep. 47G. Antmr 
totk* PruMtitn Mtmorial, no. VlwiiuMa, 1 \ntalm,iBi. TheEdndla.^ 
W/uatcn, £08. Tbe Oomet, B Bob. SBS. Hu Tioloru, Edr. Ad. B. 97. 

^i Rob. Rep. 4S. 

^ Note to till cau of the Hentolder, 1 Reh. Aim. Rap. 100. adlL PhiUddDhia, 
1810. 

• 6 Rvt. Rtp. IBS. Noto to Dm cam of ibe Schootwr Sopbu. Smart t. WoIC 
8 Tbn. Rtp. 133. Jynjt hy Dapanciait, p. S8, note. HdiUm t. Qwtliet. A 
Oraneh, 398. WillUm* v. AriBiDfd, 1 OomA, i%Z. In th« trMty b«twMa 
the United Stetoi aod the B«pablie of Oolombi*, ia ISSS, ut 31, Mtd of (Mi, in 
ISSt, Ml. 21, itwu agrmd, that tha Mteblidtad «ourta fin prita eauaa in the 
•oootiy to irtikb tbe priia la^ be aoodiMted,. ahodd alow take cogwuce of 



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XIS OF TBX hLW or SATIDSa. [PwtL 

for seventl statates in the reign of Ci«o. IH. absolutely pro- 
hibited to British subjects the privilege of ninsoin of property 
captured at sea, unlen in a case of extreme neceeeity, to be 
judged of by the court of admiral^.* A ransom bill, when 
not locally prohibited, iB a var contract, protected by good 
iaith and the law of nations ; and notwithstanding that the 

contract is considered in England as tending to relax 
*105 the energy of war, and *deprive croisere of the chance 

of recapture, it is, in many Tiews, highly reasonable 
and hnmane. Other maritinie nations regard ransoms as 
binding, and to be claaeed among the few legitimate commer- 
da bdU. They have never been prohibited in this country ; 
and the act of congress of August 2d, 1818, interdicting the 
use of British licenses or passes, did not apply to the contract 
of ransom.'' 

Tlie effect of a ransom is equivalent to a safe conduct 
granted by the authority of the state to which the captor 
belongs, and it binds the commanders of other cruisers to 
respect the safe conduct thus given ; and under the implied 
obligation of the treaty of alliance, it binds equally the cruiseiB 
of the allies of the captor's country.** From the very natnre 
of the connection between allies, their compacts with the 
common enemy must bind each other, when they tend to 
accomplish the objects of the alliance. If they did oot, the 
ally would reap all the fruits of the compact, widiout being 
subject to the terms and conditions of it ; and the enemy with 
whom the agreement was made would be exposed, in regard 
to the ally, to all the disadvantages of it, without participating 
in the stipulated benefits. Such an inequality of obligation 
B contraiy to every principle of reason and justice.* 

The safe conduct implied in a ransom bill, requires that the 
vessel should be found within the course prescribed, and vri thin 
the time limited by the contract, unless forced out of her 



* Chttlf on Com. Lmt, 4ta 

* Atuni tM Maritime Zam.c 4.ut. A. 1 Smerii/aa, 0.12. itc. SI. t Volin, 
Hb 46. p. U«. Lt GtiidaiL, c S. Ml 3. Oreliut, b. S. c 19. Qoodrieh t. Gordon, 
le AAm Jitp. e. 

■ Uiliw T. The RMolataoo, a DMat, IS. 

* HiOaTT.JUUw, %DaUt», IB. Pathitr, Trtia At DroU d» PnpriHi, No. 
18^ 



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Lee. v.] OF THB LAW OP SATIOKB. US 

coarse by Btrees of weather, or unaToidable neceasily.* If the 
TBBBel ranBomed perishee hj a peril of tiie Bea, before arrival 
in port, the ransom ia, nevertheless, due, for the captor 
has not insnred the prize against the perils *of the sea, *106 
bat only against recaptore by cmiBera of his own nation, 
or <tf the f^ies of his country. If there ehonld be a etipolstion 
in the ransom contract, that the ransom should not be doe if 
the Teasel was lost by sea perils, the provision onght to be 
limited to total losses by shipwreck, and not to mere stranding, 
which might lead to fraads, in order to save the cargo at ttie 
expense of the Bhip.<> 

If the vessel should be recaptured, out of the route pre- 
scribed by the contract for her return, or after tbe time allowed 
forherretum, and be adjudged lawfol prize, it has been made 
a question whether the debtors of the ransom are discharged 
from their contract Talin' says, that, according to the 
constant practice, the debtors are discharged in such case, 
and the price of the ransom is deducted from the proceeds of 
the prize, and given to the first captor, and the residue goes 
to the second taker. So, if the captor himself shonld aftw- 
wards be taken by aa enemy's cruiser, together with his 
ransom bill, the ransom becomes part of the lawfiil conquest 
of the enemy, and the debtors of the ransom are, consequently, 
discharged from the contract under the ransom bill.^ 

In the case of Bioard v. Beit^iham,' an English vessel was 
captured by a French privateer in the war of 17&6, and ran- 
somed, and a hostage given as a security for the payment of 
the ransom bill. The hostage died while in poesession of the 
French, and it was made a question in the £. B., in a suit 
brought upon the ransom bill after the peace, whether the 
death of the hostage discharged the contract, and whether the 
alien could sue on the ransom bill in the English courts. It 
was shown, that such a contract was valid among the other 
nations of Europe, and that ibs owner of the bill was entitled 
to sue npon it, and that it was not discharged by the death of 



' Ftlkitr, TraUt Ai J>rmt <b PmprUtt.SM. 1S4, ItS. 

* PoOitr, Tram <U Pnpriili, So. ItS. 

* Oridet Prim, art. li. 

* PeMfT, Hid. Sot. 1S«, 140. 
■ » Atrr.JEfp. 1IB4. 

VOL-L 8 



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114 or THE LAW or HATIOSa [Put L 

*107 the hostage, 'who was takes as a mere collateral *eecu- 
rity, and the plaintiff was, accordingly, allowed to re- 
cover. But it has been since decided, and it is now nnderstood 
to be the law, that, daring war, and while the character of alien 
enemy continnes, no snit will lie in the British coorta by the 
enemy, in proper person, on a ransom bill, notwithstanding it is 
a contract arising ^We heUi.^ Hie remedy to enforce payment 
/ of the ransom bill, forthebenefit ofthe enemy captor, ie by an 
I action by the imprisoned hostage, in the courts of hia own 
I conntry, for the recovery of his freedom. This severe technical 
objection wonld seem to be peculiar to the British conrts, for it 
-was shown, in the case of Sicard V. Bdienham, to be the prac- 
tice in France and Holland to sustain snch actions by the 
owner of the ransom contract Lord Mansfield considered the 
contract as worthy to be sustained by sonnd morality and good 
policy, and as governed by the law of nations and the eternal 
rules of jastace.'* The practice in France," when a French 
vessel has been ransomed, and a hostage given to the enemy, 
is for the officeis of the admiralty to seize the vessel and ber 
cargo, on her return to port, in order to compel the ownera to 
pay the ransom debt, and relieve the hoetage ; and this is a 
course dictated by a prompt and liberal sense of Justice. 

The recaptnre of the ransom bill, according to Yalin,^ puts 
an end to ^e claim of the captor. He may be deprived of 
the entire benefitofhisprize, as well as of the ransom bill, either 
by recapture or rescue, and the questions arising on them lead 
to the consideration of postliminy and salvage. Upon recap- 
ture from pirates, the pw^rty is to be restored to the owner, 
on tiie allowance of a reasonable compensation to the 
*108 retaker, in the nature of salvage ; for it *iB a principle 
of the law of nations, that a capture by pirates does 
not, like a capture by an enemy in solemn war, change the 
title, or divest the original owner of his right to the property, 
and it does not require the doctrine of poatliniiny to restore 
it.* In France, property may be reclaimed by tiie owner 



■ AotboD T. FUmt, Dotig. B*p. MS, tM>te. The Hoop, 1 Rob. Rtp. ISV. 

• Oomn ▼. Bladibim^ Dmtg. Rep. Ul. 

• PoAitr, TVoifJ <b pTepriia, No. 144. 
< Tome it Ut. 8. lit «. *ct IS. 

• ffroliw^l). 8.0.9. Mcie, IT. £yni. Q. /. Pot. C IG ud n. 



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Lee. T.] OF THE LAW OP NATIONa 115 

within a year and a day ;■ bnt in aome other countries (and 
Grotiaa mentions Spain and Venice) tlie rnla formerly was, 
that the whole property recaptured from pirates went to the 
retaker, and this rule was founded on the consideration of the 
desperate nature of the recovery. 

Tha Jus postUminii was a fiction of the Roman law, hy j—fi 
which pereona or things taken by the enemy were restored to 
their former state upon coming again under the power of the 
nation t« which they formerly belonged. Poatlvminium 
Jm^ ewn gut oaptus ett, in cvoitate temper fuisae.^ It is a 
right recognised by the law of nations, and contributes essen- 
tially to mitigate the calamities of war. When, therefore, 
property taken by the enemy is either recaptored or rescued ( 
from him, by the fellow-subjects or allies of the original | 
owner, it does not become the property of the recaptor or \ 
rescuer, as if it had been a new prize, but it is restored to the , 
original owner, by right of postliminy, upon certain terms. 
Moveables are not entitled, by the strict mlea of the law of 
nations, to the full benefit of postliminy, oulesa retaken from 
the enemy promptly after the captore, for then the original 
ownersneither finds a difficulty in recognising his effects, nor 
is presumed to have relinquished them. Keal property is 
easily identified, and, therefore, more completely within the 
right of postiiminy ; and the reason for a stricter limitation of 
it in respect to personal property, arises from its transitory 
nature, and the difficulty of identifying it, and the consequent 
presumption that the original owner had abandoned 
the hope of recovery,' ■"This right does not take effect *109 
in neutral countries, because the neutral nation is bound 
to consider the war on each side as equally Jnst, so far as re- 
lates to its effects, and to look npon every acquisition made by 
either party, as a lawful acquisition ; with the exception of 
cases where the capture itself is an infringement of the juris- 
diction or rights of the neutral power.^ If one party was al- 
lowed, in a neutral territory, to enjoy the right of claiming 



• VMWt Com. tome it 281. 

• l»a. 1. 18. 8. 

• VattO, b. 1. c. 14. MC. t09. 

' M'Daooagti t. Duiner?, S DtHtu, 1S8. 198. The Jom& Segunda, 5 Wluatoit^ 
188. US. See,«l>a,jMMf,p.ltl. 



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lie OF THB LAV OF HATIOHa [P«rt I. 

goode takeD by tiie other, it would be a departure from die 
duty of ii«ntrality. The rij^t of poBtliminy takes place, there- 
fore, only within the territories of the nation of the captors, or 
of his ally ;■ and if a prize be brought into s neutral port by 
the captors, it does not return to the former owner by the law of 
postliminy, because neutrals are bound to take notice of the 
military right vhich posaesaion gives, and which is the only 
evidence of right acquired by military force, aB contradis- 
tiuguished from civil rights and titles. They are bound to 
take the &ct for the law. Strictly speaking, there is no such 
tbing as a marine tort between belligerents. All captures 
are to be deemed lawful, and they have never been held 
within the cogoizaace of the prize tribunals of neutral nations. >■ 
Witli respect to persons, the right of postliminy takes place 
even in a neutral country ; so £hat if a captor brings bis pri- 
soners into a neutral port, he may, perhaps, confine them on 
board his ship, as being, by fiction of law, part of the terri- 
tory of his sovereign, but he has no control over them on 

shore." 
*110 *In respect to real property, the acquisition by the 

conqueror is not fully consummated nutil confirmed by 
the treaty of peace, or by the entire submission or destruction 
of the state to which it belonged.* If it be recovered by the 
original sovereign, it returns to the former proprietor, no^ 
withstanding it may, in the mean time, have been transferred 
by pmvbase. The purchaser is understood to have taken the 
property at the hazard of a recovery or reconquest before the 
end of the war. But if the real property, as a town or por- 
tion of the territory, for instance, be ceded to the conqueror 
by the treaty of peace, the right of postliminy is gone for ever, 
and a previous alienation by the conqueror would be valid." 



■ Foual. 1x S. c 14. «a«. 20T, 20B. 

* L'Amlrtad de Sues, G Whtaten, S90. 

• Vtid, b. 8. e. 1. ue. 1S2. Sgnk. bg Jhipantimi, pp. Ilfl, 111, uAm. Aut- 
trian Ord. ^ XtutralUy, Augiut tlh, 1803, «it. IS. Bj one of the proTUou of 
kcommerdkl tzMty between Caitiug* and Rome, in the cRrlieet period of tbe 
Bomao repablii^ iood after the ezpulaioD of TirqaiD, it wm itlpnlated, that if 
tftbei pMty abonld bring into (he porta of the other, priMaen taken from (a aUj, 
tbe prieonen might be reclaimed and ut fiee. FoiyUut, b. 8. c. S. 

' P^. Dreii (fe la Natun par Barbtyrat, Ut. 8. c. B. eec. SO. 
« Vaild, k S. & 14. MC ilS. JfmcnM, b. S. c 8. kc II, IS. 



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Ue. T.] OF THB LAT OF NATIONS. U^ 

Li a land war, moTeable property, after it has Ijeen in com- 
plete possession of the enemy for twen^-foor honre, (and 
which goes by Uie name of booty, and not prize,) becomes ab- 
solutely his, withont any right of postliminy in fitvonr of the 
origiaal owner ; and ninch more onght this species of pro- 
perty to be protected from the operation of the role of postli- 
miny, when it has not only passed into die complete possession 
of the enomy, bat been hona^de transferred to a neutral. By 
the ancient and strict doctrine of the law of nations, captores 
at aea fell under the same rule as other moveable property 
taken on land ; and goods so taben were not recoverable by 
the original owner &om the rescuer or retaker. But the mu- 
nicipal regulations of most states have softened the rigour of 
the law of nations on this point, by an equitable extension of 
the right of postliminy, as against a recaption by their own 
subjects. Hie ordinances of several of the continental powera 
confined the right of restoration, on recaption, to cases 
where the proper^ *had not been in posseseion of the *111 
enemy above twenty-four hours. This was the rule of 
the French ordinance of 1681 ',*■ but now the right is every 
where understood to continue until sentence of condemnation, | 
and so longer. 

It is also a mle on this subject, that if a treaty of peace 
makes no particolar provisions relative to captured property, 
it remains in the same condition in which the trea^ finds it, 
and it is tacitly conceded to the possessor. The right of postli- 
miny no longer exists, after the conclusion of the peace. It ia 
a right which belongs exclusively to a state of war, '> and there- 
fore, a transfer to a nentral, before the peace, even withont a 
judicial sentence of condemnation, is valid, if there has been 
no recoveiy or recaption before the peace. The intervention 
of peace cures all defects of title, and vesta a lawM posses- 
sion in the neutral, equally as the title of the enemy captor 
himself is quieted by the intervention of peace." The title, in 
the hands of such a neutral, could not be defeated in favour 
of the original owner, even by his subsequently becoming an 



■ Ut. s. tit 9. Ik* Pri—, Mt s. 

* VMd, b. >. «. 14. «ac lie. 

• Beboooer Bophie, 6 Rah. lUp. IBS. 



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118 OF THE LAW OF NATIom. [Pwtl . 

«iiemj. It would only be liable, witb bis other pn^>ert7, to 
be seized as prize of war.* 

Every power is obliged to confonn to these mles of the law 
of nations relative to postliminy, where the interests of neu- 
trals are concerned. But in cases arising between ite own 
enbjecte, or between them and those of her allies, the princi- 
ple may undergo such modifications as policy dictates. Tims, 
by several English statutes, the maritime right of postliminy, 
as among English subjects, subsists to the end of the war ^ 
and, therefore, ships or goods captured at sea by an enemy, 
and retaken at any period during the war, and whether be> 
fore or after sentence of condemnation, are to be restored to 

the original proprietor, on securing to the recaptors cer- 
*112 tain rates of salvage, as a compensation or reward *f<H' 

the service they have performed. i> Hie maritime law 
of England gives the benefit of this liberal rule of restitution, 
with respect to the recaptured property of her own subjects, 
to her allies, unless it appears that th^ act on a leas liberal 
principle, and then it treats them according to their own mea- 
sure of ju6tice.<= Great Britain seems to have no fixed rule as 
to the quantum of salvage on a foreign vessel in cases of re- 
capture, and the rate of salvage in other nations of Europe is 
different, as allowed by different nations.^ The allotment of 
salvage, on recapture or rescue, is a queBtion not of municipal 
law merely, except as to the particular rates of it. It is a 
question of the Jus ffentium, when the subjects of allies or 
neutral states claim iJie benefit of the recaption. The restitu- 
tion is a matter not of strict right, after the properly has been 
vested in the enemy, but one ot favour and relaxation ; and 
the belligerent recaptor has a right to annex a reasonable con- 
dition to his liberaUly.e Neutral proper^, retaken from the 
enemy, is usually restored, without the payment of any sal- 
vage, unless from the nature of the case, or the usages of the 



■ TJm PoriMima OoootptiaD, fl Roi. Rtp. 40. 

• 1 ChUtg tm CommtreUU Z«, 436. 

• Tha Buta Cnu, 1 Stb, Rtp. 49. 

' Whtalen, m Captttra, MS, £4). tVl. Opmiofu of Dit Allonuj/t-OtHtral, 
ToL L 4S6. 

• Tin Two Friand*, 1 Jtel. B*p. %1\. ManhaU cm In*. 474. Dovg. Stp. 



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Lm. v.] of the law of KATIOira. 119 

enemy, there is a probability ihot the proper^ would have 
been oondemiLed, if carried into the enemy's ports, and in 
that case a reasonable salvage ooght to be allowed, for a 
benefit has been conferred.* (1) 

^e United States, bj the act of congress of 8d March, 
1800, directed restoration of captured property, at sea, to the 
foreign and friendly owner, on the payment of reasonable 
salvage ; but the act was not to apply when the property bad 
been condemned as prize by a competent conrt, before recap- 
tore ; nor when the foreign government woold not restore tbe 
goods or vessels of the citazeus of the United States, un- 
der the like circomstances. Tlie statute continned*the *118 
jva poatUrmnii, ontil the property was divested by a 
sentence of condemnation, and no longer ; and tbis was the 
rule adopted in the English coorts, before the extension of the 
right of postliminy, by statutes, in the reigns of Geo. IL and 
Geo.IIL"' 



> TIic War Otubm, I Sob. Rap. 299. Tbs Culotta, 6 R-A. Btp. S4. 

^ Lord HMMfisld, ! AitT. Rep. S98. 1209. L'Acdf; 1 SAa. AAh. Rep. IM. 



(1) Thaii(li jxlnls pK^Mitir OMj ba Ukn by > mflUuj oommuidtf ftr pabUo bk, or to 
pranol lu fUBnf Inlo Uui buida ot tke munf, ft* tbg dugtc mmt ba Immlnail, utd tha 
Himiiltf idmaaag of no del^. lOitttf r. Hmuoj, 1 AOtc^AnPt A DM. U OHoirffi 
a. lis. 



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lECTURE yi. 

or TEX OXNE&AL BIOHTB AND DiniXS OF HEDTBAL NATIOXS. 

The rights and daties which helong to a state of neutrality 
form a veiy interesting title in the code of intemationsl law. 
They onght to be objects of partacnlar stndy in this conntiy, 
inasmuch as it is our trne policy to cherish a spirit of peace, 
and to keep onrsolrefi &ae from those pohtical connections 
which would tend to draw ns into the Tortex of Enropean con- 
tests. A nation that maintains a firm and Bcmpolonely im- 
partial nentraUty, and conmiands the respect of all other na- 
tions by its pradence, jnstice and good failh, has the best 
chance to preserve unimpaired the blessings of its commerce, 
£be freedom of its institutions, and the prosperity of its re- 
sonroes. Selligerent nations are interested in tbe support of 
the jnst rights of neutrals, for the intercourse which is kept 
up by means of their commerce, contributes greatly to miti- 
gate the evils of war. The public law of Europe has estab- 
lished the principle, that, in time of war, countries not parties 
to the war, nor interposing in it, shall not be materially af- 
fected by its action ; but they shall be permitted to carry on 
their accustomed trade, under the few necessary restrictions 
which we shall hereafter considOT. 

t It belongs not to a common friend to judge between theL;' 
'belligerent parties, or to determine the question of right b&T 

tween them.^ The neutral is not to favour one of them 

*116 *to the detriment of the other; and it is an essential 

character of neutrality, to iumish no aids to one party, 

which the neutral is not equally ready tofumish to the other. >> 



■ Sgnk. L 1. o. S. BwrloMogtd, vol. iL put 4. o. fi. mo. K, 17. 

* Vr. Sbnning, aftsr refcniiv to Am pnctioft of tanatt Umm oo the •nbg«at of 
foTMgn leriea b neobal aomitriM, and eritkall; wmining tlM reaioiuDg ot V^ttl, 
jnstlj eondndw tl»t forwgn Utim waj mt b> (IIowmI to om twlligermt, «bil< 



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Lm. VI] OP THE LiW OF NATIONS. 131 

A nation which wonld be admitted to the privileges of neu- 
trality, mast perform the duties it enjoins. Even a loan of 
money to one of die helligerent parties, ia considered to be a 
violation of nentrality.* A frandolent nentrality is no neu- 
trality. Bnt the nentral duty does not extend, bo far aa to 
prohibit the fulfilment of antecedent engagements, which may 
be kept consistently with an exact nentrality, unless they go 
BO far as to require the nentral nation to become an associate 
in the war.'' If a nation be under a previous stipulation made 
in time of peace, to famish a given number of ships or troops 
to one of die parties at war, the contract may be complied 
with, and the state of peace preserved, except so far as the 
auxiliary forces are concerned. The cantons of Switzerland 
have been accnstomed to fnmish such assistance to the other 
European powers. In 1788, Denmark furnished ships and 
troops to KuBsia, in her war with Sweden, in consequence of 
a previous treaty prescribing the amount ; and this was de- 
clared by Denmaric to be an act consistent with a spirit of 
amity and commercial intercourse with -Sweden. It was 
answered by the latter in her counter declaration, that though 
she could not reconcile the practice with the law of nations, 
yet she embraced the Danish declaration, and confined her 
hostility, BO far as Denmark was concerned, to the Danish 
auxiliaries famished to Enssia.' But, if a nentral power be 
nnder contract to Inmish succours to one party, he is said not 
to be bonnd if his ally was the aggressor ; and in this 
solitary instance the ^neutral may examine into the *111 
merits of the war, so far as to see whether the caatu 



r«fua«d to hii uitagmut, conaUtcutl; willi the dntiw of Deotnlitf, tnlMi tndi mi 
axcloaive priTilege mi gruited bj trei^ antcwdcDt to Ui« irar. JfanMtnj^f 
OammeitlaTitt, p. ISO. 

• Mr. PUkervKjfi Ldter P> Xntrt. J'Uuhitf, MarAall wtd Gnry, id ^ 
Marrh. 17BB. Id Devatz t. Heodikks, S Moon'i C. B. Rtp. 680, it wu held to / 
b« coutnij to tbe law of mtioiui, for pcnoiu nddbg ia Eoglaod to enter into \r 
(Dgagementt to raise mooej', by waj of loan, (or the purpose of inpportiDg eubjeda I 
of t. Rirrign )Ute in urn* afloat a goTetnmmt io biand^p with Englaod, and no / 
rigbt of action attadiad npoa an; loch contract 

• Valltl, b. t. o. i. itcW, 100, 101. Ih. o. 1. tee. 104, IDS. JfortM/ Am- 
mary, k B. c. 5. eee. 0. Jfr. Jeg^tnon'i LUtn to Jfr. Pinekiuy, Bifttmb€r Ilk, 

ifn. 

• JfMt Aim. Rtj. tar 1TS8, tit PuUk P^mcb, p. «9. 



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123 OF THE LAW OF ITATIOS& [Part 1 

fcederit eiUta." An inquiry of this kind, instituted by tlie 
party to the contract, for the purpose of determining on its 
binding obligation, holds ont strong temptations to abase ; 
wid, in the language of Mr. JenldnBon,'* "when the execn- 
tion of gnaranties depends on qnestions like these, it will 
never be diflScult for an ally who hath a mind to break h» 
engagements, to find an evasion to eecape." 
•; A neutral has a right to porsne his ordinary commo^^ 
and he may become the carrier of the enemy's goods, withont 
being subject to any confiscation of the ship, or of the neutral 
articles on board; thongh not withont the riak of having the 
voyage intemipted by the seizure of the hostile property. As 
the neutral has a right to carry the property of enemies in his 
own vessel, so, on the other hand, his own property is inviola- 
ble, though it be found in the veeeds of enemies. But the gene- 
ral inviolability of the neutral character goes further than mere- 
ly the protection of neutral property. It protecto the property 
of the belligerents when withinthe neutral jurisdiction. Itis 
not lawful to make neutral territory the scoie of hostility, or to 
attack an enemy while within it ; and if the enemy be attacked, 
or any capture made, under neutral protection, the neub^l is 
bound to redress the injory, and gffectre8titntion.'!(l) The hooka 
are full of cases recognising this principle of neutrality. In the 
year 1793, the British ship Grange was captured in Delaware 
Bay by a French frigate, and upon due complaint, the Ameri- 
can government caused the British ship ttf be prompfly re- 



■ Bunk. Q. J. Pvb. h 1. 1 B, ValttL. Ix S. a H. >«i IflB. 

* Ditoauru on tki Omelet of Os OovcnrnfM of Grtai BrUain in rttpeet to 
Jftutral Naii/m*, 1167. 

• (?«Wiiuih.8.B.4.Mc.8.iioteS. Bynk.h.l.6.%. V^^h.t.t.l.tet.m. 
Burlmnaqid, toI. n. put 4 c S. wft IB. 

(1) Tbs docMiu Is Ito text wu llw nlijwl of iTMl dli 

Tbs gontnniBiti of lh« rnUed States ind of FoRofiJ, bra < _. . ._ 

leCI, nbmltted Dull dMbmua, n4atini la Ui« " Gtntrat Armttrme," piitUttt, d«tlrof >d tg 
■nBDflUi tqnadrai, In UwpiiH of Vtjl, BcptcfDbertnb. 1§I(, lo Uw dscMoo of ike FmldMl 
■KlliemiMliRifiDbllA. Tba dwIiMi or Loan NapolBim, ftTn KarembH KKh, latH, m In 

ftTfinr iT riiiimii. «imwiiiiiiiiiiiriitiiiiiiiniii ii 

Tbit ttt SnglUi bdUi, iiipcawliliit ch* prl»lHr, in Uu nlafal pniwlliit the lOloii, mn 
ardmd <4 uul and >i>eB t^ the AaMrion enni : 

TkatthefecMoMM oIlb« PdMafase gtaitaa imStod la amei IntaTenthn Impoidlila, 
■Bd lb> Qonnor aadNTiiimd, ^ mMOtnos*, to piHem Ihs pose ofhli pert : 

And Um tenoMtim of Iha prlnlMr, not luTlng, fMn tb« begtrmlng, lud ruuana lo tha tn- 
tvnnUoa of Iha naalral pomr. lad haTlng HiiidoTed irmi Ut npet the Utack. ud ihu dlan- 
tuMl lbs mvlnUtT of iha port, On oanlral mratlt'' *" nl«*ed from Iha obll(iIkiii to 
iMBn bin pntaoliaD b; anj oOier mode Uiaii paoUe tntarrcDtlaD. 



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Lm. Tt] OF THE LAW OF NATIOira. 128 

Stored." So in the case of the Anna,^ the *8anct3ty of *118 
nentral territoiy was iiilly asaerted and vindicated, and 
restoration made of property captnred by a British cruiser 
near the mouth of the MisBisetppi, and within the jortBdiction 
of the United States. It is a Tiolation of neatral territory for 
a belligerent ship to take her station vithin it, in order to 
carry on hostile expeditions from tlience, or to send ber boats 
to capture vessels being beyond it. "So use of neutral terri- 
tory, for the purposes of war, can be permitted. This is the 
doctrine of the government of the United States." It was de- 
clared judicially in England, in the case of the Twee O^oe- 
dera ;^ and though it was not understood that the prohibition 
extended to remote objects and usee, such as procuring pro- 
visions and other innocent articles, which the law of nations 
tolerated, yet it was explicitly declared, that no proximate 
acts of war were in any manner to be allowed to originate on 
neutral ground ; and for a ship to station herself within the 
neatral line, and send ont her boats on hostile enterprises, 
was an act of hostility mach too immediate to be permitted. 
No act of hostility is to be commenced on neatral ground. 
No measure is to be taken that will lead to immediate vio- 
lence. The neatral is to carry himself with perfect equality 
between bot^ belligerents, giving neither the one not the 
other any advantage ; and if the respect due to nentral terri- 
tory be violated by one party, without being promptly 
punished by *jast animadversion, it would soon pro- *lld 
voke a similar treatmoit from the other party, and the 
neutral ground vrould become the theatre of war.*(l) 

> Mr. J^fton't iMtT t« Mr. Tmmu. o/* It(A Majf, ITSS. 
^ S Rat. Rtp. ITS. 

• Ut. Randalph't dTodar to tfu Ootttwrrt of lA* mmtoI StaitM, April 16(A, 
1199. Tba American a»niiiUHOiien to tlie court of Fnmoe, (BcDJuaia Fraaklut^ 
SQu DeuM and Arthur Lea,) in tbsirdrcatu' letter in 1771,to th« oomauuiilan of 
AmcricMl Mtned veMtlt, ewried very ftx the eitcononof aeotjml protcctkn, wbcD / 
thty appli«d it ioducrlminatalj to all capture* "withia light of a neutral cooat.' '/" 
Diplomatic Oormpendnut, by J. Eparia, toL iL lia Txdt iupra, Lectura'll 

' lSoi.Jitp.Ut. 

• Wbaa DoD Miguel, in lB2S,aaceiided the thnmt of Portugal, by a vote of Um 

<1) By ■ bMtr, nOBtd Jntr i, IBM, betnea the fTnlled fitilea lOd Or»( BriUln. IhcH pov- 
<n Miafed tluii Mltho' mold obtain eroIuilTe ooolral otA ■ ihlp-centl wbldi inl(bl be mide 
balmeD Um AOutlo aad PaoUe onaui, by irar of tfc» Bin* Bin Joaa do Illcan(U, aad 



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134 OP THE lAW OP HATIOMB. [P«rt 1 

If a belUgerent craiser inoffenaTel; paseee over a portioD 
of water lying within nentnil jurisdiction, that fact ia not 
usually considered snch a violation of the territorj as to affect 
and invalidate an ulterior captnre made beyond it. The 
passage of ships over tcrritoiial portions of the sea, is s thing 
leas guarded than the passage of anniee on land, becanse lees 
inconvenient, and permission to pass over them is not usually 
required or asked. To vitiate a subsequent captnre, the 
passage most at least have been expressly refused, or the 
permission to pass obtained under false pretences.* ^ 

The right of a refusal of a pass over neutral territory to the 
troops of a belligerent power, depends more upon the incon- 
venience &lling on the neutral state, than on any injuBtice 
committed to the third party, who is to be affected by the 
permissioD or refdsal. It is no ground of complaint against 
/ the intermediate neutral state, if it grants a passage to bellige- 
I rent troops, though inconvenience may thereby ensue to the 
> adveise belligerent It is a matter resting in the sound 
discretion of tJie neutral power, who may grant or withhold 
tiie permission, without any breach of nentrality.^ No bel- 
ligerent power can claim the right of passage through a 
nentral territory, unless founded upon a previous treaty, and 
it cannot be granted by a neutral, where there is no antecedent 
treaty, unless an equfdity of privilege be all owed to bofl i bel- 
Hgerents. This is the reasonable and just rule to be deduced 
from the opinions of jurists and Uie conventional law of 
modem nations." 



Portugueu Cortea, in vioUtioD of the title ^3J mKoetaoo of his nieco, DoODft Uuia, 
Eogluid decUr«d htiMlf mntnl m between IboM cUiniuitB, io tbeir domestie 
qiuiml for tbe crown. EAviogdtcIarMlfaerneDtralitj, Engluidmuiituiied itwitb 
fidelity ud vigiiur, Sb* would not lUow toy wu-Iiks equjpmeats b; either par^ 
b ber porti ; and wben an armunent had been fitted out is diagniae. and aBHed 
from Plymouth, ia tapport of tbe claimi of Dodu Uaria, England teot a anni 
force, aod actually iaterceptad the Portugueae atmament in its deatinatioD to the 
ialand Teroeira. 

■ The TWM Qebroeden, 1 Scb. Htp. 888. 

k Oretiut, b. 2. c. S. iec; 18. D. 4. VatUt, k 9. c T. aec 110. 118. 127. Sir 
Waiiam Seot^ 8 Stb. Btp. US. 

• Qrodiu; k 8. c. 7. aeo. S, 8. 7a((<i, b. 8. cT. eeo. ISS. Manning'* Cammcnta- 
ritt, 182 — 186. Withia a tew yean after the aipulaioa of the Taiquin^ the 
BomaiM, under the anajHcss of the CotMul, Sparioa OaanDi, cooetnded a leagns 
with the thirty dtiea or statea of L&tium ; and one arlide wu, that odther pw^ 



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Lm. TL] of the L&W of NATIOH& 135 

•Bynkerehoect* makes one exception to the genwal "laO 
inviolability of neatral territory, and snppoees that if 
an enemy be attacked on hostile ground, or in the c^en sea, 
and flee within the jorisdiction of a neutral state, the yictor 
may porsae him dwnferoet opus, and seize his prize within - 
the neutral state. He rests his opinion entirely on the 
authority and practice of the Dutch, and admits that be had 
ncTor seen theidistinction taken by the publicists, or in the 
practice of nationH. It appears, howerer, that Casaregis, and 
several other foreign jurista mentioned by Azuni,'' held a 
similar doctrine. But D'Abreu, Yalin, Emerigon, Yattel, 
AwiTii and others, maintained the sounder doctrine, that when 
the flying enemy has entered neutral territory, he is placed 
immediately under the protection of tlie neutral power. The 
aaioe broad principle tiiat woold tolerate a forcible entrance 
□pon neatral ground or waters, in pnrsnit of the foe, wonld 
lead the pursuer into the heart of a commercial port. There 
ia no exception to the rule, that every voluntary entrance into 
neatral territory, with hostile purposes, is absolntety unlaw- 
ful." He neatral border must not be used as a shelter for 
making preparations to renew the attack ; and though the 
neatral ia not obliged to refuse a passage and safe^ to the 
pursuing party, he ought to cause him to depart as soon as 
possible, and not permit him to lie by and watch his oppor- 
tunity for further contest. This wonld be m alring the neutral 
coantry directly auxiliary to the war, and to the comfort and 
support of one party. In the case of tlie Arma,^ Sir William 
Scott was inclined to agree with Bynkershoeck to this extent ; 
tfiat if a vessel refuse to sabmit to visitation and search, and 



rfiMlld giT« to cmdi otbd'a Muoiiea k puaage throiigh tiuir Uodi. Diottytiiu, b. 
A. MCI SB. Suhi/u'i HUtory of Rome, loL il £8. 
■ Q.J.PiA.h.\.<i.9. 

* Marabtu L«m, toL iL iSt. adit If . T. 

• Faffa^ b.8. (l1. MO. 188. \ Stntngon, Traiti in At. m. jlnmi.rol. iL 
3S8. It wu obMrrtd l^ tlie American SaereUr^ of StAte, (Hr. W«b«t(r,) m the 
diptoniBtic CDiTMpcnidaDce between him and tha Briliah minlitar, (Lord AahbiirtoD,) 
nJatire \n the cua of tha ataaiiibo«t OaraUiM^ oo tba CanwIiMi border, cod aaam~ 
(nglj «Hmitt^ bj Lord Aahbnrton, that to jnatify ft boatile eatnoea npoo nantnl 
twritoiy, there mnat exist a atemAXj of Mlf-defoMie, Initan^ oT«rwh«lmiD£ Uanig 
DO dKuce of maam, and 

« S JM. S*p. U6. 



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13S OP TKE LAW OP NATIONS. [Pnt L 

fled within neutral territory, to places which were unio- 
*121 habited, like the little mud islands before tbe *moQth 

of the Mississippi, and the cmiser, withont injmy or 
annojancfl to any person, should quietly take possession of 
bis prey, he trould not stretch the point so far, on that account 
only, as to hold the capture illegal. Bat in tliis, as well as in 
every other case of the like kind, there is, m stricto jv/re, a 
violation of neutral jurisdictioa, and the nentral power would 
hare a right to insist on a restoration of the property. It was 
observed by the same high authority, in another case, 
depending on a claim of territory,* " that when the fact 
is established, it overrules every odier consideration. The 
captnre is done away ; the property must be restored, not- 
withstanding it may actually belong to the enemy." 
PriH A neutral has no right to inquire into the validity of a 
HuSport^ capture, except in cases in which the rights of neutral juris- 
diction was violated ; and, in such cases, the neutral power 
will restore the prt^ierty, if found in the hands of the offender, 
and within its jurisdiction, regardless of any sentence of 
condemnation by a court of a belligerent captor, "i It belongs 
solely to the neutral govermnentto raiseThe objection to a 
captnre and title, founded on the violation of neutral rights. 
' He adverse belligerent has no right to complain, when the 
prize is duly libelled before a competent court." If any 
complaint is to be made on the part of the captured, it must 
be b y his goftimment to the nentral government, for a fiaudu- 
lent, or unworthy, or unnecessary suBmiauOTT* a violation of 
its territoiy, and snch submission will naturally provoke retalia- 
tion. In the case of prizes brought within a nentral port, the 

nentral sovereign exercises jurisdiction so far as to restore 
*122 the property of its *own subjects, illegdly captured ; 

and this is done, says Yalin,^ by way of compensation 

for the asylum granted to the captor and his prize. Ithasbeen 

I held, in ^is coimtry, that foreign ships, offending against onr 

^\ laws, within our jurisdiction, may be pursued and seized 



• The Vrow Adiul OattiAriiui, E Rob. Rtp. 16. 

^ The ArrogHiiU Barcelonea, *! Whtalan, He. Th» Autlrian Ordinanc* of 
IfmtraiUy, Augiut tth, 1808, art 18. L'AmiBtad de Ruw, S Whtaton, SSO. 

• Cue oftheEliiuco,SA0&£<p.ISa, note. 
' Cam. tome a. S74. 



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Lee. yij OP THE LAW OF NATIOHS. 127 

npoQ the ocean, and lightAiUy brouglit into oar porta for 
adjndicBtioD.^ 

The govemment of the United States was warranted, by An 
the law and practice of nations, in the declarationB made in"*"" 
1798, of the ndes of nentrality, which were particnlarly re- 
cognised as necessary to be observed by the belligerent pow- 
ers, in their intercoorBe with thia conntry.i" These rules were, 
that the original arming or equipping of yessels in our ports, 
by any of the powers at war, for military service, was unlaw- 
fhl ; and no such vessel was entitled to an asylum in onr 
ports. The equipment by them of government Tesaels of war, 
in matters which, if done to other vessels, would be applicable 
equally to commerce or war, was lawful. The equipment by 
them of vesBels fitted for merchandize and war, and appli- 
cable to either, was lawM ; but if it were of a nature solely 
applicable to war, it was unlawfnl. And if the armed vessel f 
of one nation shonld depart &om our jurisdiction, no armed \ 
Teesel, being within the same, and belonging to an adverse 
belligerent power, shonld depart nntil twenty-four honrB after i 
the former, without being deemed to have violated the law of 
nations." Congress have repeatedly, by statute, made suit- 
able proTision for the support and due observance of similar 
rules of neutrally, and given sanction to the principle 
of them, as being "founded in the universal law of *123 
nations. It iadeclared to beamisdemeanorfor any citi- 
zen of the United States, within the territory or jurisdiction 
thereof, to accept and exercise a commission to serve a 
foreign prince, state, colony, district or people, in war, by 
land or by sea, against any prince, state, colony, district or 
people, with whom the United States are at peace ; or for 
any person, except a snbject or citizen of any foreign prince, 
state, colony, district or people, transienUy within the United 
States, on board of any foreign armed vessel, within the ter- 



* Tlw Hwuima Flon, 11 Whtaton, 4!. 

' To/ffA b. g. «ac 104. HU/CiM, Mc 1174. Autlnan OrdinaiKt of ITtutTiilily, 
Angatt Ilk, IBOS. Ceur* it Droit PuUm, pu M. Pinbeiro-F«rr«ini, tom« ii pp. 
44—47. 

• ln*tnieium»t«litCoUtelor»e/tktOu4Uimi,Avgtattlh,l'in. MrJ^tncM't 
liamloJI.O*tut,<>f6thi»idllihJi«t,n»i. au IMt to Mr. Morrii, <^ 
Iflli Avyuii, 119!. Mr. Pickinn^i IttUr to Mr. Piiuknts, Jatamry ItA, lIVl. 
Sit Lttttr to M. Athl, Jcmuarg tOlh, 17911. 



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138 OP THE LAW or NAnOHa [Put I 

ritoi7 or juriedictios of the United States, to enlist or enter 
himself, or hire or retain ftnother person to enlist or enter 
himself, or to go beyond the limits or jnrisdictioD of the Uni- 
ted States, with intent to be enlisted or entered io the service 
of any foreign prince, state, colony, district or people, as a 
soldier, or mariner, or seaman ; or to fit oat and arm, or to 
increase or augment ^e fwce of any armed vessel, with in- 
tent thatsach yessel be employed in the service of any foreign 
power at war with another power, with whom we are at 
peace ; or to begin, or set on foot, or provide, or prepare the 
means for any military expedition or enterprise, to be carried 
on from thenoe against the territory or dominions of any 
foreign prince orstate, or of any colony, district or people, witii 
whom we are at peace ; or to hire or enlist troops or seamen, 
for foreign military or naval service ; or to be concerned in 
fitting out any veeeel, to cruise or commit hostilities in foreign 
service, against a nation at peace with ns; and the vessel, in 
this latter case, is made anhject to forfeiture. The President 
of the United States is also authorized to employ force to 
compel any foreign vessel to depart, which, by the law of 
nations, or by treaty, ou^t not to remain within the United > 
States, and to employ the public force generally, in enforcing 
tiie observance of the dntiee of neutrality prescribed by law.* 
Jn the case of the SantUaima Trinidad,^ it was decided, that 
captures made by a vessel so illegally fitted out, whether a 
pnblic or private armed ship, were to rts, and that t he origin al 
owner was entitled to res titution, if the proper^ was brought 
widiin our jurisdiction; but that an illegal oatfit did not 
\ affect a capture made after a cmise to which the outfit had 
been applied had terminated. The offence was deposited 
with the voyage, and the ddidtan ended with the termina- 
tion of the cruise.^ 



> Aett of CoHgrtt tf 5(1 Jmt, 17S4, and !0(A Apnl, 181S, & SS. Bj an met 
of CoagreM of Mwcb lOtli, 1888, e. Si, tLe proTuioDi of tbe act of 1818 -were cm- 
laigad and applied to aDj military eip«ditioa or eDter^«iie agaioat tlia (crritotj 
of any fbriign prince or *taU, or of an; oolon;, dutrict or people, ooDtenninotH 
wilb the United States, and irilli whom tliey are at peace. Great BritaiD, by aot 
of parliament of SS Qeo. m, called the Pi^^gn EDUatment Ad, Id like maiuMr 
[ffoMbited eoliilmenta and eqaipmoita witliin the king^ damiaioiu, for warlike 
ptnpowaio Ibrdgn atatei. 

» 1 Whtahn^, SSI. 

• Titeieameo ofanenta«liiBti(miii«f •emonboMdof a tewBi«rrifli veaeel of 



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Lee. TI] OF THB LAV OF NATIONS. 1^9 

/ Tlioagti a belligerent vessel may not enter witlun neutral p>'Oh ib 
I jurisdicdoD for hostile pnrpoees, she may, consiBtently wiUi a 
j state of nentrality, until prohibited by the neatral power, bring 
' her prize intoanentxalport,aiidBell it^ Thenentral 
power is, however, at liberty *to refiiae this privilege, *124 
provided the refusal be made, as the privilege ought to 
be g^'anted to both parties, or to neither. The United States, 
while a nentral power, frequraitly asserted the right to pn>- 
hibit, at discretion, the sale within their ports, of prizes 
brought in by the belligerents ; and the sale of French priz«e 
was allowed as an indulgence merely, until it interfered with 
the treaty of England of 1794, in reqtect to prizes made by 
privateers. >■ In the opinion of scone jurists, it is more con- 
sist^t with a state of neutrality, and the dictates of trae po- 
licy, to refnse this fiivoor ; for it must be very inconvenient 
to permit the privateers of contending nations to assemble, 
together with their prizes, in a neutral port. The edict of the 
States Gteneral of 1656, forbade foreign cruisers to sell tbeir 
prizes in their neutral ports, or cause them to be unladen ; 
and the French ordinance of the marine of 1681, contained 
the same prohibiti<»L, and that such vessels should not c(m< 
tinoe in port longer than twenty-four hours, unless detained 
by stress of weather.' The admission into neutral ports of 
the public shipe of the belligerent parties, wiihout prizes, and 
under due regulations, is considered to be a favour, required 
on the principle of hoepitalily among friendly powers, and it 
has been uniformly conceded on the part of the United 



• belligerent power, oi ba employed io a cootr&buid trade on board of a Deatnl 
▼CMel, vitbDut btiog liftble to padabmait perwman^r, hj tba manicipdl lawi of hi* 
own cmmtrj, ot by Um lav of imUwiii. Opiniont of tlu AUam»jf'Otn*r^ o/ttn 
UniUd Suatt, Tol. L SB. 

• B^nk, k 1. c. IS. TaUd, h. a. e. 1. uta. US. Marttnt, b. 8. c fl. kc. S. 
Hbpoer t. Apgdeby, ft Ifamm'i Rtp. TI. 

^ Imtnuuuuu to tju Aauriean MintiUn U Frann, July I6ik, 1797. Jtr, 
jPMtimff** -^(T* to jr. Aiit, Jlag 24a and JAmmier ISM. 1TS6. HU LtOir 
to Mr. Pinttiug, Janvary Ulh, llBl. It ia deemed proper and lafe for a neutral 
poirer to permit a prise brought ioto port in dietrev, to bt repatnd, tor the purpoae 
of fiirUier lUTigatun. Opinimt of tht AUvrntji-Omtral, toL i. SOS. 
. • ValuCi Com. tome u, 27g. 

* Mr. JtfftTtc»'t LttUr to Mr. Bananond, 8tpUtnt«r 9i\, I7SI. Jtutruetien* Io 
th* AnuriuM OenaniuUnen Io fi'anet, July IStA, ITBT. Oeun it Drtit PiAlk, 

VoL.1. » 



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180 OP THE LAW OF VATKOm. [P»rt I. 

EDHiijr^ But neutral ships do not afford protection to enemy's pro- 

*jtr«i Twperty, and it may be seized if fonnd on board of a neutral 

Teasel, beyond the limits of the neutral joriBdicdon. This is 

a clear and well settled principle of the law of nations." 
*135 It was formerly a question, whether the neutral *sliip, 

conveying enemy's pK^erty, was not liable to confisca- 
tion for that cause. This was the old law of France,^ in cases 
in which the master of the vessel knowingly took on board 
enemy's property ; bnt Bynkershoeck truly observes, that the 
master's knowledge ia immaterial in this case, and that the 
rule in the Roman law, making the vessel liable for the frau- 
dulent act of the master, was a mere fiscal regulation, and did 
not apply ; and for the neutral to carry enemy's goods is not 
nnlaw&l, like smuggling, and does not affect the neutral ship." 
If there be nothing unfair in the conduct of the neutral master, 
he will even be entitled to his reasonable demurrage, and his 
freight for the carriage ofthe goods, though he has not carried 
them to the place of destinatioD. They are said to be seized 
and condemned, not ex deUeto, but only ex re. The capture 
of them by the enemy is a delivery to the person who, by 
the rights of war, was substituted for the owner.^ Bynker- 
shoeck' thinks the master is not entitled to fi^ight, because 
the goods were not carried to the port of destmation, though 
he admits that the Dutch lawyers, and die conadaio, give 
freight. But the allowance of freight in that case has been 
the uniform practice of the English admiral^ for near two 
centuries past, except when there was some circumstance of 
malajide«y or a departure from a strictly proper neutral con- 
duct.'' TTie freight is paid not pro rata, but mi toto, because 

pw- M. PifMr^-Ftrrtira, tome iL p, 47. Such poUic thmU ua exempt from 
the jurisdiction of the local authoritite; bat thi< ezemplioD doei cot extend to 
{^TKle Teeaela, ViiU infra, p. 16fl, note. 

' Oretita, 1. 1. c fl. aee. S. Beitite. it Hax. oh. twd. c S. sec S. Bynk. Q. J. 
Pub. c 14. Loceeniut, de Jure mar. tt nav. b. Z. c 4 MC S. Mailoy, di Jure 
narttimo, Ix 1. o. 1. Deo. IS. Larapndi, du CornKtree dti Ntmn*^ lec 10, 11. 
VaOd, b. S. c T. sec UB. Aniaer, in ITGS, to the Pnuaan Manorial. Conmilat. 
dt U Utr, par Bouther, tome IL c 2TS. Vli. mc 1004. 

k Ord. dt la Marina, Itr. S. tit. 6. da Prim, art 1. 

• Bynlc. J. Pvh. lib. 1. c. 14. 

* Vatta, b. g. c 7. sec. US. • B. ]. o. 14. 

( /<inji:tfutm'( XHteouna is 1767, p. 13. The AUu, 8 Rot. Rep. tCH, a>U. 
Artivtr to Ihe Pruuian Mtntoriat, Vltt. 



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Lm. VI] OP THE LAW OF NATIONS. 131 

capture is considered as delivery, and the captor pays the 
whole freight, because he represents his enemy, by pos- 
seesing himself of the enemy's goods, ^Jure belli, and *126 
he interrnpts tiie actual delivety to the consignee.* 

The right to take enemy's proper^ on board a neutral ship, 
has been much contested by particular nations, whose interests 
it stron^y opposed. This was the case with Prossia in the 
case of the Sileaia loan, and viih the Dutch in the war of 
1756 ; and Mr. Jenkinson (afterwards Earl of liverpool) pub- 
lished, in 1757, a discourse, very fiill and satisfactory, on the 
ground of au&ority and usage, in favour of the legality of the 
right, when no treaty intervened to control it. The rale baa 
been steadily nuiintained by Great Britain. In !France it baa 
been fluctuating. He ordinance of the marine of 1681, as- 
serted the ancient and severe rule, that the neutral ship, hav- 
ing on board enemy's property, was subject to confiscation. 
The same rule was enforced by the arrets of 1692 and 1704, 
and relaxed by those of 1744 and 1778> In 1780 the Em- 
press of Kuasia proclaimed the principles of the Baltic code of 
neutrality, and declared she would maintain them by force of, 
arms. One of tbe articles of that code was, that " all effects , 
belon^ng to the subjects of belligerent powers, should be '. 
looked upon as free on board of neutral ships, except only i 
such goods aa were contraband." The principal powers of 
Europe, as Sweden, Denmark, Prussia, Germany, Holland, ' 
France, Sptun, Portugal and Naples, and also the United 
States, acceded to the Enssian principles of neutrali^." But 
die want of the consent of a power of such decided maritime 
superiority as that of Great Britain, was an insuperable ob- 
stacle to tiie success of the Baltic conventional law of neutrali- 
ty ; and it was abandoned in 1793 by tbe naval powers of 
Europe, as not sanctioned by the existing law of nations, 
in every case in which l&e doctrines of that code *did *1^ 
not rest upon positive compact. During the whole 
course of the wars growing out of the French revolution, the r^ 
govermnent ofthe United States admitted the English rule to b 



• The CopmbageD, 1 Sob. Rip. IS9. 

• Valm't Cam. 1. 3. tit 9. det Fruei, art 1. 

• iftvAnn. Rtg.loil'IBO,tit.Pvb]ieFt.-pea,iip.n»--lZli. Xorlmt' Bitmmort^ 
SiT, edit PbiL JonnMUie/Congnii,tdly^ pp. 68.166. 



th. K 

obe r 



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183 OF TAB LAW OF HATIOITS. [Rut I. 

valid, as the trne and settled doctrine of intematioiial law ; and 
that enemy's property was liable to seizare on board of neutral 
ships, and to be confiscated as prize of war.> It has, how* 
ever, been very nsnal, in commercial treaties, to stipulate that 
free ships should make free goods, contraband of war always 
excepted ; bat such stipulations are to be considered as resting 
on conventional law merely, and as exceptions to the opera- 
tion of the general rule, which every nation not a party to the 
stipulation is at perflact liberty to exact or surrender, ^e 
Ottoman Forte was the first power to abandon tiie ancient 
rale, and she stipulated, in her treaty with France, in 160i, 
that free shtpe ^oold make free goods, and she afterwards 
consented to the same provision in her treaty with Holland, 
in 1612 ; and according to Azuni,^ Turkey has, at all times, 

). on international questions, given an example of moderationto 

f the more civilized powers of Europe. 

He effort made by tiie Baltic powers, in 1601, to recall and 
enforce tiie doctrines of the armed neutrality, in 1780, was 
met, and promptly overpowered, and the confederacy die- 
solved by the naval power of England. Bussia gave up the 
point, and by her ctmventicm with Englaad of the 17th June, 
1801, expressly agreed, that enemy's property was not te be 
protected on board of neatral ships. The rule has since been 
rery generally acquiesced in ; and it was expressly recog- 
nised in the Austrian ordinance of neutrahty, pubhshed 
•128 atTienna,the7thofAugMt,1808. Its reasons *and au- 
thority have been ably vindicated by English stateemen 
and jurists, and particularly by Mr. Ward, in his treatise ^ 
the Telatwerighta andduUes ^h^Ugerent and neutral powers 
in maritime qffaira, published in 1801, and which exhausted 
all the law and learning applicable to the questiou-o (1.) 



• Mr. JtfftTKmU LeOtr to K Oaut, JtUg !4lA, t19S. Mr. Pidetrin^i LaUr 
to Mr. Fineknts, Jarauay Itlli, 1791 ZeUw of Mmr*. Pinekncy, Marshall mtd 
Ofny, ie llu FrtneK Oottnmml, JoKuarg 1!7fA, llaS. 

* Mantimt Lmt of Bvropt, toL iL IBS. Flauoi^ in hii BUtoirt de lalKpto- 
ifuMi FroKfaitt, t. ii. 2£B, wji, that it wu ttot the object of the Ottomui Porte, 
in tli« iiutaiiee mentioDed id the text, to abandon llie aDcieiit rale, and thai H wm 
not a treaty, bnt a ooncemon to France of privil^ea and exemptaun, from pun 
libmali^. 

■ Mr. Uanning, in hii CommtnlaTUt on th* Lam of Natioin, pp. SUS — £41, haa 

(1) tht Kkswtet nmaikiUa deelualln af Os QnernmeDt oT Qnal BiUalD, made «a 



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L«e.Tt] OT THE LAW OF NATIOK& 188 

It ia also & principle of the lav of nationfl relative to neu- 
tral rights, tiiat the effects of nentrals, found on board of ene- *■ 
mj'a veaaels, ehall be l&ee ; and it is a right as folly and 
finnly aetded as the other, though, like that, it is often 
changed hj positive agreement^ l^e principle ia to be met 
with in the Consolaio dd Mare, and the property of the neu- 
tral ia to be restored witbont any compenaation for detention, I 
and the other necessary inconveniences incident to the cap> 1 
tnre. The former ordinances of France, of 1548, 1585 and 



dUewMd Ihs qoMtioD wiidliw "frM lUp* n«k« firt* good*," qnit« at Urge, tnd 
with gttU itt«Dgtli of maoBJng. He Tiodioktei tiw beUigereot ri^ agiiiiat the 
doctriiw of the Baltic pcren, apoo wlid jsiiidplet, and Dpaa b« aatborit; otlh* 
CoKtolato M Mar*, aod of the moat ecaineat Earopetn Joriita vbo have written 
no the law of Dations within the laet two ceDtoriei. Hie prim^al anftoritiea have 
been Already referred to, at page* 134, I2E, n. a. Ht, Manning alao ezaminea the 
qneetioD, od (he autbontj of the ciutomary and ootntatiooiX Uw of uatioiH, by a 
renew of a rueeauen of trealiM between European powei^ from the jear 18(11 
to tbe preeeot Ifaaea. The reeoH ie, that thneiinothii^ like BTitem or oonaietaiDj' 
af prindple in the oonreotioaal Uw of Bnrope. !%• belliganDt rale ba* b««n 
attvniatelj adopted and rqeoted, and quahfiad with infinita TicWtode, and n ae 
to leave the mle, m a gmeral and icttlad prindpla of interaatinnal Uw, when not 
dutnrbed by poeitire Btipaktiotu, m full forte. OotKm. pp, S44— 2S0. 

• ti'mtiBj.b.a.cSand IS. SynicclS. F<iU<^b. 8. a. 7. MC. llS. Antrntr 
to tif iVuMiM Jfoneria^ 1188. Mr. Jfftnan't ZtOtr to X. Omet, My MA, 
11», Mr. Piditnm^i iMtr to Mr. iNMiMy, Jmtmmf lOth, ItVt. 



AeanameoeenMataftbenr wUhBi 
lheUh> lb* prlao^da of the Jrnud yautraUty. 

"Dkhikuiov.— Her Msleilj the Qoeen or a» Onlled Ktaiddn tl Qreit Brflibi and Iie- 
Imd, biTlac beea ampeDed to tike ii|t not Ia atpport of u illy, I> derinu cT nndartiil 



"ItldraiMMlblelbrliarlf^a^rla £ir««o the exodee of berrlfhloTiebliigHaelaooiittB- 
baid or war, and of prcTeBUiiK neuMIe tma beulnf Die eneaj^ dlqiatihM, and ibe moN 
' le from bnaklDf anj effboflre M**^^^* 
■ enemj^ )W^ lurbODn tt 

re the il^ of wtUat aitaift piqHMj ladin on board « neatnl 




>d t«OM of Uk onmtoT, tt !• notho' preaant latentioa lo lane letun otmaiqoe 
■tefpriTitewi. 
c,tbfehMih,18IU.- 
« iNlUfmBt tfehai, nentloaed la the nedmlhiD, ■!• BOt niKiiiiMed, bU oBlf 
"w<e^/»-H<7»Hi>A'<UeuiMitbadoDbtedbat thai IhU nwuste la ■ ireel idTuee of Ihe 
rVMofiH 



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134 OF TUE Lkyr OF SA.T10SB. [Parti. 

1681, declared such goods to be lawful prize ; and Talin^ jna- 
tifies the ordinances, on the ground that the nentral, b j put- 
ting his property on board of an enemy's vessel, favours the 
enemy's commerce, and agrees to abide the fate of the vessel. 
But it ia inlly and satis£Eictorily shown, by the whole current 
of modem authority, that the neutral has a perfect right to 
avail himself of the vessel of his friend, to transport Ms pro- 
perty ; and Byukershoeck has devoted an entire chapter to 
the vindication of the jostice and equity of the right.'' 

The two distinct propositions, that enemy's goods found on 
board a neutral ship may lawfully be seized as prize of war, 
and that the goods of a neutral found on board of an 
*129 *enemy'B vessel were to be restored, have been expli- 
citly incorporated into the jurispmdence of the United 
States, and declared by the Supreme Court* to be founded in 
the law of nations. "Hie rule, as it was observed by the 
court, rested on the simple and intelligible principle, that war 
gave a lull right to capture the goods of an enemy, but gave 
no right to capture the goods of a friend. The nentral flag 
constituted no protection to enemy's property, and the bellige- 
rent flag communicated no hostile character to neutral pro- 
perty. The character of the property depended upon the 
Jact of ownership, and not upon the character of the vehicle 
in which it is found. Alter vindicating the simplicity and 
justice of the original rule of the law of nations, against the 
speculations of modem theorists, and the iil^ma ra^ of the 
armed neutrality, which attempted to effect by force a revo- 
lution in the law of nations, the court stated, that nations 
have changed this simple and natural principle of pnblic law, 
by conventions between themselves, in whole or in part, as 
they believed it to be for their interest ; but the one proposi- 
tion, that free ships should make free goods, did not necessa- 
rily imply the converse proposition, that enemy's ships should 
make enemy's goods. If a treaty established the one propo- 
sition, and was sUent as to the other, the other stood pre- 



■ Oiinn. tiL B. tiL 9. (fai Pruai, art. 1. 

' ConnUat Jt la Mtr,pKBoiieher,U>miu.e.2la.»te. ion, IQ19. HeinMcin*, 
it Nav. dt. vtti. e. t. sec S. Optra, toma ii put I. pp. S4e — 8SS. VaUti, b, 3. C 
I.MclH. Bynk.6.n. 

• Tha Nereide, S Craneh, 88S. 



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Lea 7L] OP THE LAW OF NATlONa 185 

ciselj aa if there bad been no stipolation, and npon the ancient 
role. The stipulatioQ that neutral bottoms ebonld make neu- 
tral goods, was a coDceeaioa made by the belligerent to the 
neutral, and it gave to Ute nentral flag a capacity not given 
to it by the law of nations. On the other hand, the atipnla- 
tioQ sabjectin^ neatral property found in the vessel of an en&- 
my to condemnataoD as prize of war, was a concession made 
by the neutral to the belligerent, and took from the neutral a 
privilege he poBseesed under the law of nations ; but 
neither reason nor practice ^rendered the two concee- *130 
sioDS BO indiaeolable, that the one could not exist with- 
out the other. It rested entirely in the discretion of the con- 
tracting parties, whether either or both should be granted. 
The two propositions are distinct and independent of each 
other, and they have frequently been kept distinct by trea- 
' ties, which stipulated for the one and not for the other,* 
, He goremment of the United States, in their negotiations 
with the repnblics in Sonth America, have pressed very ear- 
nestiy for the introduction and establishment of the principle 
of &e Baltic code of 1780, that the friendly flag should cover 
the cargo ; and this principle was incorporated into the treaty 
between the United States and Colombia, in 1825, and into 
the treaty of navigation and commerce between the United 
States and the Bepublic of Ohili, in 1833.'' The introduction 
of those new republics into the great community of civilized 
nations, has juatiy been deemed a very £avorable opportu- 
nity to inenlcate and establish, under their sanction, more en- 
lai^d and liberal doctrines on the subject of national rights. 
It has been the desire of our government to obtain the recogni- 



■ Tba Orenat, t DodtonU Ain. R*p. t». a F. 

' It WM llipQUted io thou AnMrioui traUJei, that ai betwieD the parties, free 
diipe sbould give freedom to gooda — that the flag ahould ooTer the cargo eTcn of 
«oemiei, oqctrabaod goods «xc«pt«d, and abould alu cover the pertona, though 
eoemie^ hdIhi Hmj were ofioan or aotdien in actual Hrrica. But the proriiiDa 
WW odIj to applj to Ukw* povtn who rcoogMMd the principle; and neatnl 
|aupeitj tbinid od board eoemj** v«aali vera, nnder the above etipalation, liable 
to eapture. If however, the nentral flag did not protect enemj's proper^, 
thea the goods of a neutral on board of an enem/'s vessel vers to be free. TVwIjp 
mM CWomMo, art 13, 18. Trtaty wU\ CkUi. wrl. 11, IB. TrtatyuUh Founirfa, 
■It IS. Tnaty with llu Ptm-BtllHan (Hmftdtratum, «rt 11, 1). 3^*<Uj/ ititA 
Beuador, in lS»9,»rt 16. 



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186 OP THE LAV OF KATIONS. [Put L 

tion of the fDnd&mental principles, consecrated hy the treatf 
■with Pnuma, in 1788, relative to the perfect equality and re- 
oipHMaty of commercial rights between nations ; the abolition 
of private war npon the ocean ; and the enlargement of the 
privUegee of neutral commerce. Hie rule of pablic law, that 
the property of an enemy is liable to capture in the Teasel of 
a Mend, is now declared, on the part of onr goveminent, to 
have no foandation in natural right ; and that the nB^;e rests 
entirely on force. Though the high seas are a general juris- 
diction, common to all, yet each nation has a special juris- 
diction over its own veasels ; and all the maritime nations of 
modem Eorope have, at times, acceded to the principle, that 
the properly of an enemy shonld be protected in the Tesael of 
a friend. No neutral nation, it is said, is bound to 
*131 submit to the usage ; and the neutral may have ^yielded 
- at one time to the osage, vrithont Bacrificing the right 
to vindicate, by force, the security of the neutral flag at 
another. The oeutral right to cover enemy's property is con- 
ceded to be subject to this qualification ; that a beUigerent na- 
tion may justly recuse to nentrals the benefit of this prin< 
tuple, unless it be conceded aJao by the enemy of the bellige- 
rent to the same neutral flag.*' 

But, whatever may be the utility or reasonableness of the 
neutral claim, under such a qualificatioD, I should apprehend 
the belligerent right to be no longer an open question ; and 
that the authority and usage on which that right rests in 
Europe, and the long, explicit and authoritative admission of 
it by this countiy, have concluded us &om making it a sub- 
ject of controversy ; and that we are bound, in truth and jns- 
tice, to submit to its regular exercise, in eveiy case, and with 
every belligerent power who does not £reely renounce it. 

It has been a matter of discnsfflon, whether the captor of 
the enemy's vessel be entitled to freight &om the owner of the 
neutral goods found on board, and restored. Under certain 

feircnmstauces, (he captor has been considered to be entitledto 
freight, even though the goods were carried to the claimant's 



> Itller ef Mr. AtUmt, Bterttary of &aH, to Mr. Andtnan, VH\ Mag, 18!8. 
PrnidenfM Miuagi to tht 8maf of aart DtetnArr, ISSS, mJ to tA« Ho^m «f 
StpntmiMvtt, Marth UA, IBM. 



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Lm. Vl] OF TSB LAW OF NATIOm. 187 

own coontty, and reBtored: and he clearly is entitled to 
freight, if he performs the voyage, and csniea the goods to I 
the port of c«iginal desttDation. In no oilier case ie freight ' 
due to the captor ; and the doctrine of jm>rato freight is en- l^^ 
tirely rejected, hecanee it vonid involve a. prize conrt in a / 
lahyrinth of minnte inqniriefl and considerations, in the en- 
deavonr to ascertain, in eveiy case, the balance of advant^e 
or disadvantage, which an intermption and loss of the origi- 
nal voyage, by capture, might have produced to the owner 
of the goods.' 

*In the case of the JVere^de,^ the Supreme Court of *183 
the United States carried the principle of immunity of 
neutral property on board an enemy's vessel, to the extent of 
allowing it to be laden on hoard an armedh&Uigereiit croiser ; 
and it was held, that the goods did not lose their neutral cha- 
racter, not even in consequence of resistance made by the 
armed vessel, provided the nentxal did not aid in such arma- 
ment or resistance, notwithstanding he had chartered the \ 
whole vessel, and was on hoard at the time of the resistance. | 
The act of arming was the act of the belligerent party, and 
the neutral goods did not contribnt« to the armament, fbrther 
than the freight, which would be paid if the vessel was un- 
armed, and neither the goods nor the neutral owner were 
chargeable for the hostile acts of the belligerent vessel, if the 
neutral took no part in the resistance. A contemporary de- 
cision of an opposite character, on the same point, was made 
by the English high court of admiral^ in the case of the 
J^iwmy /• and it was there observed, that a neutral subject 
was at liberl^ to put his goods on board the merchant vessel 
of a belligerent ; but if he placed them on board an armed 
belligerent ship, he showed an intention to resist visitation 
and search, by means of the association, and, so &r as he 
does this, he was presumed to adhere to the enemy, and to 
withdraw himself from his protection of neutrality. K a 
neutral chooses to take the protection of a hostile force, in- 
stead of his own neutral character, he must take (it waa 



• Bfn^ H. J. Fvb. b. 1. clt. Tb« Fottmik, 4 Sub. S*p. I7& Th* Dun*, 8 
S66. Rtp. SI. Ttov Adob Catluuiiia, t Rob. Stp. E6S. 
^ 9 OrmA't Rtp. 8SS. 
■ 1 Dod»(m'* A(b». Rip. 449. 



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138 OP THB LAW OF NATIOSS. [Pnt L 

observed) the inconTenience with the coDTenience, and bis 
property would, upon just and sound principles, be liable to 
condemnation along with the belligerent yessel. 

The qnestioa decided in the case of the Ntfr^de is a very 
important one in prise law, and of infinite importance in its 
practical reanlta ; and it is to be regretted that the decisions 

of two courts of the highest character, on such a 
*133 point, *8hoiild have been in direct contradiction to 

each other. The same point afterwards arose, and was 
again argaed, and the former decision repeated in the case of 
the Ati^/m.ta.*' It was observed, in this latter case, that the 
rnle with us was correct in principle, and the most liberal 
and honorable to the jurisprudence of this country. The 
question may, therefore, be considered here as at rest, and as 
having received the most authoritative decision that can be 
rendered by any judicial tribunal on this side of the Atlantic. 



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LECTTTEE VII. 

or BBSTBICnOHS UPOH NEDT&Al TRADE. 

The principal restriction ^grliich the law of nations imposefl 
on the trade of neatrals, is ttie prohibition to furnish the bel- 
ligerent parties with warlike stores and other articles which 
are directly aaxiliary to warlike purposes. Snch goods are 
denominated contraband of war ; bat in the attempt to define 
them the anthorities vary, or are deficient in precision, and 
the subject has long been a fimitfUl source of dispnte between 
neutral and belligerent nations. 

In the time of Qrotios, some persons contended for the 
rigour of war, and others for the freedom of commerce. As ' 
nentral nations are willing to seize the opportunity which war 
presents, of becoming carriers for &e belligerent powera, it is 
natural that they shonld desire to diminish the list of contra- 
band as much as possible. Orotios distinguishes^ between 
things which are oseM only in war, as arms and ammuni- 
tion, and things which serve merely for pleasure, and things 
which are of a mixed nature, and useful both in peace and 
war. He agrees witii other writers in prohibiting neutrals 
from carrying articles of the first kind to the enemy, as well 
as in permitting the second kind to be carried. As to arti- 
cles of the third class, which are of indiscriminate use 
in peace and war, as money, provisions, ships and naval 
stores, he says, that they are sometimes lawful articles of neu- 
&al commerce, and sometimes not; and the question 
will depend upon circumstances existing *at the time. *136 
They would be contraband if carried to a besieged 
town, camp or port In a naval war, it is admitted that ships 
and mateiialB for ships, become contraband, and horses and 



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140 0? THE LAW OP NATIOira. [P«it t 

saddles may be included.^ Ysttel speaks with some want of 
precision, and only says, in general terms,'' that commodities, 
partictdarly used in war, are contraband, sacli as arms, mili- 
tary and naval stores, timber, horses, and even proTisions, in 
certain junctm^, when there are hopes of redncing the ene- 
my by famine. Locennios," and some other authorities re- 
ferred to by Yalin, consider provisions aa generally contra- 
band; bat Yalin and Pothier insist that they are not so, 
either by the law of France or the common law of nations, 
nnless carried to besieged or blockaded places.^ The marine 
ordinance of Louis XIY." included horses and their equi- 
page, transported for military service, within the list of contra- 
band, because they were necessary to war equipments ; and 
this is, doubtless, the general rule. They are included in the 
restricted list of contraband articles mentioned in the trealy 
between the United States and Colombia, in 1825. Yalin 
says, that naval stores have heen regarded as contraband from 
the beginning of the last century, and the English prize law 
is very explicit on this point Naval stores and materials for 
ship-building, and even com, grain and victuals of all sorts, 
going to the dominions of tlie enemy, were declared contra- 
band by an ordinance of Charles L in 1626.'' Sail-cloth is 
now held to be universally contraband, even on a destination 

to ports of mere mercantile naval equipment;! and in 
*137 the case of the Ma/ria,^ it was held, that *tar, pitch and 

hemp, and whatever other materials went to tiie c<hi- 
stmction and equipment of vessels of war, were contraband 
by the modem law of nations ; though formerly, when the 
hostilities of Europe ware less naval than at the present day, 
they were of a disputable nature. The executive government 
of this comitry has frequently conceded that the materials for 
the building, equipment and armament of sfaipa of war, as 



■ £H(A«fft>rfA'iAu(.k1.c.S. 
' a 3. e. r •ee. 112. 

• De JuTt Mciritimo, lib. I. a. i. note 9. 

* Vidm't Obm. tome il p. 364. Pothim da PropTiOi, STo. 104. 

■ DeiPrUa, Kt 11, 

' Robinion't Collce. Mar. p. 68. 
I The Naptuani, S Roh. Rtp. 106. 
k 1 RiA. Rtp. SS7. Hul. ed. 



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Lm. Vn.] OF THB LAW Of NATIONS. lU 

timber and naval Btores, were contmbaad.* But it does not 
seem that ship timb«r is, «» ««, in all cases, to be considered 
a contraband article, thoogb destined to an enemy's port. In 
the case of the Anstrian vessel, II Vdlante, captured hj the 
French privateer Z'MoUe de Bona^^artA, and which was car- 
lying ship timber to Kessina, an enemy's port, it was held, 
by the coondl of prizes at Paris, in 1807, upon the opinion 
of the advocate-general, M. Collet BescotUs, that the ship 
timber in that case was not contraband of war, it being ship 
timber of an ordinary character, and not exclnaiyely applica- 
ble to the building of ships of yiax> 

Questions of contraband were much discussed daring the 
continnonce of our neutral character, in the forioos war be- 
tween En^and and France, commencing in 1793, and we 
professed to be govoued by the modem nsage of nations on 
this point* The nationiil convention of France, on the 9th 
of May, 1793, decreed, that Dentrai vessels laden with provi- 
uons, destined to an enemy's port, should be arrested and 
carried into France ; and one of the earliest acts of 
England, in that war,'' was to detain all neutral *ves- *1S8 
sela going to France, and laden with com, meal or flour. 
It was insisted, on the part of England,* tliat, by the law of 
nations, all provisions were to be ctmsidered as contraband, 
in the case where the depriving of an enemy of those supplies 
was one of the means employed to reduce him to reasonable 
terms of peace ; and that the actual aitnatiou of France was 
such, as to lead to that mode of distressing her, inasmacb as 
she bad armedalmoetthewhole labouring class of her people, 
for the purpose of commencing and supporting hostilities 
against all the governments of Europe. THas claim on the 
part of England was prompUy and perseveringly resisted by 
the United States ; and they contended that com, flour and 

• Mr. Ramblpk'i LiUtr to M. AAt, My 6(A, ITSG. Mr. J^terin^i Zllir to 
Mr. Pindauy, Jaiuiars 16tA, 119T. Letter o/ Mtur*. Pinohuy; MarAaU and 
Otrry, la the JWncA Minittr, January ilth, 119B. 

• Btptrtoirt imivtr*tl*tT<iu<m»tikJiingirutltn^ par M.Mtrliti,toaia ix.1i%. 
Fritt Marilimt, mc. 8. uL S. 

• pTtaJattt PrMlimt^ion of NiMr^Uy, April !£<( 1798. 
' jMtfniefioM 0^ 8<A Jm*. 17SS. 

• Mr. Eammond't LttUr te Mr. J^tnom, BfptM^er 12<A, IISS, and kit LetUr 
ta Mr. Bantiotfh, AprH llfA, 17S4. 



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143 OF THE LAW OF ITATIONa [PHttI 

meal, being the produce of the soil and laboor of the conntFy, 
were not coatraband of war, nnleaa carried to a place actually 
invested.' The treaty of commerce with England, in 1794, 
in the list of contraband, stated, that whatever materials 
served directly to the building and equipment of vessels, with 
the exception of nnwrought iron and fir plou^, should be 
considered contraband, and liable to confiacation ; but the 
treaty left the question of provimons open and unsettled, and 
neither power was understood to have relinquiBhed the con- 
struction of the law of nations which it had assumed. The 
treaty admitted that provisions were not generally contra- 
band, but might become eo, according to the existing law of 
nations, in certain cases, and those cases were not defined. 

It was only stipalated, by way of relaxation of the penalty 
of the law, that whenever provisions were contraband, the 
captors, or their government, should pay to the owner the foil 
value of the articles, together with the freight, and a reasonable 
profit Our govermneat has repeatedly admitted that, as 
far as that treaty enumerated contraband articles, 
*139 *it was declaratory of the law of nations, and that 
the treaty conceded nothing on the subject of contra- 
band. f» 

The doctrine of the English admiralty, on the subject of 
provimons being considered contraband, was laid down very 
fully and clearly in the case of the Jon^e Mm^a/retha.^ It 
was there observed, that the catalogue of contraband bad 
varied much, and, sometimes, in such a manner as to make 
it difflctdt to assign the reasons of the variations, owing to 
particular circumstances, the history of which had not accom- 
panied the history of the decisions. In 1673, certain articles 
of provision, as com, wine and oil, were deemed contraband, 
according to the judgment of a person of great knowledge and 
experience in the practice of the admiral^ ; and, in much 
later times, many other sorts of provisions have been con- 



■ Mr. J^man't iMer te Mr. PimJmty. Stptmbtr 1th, IIW. and Mr. Am- 
doiph't Lelltr to Mr. Hammond, May \d, llii. 

^ Mr. Piektrin^i Letttr U> Mr. Monrot, aepitmber \2th, 1796. Bit Itttrr to 
Mr.Fintknty, Januargltlk, 1191. Irutructxotu from tJu BetrtUtry of Sal* to 
th$ Amtrwan Mxnitttr to France, JWy IStA, 1191. 

* lSoi.R^. 159. tdit Fha 



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Im. TIL] OP THB LAW OF NATIONS. I43 

demned as contraband. In 1747 and 1748, batter and salted 
fish and rice were condemned aa contraband ; and those cases 
show that articles of human food have been considered as 
contraband, when it was probable they were intended for 
naral or military nse. The modem established rule is, that 
provisions are not generally contraband, but may become so, 
onder circumstances arising out of the partlcnlar situation of 
the war, or the condition of the parties engaged in it Among 
the circnmstancee which tend to preserve provisions &om 
being liable to be treated as contraband, one is, that they are 
of the growth of the country which produces them. Another 
circumstance, to which some indulgence is shown by the 
practice of nations, is when the articles are in their native and 
nnmanufactored state. Thus, iron is treated with indulgence, 
though anchors and other instruments &bricated out of it, are 
directly contraband. Hemp is more favorably con- 
sidered than cordage ; *and wheat is not considered *140 
as eo objectionable a commodity, when going to an 
enemy's country, as any of the final preparations of it for 
human use. The most important distinction is, whether the 
articles were intended for the ordinary nse of life, or even for 
mercantile ships' use, or whether they were going with a highly* 1 
probable destina tion to militaiy vsSi The nature and quality I 
miE% port to wEcli the articles we going, is not an irrational 
test If the port be a general commercial one, it is presumed 
the articles are going for civil use, though occasionally a ship 
of war may be constructed in that port. But if the great pre- 
dominant character of that port, like Brest in France, or Ports- 
mouth in England, be that of a port of naval militaiy 
equipment, it will be presumed that the articles were going 
for military use, although it is possible that the articles might 
have been applied to civil consumption. As it is impossible 
to ascertain positively the final nse of an article ancipipu tiaus, 
it is not an injurious rule which deduces the final use &om 
the immediate destination ; and the presumption of a hostile 
nse, founded on ite destination to a military port, is very much 
infiamed, if, at the time when the articles were going, a con- 
siderable armament was notoriously preparing, to which a 
supply of those articles would be eminently useful. 

These doctrinee of the English prize law were essentially 
the same with that adopted by tiie American congress in 



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141 0¥ THB LAW OF NATIONS. [Awt L 

1776, fbr thej declared, that all veeeela, to whomBoever 
belonging, canyiug provisioua or other necessariee, to the 
British army or navy within the colopiee, shonld be liable to 
seizure and confiscation.^ Tiiej were likewise fully adopted 
by the Supreme Ooort of the United States, when we came to 
know and feel the value of beUigerent rights, by becoming a 
partnf to a ularitime war. Li the case of the Commercen,*' s 
neutral veaael, captnred by one of our croisers in l^e act of 
carrying proTiaions for the nse of the British armies in 
*141 Spain, tiie court held, that proTisions, being ^neutral 
property, but the growth of the enemy's country, and 
destined for the snpply of the enemy's militai^ or naval force, 
were contraband. The court observed, that, by the modem 
law of uations, provisions were not generally contraband, but 
they might become so on account of the partieolar aitnation 
of the war, or on account of their destination. If destined for 
the ordmary use of life in the enemy's country, they were not 
contraband ; but it was otherwise if destined for the army or 
navy of the enemy, or for his porta of military or naval equip- 
ment And if the provisions were the growtit of the enemy's 
country, and destined for the enemy's use, they were to be 
treated as contraband, and liable to forfeiture, even though 
the army or navy were in a neutral port, for it would be a 
direct intcrpoeition in tJie war. 

This case followed the decisions of Sir William Scott, and 
carried the doctrine of contraband, as applied to provisions, 
to as great an extent. It held the voyage of the Swedish 
neutral bo illegal, as to deserve the infliction of the penal^ of 
loss of freight. 

It is the wus hdUci which determined an article to be 
contraband ; and as articlee come into use as implements of 
war, which were before innocent, there is truth in the remark, 
that as the means of war vary and shiit from time to time, 
the law of nations shift with them ; not, indeed, by the change 
of principles, but by a change in the application of them to 
new cases, and in order to meet the varying inventions of 
war. When goods are once clearly shown to be contraband. 



• J<mrn3Ueflk*0m/edtratim0niffitm,-TQLLHi, 

^ 1 wiMt<M,ta. 



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1*0. TIL] OP THE LAW OF SATI0S8. 145 

confiscation to the captor ia tbe natnial comeqaence. Tias is 
die practice in sU cases, as to &e article itself, excepting pro- 
visions ; and as to them, when they become contraband, the 
ancient and etriet right of forfeiture is softened down to a right 
of preemption on reasonable termB.'* Snt, generally, 
to stop contraband goods, would, •as Tatte! obserFcs,'' *143 ■ 
prove an ineffectnal relief, especially at sea. The 
penalty of confiscation is appHed, in order that the fear of loss 
might operate as a check on the avidity for gain, and deter, 
the neatral merchant from supplying tiie enemy with contra- 
band articles. The ancient practice was, to seize the contra- 
band goods, and keep tbem, on paying the value. Bnt the 
modem practice of ooAfiscation is &r more agreeable to the 
mutual dnties of nations, and more adapted to the preserva- 
tion of their rights. It is a general ondeistanding, gronnded 
on true principles, that &6 powers at war may seize and 
confiscate all conti*aband goods, without any complaint on the 
part of the neutral merchant, tmd without any imputation of 
a breach of neutrality in the nentral sovereign himself.'' It 
was contended, on the part of the French nation, in 1796, that 
nentral govemments were bound to restrain their subjects 
from selling or exporting articles contraband of war to the 
belligerant powers. Bnt it was aucceeafolly shown, on the 
part of the United States, that neutrals may lawfriUy sell, at 
home, to a belligerent purchaser, or carry, themselves, to the 
belligerent powers, contraband articles subject to the right of 
seizure, in trmuitu.* This right has since been explicitly 
declared by the judicial authorities of this counby.* The 
right of tiie neatral to transport, and of the hostile power to 
eeize, are conflicting rights, and neither party oan charge the 
other with a criminal act 

Contraband articles are said to be of an infectious na- l 
ture, and they contaminate the whole cargo belonging to j 



• Of o( Hm a»aJa«t,i Rub. Stp. us. ^ B, S.e.f.Me. IIS. 

■ VatUl,h.i.o.1.it>t.US. 

* M-AAttLtltrU iff. Piebiriiig, Monk Ulh,m6. Mr.Ptektnn^tLtam 
la M. Add, Jmutarg mtk taul May Kth. lIBt. OiradaT Letttr of th* 8»er«Uuj 
o/aaJfargl^au CalUetori, AMguit 4th, ITSS. 

■ Rietuvdwa t. Uuiiw bm. Omnyanj, 6 JCoh. Stp. US. 
1Mnidad,1 Wktaion,iit. 

TolL 10 



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146 OF THE LAW OF NATIONS. [Fart I. 

*149 *t}ie same owuera. The innocence of an; particular ar- 
ticle is not usually admitted, to exempt it firon^the gene- 
ral confiscation. By the ancient law of Europe, the ship, also, 
was liable to condemnation ; and sncli a penalty was deemed 
just, and supported by the general analogies of law, for the 
owner of the ship had engaged it in an tmlawfiil commerce, 
and contraband goods are seized and condemned ese delicto. 
But the modem practice of the courts of admiralty, since the' 
age of Grotius, is milder ; and the set of carrying contraband 
articles is attended only with the loss of frei j^t and expenses, 
anlesatheBhip belongs to the owner of the contraband ar- 
ticles, or the carrying of them has been connected with ma- 
lignant and aggravating drcumstances ; and among those cir- 
cumstances, a false destination and false papeis are considered 
/as the-moet heinous. In those cases,- and in-all cases of fraud 
/ in the owner of the ship, or-i^-his agent, the penalty is carried 
I beyond the refusal of freight and expenses, and is extended ' 
^ to the confiscation of the ship, and the innocent parts of the 
cargo.^ This is now the established doctrine ; but it is some- 
times varied by treaty, in like manner as all the settted priu- 
ciplea and usages of nations are subject to conventional modi- 
fication. >> 
Lav ot A neutral may also forfeit the immunities of his national 
character by violations of blockade ; and among the rights of 
belligerent^ there is none more clear and incontrovertible, 
or more jnst and necessary in the application, than Hiai 
vhich gives rise to the law of blockade. Bynkei8hoeck<= eays. 



• Syni. Q.J.Fiib.h.i.e. le uid U. Htinee. di Km, ob.vKtMtTt.vetU.a)m. 
0. 2. uc «, OpTO, tome iL M8. TIm Studt E^bdoi, 1 R<A. Rtp. aS. TU 
JoDgeTobUa,! £<>(.JC<p. S7T. TbeFnakliD,S Aoi.£<p. 317. Thi Nenfantlitei, 
8 Roi. Stp. sgS. Hw Edvud, 4 Jtob. Atp. ta TIm Bv^er, 6 Bob. Rtp. UB. 
jSm infira, p. BOl, note. 

• Id Uis treaty between tbe tTnited St»t«i M>d Uie BepnUic of ColombEt, and in 
Uiat with the Republic! of Chili, of Veoeiuela, and of tlig Fcru-Bolirian Conredera- 
tioD and Ecnador, it is provided, that amtnbaud article* abatl not aSect the rest of 
the eai;go, o^ the venel, ibr it ii declared that tbej ahall be left free to tbe owner, 
la these treatiea, tbe articlea of poatraband are enumerated, aod tbej coo^t of 
muDitioiu of war, aod other thing* made up in a military Ibnii and for a militaiy uea, 
and cavalry bonea, with their furniture and all materials mannfadnrcd, prepared 
and formed ezpreealy tor tbe purpoaea of war, either by se« or land. All other 
mercbaodleea and things are declared to be subjects of lawfiil n 

• Q./.P>t».b.l.c.i.«ee.lt. 



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U6. Vn.] . OF THB LAW OF NATIOMa 147 

*it !b founded on the principles of natural reason, *144 
as well at on the usage of nations; and Grotins<i 
considers the carrying of supplies to a ' besieged town, or a 
blockaded port, as an offence exceedingly aggravated and in- 
jorious. They both agree that a neatral niay be dealt with 
severely; and Tattel says- he may be treated sa an enemy.'* 
He law of blockade is, however, so barfih and severe in its 
operation, tiiat, in order to apply it, the fact of the actual 
blockade mnst be established by clear and unequivocal evi- 
dence ; and the neutral must have had d iie previous no tice of 
its existence ; and the squadron allotted for the purposes of its 
execution, must be com petent to cut o ff all comniu mcation 
with the interdicted place or port; and the neulxal must 
have been gmltyofBomQ act of violation, either by g oing in, 
or attempting to enter, or"^y co miuf; o ut with a cargo laden 
after the commencement of the blockade. The &ilure of either 
of the points requisite to establish the existence of a legal 
blockade, amounts to an entire defeasance of the meaeare, 
even though the notification of the blockade had issued from 
the authority of the government itself," 

A' blockade must be existing in point of fact ; and, in ordor 
to constitute that existence, there must be a power present to 
enforce it. All decrees and orders, declaring eztensive coasts 
and whole countries in a state of blockade, without the pre- 
sence of an adequate naval force to support it, are manifestly 
illegal and void, and have no saaction in public law. The 
ancient authorities all referred to a strict and actual seige or 
blockade. The language of Grotius^ is oppidum obaeaawm vd 
I^OTtaa doMtut, and the investing power must be able 
to apply its force to every point of the *blockaded . *W^ 
place, 80 as to render it dangerous to attempt to enter, 
and there is no blockade of that part where its power cannot 
be brought to bear.« The definition of a blockade given by 



• B. 8. R 1. •«. ». » R 8. t 7. Kc; lit. 

• The Betu;, 1 Boh. Stp. 1i. 1 Chilly on Commtrdal Lax, 400. Zellerfiem 
Mr. Clay, thi Seertlary of Stott, to Mr. Tudor, dftted Octub«t 23d, 1S27. 

' B. 8. c 1. KC B. 

• The Merenriu*. 1 Rob. Rrp. 61 The Brtsej, 1 Roi. Stp. 7B. The Stert, 4 
Aot. Sep, 06. LtllfT of Ihi Stcreiar}/ of tht Navy to. CotKovidon Ptd^ 
AtnuryifA, 1804. 



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148 OF THE LAW OF NATIONS. [FhI L 

tiie conreDtion of the Baltic powers, in 17S0, and again in 
1801, and by the ordinance of congreas, in 1781, reqaired that 
tiiere shonld be actually a omnber of vesaelB stationed near 
enough to the port to make the eaixj apparently dangerons. 
l!he government of the United States has uniformly insisted 
Uiat the blockade shoold be effectiTe by the presence of a 
competent force, stationed, and present, at or near the entrance 
of the port ; and they have protested, with great energy, 
against the application of the right of seizure and confisca- 
tion to ineffectual or fictitious blockades.* 

Hie occasional absence of the blockading sqaadron, pro- 
daced by accident, as in the caae of a storm, and when the 
station is resumed with due diligence, does not suspend the 
blockade, provided the suspension, and the reason of it, he 
known ; and the law considers an attempt to take an advan- 
tage of such an accidental removal, as an attempt to break the 
blockade, and as a mere fraud.^ The American government 
seemed disposed to admit the continuance of the blockade in 
such a case ;« and the language of the jndidal authorities in 

^New-York has been in favour of the solidity and jnst- 
*146 ness of the English doctrine of blockade on this ^poinf 

But if the blockade be raised by &e enemy, or by ap- 
plying the naval force, or a part of it, ^ough only for a time, 
to other objects, or by the mere remissness of the cruisers, 
die commerce of neutrals to the place ought to he free. The 
presence of a sufficient force is the natural criterion by vrhidi 
the nentral is enabled to ascertain the existence of the blockade. 



> Mr. mn^t iMttT to Lord GnumlU, May tld, 1799. Mr. UarAalTt LMtr 
to Mr. King, Apt toO, IMS. Mr. MaOuetii iMUr to Mr. Pindmt]/, (Mobtr 
iS(A, ISOl. iMttr of On aterHarj ^ On Kmy to Cammadnr* PtMo, Ft^rvMji 
4fA,lB04. Mr.PiiKhi»^tLtatrtoLordW<luars,JiaiwiyUA,iiU. In tba 
eoDTMitioD between Oreftt Brilaiu tati Riwsii, od tlw 17th of June, 1801, t. block- 
aded port wu dadared to be, " llut where diere it, I9 tbe ditpoailion of the power 
which attack* it with ihipa, etAtioaai; or rofflcienUy near, an erident danger in 
wteriDg." The de&iitioD in the treat; of MimntRe between the noitad StatM 
and ChOi, in If a7, 1 gS2, art. I fi. and the Pera-BoIiTiali Oonfederation, in May , 1SS8, 
art 14, of • tHieged or blockaded pUc«, it " one actuallj attacked bj a beltigarHit 
brce, capable of preTtoting the tairj of the BcnbaL' 

^ The Frederick Moike, 1 Rob. Rep. 7!. The Colombia, 1 Rob. lUp. ISO. The 
JnSrow Maria Schroeder, 8 Rob. Rep. lES. The HoffiittD|r, « JM. Rtp. 1I«, IIT. 

• Mr. MarthiJTt Lttltr to Mr. King, Stpltmber iOlh, 1799. 

* Baddiff, J., 2 Johiu. Cat. \Vl. Badcliff t. V. Ioi. Od. 1 Jokni. Eep. SB. 



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lee.Yn.1 OP THE LAW OF NATIOira. 149 

He looks only to the matter of &ct ; and if the blockading 
aqoadron is removed when he arrivea before the port, and lie 
is ignorant of the canse of the removal, or if he be not ignorant, 
and the cause be not an accidental one, bnt volantary, or pro- 
duced by an enemy, he may enter, without being answerable 
for a breach of the blockade. When a blockade ia raised 
voluntarily, or by a superior force, it puts an end to it abso- 
lutely ; and if it be resumed, neutrals must be charged with 
notice d« novo, and without reference to the fiDrmer state of 
things, before they can be involved in the guilt of a violation 
of the blockade.* 

The object of a blockade is not merely to prevent the im- 
portation of supplies, but to prevent export as well as import, 
and to cut off all communication of commerce with the 
blockaded port The act of egress is as culpable as the act of 
ingress, if it be done fraudulently ; and a ship coming out of 
a blockaded port ia, in the first instance, liable to seizure, and, 
to obtain a release, the party must give satis&ctory proof of 
the innocence of his intention.^ Bat according to modem 
nsage, a blockade doea not nghtfhlly extend to a neutral 
vessel found in port when the blockade was instituted, nor 
prevent her coming out with the cargo icnajide pui^ 
chased, and laden on board before the 'commencement *14:T 
of the blockade.' The modem practice does not re- 
quire tiiat the place should be invested by land as well as by 
sea, in order to constttnte a legal blockade ; and if a place be 
blockaded by sea only, it is no violation of belligerent rights 
tot the neatral to carry on commerce with it by inland com- 
munications.' 

It is absolatoly necessary t^t the neatral e^onld have had 
due notice of the blockade, in order to affect him with the 
penal consequencesof a violation of it. This information may 
be communicated to him in two ways ; either actually, by a 



■ WnUaiDi T. Smitli, S Oairu^ Sep. 1. LtUcr of Iha Btcrtlary </ Slat* to Mt. 
Slng,Biptmh*ri^A,\1*i. Tha Hoffiiiiiig,4 Aoi, Afp. 111. 

* fijmi. Q. / PrA. b. 1. e. 4. Ths Fnderiek WoWt, 1 Rob. S»p. li. Hm 
Vcptmuu, I JUk Rep. lU. Ilia Vrov Jndlth, 1 Rob. Rip, ISS. 

* Tit* StUaiy, I Rob. R<p. 16. Tli«Trow Jndlth,! ii[i6.J2#p. ISS. ntOouMt, 
t Bim. Rep. S2. OUren t. ITnioD Ini. Oo, S WKeatim, 18S, 

* Tbe Oceao, Z Rd,. Rep. S97. Tha Start, Uiii. 2S9, nota. Letter of t)M 
Bemlary afBlaii to Mr. Sing, Bepttmber EOfA, 1709. 



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tSO OF THE LAW OF SAJIOSB. [Put I. 

fonnftl notice from the blockading power ; or conabuctiTely, 
hj notice to his goTenunent, or hj the notoriety of the &ct. 
It is immaterial in what way the neutral comee to the know-, 
ledge of the blockade. If the blockade actoallj ezista, and he 
haa knowledge of it, ho is bonnd not to violate it A notice 
to a foreign government is a notice to all the individuals of 
that nation ; and they are not permitted to aver ignorance of 
it, becanse it ia a datj of the neutral government to communi- 
cate the notice to their people.* In the case of a blockade 
without regalar notice, notice in fact is generally requisite ; 
and there ia this difference between a blockade regulariy 
notified, and one without such notice ; that, in the former 
case, the act of sailing for the blockaded place, with an intent 
to evade it, or to enter contingently, amounts, from the very 
commencement of the voyage, to a breach of the blockade ; 
for the port is to be considered as closed up, until the blodoide 
be formally revoked, or actually raised ; whereas, in the latter 
case of a blockade de facto, the ignorance of the party as to 
its continuance, may be received as an excuse for 
*148 sailing to the ^blockaded place, on a donbtful and pro- 
visional destination.^ The question of notice is a 
question of evidence, to be determined by the tacts applicable 
to the case. The notoriety of a blockade is of itself sufficient 
notice of it to vessels lying within the blockaded port In the 
case of the AddoAde,'^ it was the doctrine of the Eng^b ' 
admiralty, that a notification ^ren to one state, must be pre- 
sumed, after a reasonable time, to have reached the subjects 
of neighbouring states, and it affects them with the knowledge 
of the fact, on just gronnd^ of evidence. And after tii6 
blockade is once established, and due notice received, either 
aotufdly or constructively, the neutral is not permitted to go 
to the very station of the blockading force, nnder pretence of 
inqniriog whedier the blockade had terminated, because this 
would lead to fraudulent attempts to evade it, and would 
amount in practice to a universal license to attempt to enter, 
and, on being prevented, to claim the liber^ of going else- 



• TbflIT«phmiu,S Ait,£(p. 110: Tha AdeUida,! Ant. Jf^i. Ill, Date. 

• lie Oolumbu, I Aoft. Rtp. 1 SO. Th« ITtptuniu, 2 RA. S*fi. 1 10. 

• ! Kot. Rtp. Ill, in noti*. 



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tee. TH] op THB LAW OP NATIONS. 151 

where. Some relaxation was very reasonably given to this 
mle, ID its application to distant voyages from America; and 
ships sailing for Earope, hefore knowledge of the blockade 
reached them, were entitle^ to notice, even at the blockaded 
port If they sailed after notice, they might sail on a contin- 
gent destination for the blockaded port, with the pnrpose of 
calling for information at some European port, and he allowed 
the benefit of each a contingent destination, to be roidered 
definite by the information. But in no case is the information, 
as to the existence of the blockade, to be sought at the month 
of the port* 

A nentral cannot be permitted to place himself in the vi- 
cinity of a blockaded port, if hia sitaation be so near that he 
may, with impnnity, break the blockade whenever 
*he pleases, and slip in without obstmction. It that *149 
were to he permitted, it wonld be impossible that any 
blockade conid be maintained. It is a presomption, almost 
dejure, that the neutral, if fonnd on the interdicted waters, 
goes there with an intention to break the blockade ; and it 
wonld reqnire very clear and satis&ctory evidence to repel 
tiie presumption of a criminal intent ■• (1) 

^e jadicial decisions in England and in this country, have 
^ven great precision to the law of blockade, by the applica- 
tion of it to particular cases, and by the extent, and clearness, 
and equity of their illostrations. They are distingaished, 
hbewise, for general coincidence and harmony in their princi- 
ples. All the cases admit, that the neutral must be charge- 
able with knowledge, either actual or constmctive, of the ex- 
istence of the blockade, and with an intent, and with some 



• The Spee and Irene, S Rob. Rip. It. 

'• tVa StatnhtMi, 9 Rth.Btp, to. The Olwlotte OhrietiiWh tMil'lOl. Tbt 
Oiile Erwtitaag. ibid tSl Bgni. Q. X Pub. b. 1. ft 11. Hie Artlnir, 1 Sdm. 
Rtp. 103. a*doltff V. Union In. Oo. T Jakn*. Sep. 41. KlmmmaDi t. Ifewport 
Lm. Co. 4 Craiui, ISfi. 



(I) Tbe pnpcTtr of ■ BMitnl l( Bot liable to eoodemulioa Ibr 1 
•d la wttMi he MBberlu, vbta (BUrlng or depaniiii ftna port, m 
efAefaiaritabfg^ttlaKDkf «L tiMMad HMIe* T. 

A nenlnl 1mtIb( k Ixdllferaal eaaUj, In whlsh ha n* di 
•BT,taeBtlih)dtolliBri|Uio(aBaBU«lwailaawhcnIkA«itlMliall)apwt. iM,M 
I*. KM. [76. 18] 



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162 OT THB LAW OP HATIOML [Pwt L 

attempt, to break it, before he is to Buffer the penalty of a 
violation of it Hie evidence of that intent, and of the overt 
act, will greatly vary, according to oircamBtaucee ; and the 
condnatoa to bo drawn from those circamatancea will depend, 
in Bomo d«gree, upon the charaotar and jadgment of the prize 
ooortB ; bnt the true principlee which ought to govern hare 
rarely been a matter of dispute. l!1ie fact of clearing oat or 
sailing for a blockaded port, ie, in itseli^ innocent, nnlew it be 
accompanied with knowledge of the blockade. Snch a veaBel 
' not poBseesed'of ench previooB knowledge is to be firat warned 
of the fact, and a sabseqnent attempt to enter constitates the 
breach. T\m was the provision in the trea^ with England, 
in 1T91, and it has been declared in otiier casee, and is cm- 
sidered to be a correct ezpoeition of the law of nations.* 
^50 *It has been a question in the conrta of tiiis conntry, 
whether they onght to admit the lav of the t^ gH^b 
prize courts, that sailing for a blockaded port, knowing it to be 
blockaded, was, in itseU^ an attempt, and an act sofficient to 
chaige the party with a breach of the blockade, without re- 
ference to the distance between the port of departure and the 
port invested, or to the extent of the voyage performed when 
the vessel was arrested.^ Sat in Yeaton v. ^ry," the Bn- 
preme Coort o£ the United States coincided essentially with 
the doctrine of the English.priae courts ; for they held, that 
sailing &om Tobago for Cpnasoa, knowing the latter to be 
blockaded, waa a breach of the blockade ; and, according to 
the opiniim of Ur. Jostioe Story, in the case of the JVa-^de,^ 
the actof sailing with an intent to break a blockade, is a soffl- 
ci«Dt bteach to anthtoize caofiacstiim. The offence continues, 
although, at the moment of capture, the vessel be, by stress of 
weather, driven in a direction from the port, for the hostile 
intention still remains unchanged. TiiB distance orprozimity 



• fltznmmoiia t. Newport lot. Ou. 4 OramA, 186. BriHih Hulniaioiu te Ouir 
JUtUonlht Wut India ilaiion, fiU of JoiKury, 1104. ZttUr of Uu Bt€Tttary of 
Ai yoty to Ommo^it PrOlt, Aimary 4M, 1804. 7^—ty bitit-n tit Vniltd 
Blatn attd tk* BtpMU <^ Ciili, Mag, IMS, tit IT, «iid batWMO Um Vniltd 
autn and VtntEMU. U^, ISU, art. M>. 

k ntninmMtsT.NB«portIiw.Oo.4awMA,I8S. ToMAOnTMT.U.Iiw.Oo. 
S Ji^M. Cm. ISO. 4B». 

■ E (Tnmch, Its. * 9 OwicA, 440. 446. 



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LM.TIL] OF THE LAW OF NATIDIT8. 158 

of the two ports wonld certainly hare an effect npon the 
equi^oftheapplicatioD of the rule. ADntch ordinanee,in 
1680, dedarod, that veaBels bound to the blockaded porta of 
Flanders, were liable to confiscation, thon^ found at a dia- 
tance from them, unless they had Tolnntarily altered the 
voyage befi»-e coming in sight of the port ; and Bynkerehoeck 
contends for the reascBiablenesa of the order.* What that dis- 
tance mnst be is not defined ; and if the ports be not very 
wide apart, the act of sailing for the blockaded port may rea- 
sonably be deemed evidence of a breach of it, and an overt 
act of fraud upon the belligerent rights. But a relaxation of the 
rale has been required tmd granted in the case of dis- 
tant voyages, *Huch as those across the Atlantic ; and *151 
(he vessel is allowed to sail on a contingent destination 
for a blockaded port, sabject to the dn^ of subsequent in- 
quiry at suitable places. <> The ordinance of congress, of 1781, 
seems to have conceded this point to the extent of the Eng- 
lish nile, for they made it lawful to take and condemn all 
vessels, of all nations, " destined to any snch port," without 
Baying any thing of notice or proximity." 

The consequence of a breadi of blockade is the confiscation 
of the ship ; and the cargo is a\wa.ys,prvma/acie, implicated 
in the guilt of the owner or master of the ship ; and it lays 
with them to remove the presumption that the vessel was 
going in for the benefit of ^e cargo, and with the direction 
of the owner.^ The old doctrine was much more severe, and 
often infiicted, not merely a forfeiture of the property taken, 
but imprisonment, and other personal punishment ;" but the 
modem and milder usage has confined the penalty to the con* 



■ e./.i^>i.h,l.G.ll. Sltei.R»p.Sit,irtnalU. 

• 6 Soi. Rtf. It, 6 Onmeh, iS. Sperr; t. Ilie DelkWM* Iru. Co. t WaA. 
aT.Rtf.ia. irmjbtv.Tkflor, > SoriiMtt Ovf-TlS. 

• J«tiTnaUafOamfr*m,^iA,ia. p. IBS. TlwBiinMt of Muliiig to*bli>«k»d«d 
pwt H oat an offiDM. if thert WM iM pr«<>>«dtUt«d d«Hpi <>f bratkios tlia Uodvli^ 
thoqgbitibouU befooDd toeootiau* wbcoDwvwMl aniTM^ llMport. 8m 
til* opwioa of Sir Wm. Soot^ in tb* cm* of th« flhiiphfi<«i, B Reb. Aim. Rtp. 
S64; and of Lord TtntaidM), In Najlor t. T^jlor, 9 Bamm-^Orm. TIBiudof 
HotU, Cb. J^ b HvddnM t. Hill, B BinghMm'i Rtp. 381. 

' Tb« HmnriiM, 1 JMi Ap. er Tba UohmibMi,iitd ISa Tb* Vtptaasi, 8 
BiA.Rip.\1t. ThoAtinDdw, 4 Jioi.Ji<p^B8. Tb* Ezchwig^ l£*t.£9.S0' 

• Br^k. 0./.Ail.bl.o.ll. 



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151 OF THB LAW OF NATIOlffl. £PMtl 

fiBcatLon of tlte ship and goods. If a ship has contracted goilt 
by a breach of blockade, the ofience is not djscharged tinti) 
the end of the voyage. The penally never travels on wilh 
the vessel farther than to the end of the return voyage ; and 
if she is taken in any part of titat voyage, she is l^en in d&- 
lido. This is deemed reasonable, because no other opportu- 
nity is afforded to the.belligereot force to vindicate the 
*152 law.* Hie penalty for a ^breach of blockade is also 
held to be remitted, if the blockade has been raised be- 
fore the capture. Tbe delictum is completely done awi^ 
when the blo<^ade ceases.^ 
BMMiau^ There are other a^ of illegal assistance afforded to a bel- 
^! ^ta^ligerent, besides supplying him with contraband goods, and 
*"** relieyimg his distresB, under a blockade. Among these acts, 
the conveyance of hostile despatches is the most injurious, 
and deemed to be of the most hostile and noziouB character. 
The carrying of two or three cai^oes of stores is neceasarily 
an asfiistance of a limited nature j but in tbe transmission a£ 
despatches may be conveyed the ^itire plan of a campaign, 
and it may lead to a defeat of all die projects of the other 
belligerent in that theatre of the war. The appropriate 
remedy for this offence is the conflscBticHi of the diip ; and 
in doing so, the courts make no innovation on the ancient 
law, but they only apply established principles to new com- 
binations of circumsbances. There would be no penal^ in 
the mere confiscation of the despatches. Hie proper and 
efficient remedy is the confiscation of the vehicle employed 
to carry them ; and if any privity sabsists between the own- 
ers of Uie catgo and the master, they are involved by impli- 
cation in his delinquency. If the cargo be the property, of 
the proprietor of the diip, then, by the general rule, ob conti- 
neniiam ddi^ the cargo shares ^e same late, and especially 



■ Hm WelTiait Ton PilUir, S Rob. Rtp. ISB. The Jnfihnr Harin Scliro«der, S 
Rob. Stp. 147. In CMM of oootntband, tha rstnm rojaga hu not onuUy been 
de«m«d Qonnected with the outwud, uid Uis offtnee vu depodted with tha 
«flgodiD(> mbgect; bot in StUat Tojigei, vitli eoDtnibaad *ad bloc pap«n, th* 
rnla is diflaraut; tbe fraud ooDtamiiuitM the ntan oargo, md labjeeU it to oon- 
demnatioi^ u being one eolire battaaetioD. Ihe Ronlia and Battj, S Rob. Stp. 
MS. Tha Nanq', t Md. It2. Oami^toa t. Hie Merdianta' Itu. Oo. S Ptterf 
U.&Rtp. MS. 

* Ttm Uaotta, B Rob, Bip. IBT. 



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Lm TIL] or THE LAV OF NATIOira. 156 

if then was an actire interpoeitioniii the service of the enemy, 
concerted and eontianed in frand.* 

A distinction has been made between carrying despatcbea 
of the enemy between different parts of his dominions, and 
canying despatches of an ambassador from a nentral 
*ooantry to his own soTereign. The effect of the *15S 
f<nmer despatches is presmned to be hostile ; but the 
neutral country has a right to preserve its relatjons with the 
enemy, and it does not necessarily follow that the commQ- 
nioations are of a hostile nature. Ambassadors resident in 
a neutral country, axe &TOBrite objects of the protection of 
the law of nations, and their object is to preserve the rela- 
tions of ami^ between the goveinmenta ; and the presump- 
tion is, that the neutral state preserves its integrity, and is 
not concerned in any hostile design, i> 

Ta order to enforce the rights of belligerent nations against 
the delinquencies of neutrals, and to ascertain the real as well "" 
$a assumed character of all Tessels on the high seas, the law 
ofnations arms them with the practical power of visitation 
and search. The duty of self-preservation gives to belligerent 
nadons this right It is founded upon necessity, and is strictly 
and ezclDsirely a war right, and does not rightfully exist in 
time of peace, unless conceded by trea^.o All writers nprak 



> The Atalutit, « Seb. S^ UO. 

^ TIm CkrolBe, fl A>6. Atp. 4B1. Uariaii Bummary.VJ.cn. 

• Th* L« LmdK t DadiBm, MS. IIm Antektpe, 10 WhMan, IIS. Tet tlie 
EMUi FarikDMo^ bj riMnUt hi AogM IBS«, io order mora eSectiuIlj to inp- 
pMM the ilBVa-bBdcv Mid eepecUtf u tgdmt Portngil, • povar Uiat had groadj 
vlokted hor treatf willi Bt^Und oo that ml^eet, Kuthoriied the power of Tiu'tk- 
tlon ind Mardi in tiics of peace. The Britidi goTeramcDt ducl^ (he right of 
—arth b time ol peaoc^ btit Ifaey dum at all tima the right of virit. in onler to 
know whether a Toeel, pcateDding, for inetBiiee, to be AmeriMD, and bMstJug the 
AmericM flag, be reellj vhat ehe aeemi to ba. Lord Aitrdtm'i Drtpateh of 
iWoifin-, \U\,U>tkt AmtriMM MiitiUtr, Mr. BUmiuim. But the goTemmeiitof 
the Unitad BWh do not admit the diKioetioD betwaan the right of riaitMioii and 
the lifht of eear^ Tba^ etoMa the < Maar eDce to be one rather of defloitkn 
Ifaaa ptiMi|ri«, and Itait it w not known to the law of oatkMa. Itiar wUl not ad- 
mit Qw aaardaaof tfaad^mof TJaittobaar^At,- while the Briciah gDYcnunent 
aanoedea that H'axllu tatrai— of the HflU af aitU to Mcartaia the geDnkeiieM of 
th* flag whiA a >iiq>eotad veaad baai^ taj h^orj enauc^ pnmipt repaiation 
WDtdd ba mula. 7h amlaaf riglU af ttaUalwn md ttmrth, ia reAreaoe to tha 
daTa-tnde, bai even beeo eoooadad bj die Enropeaii goTanimaata of An*- 
taia, France Qraat Britain, Fnwia and Rnaiia, lAo ware paitiM to tha (tniotiipla 



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158 OP THB LAW OF NATIOira. [Put I. 

the lav of natioDa, and the highest anthoiities, acknowledge 
tiie right in time of war as resting on Bound principles of 
pabliojurispntdence, and nponthe institntee and practice of 
all great maritime powers.' And if, upon making the search, 
the vessel be found employed in contraband trade, or in car- 
rying enemy's property, or troops, or despatches, she is liable 
to be taken and bron^t in for adjudication before a prize 
court. 

Central nations have frequently been disposed to qneflti<m 
and reust the exercise of this ri^t. This was particalarly 
the case with the Baltic confederacy, during the American 
war, and with the convention of the Baltic poweiB, in 1801. 
The rig^t of search was denied, and the flag of the state was 
declared to be a snhstitnte for all documentary and other 
proo^ and to exclude all right of search. Those powers 

armed _for the purpose of defrading their neutral 
*154 *preteDBioDa ; and England did not hesitate to consider 

it as an attempt to introduce, by force, a new code of 
maritime law inconsistent with her belligerent rights, and 
hostile to her iuterasts, and one which would go to extinguish 
the right of maritime capture. The attempt was speedily 
frustrated and abandoned, and the right of search has, since 
that time, beenconudered inoontrDTeTtibIe.i> 



Tntbf M London, of DMtmlw, 184L Set Mr. WtMn'i Duptiili m Apunea* 
BteT^ars ofBtaU, (0 Mr. AtrM, tlia JaWn'om JftrntMr at London, of Mmnh S8, 
VM. Thii toMlj WW HONaqntotlj ntifiad I7 Bll tha amtomctkig putiM dMpt 
fnoM, vho roiMUMd boiBid t^j to ft mtiidiT* rigU of itanA vbAk the coo- 
TtotioiH of ISSt and 1U8. Tb* iii(«rTuiWwn of ihipi at ms ia ■ bnudi of Ika 
law of Mlf-ilefHiet, aod ii, in pobt of But, pntctiMd by tb* pubUc yhmIi of all 
nalJODi, indndiiig thoN of tb* UHted StatM, vhen tb« piratual diandCT of a Yta- 
•al ii MMpoctoi Tba light irfTUtiaMOQeilad far tha aok pnrpoM ofaaoertalmng 
ttw rtal national chmwlai tt Um waaal nOiog onbr ta>{Mciona dicumataiMM, 
Ktd M wlwUf diatiaot from tlM rig^t of Matdi. It haa Ixto termed, b; tb« So- 
pnmaOoail of the United StaUa, dw ri^At a/a;)}»nMuAftir tbat pnrpoaai (Ha 
Markpna Flora, 11 Wkmhm, 1. 41 1) and it it eonnlerad to ba well warranted faj 
tt* prindidet of pnUia law and tiie naagn of nftOaaa. Bytilc Q. J. Pyb. lib. i «. 
114. B. P. 

^ riiiia,h.l.c1.M0.1H. OnlAIaJforin^of l«Sl,ait 18. BtAiur.diU 
iSaM* At B at i mtM JftMrn. Tb* Maria, I Seb. Stp. IBT. The Le LouU, 1 
JMwn't Adm. Rtp. 146. Tbe Ihrianoa Flora, 11 Wlbatim, 4S. 

^ la tbe cDOTantvn brtwMO EtogUnd and RumU, on tbe ITtb of Jnne, 1S01, 
BMW adnlttad tlM ball%«r«at right of •cud^ atan of maitliant TCMcb nangating 



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LmVIL] of the law of VATIOira. 157 

Tk9 whole doctrine vu ably discnaaed in the Englidi high 
court of Rdniiralt7, is the case of the Maria,*- aod it was ad- 
judged, that the ri^t wae incontestable, and that a neutral 
BOTweign could not, bjr the iuterpoeition of force, vary that 
right. Two powers maj agree among themeelTes that the 
presence of one of their armed ehipe, along with their mer- 
chant shipfl, shall be mntaallj' understood to imply that 
nothing is to be found in that convoy of merchant ^ips in- 
consistent with amity or neutrality.^ But no belhgerent 
power can legally be compelled, by mere force, to accept of 
such a pledge ; and erery belligerent power who is no party 
to the agreement, has a ri^t to insist on the only secmity 
known to the law of nations on this subject, . independent ot 
any special covenant, and that is the right of penonal visita- 
taon and search, to be exercised by those who have an int^-est 
in making it llie penalty for the violet contravention of 
this right, is the confiscation of the property so withheld &om 
visitation ; and the inaction of this penalty is conformable 
to &e settled practice of nations, as well as to the principlee 
of the municipal jmispradence of most conntriee in Europe. 
There may be caeee in which the master of a neutral ship may 
be authorized, by the natural right of Belf-preservation, to de- 
fend himself against extreme violence threatened by a cruiser, 
grossly abufflng his commission ; but, except in extreme cases, 
a merchant veesel has no right to say for itself, and an armed 
vessel has no right to say for it, that it will not submit to viai- - 
tation or search, or be carried into a proximate port for 
judicial inquiry. Upon *tlie8e principles, a fleet of *155 
Swedish merchant ships, sailing under convoy of a 
Swedish ship of war, and under instmctionB from the Swedish 
government to resist, by force, the right of search claimed by 
British lawfully commissioned cruisers, was condenmed. 
Hie resistance of the convoying ship was a resistance of the 



K vxaaj of * aUp ot mx, prorided it vu amdMd t^ • ibip of ww btkiig- 



> 1 RiA. S^ SSI. 

* In th« trsatj of oonmMm bdwecn the XTmUd Statai ud O* lUpoblie of 
CUU, in 1B83, h wm agrood, tluit the li^t of TiutatloD ud tcMch (bonld not ^r 
|df to TMwla Hiliiig imder eoofoj. So, alM, in tbt eooTeiitioQ b«twe«a dw 
trnlt«d StfttM ud tli« Paru-BdiTiu Ooofodmcr of I88B, Mb IS. 



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168 OF THE LA.W Ot HATIOm. [Put I 

whole convoy, and jostly subjected the whole to confisca- 
tion.^ 

'Hie doctnue of the EngliBh a(imiraU7 on the right of visi- 
tation and search, and on the limitation of the right, has been 
recognised, in its fdllost extent, by the conrts of justice in this 
coontry,'' The veiy act of sailing onder the protection of a 
belligerent or neutral convoy, for the purpose of raeiating 
search, ia a violatitm of nentrality. ^e Danish government 
asserted the same principle in its correspondence with the go- 
vernment of the United States, and in the royal instmctionB 
of the loth of March, 1810 ;' and none of the powers of Europe 
have called in question the justice of the doctrine.^ Confis- 
cation is applied by way of penalty for resistance of search, 
to all vessels, without any discrimination as to the national 
character of the v^sel or cargo, and withont separating the 
&te of the cargo from that of the ship. 

This right of search is confined to private m^-chant vessels, 
and does not apply to public ships of war. Their immani^ 



* The MarU, 1 Jtob. Rep. SBT. Tbe El»eb«, t Aoi. Rtp. 409. 

» Tfa* Nereide, i Craiuh, 4iT. 4S8. 443. 446. 4fi3. The HariaQoa Flan, 11 
Wluatv*, 4S. The goTernmeDt oftht Uoitod States admits the ri^t of Tuitation 
aod aearob by belUgeredt govBrmnent veHela of thdr prirste merchant veaeeli, for 
cDsiDj'e property', articles omitrabaiKl of var, or men in tlit land or naval urrioe 
of tbe eoemy . But it doe* not uadentaad tha Uir of aatioiu to authoriie, and 
don Dot admit, the right of search for subjects or seamen. England, on tlis other 
hand, aaierta the right to look for her subjects on the high seas, toUi irhatcTer 
•ervk« they tm^WMidw, Mid will Dot reooQiKalL Tie objections to the British 
daim, on the groond of pnblio lair and poliiT', irere stated viQi great force and 
cleamesai in 1816, by the American Minister in London to Lord Caatlereagh. 
RiitKtMtmoTiaida,ff.\il—l9i.i19'~Z%i. The claim of Great BHtaio to the 
right of search, on the liigh seas, of neutral Teasels, for deserton and other persons 
liaUe to miUtarf and oanl s«r<ric«, has been a qneMion of animated discoswKi 
between that government and the United States. It was one principal causa of 
the war of 1813, and remains unsettled to this day. In the discoauona in tS42, 
between Lord Ashburton and Mr. Webster, reladre to the boundary line of the 
state of Maine, the American minister inddenUUy discussed the subject^ and inti- 
mated that lbs rule hereafter to be insistAd on vonld be, thit every regularly doca- 
mentad Amerioan merchant vessel was evidwee that the seaman on board were 
American, and would find protection under the American flag. 

• 4 Haitt Laa Joumai, itt. LHUn of Count Ri>$mir>MU to Mr. Srwbig, 
iSih and iOlh Jmu, and M Jfdy, IBIl. 

' Tlie Auatriaa radiaanoe of neatmUtj of Angutt Itl^ I SOB, et^ioed it upon all 
di«r vessels to submit to viutatbn on lie high aea% and not to make aoy diffieol^ 
•a to the production of the docnmeotary prooft of property. 



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Ue. VILJ OF THE LAW OP NATIONS. 169 

from the exercise of any civil or crimiiial juriBdictioii but that 
<rf the sorereign power to which they belong, is uniformly 
asserted, claimed and conceded. A contrary doctrine is not 
to be found in any jurist or writer on the law of na- 
tions, or 'admitted in any treaty ; and every act to the *156 
contrary has been promptly met and condenmed.' 



* Tkttrlmfl SCalt Papm, vol iL p. GOS. Ciuartpu't Duamrtt, ISfl. Mr. 
Oaimtngt iMltr lo Mr. Monroe, Avgtutid, 1B07. Edintmrgh RoiUk for Oetobtr, 
IBOT, KTt 1. In the cue of Pritu Frederick, ! DodunCt Aim. Rep. 4CI, tLe ques- 
tion wu rafsed, and leaned]; diKuned, wb«ther k public arnittl ibip, belor^ng 
to the king of tba Netherlands, tu liable to d*il or crimioal procen in a British 
port. Sbe iras brougbt id, by luistaiice, JD distress, aad saivage vas claimed, aad 
the ship vas airestcd apoD that claim, and a plea to the juriidictioo interpoeed. 
nie question went off by arrangenieDt, and vasnot dedded, though the immouitj 
of sod) Teasda bom all priT»t« dainu was fordbla dt^, od grounds of general 
policy attd tb« usage of naUona And io this ooantiy, in the case of the Scbooner 
EzCbange t. McFadden, 1 Oranch, 116, it was decided, after great discussion, that 
a public Teeael of «ar of a fbreigti sorereign, at peace vltb the United Stat«*, 
coming into their ports, and demeaning herself jjj a frieodl; manner, was exempt 
tmn the juibdietion of the oonnti;. L'ltmndtiU, 1 WketUon, !SB. SS3. S. P, In 
that intereatiog case, The Bchoonir Sxckemge, it iras shown, that the eiemptiiHi of 
a public ship in port from tbe local JuiiBdiction, was not founded on the absolut* 
right of another soTereign to sucb an exemption, but upon priodples of pnblio 
oomitj and conTenience, and arose from the presumed consent of nations; that 
consent might be witlidrafrD, upon notice, without just offence ; and if a foreign 
ddp^ after sudi notice, comes into the piHt, she becomes amenable to the local laws 
Id the aame manDsr as other Teasels -, and though a public ship and her armament 
nigtit be excepted, die prize property which she brings into port is subject to tha 
local jurisdiction, for the purpose of examination and inquiry, and, in a proper case, 
lot restitutiiHi. It baa been asserted, on the part of the executire authority of the 
Unted States, that a writ of h^eai eorpue may be lawfully awarded, to bring up 
a subject illegally detained on board a foreign ship of war in onr waters. Opinion 
of tbe Attomey-OeoenU of the United States, June!4,17S4. {Optnionto/ the 
AllerHtyi-Oentra], toL i. !6.) So, also, it was the official ojunjon of the Attomey- 
' General of the United States, in 1799, tJbat it waa lawful to serve dvil or criminal 
process npon a person outward a foreign ship of war lying within a harbour of the 
United Stat«a, lb. roL L'eS — ST. These opinions do not apply, of course, to any j 
process againit the ship itself Hr. Webster, the American Secretary of State, in 
his diplomatic letter to Lord Aahburton, the Britiab minister, at Washington, of the 
dateof AngUit la^ 184!,e>>atended,that if a vessel be driven by stress of weather, 
or other necessity, or carried by imtawful Ibrce, into a British port, even if it b« 
a proluUted or Uochaded port, that necessity exempted the veeeet frnm all penalty 
•sd all baMrd : that a vessel on the bigb seas is regarded as part of the territory of 
the nation to which she belongs, and subject to ita eivlnsive jurisdiction ; and if it 
be Ibfeed by such necessi^ into a foreign port, her itnmuniljee continue by the 
oonuty and practice of naUona ; that the jurisdiction continnes, though the vessel b« 
ataKef»r b the foreign port; so that if a mnrder be ooDUoitted on board a vessel 



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OP THE LAW OP N ATIOKa 



The exercise of the right of vifiitatioii and search most be 
coudacted with due care and regard to the rights and safety 



in a fbrugn port, by ooa of the irew, or ■ fuamgti, on toothtt of lb« crew, or ■ 
puuDger, Um oBmst U eogniiaUe hj th« eonrti of Uie notion to wluch fbt Tsuel 
btlongi ; tlut the TiMcl, vbi]« vatcr-bmno b forcigs plteet, wu, lor tha ^enenl 
furpoit of gmtmnj/ onil nstifaliiijr thi Hghit, Juiui and obligiUim* of lAow c» 
bo^d, oaimdtrtii upaitof th« temtoiy to vbicb lb* belonged, and that local Uwi 
did not affect 'm*ti'"g relatioDi betvecn pcnona on board. Ha furthtr itated that, 
hj the oomitj and pnctiM of oatioai, merchant vtneli goit^ voloDtarilj into a 
* livtigD port for trade, retain on board, for their protection and gorenimeat, the 
jariadktioQ and lam of their ovn countrf. T^stM immtmiUea v«re prenuned to 
exist ai a part of driliiatioii, and to bs allowed until axpnaHj retracted. Tbia 
pregnmptioD is deemed to be part of the Toluntar)' aod adopted law of nations. 
He case of a vessel forced b; neceseitj into a foreign port, placed the chum tar 
azemptloD from interference on higher principles and stronger oonrtesj. If the 
T««sel has slaves on board, the furngn goverameDt has do right to enter oa board 
and interferi vilh that relation. It was admitted, howeTer, that the exemption 
from the local jurisdiction could not be claimed for nnlavful acta dene, and contncta 
made, on board the ressel so placed. 3ee lupra, pp. 108. 1S4. n. and infra, p. SB3. 
Hie act of OoDgrees giri[^ jorisdiction in cases of hlony, committed in a ibreign 
por^ as in tbe case stated bj Ur. Webster, assnmei^ ai>d impliedlj admits, a con- 
cnrrent jmiadiction in tbe eonrts of the territory where the Teasel was at the timch 
Lord AMttrlon, in his reply of the Sth of Augiut, declined the discossion of Iha 
question of immunity in hnrboor, on general principles, and said, that llr. Webster 
had adranced some propositions Thich rather surprised and startled him, thoogh 
be did not pretend to judge of them He admitted, that b the ease of Ameiicaii 
Tcssels, driven by necesuty into a British port, there ought not to be any offidona 
interference with them, iwr any further inqniution into tbe stale of penona or 
thiogi on board than might be indispraaable to enforce the obserTance of the no- 
nidpal laws of the country, and the proper regulation of its harbonrt and waten. 
He principles of national law, stated b the diplomatic correspondeoce abote re- 
ferred to, were judicially recognised by the Supreme Court of Louisiana, m the 
eaeeofMcClayoT.New-OrleansIna.Campfti]y, lOJfoAiiMon't ASOS. SK. Itwaa 
there declared to be a true eipodtion of the law of nations, that a veesel oa the 
high aeai, b time of peace, engaged in a lawful voyage, was under the exduaiTe 
jurisdiction of the sti^ to which ber flag belongs ; and that if forced by necessity 
into a port of a friendly power, she loses none of the righte appertaining to her oo 
the high seas; but herself and cargo, and the persons on board, with thur proper^, 
and all the rigbta incident to their personal relations, as established by the laws of 
the state to which tbey belong, were placed under the |n>teeUon which the law 
of nation) extend to the unfortunate under such circumstancea Although the 
juritdiction of the nation over tbe vessel belonging to it be not wholly eielour^ 
and though, for any unlawful acts committed, while in aodi a Htuatim, bj the 
master, crew or ovmers, she or they may be responnble to tbe laws of the place, 
yet the local laws do not supersede the laws of the country to which the vessel 
belongs, so far as rebttes to the rights duties and obligations of thoaa on board; 
and that whatever might be the state of the foreign law b relation to slavery, it 
did not c^enta on board the veesd w forced by neoesai^ into tbe foreipi pot^ 



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LmTIL] of THB law of HATIOH& Igl 

of the veesels.' If Uie uentral has acted with candour and 
good &ith, and the inqniry has been wrongfully puraued, the 
beUigerent cmiaer is reepousible to the nentral in coats and 
damages, to be asseesed by the prize conrt which gnstaina 
the jndicial examination. The mere exercise of the rig^t of 
search involves the croiser in no trespass, for it ia strictly law- 
fill ; bnt if he proceeds to capture the vessel as prize, abd 
sends her m for adjudication, and tiiere be no probable canse. 



and b«fcn • Tolaiitai7 ludaig of tlw ^ktm on bond, to Juuhe tiM lelkdon of 
muter ukl (IkT*. 

Tiro cases, b Thkh tiiis uiterestiDg subject wu discussed, krs cited from 
Ortolan, Rigltt IntmuaUMaltt tU Ut Xtr, tome I in TPAMfon'* SUnnU, 8d ed. 
pp. IG!— 164, b wMoh it in* decided hj flie ootmcll of state, b 1806, in the 
HvbA eonits, tliat fareign prirate Tends b Ftvoch port^ bt the pucpoee of 
tr»d«^ Tare sxempted train the loed joriedidien, m to aots of mere internatioul 
diedplbe of the Tsssel, sod ereo is to cdmee ind offeooes committed \ij a pcnon 
forming a part of its offiiiers and trew, agunst another persoD beloopog to the 
wmb, when the peace of tlie port is not distorbed. Bnt the local jarisdietaaa It 
properij BKeTted ■■ to ciimee eommitted on board the vessel agabit penoos not 
farming Jiart of it* offloers and «rev, or by any other than a pwion belonging to 
the same, or IbMe oanunitted bj the officer* and crev npon each other, if the 
p««o* of the port be thereto distartied ; and &s jurisdiction, ^ao, is eieraeed as to 
ciTil aoDtncteiOAde with peraoni not belonging to the TeseeL Tbeae wcnttie eases 
of Tkt Nnttm, at Antwsrp, and of 3A« SoU^ at MarsdUea. TfaoM oaeee show a 
Kberal rtlazation of the stiict li^ita at the local jnrisdidioa, and so tbej are re- 
garded by Hr. WbeAttm. Aootlur important pitMiple of bteraatiooal joriapra- 
deooe was dedared bj the Frntch Court of Oanation, in IBSS, b the caae of 77»t 
Oarl» Albtrlo, (^tej, BtfuU Qhttral i§ Ari^ntdnta, tome zziiL p. SIB, dtad 
from mtstfOM'i Slm*iU*, 8d edit 154.) vis. that 17 the law of natioiia, a Itirrign 
veesel, allied or neutral, ii ooosidered as part of the temtotj of the natioD to 
whidi it baloogi, and eotitled to llie pHnlega of the briolabili^ of the territocj ; 
but that pririlege ceases to [Ht)teet her when haTiog committed acts of hostility 
b lb* F^encfa tenitoij inaonmstsot with its character of alljr or neutral, and that 
even the pretext of putting bto port b distress, will not exclude the jurisdictjon 
of dte beal tribntuls of a charge of lugb treaeou agaioat Ilia peisoos found on 
board. 

• Tbe ijuta Maria, 2 TFIaKom, 827. The right of nutation and teareb is some- 
time* laid mideT apecul reetrietioa^ by oooTention betwera maritime states. Se«, 
te ioHano*. art 17 of the conrenlion of naTigation and commerce between the 
United State* and the Pani-BoliTian Oaafsderation, Maj, 1 888. (1) 



<1) TrestKs made bj the UoHed Bt 
Mr Wh, iSBl, sobodr most or du IllNnl piDTUDos lir latmaOiMel pri>)ls(*« aad h* pie- 
sstratkB, dnrlnt *ir, c< Bsotnl il|hls, wtal* the neoka) uflon* of Xon^ liaTe kiag so^U 

to m ars. See th«e tresliM rbr pnnlaloai, M, towls wllh a ' * 

lesolatknitfTMIaUimandaei ~ ... 

Oa 1 ndpiDoal Ughn m Ihe Etthsni to n 

Tca-L 



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163 OF THE LAW OF NATIONa [FMt L 

he 18 responsible. It ia not the search, but the Bnbseqiieitt 
CRptore, which is treated in snch a case as a tortioTis act* If 
the capture be jnstifiable, the sobseguent detention for adju- 
dication is never punished vith damages ; and in all cases of 
marine torts, courts of admiralty exercise a large discretion 

in goring or withholding damages.^ 
*157 *A rescue effected by the crew alter capture, and 

when the captors are in actual poseeeaion, ie nnlawftil, 
and considered to be a resistance within the application of the 
penalty of confiscation, for it is delivered by force fivm force.* 
And where the penal^ attaches to all, it attaches as com- 
pletely to the cargo as to the ship, for the master acted as 
' Agent of the owner of the cargo, and his resiBtance was a 
/fiitrtulent attempt to withdraw it from the rights of war.'' 
vaM A neutral is bound, not only to sabmit to search, bat to 
""""^ have his vessel duly famished with the genuine documents 
requisite to support her neutral character' ^e most mate- 
rial of these documents are, the register, passport or sea-letter, 
mustei^roU, log-book, charter-party, invoice and bill of lading. 
The want of some of these papers is strong presumptive 
evidence against the ship's neutrality ; yet the want of any 
one of them is not absolutely concluaive.' Si aUgwd ex 
adUimnSma d^fictat, cum tgvitas poseit avhveniendum eat. 
The concealment of papers material for the presorration of 
the neatral character, justifies a capture, and carrying into 
port for adjudication, though it does not absolutely require a 
condemnation. ' It is good ground to refase costs and damages 



• 9 JVomb'* R^ 4)9. * Stccy, J, 11 Whafon, 64— SS. 

• The Dcspiddi, S £«&. Btp. »S. Brown t. UnioD Tim.Oo.1 J)a/* Etp. 1. 
' Tba OatlMiiiik BKabitli, 6 Bob. lUp. 381. 

■ Aiuifr to Iki Pnatim Memtrial, ITfiS. EmIkim, A la BaitU dw Balimtiu 

', JlmitKU»trwaoiu,lOtk March, liVi. Ha r«gUt«r of » tcm«1 i* thaonfy 
daennunt whidi Dead b« oo board a T«ne1 in tim« of uiUeraal peace, to prora 
utkuMl dMnetar. Oalletta t. Padfio Ina. Oo. 1 Potiu'i Ftp. SII4. By tlie eon- 
TCotiDn of ntTigatkin and oooincrea behrean tba United fitatca and tlM Peru- 
BoUTka OoofedenOion, Uaj, 18>S, art IB, the Teatak of cad) power are to be 
flmiibed in time of war with ee&-lett«ra or paMporte, defcribiiig the name, pro- 
perty and bntden of tlie ahip, and name and reridence of ttie oommaDder. Bo they 
moat alao be ptorided with i!ertificataB,oontumDg the particnlan of the caign *"*) 
the place whence Ihe ibip Miled, aigned hj the offlcen of the port 



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Lm. TII] 07 TECE LAV OF NATIOITS. ISS 

on reatitDtion, or to refiiBO farther proof to relieve the obeciui' 
^ of the case, where the cause laboured under heavy donbto, 
and there yias prima facU gronnd for condemnation iudejmk- 
dent of the concealment* The spoilation of papers is a still 
more aggravated and inflamed circnmstance of sus- 
picion. That &ct may ezclnd^ fnrther ^prooi^ and be *158 
sufficient to infer goilt ; bnt it doee not, in England, as 
it does by the maritime law of other conntries, create an 
absolate presumption j-wria et dejttre / and yet, a case titkat 
escapes with snch a brand npon it, is aaved so as by fire.t> 
The Supreme Ooort of the United States has followed the lees 
rigorous English rule, and held that Uie spoiladon of papeis 
was not, of itself^ sufficient ground for condemnation, and that 
it was a circnmatance open for explanation, for it may have 
arisen £rom accident, necessity or superior force.*' If the 
explanation be not prompt and &ank, or be weak and fiitile ; 
if the caose labours under heavy suspicions, or there be a 
vehement presumption of bad &ith, or gross prevarication, it 
is good cause for the denial of further proof ; and the condem- 
nation ensuee from defects in the evidence, which the par^ 
is not permitted to supply. The observation of Lord Mans- 
field, in Bemardi v. Motteauai,^ was to the same effect By 
ihe maritime law of all countries, he said, throwing papers 
overboard was considered as a strong preeomption of enemy's 
property ; but, in all his experience, he had never known a 
condemnation on that circumstance only. 



• IjTii^tton A QOdiiut t. MuiM laa.Oo.1 Craneh, BU. 
» ■Hw HnoUr, 1 Dodioit'* AA». Btp. 4$0i 

• Hu -S^iMao, S Whtattm, Wl. * Jhitg. Btp. HI. 



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LECTUEE VIII. 

OF TBDOKS, PASBFOBIB UXB TKBATOS OF FKA.CS. 

Hatiko conradered the rights and duties appertaining to a 
state of war, I proceed to examine the hew of nations relative 
to negotiations, conTentiona and treaties, which either par- 
tially interrupt the war, or terminate in peace. 
ri (1.) A tmce or suspension of arms does not terminate the 
war, bnt it is one of the convmercia hdbi which fluependa its 
operations. These conventions rest npon the obligation of 
good &ith, raid as they lead to pacific negotiations, and 
are necessary to control hostilities, and promote the canse 
of humamty, they are sacredly observed by civilized na>- 
tionfl. 

A particnlar tmce is only a partial cessation of hostilities, 
as between a town and an army besieging it. Bat a general 
trace applies to the operations of the war ; and if it be for a 
long or indefinite period of time, it amounts to a temporary 
peace, which leaves the state of the contending parties, and 
the qnestions between them, remaining in tiie same sitnation 
as it found them. A partial tmce may be made by a sabordi- 
nate commander, and it is a power neceesarily implied in the 
nature of his tmst ; bnt it is requisite to a general tmce, or 
suspension of hostilities throng^ont the nation, or for a great 
lei^th of time, that It may be made by the sovereign of the 
conntry, or by his special authority.* He general prin- 
*160 ciple on the subject *is, that if a commander makes a 
compact with the enemy, and it be of soch a nature 
that the power to make it could be reasonably implied from 
l^e natai« of the trust, it will be valid and binding, though he 



' raU< II t. a It. «m; SE»— S18. enXiM,h, e.«.ll. 



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Lk. Tin] 07 THE LAW 07 NATIONS. 166 

abuse Ms trnst llie obligation he is under not to abuse his 
trust, regards his own state, and not the enem^.' 

A trace binds the coutracting parties from the time it is 
conclnded, but it does not bind the individuals of the nation 
80 ae to render them personaUj responsible for a breach of it, 
until they have had actual or constmctiTe notice of it Ihongh 
an individual ma,j not be held to make pecnniaiy compensa-. 
tion for a capture made, or destruction of propert;^, after ths 
suspension of hostilities, and before notice of it had reached 
him, ^et the sovereign of tiie country is bound to cause Te»- 
toration to be made of all prizes made after the date of a 
general trace. To prereut the danger and damage that might 
arise from acts committed in ignorance of the truce, it is com- 
mon and proper to fix a prospective period for the cessation 
of hostihttea, with a due refereuce to the distance and sitaa- 
tion of places.^ 

A trace only temporarily stays hostilities ; and each part^ 
to it may, within his own territories, do whatever he would 
have a right to do in time of peace. He may coatinue active 
preparations for war, by repairing fortifications, levying and 
disciplining troops, and collecting provisions and articles of 
war. He may do whatever, under all the circumstances, 
would be deemed compatible with good iaith and the spirit 
of the agreement ; bat he is jostly restrained from doing what 
would be directly injurious to tiie enemy, and conld not 
safely be done in the midst of hostilities. Thus, in the case of 
a truce between the governor of a fortified town and the agny 
besieging it, neither party is at liberty to continae works, con- 
structed either for attack or defence, and which could 
not safely be done if hostilities had *conl3nuBd; for *161 
this would be to make a mischievous and fraudulent use 
of the ceesation of arms. So, it would be a fraad upon the 
rights of the besieging army, and an abuse of the armis- 
tice, for the garrison to avail themselves of the truce to intro- 
duce provisions and snccours into the town, in a way, or 
through passages, which the besieging army w<»ild have been 



• Siith*rf<Hl\ Ix S. & 9. Valta, h 1. «. IS. ■> 

3.4. 

* ralitt, h S. 0. IB. •««. SS9. 344. 



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169 OF THE UW OF KATIOITS. [Put L 

competent to prevent' The meaning of every snch compact 
ia, that all things ehoTild remain as they were in the places 
contested, and of which the poBsession was diapnted, at the 
moment of the conclnaion of die trace. ■> 

At the expiration of the trace, hostilitieB may recommence 
without any freah declaration of war; but if it be for an 
indefinite time, justice and good faith require dne notice of an 
intenti(m to terminate it' 

Orotins and Tattel,' as well as other writers on national 
law, have agitated (he question, whether a truce for a given 
period, as, for instance, from die first of January to the first 
of February, will include or exclude the first day of each of 
these mondifl. Qrotius says, that the day from whence a trace 
is to be computed, is not one of the day^ of the trace, but that 
it will include the whole of the first day of February as being 
the day of its termination. Puffendorf, HeiDeccius and Vattel, 
on the other hand, are of opinion, that the day of the com- 
mencement of the trace would be included ; and as the time 
ought to be taken largely and liberally, for the sake of 
humanity, the last day mentioned would also be included. 
Every ambiguity of this kind ought always to be prevented, 
by positive and precise stipulations, as, from 8U<^ a day to 
such a day, both incluMve." 
wi fmc *163 *(2.) A pas^Kirt or safe conduct is a privilege granted 
in war, and exempting the party from the effects of its 
operation, during tiie time, and to the extent prescribed in the 
permiasicaL It fiows from the sovereign authority ; but the 
power of granting a passport may be delegated by the sove- 
reigD to persons in subordinate command, and they are 
invested with that power either by an express commission, or 
by HiB nature of their trust' The genenil of an army, from 



* ratUl,h.a.e.lt.¥>e.»i%tM. 

* Hid. «««. SOO. 

* IhU. b. 1. e. 10. tea. itO. 

* droltiM, b. 8- c. SI. ««& 4. raaa,\t.».e.l6.»te.m. i^^&'T.S. Bmme. 
Jur. Ifat H OtnL S. 9. SOS. 

* Ills role propoMd by the EDgUdi«ammlMioiMr% Id thtir report on Uie pndiM 
of th* Engluh coarta, in July, ISSl, i* leoommoidcd bj iu liinplidt; ud c«r- 
tik^. Hiej propoMil to ooanpota tit* fint day euluuTelj, ud Uia last d*j 
looliHJTdy, in all cofM. 8m toL It. pi SB. 

' raati,b. rein. 



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Lm rm.] OF THE LAW OP VATIONd. 167 

the very nature of his power, can grant eafla craidacts; bat 
l^e pennisaion is not tnuuferable by the pereoD named in the 
passport, for it may he thflt the government had special 
reasons for granting the privilege to the very individual 
named, and it is presumed to he personal. If the safe conduct 
be granted, not for persons, but for effects, those effects may 
be removed by others besides the owner, provided no person 
be selected as the agent, against whom there may exist a 
personal objection, sufficient to render him an object of 
suspicion or danger, within the territories of the power grant- 
ing the permisaion. 

He who promises security, by a passport, is morally bonnd 
to afford it against any of his subj ects or forces, and to make 
good &ny damage the party might sustain by a violation of 
the paieport. The privilege being so far a dispensation from 
the legal effects of war, it is always to be taken strictly, and 
most be confined to the purpose, and place, and time, for 
which it was granted. A safe conduct generally includes the 
necessary baggage and servants of the person to whom it is 
granted; and, to save doubt and difficulty, it is usual to 
enumerate, with precision, every particular branch and extent 
of the indalgence. If a safe conduct be given for a stated term 
of time, tie person in whose favour it was granted must leave 
the enemy's conntry'^before the time expires, unless detained 
by sickness, or some unavoidable drcumstance, 
*and then he remains nnder the same protection. *16S 
Hie case is different with an enemy who comes into the 
coontrr of his adversaiy during a truce. He, at his own 
pail, takes advantage of a general liberty allowed by the 
guspensioa of hoetilittes, and, at the expiration of the truce, 
the war may freely take its coniBe, without being impeded by 
any claims of such a party for protection.' 

It is stated that a safe conduct may even be revoked by 
him who granted it, for some good reason ; for it is a general ; 
principle in the law of nations, that every privily may be I 
revoked, when it becomes detrimental to the state. If it / 
be a gratuitous privilege, it maybe revoked purely and simply ; I 
but if it he a purchased privilcfie, the party interested in it is 



> r«ttal, h 1. & IT. Ma tii, iU. 



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168 OF THB LAT OF NATIOB& [PutL 

entitled to iademnity againat all injorioiiB conset^iieiices, and 
ereiy party affected by ihe lerocation is to be allowed time 
and liberty to depart in safety.* 
<f» The effect of a license given by the en«ny to the subjectB 
of the adverse party, to carry on a specified trade, has already 
been considered,^ in respect to the light in which it is viewed hy 
&e government of the citizens accepting it. A very different 
effect is givrai to these licenses by the government which 
grants them, and they are regarded and respected oa law^ 
relaxations or sospennons of the rules of war. It is the 
asaamption of a state of peace to the extent of the license, and 
die act rests in the discretion of the sovereign anthority of the 
rtate, which alone a competent to decide how &r coniidera- 
tions of commercial and political expediency may, in particolar 
cases, control the ordinary consequences of war. In the 
conntry which grants them, licensee to cany on a pacific 
commerce are atrioHjwria, as being exceptions to a general 

rale ; though they are not to be construed with pedantic 
*164: accuracy, nor will every *smaIL deviation beheld to 

vitiate the fair effect of them.<' As excea in the 
quantity of goods permitted to be imported, might n(t be con- 
sidered as noxious to any extent; but a variation in the 
quality or substance of the goods might be more significant. 
"Whenever any put of the trade assumed under the license is 
denuded of uiy authority under it, such part is Bubjcct to 
condemnation. 

Another material circumstance in aU licenses, is the limita- 
tion of time in which they are to he carried into e&ct, for 
what is proper at one time, may be very unfit and misduerons 
at another time. Where a license was limited to be in force 
until t^e 39th'of September, and the ship did not lail from 



■ Vaua, b. S. c 11. sac ETA. 

* Supra, p. SB. 

• Tba OoHDOpidite, 4 Bci. Stp. 8. OtiiMmi, b. S. a SI. mc 14, hft down fU 
gvttni mle, tliat ft aafa Gooduet, of wlucli thoa licciuw ire m ipedn, ue to b« 
Ubtrallj «acMtni«d; laxa magii guaut Mrieia itUtrprttalio ainittmda ttl. And 
fiMUM w«r« «TeatuBllj cmiBtrued wi^h great liberalitj in the Britiak Marts or«d- 
mintltT'. Jndga Ooka^ in tlie eaaa of Ilia Abigail, Bteuarfi Vk*-JIAii. Rtp. IflOi 
I>H»roK htntroM*, toL L B9S — S19. Hit Engliih tujoiiialt; and ooDHDOa kv 
itoAeat 00 tlua aubjact of licenaaa are odlaetod and BzamiiMd by Kr. Dnar, with 
hia naual ^^^^tnftf and sagicttf. 



„Google 



Lm. Tm] 07 THE LAV 07 NATIOIfa 168 

the foreign port until the 4th of October, jet, aa the goods 
were laden onboard hj the 12th ofSeptemher, and there waa 
an entire bona Jide* on the part of the person holding the 
license, this waa held to be legal' But where a license was 
to bring away a cargo from Bordeaux, and the party thought 
proper to change the license, and acconunodate it to another 
port in France, it was held, by the Engliah admiralty, in the 
case of the Twe^ QAroedera^ that the license was vitiated, 
and the vessel and cai^ were condemned. It haa also been 
held, that the license must be limited to the nse of the predse 
persons for whose benefit it was obtuned. ^e great principle 
in these cases is, that subjects are not to trade with the enemy 
without the special penniBsicai of the government; and a 
material object of the control which the government exercises 
over such a trade, is that it may judge of the parti- 
onlar persons who are fit to *be intrusted wiUi an *16fi 
exemption from the ordinaiy restricCious of a state of 
war.< 

(3.) The object of war is peace ; and it is the duty of every '. 
belligerent power to make war fulfil its end with the least 
possible mischief, and to accelerate, by all fair and reasonable 
means, a just and honourable peace. He same power which 
haa the right to declare and cany on war, would seem naturally 
to be the proper power to make and c<Hiclnde a treaty of 
peace ; but tiie di^Oflitiou of this power will depend upon the 
local constitntion of every nation ; and it sometimes happens, 
that the j>ower of nlaking peace is committed to a body of 
men wh6 have not the power to make war. In Sweden, after 
the death of Charles XII , the king could declare war without 
the ccmsent of the national diet, but he made peace in conr 
junction with the sooate.*' So, by the constitution <^ the 
■United States, the president, by and with the advice and 
etmsent of two thirds of the senate, may make peace, but it is 
nserved to congress to declare war. This provision -in our 



■ 8diTD«]«r T. Tam^ 16 Ett* Kif. 0£. S Can^ N. P. Rtp. SS. 
k lSAt.AAn.Stp.96. 

* Tht loagt JohuuMi, 4 JM. Rtp. (SS. Bm tha kw ai to Hcmmi, wllaeted 
1m\aatiN.P.It»p.\i%TitA». Hr. OiltMT^UidSr William SacMwa^ Id bet, 
th* antbor «f tlw wboU iMnuDg <rf tb« law nkti^ lo tiw qnMn of lioMWMi 

* F«/K K 4- 0, a. lOtt la 



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170 or TBX LAW OF VAUONB. [Pwt L 

constitution is well adapted (ea will be shown more fnlly 
hereafter) to unite, in ihe negotiati<m and conclusion of 
treatiee, the adrantage of talents, experience, stabilitf, and a 
comprehensive knowledge of national interest, with the requi- 
site secrecy and despatch. 

Treaties of peace, when made by the competent power, are 
obligatory tipon the whole nation. If the treaty requires tiie 
payment of money to cany it into effect, and the money cannot 
be raised bat by an act of the legislature, the treaty is morally 
obb'gatoty npon the legislatore to pass the law, and to refrise 
it would be a breach of pnbHc &ith. Hie department of the 
government tbat is intrusted by the constitution with 
*i66 the treaty-making power, is competent to *bind the 
national faith in its discretion ; for the power to make 
treatiee of peace must be co-exteneire with aU the exigencies 
of the nation, and necessarily inToIves in it fliat portion of the 
national sovereignty which has the ezdusive direction of diplo- 
matic negotiations and contracts with foreign powers. AU 
treaties made by that power become of absolute efficacy, be- 
cause they are the supreme law of the land. 

There can be no doubt that the power competent to bind 
tho nation by treaty, may alienate the public domain and 
property by treaty. If a nation has conferred upon its ex- 
ecutive department, without reserve, the right of treating and 
contracting with other states, it is considered as having in- 
vested it with all the power neceesaiy to make a valid contract. 
That department is the oi^an of the nation, and the alienations 
by it are valid, because they are done by the reputed will of 
the nation. The fundamental laws of a state may withhold 
from the executive department the power of transferring what 
belongs to the state ; but if there be no express provision of 
that kind, the inference is, that it has confided to the depart- 
ment charged witii the power of making treaties, a discretion 
commensurate with all the great interests, and wants, and 
necessities of the nation. A power to make treaties of peace 
necessarily implies a power to decide the terms on which they 
shall be made ; and foreign states conld not deal safely with 
the government upon any other presumption. The power 
that is intrusted generally and la^ly with authority to make 
valid treaties of peace, can, of course, bind the nation by 
alienation of part of its territory : and this is equally the case, 



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Im Tm.] or THS LAW OF HATIOira 171 

■whether that territory he ateady in the occapatjon of the 
enemy, or remains in the poesesmoa of the nation, and whether 
the property be public or private.' la the caae of the 
Bchooner Peg^^ the *Siipreme CJonrt of the United *167 
States admitted, that individnal righte, acquired by 
war, and rested rights of the citizens,' might be sacrificed by 
treaty for national purpoeee. So, in the case of Ware t. .Mf- 
jcm,* it was said to be a clear principle of national law, 
that private rights might be sacrificed by treaty to secure the 
pablic safety, thongh the government wonld be bound to make 
compensation and indemnity to the individnals whose rights 
had thns been sorrendered. The power to alienate, and the 
daty to make compensation, are both laid down by Grotins' 
in equally ezphcit terms. 

A treaty of peace is valid and binding on the nation, if 
made with the present mhng power of the nation, or the 
government de facto. Other nations have no right to interfere 
with the domestic affairs of any particnlsr nation, or to ex- 



• r«lbf,lLl.e.lO.Me.SM. TAUcSLMbSSa.— bL4.e. a.Me. 11, 12. Tittol 
aih^ti, tlut Uw Amdamantal Inrt of » mlioo m»j iritbbold tba pcwcr of allatt- 
lioD bj trefttj ; tod it -woald Beml, bj UMaamy mianoM, to be b TJokUoD of 
fimdamcntalJaw, for tha trea^-HMking powar, sctii^ imdar indi an initnimeDt M 
tba OoDititiitiaaof tba Unil«d State*, to tgree bj tre«^ lor the ■boUti<Hi or ■Uei*- 
tknof KDj pMtof tkecoMtitotioa 31ie ■tipuktioD would fo to daaboj Hie TC17 
■ntimilf lor niakiiig tba bva^. 

• 1 OouA, lot. 

• Chue, J, S DaO. Rtp. 169. ME. 

' B. S. Q. 10. aec. T. Ha goremuMtit of tlie Unitad Bt«te* doeUred to tba 
BritUi goTanunao^ io rafaraiica to tba diipotad line of lbs Dortbaaetem bouoduy 
of tba Uiut«d States, th&t it b*d no power to cede aaj part of tba tecrihnydaimad 
hj tba atata of lluoa, witboat tba oonaaot of Ibat atata. Sm U< Litttr of Lord 
FaijntrtiM to Mr. Fox, tba Britiib Mioiater at Waahiugtoo, NoraiDber 191b, laST. 
Tboi^h tba battw opinira would aaam to ba^ tbat «icb a powar of caaaiDa do«« 
r«Mda ezdiMi*e)]r in the Uaatynnaking powar, under tbe ChRHtitutioii of tba 
United Btat«a, yat aoand diecretioD woold fbrbid tba axarciaa of it witbont Ui* 
oonanit of tba local goTenunaota wbo arc latereated, except in caaet of great nacaa- 
atj, in which tbat cooiaiit might be presumed By tbe treat; made batweea tlta 
United State* and Qrtat Britain, in IMS, raapecting tba diipot^d boundary lin* 
batwean tbe atate of Maine and tba Bridab proTiocaa of ITaw &unawick and 
Canada, part of tba land* daimed bjr tbe atate of Maine were, by tba line agreed 
OQ, placed witUo tbe Biitiab tanitory, and ceded to Qreat Britain ; yet lb« United 
State* )fid not act on tba anbject until they bad praTunuly and raiy wisely pro- 
Tided, tbat eoumiMiooara oo tba put of tba «t*t«t of HaMBchuietta and MalM 
ijwnlit \\ti priMnnt al thn nmnriatinn. anil aMmiting to thn hnnndaij Unn iflTiiiil na 



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172 07 THE LAT 07 NATIONS [Fwtl 

amine and jadge of the title of the party in poBBeasion of the 
anpreme authority. They are to look only to the &ct of 
poeseasion.^ And it is an acknowledged rnle of international 
law, that the principal par^ in whcee name the war ia made, 
cannot justly make peace without including those defensive 
allies in the pacification who hare afforded aaeistance, thongh 
they may not have acted aa principals ; for it vonld be pith- 
less and cmel for the principal in the war to leave his weaker 
ally to the foil force of the enemy's resentment Tlie ally is, 
however, to be no further a party to the sUpnlationB and 
obligations of the ti-eaty, than he has been willing to consent. 
All that the principal can require is, that his ally he considered 
as restored to a state of peace. Every alliance, in which all 
the parties are principals in the war, obliges the allies to 
treat in concert, thongh each one makra a separate treaty of 

peace for himself.>> 
*168 *The effect of a treaty of peace is to put an end to 

the war, and to abolish the subject of it Peace relates 
to the war which it terminates. It is an agreement to waive 
all discussion concerning the respective rights of the parties, 
and to bmy in oblivion all the original causes of the war.« It 
forbids the revival of the same war, by taking arms for the 
cause which at first kindled it, though it is no objection to 
any subsequent pretensions to the same thing on other foun- 
dations.' Ailer peace, the revival of grievaucee arising be- 
fore the war is not to be encouraged, for treaties of peace are 
intended to pnt an end to such complaints; and if grievances 
then existing are not brought forwEuxl at the time when peace 
is concluded, it is to be preenmed that it is not intended to 
bring them forward at any future time.* Peace leaves the 
contracting parties without any right of committing hostility, 
for the very cause which kindled the war, w for what has 



• Valtel, h 4. ft i. MCi 14, and mifa tiqnv, p SB. 
' FoU^i, bL 4. 0. a, Mb 16. 

• Sir WUlUm SootI; in tbe cue of Tba Blka Aim, 1 DodHm'* Aim. S^. H9. 
llMiigli prirate right* «iiMiDg beton tha war maj not b« rsiuUcd bj peace, 
tbe prenuDptioD ii otbenriee m to the riglita of kingi and MtionA Oratittt, b. 
B, c SO. sec 19. 

• Vatltl. b. 4. 0. S. MO. 19. 

• Sir Williwa Seott, Tit» UoUj, 1 DedtMt't Ad». Btp. SVS. 



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Ue. ym.] or thb u.w o? hatioiis. 173 

passed in the coarse of it. It U, therefore, no longer per- 
mitted to take np arms again for the same canse.' But this 
■will not preclude the right to complain and resist, if the same 
grievances which kindled the war be renewed and repeated, 
for that would fnmish a new injury and a new cause of war 
equally jnst with the former war. If an abstract right be in 
question between the parties, the right, for instance, to im- 
press at sea one's own subjects, from the merchant vessels of 
the other, and the parties vxake peace without taking any 
notice of Uie qnestion, it follows, of course, that all past griev- 
ances, damages and injury, arising under such claim, 
are tlirown into oblivion, *by the amnesty which every *lfl9 
treaty implies ; but the claim iteelf is not thereby set^ 
tied, either one way or the other. It remains open for future 
discnauoD, because the treaty wanted an express concession 
or rennuciation of the claim itself.*' 

A treaty of peace leaves every thing in the state in which 
it finds it, if there he no express stipulation on the subject 
If nothing be said in the treaty of peace about the conquered 
country or places, they remain with the possessor, and his 
title cannot afterwards be called in question.'^ During war, 
the conqueror has only a usu&uctuaiy right to the territory he 
has subdued ; and the latent right and title of the former 
sovereign continues, until a treaty of peace, by its silence, or 
by its express stipulati9n, shall have extinguished his title 
fbr ever.* 

The peace does not affect private rights which had no rela- 
tion to the war. Debts existing prior to the war, and inju- 
ries committed prior to the war, but which made no part of 
the reasons for undertaking it, remain entire, and the reme- 
dies are revived." Tiere are certain cases in which even 
debts contracted, or injuries committed, between two sub- 
jects of the belligerent powers, during the war, are the ground 
of a valid claim, as in the case of ransom bills, and of con- 

• Vatttl, h.i. 9. t.MC It. 

k Vatul, b. 4. c. 3. tM. le, so. ^ 

* VeUM, b. 4. & 1 IM. 19. tl. 

* Six W\])um Bom, lJ}odto,C* AJm. Stp. *63. Fatifi; k S. a tS. mo. m, 
IBS. /Awl b. 4. o. 8. us. 1. ffrwdw, lib, t. & «. mo. 4, S. MM^$ Iheit d* 
tRtnpt, bom* I & 1. jL 144. 

• Gn)(n(i,k8.ftSaMa.IS. IB. 



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171 OP THE LAV OF HATIOIRI, [Put L 

tracts made hj priaonerB of war for aabBiHtence, or in a trade 
carried oa ander a license.' This wonld be the case if tJie 
debt between them was contracted, or the injury was com- 
mitted, in a neatral country. i> 
■• A treaty of peace binds the contracting parties from the 

moment of itB concloBion, and that is onderetood to 
*170 be from *the day it is signed. <= (1) A treaty made by 

the minister abroad, when ratified by his Bovereign, re- 
lates back to the time of signing ;' but, like a truce, it cannot 
affect the subjects of the nation with guilt, by reason of acts 
of hostility subsequent to the date of the treaty, provided they 
were committed before the treaty was known. All that can 
be required in such cases is, that the government make im- 
mediate restitution of things captured after the cessation of 
hostilities ; and to guard against inconvenience from the want 
of due knowledge of the treaty, it is nsoal to fix the perioda 
at which hostilities are to cease at different places, and for 
the restitution of property taken afterwards.* 

Bat though individnals are not deemed criminal for conti- 
nuing hostilities after the date of the peace, so long as they 
are ignorant of it, a more difficnlt question to determine is, 
whether they are responsible, ciiviliter, in such cases. Gro- 
tins' says, they are not liable to answer in damages, but it is 
the duty of the government to restore what has been captured 
and not dcstroyed.(2) In the case of the American ship Men- 



' Crawford t. llw WilliMii Peoo^ I tToO. (Xt. Jbp. 484 I Ptttre Or. Ji*p. 

100. a. a. 

k FotfiJ, b, 4. c, 1 MC H. 

■ Vaittl, Ijl 4, c I. ««c. 34. llarUni Summorg, b. S. & 1. MC. S. In tba nuittcr 
of Hetiger, N. T. Ligid &>»mtr tat Much, 1S4T. 

' BjItoQ T. Brown, 1 WaA. C C. Rrp. tlS. 

• FotM/, b. 4. c 8. KC !4, !G. Aid h S.c li. tec. IBfl, isr AtdL b. S. o. I«. 
% I>aU. Rrp. 40. Atuni, toL iL ItT. Lcmm of EjtUn *. Browi^ 1 Watk. dr. 
Rip. Sll, 811. 84S. SGI. 

' R 8. c 21. MC. B. 

(1) So bdd In The Ualled tMtm T. Bctm*. ( Sou. B. W. Dirb t. Tha Pdln Jnij, A&, 
U. tSO. Thcnflir*. tflci lb« due of U» tmlr, u oOnr oT thi oedbif pmra bu no vitbiin^ 
la gnnt luid or Innelitica, la ba Kjojad In the teiHtoiy oedtd. Battatfn pows, >iaq>l tir 
■nnlitipd parpoHi, nam, nnlm oUKrwlM proitdcd, wlihtbailfiiliisiidhe bwljr. 

(D Ii hH been dmbtod »hiUk« the liogance of OrodiH lanoaani the nmllilliH. or Ibe n- 
ipooilbHIlJ of the tDTcnunent, Khldi lelmirileil In IbetezL Tbeortglu] iufuga la lUii— 
" 0wir* •< fWd inttrta a nUMUt een^v Uiitieiat fi u tum M, IpH a p fH lt tmmimm 
jiiinf, ntffit* la«M •» rntna* ten lra km t m danmiiM rmarc l it d tbtmn l , ' 



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Lm. VIII] OF THE LAW OF NATI0K8. 17S 

iar*- which waa taken Rod destroyed, off Delaware bB^, bj 
British ships of war, in 17S3, after the cessation of hostilities, 
bat before that fact had come to the knowledge of either of 
the parties, the point was much discussed ; and it was held, 
that the injured part; could not pass over the person froin 
whom the alleged injoiy had been received, and fix it on the 
commander of the English squadron on that station, who was 
totally ignorant of the whole transaction, and at the distance 
of thirty leagues &om the place where it passed. There was 
no instance in the annals of the prize courts, of such a remote 
and cousequential responsibility in such a case. Hie 

I actual wrong-doer is the peraon to answer in ^ndg- *171 
ment, and to him the responsibility, if any, is attached. 
He may have other peisone responsible over to him, but the 
injured parly could look only to him. Hie better opinion 
was, that though such an act be done through ignorance of 
the cessation of hostilities, yet, mere ignorance of that fact 
would not protect the oflScer from civil responsibility in a 
prize conrt ; and that if he acted through igncnrance, his own 
government must protect him and save him harmless. When 
a place or country is exempted from hostility by articles of 
peace, it is the duty of the government to use due diligence 
to give its subjects notice of the fact ; and the government 
oo^t, in justice, to indemnity its. subjects, who act in igno- 
Tsnce of the peace. And yet it would seem from that case, 
that the American owner was denied redress in the British 
admiralty, not only against the admiral of the fleet on that 
station, but against the immediate author of the injury. Sir 
William Scott denied the relief against the admiral ; and ten 
years before that time, relief had equally been denied by his 
predecessor, against the person who did the injury. If that 
decision vras erroneoos, an appeal ought to have been prose- 
cuted. We have then the decision of the English hi^ court 
of admiralty, denying any relief in such a case, and an opi- 
nion of Sir William Scott, many years afterwards, that the 
original vrong-doer was liable. The opinions cannot other- 
wise be reconciled, than upon the ground that the prize courts 
have a large and equitable discretion, in allowing or with- 



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X19 or THB LAW OF HATTOUa [Put I. 

holding relief, according to the special circninstanceB of the 
individnal case ; and tliat there ia no fixed or inflexible gene- 
ral role on the enbject 

Tf a time be fixed by the treaty for hostilities to cease in a 
given place, and a captnre be previonsly made, bat with 
knowledge of the peace, it has been a qneation among the 
writers on pnblic law, whether the captnred property shoald 

be restored. The better, and the more reasonable 
*173 opinion ^is, that the capture wonid be nail, thon^ 

made before the day limited, pronded the captor was 
previoaaly informed of the peace ; for, as Emerigon" observes, 
since constmctiye knowledge of the peace, after the time lim- 
ited in different parte of the world, renders the captnre void, 
much more onght actual knowledge of the peace to prodnm 

tiiat effect» 
*17S *Another qnestion arose snbBeqnent to the trealy of 

Ghent of 1814, in one of the British -vice-admiral^ 
conrts, on the validity of a recaptnre, by a British ship of war, 
of a British vessel captured by an American privateer. The 
captnre made by an American craiser was valid, being made 
before the period fixed for the cessation of hoetilitiee, and in 



■ Vaitn, TVaiti dsi Prim*, e. 4. Ma 4 and G. Eaerigon, TraM ia Ai*. ck IS. 
M& 19. Atuni an Marilim* Zov, edit N. Y. toL fl. p. !S1. 

* This poiot wu citenmTtlj duciuKd io tliti Frcoch priu courte, id llw cua of 
the capture of tliaBriUehihipSiriiiiAcnJ;birtbe French priv*tecr£<Ui>na, in 1801, 
and vbat vm nifOdeot knowledge ot the fRCt of the peace to annal the captnr«i 
T*a the great qaeetion. Tbt EnglUh ehfp wae taken poaMtuon of, utd Mined 
fata the m1« of France, and libelled, and condenuwd •« lawfiil priie of war. Tbt 
MOtCDce of eondenuwtioD wm affinoed in 1BD8, on appeal to the conncil of priuB 
at Paria, and M. Mtrliti ha* reported at large the elaborate argtunent and opiaioo 
of M. OoUet Deecotili, the imperial adrocate-gcneral id the conncil of priio, ill 
IkToar of the captor*. The groond he took, and upon whidi the eonDcit of p ria et 
proceeded, wai, that the king** prodamatioD of the gignatore of the prcHmnaij 
artiele* of peace, thongh made kErawD repeatedlj to the French cmiacr belire the 
eaptore, but UDaccompaoied bj anj French attcetation, waa not tliat anffident and 
iodabitable evidence to the French cruiser of the fact of the peaces upon which ha 
ODght to have acted, and that the period of the five moDth* had not elapsed, withki 
wbidi it waa lawful, in the JDdian lea^ to continue hoatiUtiea. He leaned aad 
venerable author of that immenae work, the Reptrlmy of Jurupmdaici, nj^ m 
introdncing the case, that he shall b« elleDt on the queetion, and ctaitenta himaelf 
with giving the diactuaiona, and particular!; the ojunion of the advoeat^-gtoeral, 
and the reaaooa of the oonocilof prixeA Bet Rtptrtoirt Vniitarul a £ 
Jmiprvdmei, par M. la Oompte llerlii^ tome iz. liL PrUt Marilimt, m 



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Lm. VIH] of IBB LAW OF NATIOIJS. 177 

ignorance of the fact ; but the prize had not been carried into 
port and condemned, and while at sea Bhe was recaptured bj 
the British cruiser after the period fixed for the ceBsation of 
hostilities, but withont knowledge of the peace. It was de- 
cided that the possession of the vessel by the American pri- 
vateer was a lawful poeseesion, and that the British cnuBer 
could not, after tiie peace, lawfully use force to divest this 
lawful poeeeasion. The restoration of peace pat an end, &om 
the time limited, to aU force, and then t^e general principle 
applied, tliat things acquired in war remain, as to title and 
poBBeasion, precisely as they stood when the peace took place. 
The uti jmsidetia ia the basis of every treaty of peace, unless 
- it be otherwise agreed. Peace gives a final and perfect title j 
' to captures without condemnation ; and as it forbids all force, I 
it destroys all hopes of recovei'y as much as if the vessel was 
carried infra prmaidia, and condemned." A similar 
doctrine was held in the case of *the schooner Sophie,^ *17^ 
and a treaty of peace has the effect of quieting all titles 
of posaeseion arising from the war, and of patting an end to 
the claim of all former proprietore to things of which posses- 
non was acquired by right of war. 

If nothing be said to the contrary, things stipulated to be 
restored are to be returned in the condition in which they 
were taken ; but this does not relate to alterations which have 
been the natural consequence of time, and of the operations 
of war. A fortress or a town is to be restored in the condition 
it was when taken, so far as it shall still be in that condition 
when the peace is made.' There is no obligation to repair, 
as well as to restore, a dismantled fortress, or a ravaged terri- 
tory. The peace extinguishes all claim for damages done in 
war, or arising from the operations of war. Things are to be 
restored in the condition in which the peace found them ; and 
to dismantle a fortification, or to waste a country, after the 
conclusion of the peace, and previous to the surrender, would 
be an act of perfidy.^ 
Treaties of every kind, when made by the competent 



• Cu«otth«L^TeDder,H«liEu,April,lBlG,eitedio Wktiaim'i Dig.iVi. 

* e Rat. Hep. 188. 

• raUil, b. 4. c S. MC 31. ai. 

* JHi£b.4.c.8. »e&SS. 

TouL la 



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178 OF THE LAW OP HATIOHB. [P«tL 

authori^, are as obligatray npon nations as private contracts 
are binding apon individnalfl ; and they are to receive a fair 
and liberal interpretation, according to the intention of the 
contracting partiea, and to be kept with the most scmpnlous 
good faith. Their meaning is to be aacertaiued by the same 
roles of coustanction and course of reasoning which we apply 

to ike interpretation of private contacts.' If a treaty 
*175 should, in fact,be violated by one of tbecontracting^par- 

tiee, either by proceedings incompatible widi the par- 
ticolar nature of the treaty, or by an intentional breach of 
any of its article^ it rests alone Willi the injnred partyto pro- 
nounce it broken. He treaty, in snch a case, ia not abso- 
lutely void, bnt voidable, at the election of the injnred party.^ 
If he chooses not to come to a mptore, the treaty remains 
obligatory. He may waive or remit tite infraction committed, 
or he may demand ajost satiafiu^on. 

* There is a very material and important distinction made by 
the writers on pnblio law, between a new war for some new 
oaose, and a breach of a treaty of peace. In the former case, 
the rights acquired by the treaty subsists, notwithstanding the 
new war ; bat, in ihe latter case, they are annulled by the 
breach of the treaty of peace, on which they are founded. A 
new war may interrapt the ezerdse of the rights acquired by 
die former trea^, and, like other rights, they may be wrested 
from the party by the force of arms. But tiien they become 
newly acquired rights, and partake of the operation and result 
of the new war. To recommence a war by breach of the arti- 



« GroHut, S. 1«. 1. Pt^. S. la. 1, ntOhtrferA't InHUtUn, b. 2. c 7. Vatul, 
b.a.e.17. EfTc Oh. J, in 1 Bot. it J\U. ita, ii9. OfniKaaof Sir Jiunes Mju^ 
rial, dted b 1 CAiag « Oimtaarrial Lm, 44. Bat, if the l<giilatiTe and ezecu- 
tive branchea of Um goTtrnmoDt bare givoi aod «»«rt«d a oMuUnotlM to a treatj 
'with a foreign power, niid«r whidi it claims dominion over a tenitor; in its pas' 
ttmAaa, the ooDits of jiutica wilt not Mt np or tiut«in a different comlmction. 
IWcr V. NeilMo, 8 Fieri U. B. Rtp. 1S8. If a trea^ be ambi^o* in an^ part 
<rfil^ tbepart; vbobad tbe power, and on vfaomit wat peculiarly incumbent to 
^eak dearlj and plainly, ought to iabtnit to tfa« eoiistraetion moat nnhvourable 
to him, npon the reaaonaUa maxim of tbe Roman law, that Pa/^trntin oiieitrani 
iit micen, in guoma fml jMltitaU UgmautrUiu eonteriben. VaIUI, tk^ S. c IT. 
a«e.3S4. 

* OnUitit, b. !. e. IS. see. Ilk— b. 8. c !0. mc. 8S— SS. BurlmMgiU, part 4. e. 
14. aec 8. p. 8ES. Vattcl, b. 4, c 4. lee, E4. 



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Lm. Vm] OF THB LAW OF ITATIOire. 179 

cIm of a treaty of peace is deemed much more odious than to 
proTofee a war by some new demand and aggression ; for the 
latter is simply injustice, bnt in &e former case, the party is 
guilty both of perifidy and injmitice.' The violation of any 
one article of a trea^ is a violation of the whole treaty ; for 
all the articles are dependent on each other ; and one is to be 
deemed a condition of the other ; and a violation of any single 
article overtihrowB the whole treaty, if the injured party elects 
so to consider it This may, however, be prevented by an ex- 
press provision, that if one article be broken, the other shall, 
nevertheless, continao in fall force.** "We have a strong 
instance, in *oar own history, of the annihilation of *176 
treaties by the act of the jnjored party. la 1798, the 
congresB of the TTnited States" declared that the treaties with 
France were no longer obligatory on the United States, as - 
they had been repeatedly violated on the part otihe French 
government, and all jnst claims for reparation reftwed. 

Ab a general role, the obligations of treaties are dissipated 
by hostility, and they ore extinguished and gone for ever, nn- 
less revived by a snbseqaent treaty. But if a trea^ contains 
any stipnlationa which contemplate a atat« of future war, and 
make provision for snch an exigency, they preeerve their force 
and obligation when the mptnre takes place. All those duties 
of which the exercise is not necessarily suspended by the war, 
subsist in their fall force. The obligation of keeping faith is 
BO iar from ceaung in time of war, that its efficacy becomes 
increased, from the' increased necessity of it What would 
become of prisoners of war, and the terms of capitnlation of 
gairisona and towns, if the word of an enemy was not to be . 
relied on t "Die &ith (^ promises and treaties which have re- 
ference to a state of war, is to be held as sacred in war as in 
peace, and among enemies as among friends. All the writers 
on public law admit this position, and they have never tailed 
to recommend the du^ and the obsffl^ance of good &ith, by 
the most powerful motives, and the most pathetic and eloquent 
appeals which could be addressed to the reason and to the 



> OrMia, bL S. c 19. HO. li. Valtd, k 4 «. 4. Me. 41, 4S.—li. S. 0. It. Ma 

2. 

• Acto(Jn]jlth,n»8. 



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180 OF THB hJiW OF N&TIOira. [hrt L 

moral aease of nations.^ Tlie tenth article of tlie treat;' W 
tween the United States and Great Britain, in 1794:, ma; be 
mentioned as an instance of a stipulation made for war. It 
provided, that debts due from iudividuala of the one nation to 
those of the other, and the shares or moneys which thej might 
have in the public funds, or in public or private banks, 
should never, in any event of war, be sequestered or confis- 
cated. Iltere can be no doubt that the obligation of 
*177 that article was not impaired *bj the war of 1812, but 
remfti'.6d throughout that war, and continues to thia 
day, binding upon the two nations, and will continue so, until 
they mutually agree to reecind the article ; for it is a princi- 
ple of univetsal jurisprndence, that a compact cannot be re- 
scinded by one party only, if the other party does not consent 
to rescind it, and does no act to destroy it. Jn the case of The 
Society for Propagating the Gospel v. New-Have^,^ the Su- 
preme Court of the United States would not admit the doc- 
trine that treaties became extinguiahed ipso facto by war, 
unless revived by an express or implied renewal on the return 
of peace. Such a doctrine is not universally true. "Where 
treaties contemplate a permanent arrangement of national 
rights, or which, by their terms, are meant to provide for the 
event of an intervening war, it would be against every prin- 
ciple of jiist interpretation to hold them extinguished by the 
event of war. They revive at peace, unless waived, or new 
and repugnant stipulations be made.' 



' Vaild, b. S. c la KC 114. GnAim, b. 3. c. SB. Btintc Jut. S«L it Qmi. 
tb. a.c«. p,!lt. 

k B Whitattm, 404. Snttoa t. SnttDD, 1 AmmIJ (t MUm R flBS. a P. 

* Th« American miuiaten, in their negotUtioDa at London, id lS1B,iFitli tha 
Britibb govemmeDt, iiwuted Lb«t tLe Sd article of the treat; of September, 1183, 
relativi to Ih* JUhtriai, vai a fuDdamental and pennaoent article, aecuriog a 
pricuuy right, not atuHilIed, though the ezerdaa of the rij^t vas iotemipted bj 
the var of ISIS; and tbat th» right reicaiued in fnll force, aiUr th* tmni- 
natioD of the vnr, notwilbilandiiig it vaa out noliced in the treatj of GheoL 
The Britiih oammi«sioDer^ od the other hand, alleged, that the w of 161S 
CBDceUed the praTiaioo, and, not being renewed bj Ibe aubeequent treetj of 
peace, the ri^t waa extinguithed. The two natiooa at laet agreed to tbe con- 
T«DtioD of the SOIb of October, IBIS, modifjiiDg aod aettling the queetioa ai to 
tbe fithetiea, without yielding, oo either ude, their conitruetJoD of the openitJaa 
of the var of IStt, upon the treat; ol llgS. Jiiuh't Memoranda, pp. SS4— 863. 
8m Ibe Diploouaic CorreapoDdeoce betireeii Mr. Adama and Lord Bathuiat, in 



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tecVra.] OF THK LAW OP HATIOHS. 181 

With respect to the cession of places or territoriee by a 
treaty of peace,.thoQgh the tre&ty operates from the making 
of it, it is a principle of public law, that the national eharao- 
ter of the place agreed to be surrendered by treaty, continnes 
as it was under the character of the ceding country, nntil it 
be actually transferred. Full sovereignty cannot be held to 
have passed by the mere words of tiie treaty witihont actual 
delivery. To complete the right of property, the right to the 
thing and the possession of the thing must be nnited. This 
is a necessary principle in the law of property in alt Bystems 
of jurisprudence. There must be both theyiM tn rem and the 
jua in re, according to the distinction of the civiliam, and 
which Barbeyrac* says they borrowed from the canon law. 
Tids general law of property applies to the rig^t of ter- 
ritory, no less than to other rights. *The practice of *178 
nations has been conformable to this principle, and the 
conventional law of uataons is fall of instances of tiua kind, 
and several of them were stated by Sir Wm. Scott, in the 
opinion which he gave in the case of the ^ama.^ 



1S16. lo tiiM eorTeipoD(l«Doa tbe Britiih iMgotutoT admitted, tint Om aekmm- i 
Itdjfnunt of a right or tltleio » treatj of pe«ce;«ub itaowa nature of parpehul y 
obligation. Tb« ctBaion of a right, as that of bouDciaij lioM and place*, for inataiiMi 
vould weiD to fall within the lame prioeipla. Bndi ««re the treaties of Haii«l«r, 
lM8,aiid of Utrecht, IIIS, which, after long and «xbauatiiigwan,MttIed the righte 
of the great European poven on a eolid and parmaiieDt ibundatioQ, and are atOl 
deemed to be io Tigonr, and iotimatel; coooected with the Mttlement of Gnrop*. 

* Pyf. par Barbtyrae, liT. ir. e. 9. tec S. nute t, 

* 6 Sei.Rtp. 104. Itiaaaettled priDdpl«,inthelaira»d ongeofDationi, that 
the ioliabilaata of a conquered territoij diaDge their allegiance, and their relation 
to their funner aoTereign is disaolred ; but their relatinu to each other, and their 
lights of property, not taken front them bj ordera of the conqoeror, remained 
Qodisturbed. The oesuon oi oonqaeat of a tetrilory docs not affect the right* irf 
property. Viai4l,h. t. c It. ttc iOO. The United States t. Ferdiemai^ 7 Pctn-/ 
U:8. Sep. Bl. llilcbel t. Ttia United St«t«^ S Ihid. Til. Strother t. Locaa, IS 
Aim, 410. 488. Tlie lam, osaget and mnnicipal regnlations in force at tlie time 
of the conquest or ceesioD, reinaia in fore^ tmtU ehangtd by At new toatnigik. 
Cfdnn's caae, 1 Co. IT. Campbell v. Hall, Cmep. R. 209. 9 Ptttri U. B. Sep. 
111. T34. 748, 749. Strother t. Lucas, IS Ptitn, 4t0. There ia no doubt of the 
power of the aortitiga to change the laws of a conquered or ceded comtry, unls« 
restrained b; the cajntnlalion or trtatj of cesnon. In tbe case of the Oanal 
Appraisers t. The People, b 11 WmdrlFt R. fiBT, Chancellor Walworth declared, 
that In the case of a coontij acquired bj oonqnest, no Ibnnal act of legialation 
is necessarf U> cbaoge the Uw ; the mers will of tb« conqueror ia 



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188 0' THK LAW OF HATIOUa [P»rt I 

"Hie release of a tamtorj from the dominion and eore- 
reigntf of the coontiy, if that cesaion be the result of coercion 
or cooqaest, does not impose anj obligation npon the goTem- 
ment to indemnify those who may suffer a loss of property by 
the ceesion. The annals of Kew-York furnish a strong illaa- 
tration of this position. The teiritoiy composing the state of 



t> the tut \a goTenratnto where tlra oonqneror ii in poMCHUD of the IrgiiUtiTe ju 
well u th« •zecntiTe pcnrar; toA onlil k utliaii or t«rnb»j i* whoHj tabdued, the 
oaoqaimt k odIj «Ddl]«d, bj tl>e BMge of natioDi, to hidd it u ■ temporarj 
pnwnniiin. b; nilitarj occupAtioD, Dotil the final inue of th* eonqnett is aettled b; 
tieatj, n-bj the competent conetiuitioDBl power. Thepiiixapleof Ditionalkw, m 
declared bj ths oourte of the Uoited 8tat«^ ii, that MoqnMt data not give the 
canqoerot pltmmt doninbtm tt utUe. A temponry right of pow iwi on and gorern- 
tneot ii odI J aoqnired, uhIms the traatj of peace Mttlea the qoaiUan otherniee, tr 
(here be an abeolute abendoiiBieot o! the territory bj the former BOTereign, or an 
irretrieTable subjection to the cooquenn'. United Statee t. Hayward, S Oallitoti, 
4SS. ClarkT-UnitedStatei,! tfauLCailM. The rale i* different wh«D a coutrtiy 
Ji daimed by the ri{^t of ditcoTety and ocoDpaoey, and not by ri^t of conqneit 
or ceMtML In tha fanner mm, the diaeovarer* and new oecnptub CMiy with them 
all the geoeral lawa of tlie notber counlry applicable to their new eitnation as 
colonies, and they become, ipso faclo, the law of the oountry. Such wat the cms 
whh the United States, wbeo thej were first colonized by Qr«at Britain, and thia 
was the cm«> lays Chancellor Walworth, with Ifew-Tork, when cooqaered fixiin 
the Dittch In 1644 1 fbr the English held it, though acquired by conqaest from the 
Dutch, not by that title merely, but by the prbr right of disoorery. Bat if he was 
[n error on that point, yet, when the English acquired powesrion of New-Tnrk 1^ 
force, in ieS4, the charter granted in that year to the Duke of Yor^ contained an 
explicit declaration of the king's will, that the laws of Ei^Iand sbonld be the 
«st*Hiahed laws of the [xxiTiDoe, and this put an end to the operation of the Romao 
Dutch law* imported from Holland, llie illustntiotu aboTe alluded to, of the 
•overeigu power of the conqueror orer the laws of the oonquered comitries, appear* 
In thacaaeof tiie northern b«rbarians who oveiran the south of Eoropedurii^ the 
Eth and flth ceatorie*. They neither adopted their own laws eotirely, nor retained 
tboee of tha conquered eouDtries to their full eit«nt The Roman proTlDcials were 
governed between IhemselTes, as to Uteir posseidons and personal rights, by the 
Bomao law; the Salian Frsabs by the Salic Uw; the Franks of the Rhine, I^ ths 
Riparian law ; the Alemans snd Swabians, by the Alemanic law, and the Lom- 
bards, t^ their own law. {Savignj/t Hia. of llu Romon Lam, loL L and see infr«, 
ToL iiL 481.) So the Mahomedan conquerors of Hindostan introdaeed Iheir own 
law BO (sr only a< it affected the followers of Mabonet, leavii^ the coDquer«d 
Sodoos to enjoy their own laws aa betwem themselvea. Tlere Is theref r* now 

(in India M>e lav for Baropeans and their deecrndanta, another for the Hindoos 
and aoolher for ths MKhomedaos ; and these different laws have been adopted in 
India by the will of the English soTereign, withont anjipariiamentary authori^. 
The conquest of Oibraltar, T^nddad, Cejloo, ths CapeofOood Bop^^iiisiana, 
A^ all show that the old laws remun, or the laws of the conquering nation, lo 
whole or in part, are Bubstituted, at the mera will and pleasure of the conqueror. 



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Lto. TDL] OF THE U.W OF NATIOVa IgQ 

Temiont belonged to tUs atate ; and it separated from it, and 
erected itself into as independent state, without the consent, 
and against tlie will of the govenunent of New-York. The 
latter continued for many years to object to the separation, 
and to discover the strongest disposition to reclaim bj force 
the allegiance of tJie inhabitants of that state. Bat they were 
nnable to do it ; and it was a case of a reTolation effected 
by force, analogous to that which was then in action between 
this country and Great Britain. And when New-Tork found 
itself under the necessity of acknowledging the independence 
of Yermonti a question arose before the legislature, whether 
fliey were bound in duty to make compensatiiHL to individnal 
citizens whose property would be sacrificed by tiie event, be- 
cause their titles to land lying within the jurisdiction of Ver- 
mont, and derived from New-Tork, would be disregarded by 
the government of that state. The claimants were beard at 
the bar of the house of assembly, by counsel, in 1787, and it 
was contended on their behalf, t^t the state was bound, upon 
the principles of the social compact, to protect and defend the 
rights and property of all its members ; and that whenever it 
became necessary, upon grounds of public expediency and 
poli(y, to withdraw the protection of government 
*from the property of any of its citizens, without actn- *179 
ally making the utmost efforts to reclaim the jurisdic- 
tion of the country, the state was bound to make compensa- 
tion for the loss. In answer to this argument, it was stated 
^t the independence of Vermont was an act of force beyond 
the power of this state to control, and equivalent to a conquest 
of that territory, and the state had not the competent ability 
to recover, by force of arms, their sovereignty over it, and it 
would have been folly and ruin to have attempted it. All 
pacific means had been tried without success; and as the 
state was compelled to yield to a case of necessity, it had dis- 
charged its duty ; and it was not required, upon any of the 
doctrines of public law, or principles of political or moral ob- 
ligation, to indemnify the sufferers. The cases in which com- 
pensation had been made for losses consequent upon revolu- 
tions in government, were peculiar and gratnitons, and rested 
entirely on benevolence, and were given from motives of 
policy, or as a reward for extraordinaiy acts of loyalty and 
exertion. No government can be supposed to be able, con- 



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184 OF THB LAW OP KATI01T8. [P«t t 

sistently with the welfare of Uie whole communitjr, and it is, 
therefore, not required, to assnine the burden of losses pro- 
duced by conquest, or the violent diamemberment of the state. 
It would be incompatible with the fimdamental principles of 
the social compact 

This was the doctrine which prevailed ; and when the act 
of July 14th, 1789, was passed, authorizing commissioaerB to 
declare the consent of the state to the independence of Yer- 
mont, it was expressly declared, that the act was not to ' be 
construed to give any person claiming lands in Termont, 
under title from this state, any right to any compensation 
whatsoever from New-Tork. 



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LEOTTTRE II. 

OF 0STENCE8 AOAINBT THE LAW OF HATI0N8. 

The violaUoD of a treaty of peace, or otlier natdoaal compact, 
is a violation of the law of nations, for it ia a breach of public 
fiiiih." Nor ifl it to be underatood that the law of nations is 
a code of mere elementary speculation, withoat any efficient 
sanction. It has a real and propitious influence on the fortunes 
of the human race. It ia a code of present, active, durable 
and binding obligation. As its great fundamental principles 
are founded in the maxima of eternal tmth, in the immutable 
law of moral obligation, and in the suggestions of an enlight- 
ened public interest, they maintain a steady influence, not- 
withstanding (he occasional violence by which that influence 
may be disturbed. The law of nations is placed under the 
protection of public opinion. It is enforced by the censures 
of the press, and by the moral influences of those great masters 
of public law, who are consulted by all nations as or&cles of 
wisdom ; and who have attained, by the mere force of written 
reason, the majestic character, and almost the authority, of 
universal lawgivera, controlling by their writings the conduct 
of rulers, and laying down precepts for the government of 
mankind. No nation can violate public law, without being 
subjected to the penal consequence of reproach and disgrace, 
and without incurring the hazard of punishment, to be inflicted 
in open and solemn war by the injured party. The 
law of *nations is likewise enforced by the sanctions of *182 
municipal law. It is, says Blackstone,"* adopted in its 
full extent by the common law of England ; and whenever any 
question ariaeswhich is properly the subject of its jurisdiction, 



• VtUtd, Ix S. e. IS. MO. 221. SM«litti<m of Oanfrtu o/Navmbtr itJ, 1181. 
^ Clmm. vol if. AT. 



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186 OF THE LAW OF NATIOITO. {ftrt 1 

it is held to be a part of the law of the land. The offencee 
which &1I more immediatelj under ita cognizance, and which 
are the moet ohviooB, the moat eztenBive, and most injorions 
in their effects, are the TiolatioDs of safe conduct, infringe- 
ments of the rights of ambaaBadora, and piracy. To these 
we may add the slave-trade, which may now be considered, 
not, indeed, as a piratical trade, absolutely unlawful by the 
law of nations, but as a trade condenmed by the general 
principles of justice and humanity, openly professed and de- 
clared by the powers of Europe, 
of (1.) A safe conduct or passport contains a pledge of the 
public faith, that it shall be duly respected, and the obser- 
Tance of this daty is essential to the character of the goTwn- 
ment which grants it The statute law of the United States 
has provided, in furtherance of the general sanction of pub- 
lic law, that if any perBon shall violate any safe conduct or 
passport, granted under the authority of ^e United States, 
he shall, on conviction, be imprisoned not exceeding three 
years, and fined at the discretion of the conrt.* 

(2.) The same paoisbment is inflicted upon those persons 
who infringe the law of nations, by offering violence to the 
persons of ambessadora and oUier public ministers, or by be- 
ing concerned in prosecuting or arresting them or their domes- 
tic servants."* Tim is an offence highly injurious to a free and 
liberal communication between different governments, and 
mischievous in its consequences to the dignity and well-being 
of the nation. It tends to provoke the resentment of the sove- 
reign whom the ambassador represents, and to bring upon the 
state the calamities of war. The English parliament, under an 
impression of the danger to the community from violation of 
the rights of embassy, and urged by the spur of a particular 
occasion, carried the provisions of the statnteof TAnne, c 13, 
to a dangerous extent That statute prostrated all the 
*183 *safeguM^ to life, liberty and property, which the 
wisdom of the English common law had established. 



■ Att <^ Congnu, April SOU, 1700, mc. !1. A ferdgn minntor (ud u 
.tUebfi to a forogn legitioa b sndi) eumat iraiTe hii priTilcge, for it belong* 
□ hia wTtreign irho tttidt him. U. S. t. B«nn<r, 1 Baldmnt C.C.U.8, Rtp. 
134. 

B Act tap. wo. SB, £S. 



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I*c. IX] OF THE LAW O? HATIOHa 187 

It declared, that any person convicted of Boing oat or ezecn* 
ting civil process, npon an ambassador, or his domestic sei^ 
vants, hy the oath of the party, or of one witness, before 
the lord chancellor and the two chief jnsticea, or any two of 
them, might have snch penalties and corporal punishment in- 
flicted npon him aa the judges shonld think fit The pream- 
ble to the statute contains a special and inflamed recital of die 
breach of the law of nations which prodnced it, by the arreet 
of the Bussiau Minister in the streets of London. 

The congress of the United States, dnring the time of the 
American war, discovered great solicitude to maintain invio- 
late the obligations of the law of nations, and to have infrac- 
tions of it punished in the only way that was then lawful, by 
the exercise of &e authority of the leg^laturee of the several 
states. They recommended to the states to provide expedi- 
tious, ezemplaiy and adequate punishment, for the violation 
of safe conducts or passports, granted under the authori^ of 
congreae, to the subjects of a foreign power in time of war; 
and for the conmussion of acts of hostility against persons in 
amity or league with the United States ; and for ^e infrac- 
tions of treaties and conventions to which the United States 
were a party ; and for infractions of immunities of ambassa- 
doTS, and otiier public ministers.' 

(3.) Piracy is robbery, or aforcible depredation on the high i 
seas, withoQt lawful authority, and done animo Jktrandi, and 
in the spirit and intention of univeiBal hostility. It is the 
same offence at sea with robbery on land ; and all the writers 
on the law of nations, and on the maritime law of Europe, 
agree iu this definition of piracy. •> Pirates have been regard- 
ed, by all civilized nations, as tJie enemies of the human race, 
and the most atrocious violators of the universal 
*law of society." They are everywhere pursaed and *184 
punished with death ; and the severity with which the 
law has animadverted upon this crime, arises irom its enoi^ 
mity and danger, the cruelty that accompanies it, the neces- 
sity of checking it, the difBculfy of detection, and the facility 
with which robberies may be committed upon pacific tradere 

• Atinral* of OoHgrttt, toL th, 181. 

• lie TTnltcd Statu t. Smith, t WJuatm, les, and note, ibid. IBS. 

• Or«. in Frnvn, lib. S. ilnit.llt. * 



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188 OF THE LAW OF NATIONa [Pnt L 

in the solitude of the ocean. Every natioD has a right to at- 
tack and exterminate them without any declaratioii of war ; 
for though pirates may form a loose and temporary association 
among themselves, and re-establish in some degree those laws 
of justice which they have violated with the rest ofthe world,* 
yet they are not considered as a national body, or entitled to 
the laws of war, as one of the community of nations. They 
acquire no rights by conquest ; and the law of nations, and 
tlie municipal law of every country, authorize the true owner 
to reclaim his property t^en by pirates, wherever it can he 
found ; and they do not recognise any title to be derived from 
an act of piracy. The principle, that a piraHa et latronihua 
capta dojnmium rum, mutant, is the received opinion of an- 
cient civilians and modem writers on general jurisprudence; 
and the same docb-ine was maintained in the English courts 
of common law, prior to the great modem improvements made 
in the science of the law of nations.'' 

By the constitution of the United States, congress are au- 
thorized to define and punish piracies and felonies conmiitted 
on the high seas, and offences against the law of nations. Li 
pursuance of this authority, it was declared, by the act of 

congress of April 30th, 1790, c. 9, sec. 8, that murder 
*185 or *robbepy, committed on the high seas, or in any 

river, haven or bay, out ofthe jurisdiction of any par- 
ticular state, or any other offence which, if committed within 
the body of a county, would, by the laws of ^e United States, 
be punishable with death, should be adjudged to be piracy 
and felony, and punishable with death. It was further de- 
clared, that if any captain or mariner should piratically and 
feloniously run away with any vessel, or any goods or mer- 
chandize to the value of fifty dollars ; or should yield up any 
such vessel voluntarily to pirates ; or if any seaman should 
forcibly endeavour to hinder his commander &om defending 
the ship or goods committed to his trust, or should make a re- 



• Gie.dtOf.t. 11. 

k Bjpik. Q. J. F\A. b. I. & 11. R»A»rfoTA, b. 3. c S. Atiaii, toL il pp. SBL 
SBl, B«S.wlit.N.T. On.mi*.iiX,. AruM.\ Woedd. Ltc ii9. Pi-op«rtj foDnd 
«D board ■ pirate ihip goei to Uie erovu, of itrict right, u droita of ths admi- 
raltf ; but the claim of the origioal OTiier i* adnuttsd apon equitable priaciplea^ 
00 da* application. The Helen, 1 Bagg. Adm. Rtp. US. 



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Ue. IX] OF THE LA.W OF NATIONS. 189 

volt in the ship ; every each offender Bhould be adjudged a 
pirate and felon, and be punishable with death." Accessaries 
to such piracies before the fact, are punishable in like man- 
oer ; bnt accessaries after the fact, are only puniahable by fine 
and imprisonment. And, by the act of March 3d, ISld, c. 
T6, sec. 5, congress declared, that if any person on the high 
seas should commit the crime of piracy ae defined ly the lata 
of naiums, be shoaJd, on conviction, suffer death. This act 
was hut temporary in its limitation, and has expired ; but it 
was again declared, and essentially to the same effect, by the 
act of congress of 15th May, 1820, c 113,. sec 3, that if any 
person, upon the high seas, or in any open roadstead, or bay, 
or river, where the sea ebbs and flows, commits the crime of 
robbery in and upon any vessel, or the lading thereof, or die 
orew, he shall be adjudged a pirate. So, if any perbon en- 
gaged in any piratical enterprise, or belonging to the crew of 
any piratical vessel, should land and commit robbery on shore, 
such an offender shall also be adjudged a pirate. The statute, 
in this respect, seems to he only declaratory of the law of na- 
tions ; and upon the doctrine of the case of lAndo v. Rodney,^ 
snch plunder and robbery ashore, by the crew, and with the 
aid of vessels, is a marine case, and of admiralty jurisdiction. 
The statute further declared, that the above provision was not 
to be construed to deprive any particular state of its jurisdic- 
tion over snch offences when committed within the body of a 
county, or to authorize the courts of the United States to try 
any such offenders, after conviction or acquittance, for the 
same offence, in a state court. 

•Under these legislative provisions, it has been made *186 
a question, whether it was sufficient to refer to the law 
of natioDs for a definition of piracy, without gi^'ing the crime 
a precise definition in terms. The point was settled in the 
case of the United States v. Smith;" and il was tliere held 
not to be necessary to give by statute a more lo^cal enume- 
ration in detail of all the facts constituting the offence, and 



■ B; the act of CoDgrera of March Sd, 188G, c. 318, tlM offeoce of makii^ a 
ravoll b ■ Bhip is do longer puuithable u a capital offeoce, but oulj by fiiM 
acid uDpruonmeDt at hard labour. 

^ Dtmg.Erf.m. 

• e WJttaUm, les. 



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190 07 THE L&W OF VAT10S3. [PutL 

that congress might as well define it hy using a term of a 
known and determined meaning, as by expressly mentioning 
all the particnlara included in that term. Hie crime of piracy 
was defined by Uie law of nations with reasonable certainty, 
and it does not depend apon the particnlar proTisiona of any 
mnnicipal code for its definition and punishment. Kobbeiy 
on the high seas is, therefore, piracy by the act of congress, 
as well as by the law of nations.* 

There can be no doubt of the right of congress to pass laws 
punishing pirates, thongh they may be foreigners, and may 
hare committed no particular ofience against the United 
States. It is of no importance, for the purpose of giving jn- 
risdiction, on wAwrh or where a piratical ofifence has been 
committed. A pirate, who is one by the law of nations, may 
be tried and punished in any conntry where he may be found, 
for he is reputed to be out of the protection of all laws and 
privilegee.'' He statute of any government may declare an 
ofifence committed on board its own vessels to be piracy, and 
BQch an ofience will be punishable exclusively by the nation 
which passes the statute. Bnt piracy, under the law of na- 
tions, is an offence against all nations, and punishable by all. 
In the case of the Umted States v. PaZmer," it was held, that 
the act of congress of 1790 was intended to punish ofiences 
, against the United States, and not ofiences against the human 
I race ; and that the crime of robbery, committed by a person 



> Id the caM of Uutod SUtw T. Btig lUek Adhel, S ffominf J U.S.Rep.nO, 
it waa held, after an alatmnte diKDaioo, that aD act via piratiail ia tlw i\ev of 
tin law of OoDgreM of March M, 18t», e, 7C>, if the act oractidose behoatilehi 
their character, and waotoD and crimiiia] in Iheir commiMion, vitboat any lavfid 
aaDction, whether committed for parposea of plunder, or for purpoMs of hatred, 
rereoge, or % vaotoo abuae of power, or a lavlesa appetite for muchief Tbej an 
piratical aggreaeiona ia the Beoaa of the law of natiaD* and of the act of Ooogrcoa, 
Mid work a (brfutore of the tlUp, whether the owoer b« or be not iaooceat Ha 
is, in that caw, bonod bf the act* of the matter. But therar^^ prfMOtaa different 
conudertitloii, and it b Dot to be forfeited uader the act of Coogreea or the law of 
nalioiia, except in caaea of extraordisBrr turpitnde and mleoee. In ofdioaij lorta 
aodkijuiiee thelawadmitaof acompcDsatioti indamagea. If, however, the owner 
of the cargo co-operatee in the piratical acta, the penalty of oonfiacalioo ia alao 
inflicted on the cargo a> well ai on the ihip. The more etiiet rule ia also enforced 
in the eaae of belligerent ligbta, and the cargo fuUowa the fate of the ihipL 

* BynJc Q. J. PtJi. c 17. Bir Lniiru JerMn't Worla, toL i. 714. 

' S WutOon, flia United Statea t. Keealer, 1 BiOdmn, 15, S. P. 



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Lm. IZ.] of the law of rations. 191 

>' ^o was not a dtizen of tlie tTnited States, on the high 
{ aeas, on board of a ship helonging ^exclusively to BUb- *187 
1 jecte of a foreign state, wae not piracy tinder the act, 
\ and was not punishable in the conrts of the United States. 
\ The offence, in such a case, must, therefore, be left to be pun- 
ished by the nation nnder whose Sag the veasel sailed, and 
within whose particular jorisdiction all on board the vessel 
were, l^is decision was according to the law and practice of 
nations ; for it is a clear and settled principle, that the joris- 
diction of every nation extends to its own citizens, on board 
of its own pablic and private vessels at sea.* The case ap- 
plied only to the feet of robbery committed at sea, on board 
of a foreign veeeel, at the time belonging exclnaively to sub- 
jects of a foreign state ; and it was not intended to decide, 
that the same offence, committed on board of a vessel not be- 
longing to the enbject of any foreign power, was not piracy, 
de same court afterwards, in the case of the United States v. 
KUntock,^ admitted that murder or robbery, committed on 
the high seas, by persons on board of a vessel not at the time 
belonging to the subjects of any foreign power, but in posses- 
sion of a crew acting in defiance of all law, and acknowledg- 
ing obedience to no government or flag whatsoever, fell within 
the purview of && act of congress, and was punishable in the 
courts of the United States. Persons of that description were 
pirates, and proper objects for the penal code of all nations. 
The act of congress did not apply to offences committed against 
the particular sovereignty of a foreign power ; or to murder 
or robbery conunitted in a vessel, belonging at the time, in 
fact as well as in right, to the subject of a foreign state, and, 
in virtue of such property, subject at the time to its control. 
But it applied to offences committed against all nations, by 
perscoifi who, by common consent, were equally ame- 
nable to the laws of all nations. .*Itwas farther held, *188 
in th6 case of the United Siatea v. Pirates," and in the 
case of the United States v. Mdmea,^ in pursuance of the 
same principle, tliat the moment a vessel assumed a piratical 



> RutkttforthU AuL h S. a 0. Mt. J^trmni* LMtr to M. Otntt, Am lltt, 
11M, JKpro, p. 14. 
k $ Whiabm, lU. • B Wktatim, 184 * Hid. 41S. 



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192 OF THE LAW OF HATIOSa [Pwt L 

character, and was takea from her offlcera, and proceeded on 
a piratical crube, she lost all claim to national cbaracter, and 
the crew, whether citizens or foreigners, were equally punish- 
able, under the act of congrras, for acta of piracy ; and it 
would be immateiial what wae the national character of the 
vessel before she assumed a piratical charact«r. Piracy is an 
offence within the criminal jurisdiction of all natione. It is 
against all and punished by all ; and the plea of autrtfoit 
acquit, resting on a prosecution instituted in the courts of any 
civilized state, would be a good plea in any other civilized 
state. As the act of congress of 1790 declares every offence 
committed at sea to be piracy, which would be punishable 
with death if committed on land, it may be considered as 
enlarging the definition of piracy, so as not only to include 
every offence which is piracy by the law of nationii and the 
act of congress of 1819, but other offences which were not 
piracy, until made so hy statute. 

An alien, under the sanction of a national conuniasion, 
cannot commit piracy while he pursues his authority. His 
acts may be hostile, and his nation responsible for them. 
They may amount to a lawful cause of war, but they are 
never to be regarded as piracy.' The Bwbary powers, not- 
withstanding some doubts which formerly existed, are now, 
and for a century past have been, regarded as lawful powers, 
and not pirates. They have all the insignia of regular, inde- 
pendent governments, and are competent to maintain the 
European relations of peace and war. Cicero, and, after him, 

Grotius, define a regular enemy to be a power which 
*189 hath the elements or constituents of a nation, such ^as 

a government, a code of laws, a national treasuiy, the 
consent and agreement of the citizens, and which pays a 
regard to treaties of peace and alliance ;'■ and all these things, 
says Bynkershoeck,'' are to be found among the states of 

* Martini Euay oh Privatttrt, tranilBted bj Eonie, p. 4!. Jfnnninpt' Qnnm, 
pp. lis, 118. SUteB geDerally prohibited tbeir eubjeeU from taking letUrs of 
marque from a foreign power, without the permisuoo of their sorereigu ; and 
treaties are oumcrous io which the contrscting parties stipulate, that if the aubjeda 
of either pert; take letters of marque from the euemiea of tha other, they shall b« 
treated aa pirates, 

* die. Philip. 4. ft 6. CfnUiiu, h. S. c. S, lec I. 

* Q. J. Pvb. b. 1. e. IT. A «TATE, ia the meamiig of public law, ia a oompl^ 



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lmi iz.] of the lav of nations. 193 

Barbary. In some respects their laws of war have retained 
the barbarity of the middle ages, for they levy tribute or 
coDtributiona on all such OhriBtian powers as are not able to 
protect their commerce by force ; and they also make slaves 
of their prisoners, and require aheavy ransom for their redemp- 
tion. But this, Bynkershoeck insists, is conformable to the 
Btrict laws of war ; and the nations of Europe who carried on 
war with the Barbary states, such as Spain, Naples, Holland, 
&C., have heretofore exercised tbe same rule of ancient warfare, 
npon the principle of retaliation. "Wlien Lord Ezmouth, in 
1816, attacked Algiers, and compelled the Dey to terms of 
peace, he compelled him also to stipulate, that in the event 
of future wars with any European power, no Christian 
prisoners of war should be consigned to slavery, but they 
should be treated with all humanity as prisoners of war, until 
regularly exchanged, according to the European practice : 
and at the terminatioa of hostilities, the prisoners should be 
restored without ransom. By that treaty of peace, upwards 
of 1,000 prisoners belonging to Italy, Spain, Portugal, Holland 
and Greece, were released from galling slavery, and in which 
part of them had subsisted for thirty-live years. This 
stipulation *m favour of general humanity deflcrves *190 
some portion of that exalted eulogy bestowed hy Mon- 
tesquieu* on the treaty made by Qelon, king of Syracuse, with 
the CartbagiQians. It wonldhave been still more worthy of a 
comparison, if it had not left colour for the constructiou, that 
the renunciation, by the Dey of Algiers, of the practice of 
condemning Christian prisoners of war to slavery, was to be 
confined to the " event of future ware with any European 
power ;" and if a great Christian power on this side of the 



or wlt-nffidciit bodj of peraoD^ united together h one commuoity, for the de- 
fence of their righta, nod to do light to fbrejgnen. A state hu ita «£hin tod 
int«re«t>; it deliberttei, and becomea n moral peraon, hnnng in underatanding 
aod will. Mid ii nueeptiUe of obligitioni hkI Uvb. Graiiiu, b 1. & 1. tea li. 
Ibid, b 8. o. S. Kc a. BurtamoquK, toL iL part 1. a. 4. aee. 9. VatM, b. 1. & 1 
Reipubtiea at cofiM muitilii'iinu. Juris eontmnt el ulilUatii commwiiotu foeiattu, 
(Se. di Jtfmi. lib. t. see. S5. T\e Blatt ii fonnded oo the relatioiu of right. Pm- 
tcction ii its lum and object, and that prat«ctioa i> but aoulhei word for jiutlee, w 
the obtaining and granting to everj one bii due. La JuttUi eotutiit^ c'tH, rUoL. 
Coma. Litbtr'i Ft)tUi<al EUiia, toL L 
■ Siprtl dtt Loix, b. 10. c S. 

Vol. L 13 



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194 OF THB LAW OF NATI0H8. [^rtL 

Atlantic, whoee presence and whofle trade are constantly seen 
and felt in the Mediterranean, had not seemed to have heen 
entirely forgotten." 

But notwithstanding Bynterehoeck had insisted, near a 
centnry ago, that captures by the Barbary powers worked a 
change of property by the laws of war, in like manner as 
captures made by regnlar powers, yet, in a case in the English 
Admiralty so late as 1S01,I> it was contended, that the capture 
and sale of an English ship by Algerines, was an invalid and 
imlawfdl converaion of the property, on the ground of being 
a piratical seizure. It was, however, decided that the Afirican 
states had long acquired the character of established govern- 
ments, and that though their notions of justice differ from 
thoee entertained by Uie Christian powers, their public acts 
could not be called in question ; and a derivative title founded 
on an Algerine capture, and matm^d by a confiscation in their 
waii/f was good against the original owner. In the time of 
Bichard I., when the laws of Oleron were compiled, all infidels 
were, by that code,« regarded as pirates, and their property 
liable to seizure wherever found. It was a notion, at that 
time, tiiat Boch persons could not have any fellowship or 

commmiion with Christians. 
*191 *In a case which occurred in 1675, Sir Leoline Jen- 
kins held, that the commander of a privateer regularly 
commissioned, was liable to be treated as a pirate, if he ex- 
ceeded the bounds of his commission. Bynkershoeck justly 
opposes this dangerous opinion ;* and the true rule undoubt- 
edly is, that the vessel must have lost its national, and assumed 
a piratical character, before jurisdiction over it, to that extent, 
could be exercised. 

If a natural bom subject was to take prizes belonging to 
his native country, in pursuance of a foreign commission, he 
would, on general principles, be protected by his commission 
from the charge of piracy. But to prevent the mischief of 
such conduct, the United States have followed the provisionsof 
the English statute of 11 and 12 Wm. IH c. 7, and the general 



* Declanlioa of tlu Dej of Algiers, made iritli Lord Ezmoi 
181S. Annual Rtjitter tat 1816, app. to chronicler p. ^^S- 

* -HiB Heleo*, 4 J6>6. ^^ 8. • Sec. 48. 

* Q.J.PMb.^\.e.Vl. 



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Ue. IX] OP THE LAT OP HATIONd. I95 

prftotice of other nations," and have, by the act of congress of 
April SOtli, 1790, sec. 9, declared, that if aaj citizen ^oold 
commit any act of hoetility against the United States, or any 
citizen thereof, npon the high seas, under colonr of any com- 
mission from any foreign prince or state, or on pretence of 
anthority from any person, snch offender shall he adjudged 
to be a pirate, felon and robber, and, on being thereof con- 
victed, shall suffer death. The act of congress not only 
anthorizes a capture, bat a condemnation in the courts of the . 
TTmted States, for all piratical aggressions by foreign vessels ; 
and whatever may be the responsibility incurred by the nation 
to foreign powers, in executing snch laws, there can be no 
doubt that courts of justice are bound to obey and administer 
ihem. All such hostile and criminal aggressions on the high 
seas, under the flag of any power, render property token in 
ddido subject to confiscation by t^e law of nations.^ 

(4.) The African slave trade is an offence against the mu- 
nicipal laws of most nations in Europe, and it is declared to 
be piracy by the statute laws of England and the 
^United States. Whether it is to be considered as an *193 
offence against the law of nations, independent of com- 
pact, has been a grave question, much litigated in ibd courts 
charged with the administration of public law ; and it will be 
usefal to take a short view of the progress and present state 
of the sense and practice of nations on this subject. 

Personal slavery, arising out of forcible captivity, has existed 
in every age of the world, and among the most refined and 
civilized people. The possession of persons so acquired has 
been invested with tiie character of property. Captives in 
war were sold as slaves by Greek and Bomau commanders. 
The slave bade was a regular branch of commerce among the 
ancients ; and a great object of Athenian traffic with the Greek 
settlements on the Enxine, was procuring slaves from the bar- 
barians for the Greek market." In modem times, treaties 



• FWt mpra, p. 100. 

• StOTf, J., n Whtaiim, SB— 41. 

• MUforii Bi*L roL It. p. !S6. OatOa and ilaYW oooatitiitod tb« priodp«l 
lidm of tha early igea of OreeM. TIm Bjnntuua, aaji Poljbin^ (Gtmtnt 
Blttory, b. 4. e. 6,) iQpplied, from tha Foottu, ths Qr«eka wiUi boocj, wax, talted 
mmiM, leatiiBT, and grtat ntanbrr* of very ttrvifoiU iloMt, It la mcntioMd in 



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196 OF THB LAW OF NATIOITO. tPwtl 

have been framed, oad'n&tioual monopoHee aonght, to fiuuli- 
tate and extend commerce in this species of property.* It 
has been iaterwcven in the municipal institations of all &e 
Eoropeui eoloniee in America, and with the i^probatioa and 
BanctioD of the parrait states. It forms to this day the founda- 
tion of large maeees of property in the soathem parts of the 
tTiuted States. Bnt, for half a centoiy past, the African slave 
^ade began to awaken a spirit of remorse and sympathy in 
the breasts of men, and a ctmviction that &e traffic was re- 
pugnant to the priQciplee of Christian dnty, and the maxims 
of justice and humanity. 

Monteaqaien, who has disclosed bo mat^ admirable tmths 
and BO mnch profonnd reSection^ In his Spirit of Laws, not 
only condemned all Blavery as useless and nnJDst, bnt he ani- 
madverted np<m the African slave trade by the most pongent 
reproaches. It was impoasiblcr he observed, that we could 

admit the negroes to be hmnan beings, because, if we 
*193 were once to admit them to be men, we should *soon 

come to believe that we ourselves were not ChristianB. 
Why has it not, says he, entered into the heads of European 
princes who make bo many useless conventions, to make one 
general stipulation in. favour, of hamamtyt>> We shall see 
presently that this eugge^on was^ in Bcone degree, carried 
into practice by a modem European congress. 
The constLtQtion of the United States laid the foundation of 



BcriptDH, tat th« l^iMM tnd*d villi dM Oueuu proTiiKM lin aUrea ;*■ Javai^ 
Tutal ud HeAedi, toulad Uw pcnow of meo tnd TSNeb of bnH io thj mwket f 
St^.xtfu, ISi Mid that Uhij' stole tLe ctiildifo of tha Jei»,aod cold them m 
ilBTealotlieOrMks. Jo^,W.e. 8othaCtti)Mgi[iiatitcidi>DgedU>ckdKT«bx>m 
tti«iiitefwr<rfAAMa,iatlwiroaBm«M ud bMtw wilk the dtia of Italj ind 
QfMiM, n«giMt«ltartotthedaTakBd^whiA waioutiedoti hj Um policed 
■wltMUof Miliqaity MtUed odIIn ooart* of the MeiMteRMicaii, with ceulnJ Africa, 
l^ mtatu of oamvau^ aiqteare bam Jltcnn, in hi* Hitlvrieal .flfwarcAo, voL L on 
the land trade of the CarthaginiajM, 

• B7theAineDtoTreat7ofHaTch2etli,171S,b«tweenGre«tBritain*Dd Spain, 
the latter power grmted to the ^'"gi"'' SonUi Sea OompaDj, toi tiaitj jean, tba 
right of iQf^ljil^ the Spanith oolomea in America with nagro ilaTea, at the nte 
of i,SDO aoDiialtf. Thia Aaueoto cootraet wai etpiainwl aad coEifinned hj a 
«oitf<fit>Mt between F^r"^ aod Bpain, ia Utj, 1T1& A aimiiai contract had 
baao ptavioDdj agreed on b; Sp«iii with the Bojal Oainea Oompanj aettled ia 
Tmtot. JenlnM^ CoUtUitm of 7\natitt, London, 1715, Tol L S76, vol. iL 119. 

» .^Jbprit 4k Xotz^ B*. IB. 0. 6. 



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Lbc IX.] OF THE LA,W OF NATIOira. 197 

a series of proviaioDS, to pnt a final stop to the ptt^ireee of 
ibie great moral pestilence, by admittiing a power in congreaa 
to proMbit the importation of slaves <^ter the expiration of 
the yew 1807. The constitntion evidently looked forward to 
the year 1808 as the commencement of an epoch in the his- 
tory of hnman improvement Prior to that time congreae did 
all on this subject that it was within tlieir competence to do.* 
By the acts of March 23d, 1794, and May 10th, 1800, the citi- 
zens of the United States, and residents within them, were pro- 
hibited from enga^ng in the transportation of Biases &om the 
TTnited States to any foreign place or country, or from one 
foreign conntiy or place to another, for the purpose of traffic. 
Ilieae provisions prohibited our citizens from all c«ieem in 
the slave trade, with the exception of direct importation into 
the United States ;' and the most prompt and early steps were 
taken, within the limits of the constitution, to interdict also 
that part of the traffic. By &6 act of 2d March, 180T, it was 
prohibited, under severe j^naltiea, to import slaves into the 
United States aft«r tiie lat January, 1608 ; and, on tiie 
20th April, *1818, tiie penalties and punishments were *19i 
increased, and the prohibition extended not only to im- 
portation, bat generally against any dtisen of the United 
States being concerned in the slave trade. It has been de- 
cided,'' that these statnte prohibitions extend as w^ to carry- 
ing slaves on freight, as to cases where they were the proper^ 
of American citizens, and to carrying them from one port to 
another of tlie same fbreign empire, as well as from one 
foreign country to another. Hie ol^ct was to prerent, on tiie 
part of our dtizens, all concern whatever in such a trade. 



a at FhiUMpbk to 1774, gat tlw 
flnt geoenl aod uitkidtstiTa eoaduinatioii of tbe •!»?« tnule, bj tb« reaototiaa 
Dot to biport or pDicbue My dare imported after the Ant day of D«camb«r, in 
that year, and irtioUy to dUoondDue tbi trade. Jaarruit of COngrat, toL i. p^ 83. 
Tbe oonTeolion of delegatea of tbe people of Yirghda, aod die proTinoal cot^reei 
of ITorth Oarolioa, bad aotidpated thii meaaara; lor in Ai^uit preceding tbej 
rMolred to diacontiDDe tlw importattoo of BlaTe& PitUn'* Hittery, toL L App. 
note Ifl. Jbiut' Dtfn^t of tit RmalvlUmarg Hitterj ^ NortX Oarelina, p. IIS. 
^ H« Merim, 9 Whtaton, Ml. Tia dcdaiatioia of the nuuter eoiifieated with 
hii acta {□ fartheraiice of the rojaga^ bave btto held to be «Tldet>oe on aa jndict- 
DMnt tgainit the owner of the ahip, uodar the act of SOth April, 1818. United 
Stitea r. Ooodiu^ 13 Wlttalon, 160. 



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198 O? THB LAW OF NATIOKR [Put L 

The act of March Sd, 1819, went a step further, and aathor- 
ized natioiial armed TeeselB to be aent to the coast of Africa, to 
stop the slave trade, so far as citizens or reridents of the 
United States were engaged in that trade ; and their veaaela 
and effects were made liable to seiznre and confiacatioQ. The 
act of Ifith Ma;, 1820,' went still farther, and declared, that 
a saj citizen of the United States, being of the crew of any 
&reign vessel engaged in tib,e slave trade, or any person what- 
ever, being of the crew of any vessel owned in whole or in 
part, ornavigated for or on behalfof any citizen of the United 
States, should land on any foreign shore, and seize any 
negro or mnlatto, not held to service or laboor by the laws 
of eiUier of Hie states or territories of the United States, 
with intent to make him a slave ; or shonld decoy, or forci- 
bly bring or receive snch person on board anch vessel, 
with like intent ; or should forcibly confine or detain on 
board any negro or mulatto, not lawfully held to service, 
with intent to make him a slave ; or should, on board any 
snch vessel, offer to sell as a. slave any negro or mulatto, not 
h«Id to service as aforesaid; or should, on the high seas, 
or on any tide water, transfer or deliver over, to any other 
vessel, any snch negro or mnlatto, with intent to make him a 
slave, or shonld deliver on shore, from on board any such ves- 
sel, any negro or mulatto, with like intent, such citizen or 
person shonld be adjndged a pirate, and, on conviction, shonld 
suffer death. (1) 

It is to be observed, that the statute operates only where 
our municipal jurisdiction might be applied, consistently with 
the general theory of public law, to die peisons of our citi- 
zens, or to foreigners on board of American vessels. Declar- 
ing the crime piracy does not make it so, within the 
*195 *purview of the law of nations, if it were not so with- 
out the statute ; and the legislature intended to legis- 
late only where they had a right to legislate, over their own 



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Lm. IX.] OF TEE LAW OF HATIOHS. 199 

(atisenfl and vesBelB. The queatioo, notwithfltonding theas ez- 
preesioDB in the atatnte, still remamed to be dlBcoBsed and 
settled, whether the African elave trade could be adjudged 
piracy, or any other crime, within the contemplation of the 
code of international law. It has been attempted, by nego- 
tiation between this coontary and Great Britain, to agree that 
both nations shoald consider the elare trade piratical ; but the 
convention for that pnrpoae between the two nations has not 
as yet been ratified, thongh Ihe British nation hare carried 
their statute denunciation of the trade as &r as the law of the 
United States.' 

The first British statute that declared the slave trade nnlaw- 
fbl was in March, 1807.'' Thiswsa a great triumph of British 
justice. It was called for by the sense of the nation, which 
had become deeply convinced of the impolicy and injustice 
of the slave trade ; and by the subsequent statute of 51 Geo. 
HL the trade was declared to be contrary to the principles of 
justice, humanity and sound policy ; and lastly, by the act of 
parliament of Slst Karch, 1824, the trade is declared to be 
piracy." £ngland is thus, equally with the United States, 
honestly and zealously engaged in promoting the universal 
abolition of the trade, and in holding out to the world her 
sense of its extreme criminality. Almost every numtime na- 



■ All tlieae uti of oaii^nn sppi; excluaEvely to eztiinul oammcrce in aUm. 
He inttmal oommarca within the TJEiitcd SUiet in Blares ia left to tlie oootrol and 
dNcretion of the (tate goTcrnmwito: Rod tlie oortlign] «t»lM, which h»T« aboMied 
■lateij, mdmit of no intenml aommerM in tlaTea witluD thair reipeetiTs itatM. It 
w not ao ID tlie BUT^-bolding *l«t««. Soma of Ihem pennit a Inffic in alarea m 
b«twe«a dlisetMof diffMeot atatea; but in Marjbuid, aa early aa 17Be,it waa 
declared bj law to be unlawful to import or bring into Iha atate, bj load or water, 
an; alara for tale, or to rende wittun tb« atate ; and averj alara broi^ht ia contrary 
to the «tatat« «a« declared to bs free. And in the coaatitutioa of Uiaaiaaippi of 
18S3, the iatroduction of davM inla Qa atate u marchaodiaa, or (or aala, waa pro- 
hiUted, tbongh actual aeUlara were allowad until 1S4G to purchaae alaTea from an; 
•t«t« in the Unioa,BDd briog them into that state fur their indiridual use. (1) 

' Bial, 47 Qeo. IlL Denmark aboliahed, in 1792, the fbreig;n bUts trade, and 
the importatioa ialo her oolooie*, thongh the prohllntioaB were not to take effect 
notil 1B04. Wktalon't Iigidry into Oa Right of Starch, 1S4S. 

• .9laf.fi Oea.IT. C.113. The atatuUof 8 and 4 Wm. IV. &78, Ibr the eitint- 



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800 or TAB LAW OF NATIONS. [I^rtL 

tton io Europe lias deliberately and solemnly, eitber by le^da- 
tive acta, or by treatiee and other formal engagementB, ac- 
knowledged t^e injoetice and inbamanily of the trade, and 
pledged itself to promote ite abolition. By the treaty of 
Paris of the 80th May, 1814, between Great Britain and 
France, Louis XTHL agreed that the traffic was repngnsnt 
to the principles of natnrat justice, and he engaged to nnite 

his efforts at the ensuing congress, to induce all the 
*196 powers irf Ohnstendom *to decree the abolition of the 

trade, and that it shoald cease definitavely, on the part 
of the French goTemmmt, in the course of five years. Hie 
ministeiB of the eight principal European powers, who met in 
congress at Tienna, on Uie 8th Febmary, 181S, ecJemnly de- 
clared, in the fitce of Europe and the world, that the Afiican 
slave trade had been regarded, by just and enlightened men, 
in all ages, as repugnant to the principles of hmnanity and of 
uniTcrsal morality, and that the public voice in all civilized 
countries demanded tiiat it should be suppressed ; and that 
the unireiBal abolition of it was conformable to the spirit of 
the age and the generous principles of the aUied powers. Ll 
March, 1815, the emperor Kapoleon decreed that the slave 
trade should be abolished ; but this effort of ephemeral power 
was afterwards held to be null and void, as being the act of 
an usurper ; and in July following, Louis AVUJ. gave direo- 
tions that this odious and wicked traffic should from that pre- 
sent time cease, llie first French decree, however, that was 
made public, abolishing the trade, was of the dat« of the 8th 
January, 1817, and that was only a partial and modified de- 
cree.' Jn December, 1817, the Spanish government prohi- 



tknof iktajflitaKMiWDnr and tmportuit ptoal proriiian* i-Hpcding tfaedeiliDg 
ia daTN OB tlM higfa Mu, or napecting koj traffic ui tham; aod Ilia sUtat* of 1 
Vid, c 91, H well u Um praceding ttateta, TepMt«d tli« dedtntiiiii, tliat BritUi 
•objecU ooBoenied ia tbo iUta trade, Aoa\d ht mdjadged piratei, ud puiifibablo 



* ^ tba eocToitifHi bttwMD Ortti KiUiii and Fnnee, of tbe SOtli Novenibcr, 
ISll, tlia mutual ri^t of acarch tna allowed oa board Uie tssmIb of eftch of the 
twonatiotii, wttbin eotaln ipaofied waten, 1. «^ along the VMteni.eaaat of AfHea 
ftom Oape Vv4 or IB deg. N. lat to 10 d^re** & of tbe eqaBtaf~->ll BrooBd Uw 
Uaad of Madagiaewr, to tli« extant of 10 leaguai Srau Iba falind— «o tb« Mm* 
dutsDM from the coaata of Braiil, aiid from the eoaata of the islaoda of Cnhk and 
Foito Bico. Tba right of MeieUiig merdiaDt reaaela to be CMiftied to ahipt of 



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Lm. IX] OF THE LAW OF SATIONB. 201 

bited the pnrdiaee of slaTes on any part of the coast of Africa, 
after the Slst of May, 1830 ; and this was in pursuance of die 
treaty between Qreat Britain and Spain of the 23d September, 

1817, made for the abolition of the sUto trade immediately 
north of the equator, and entirely after 1820. In January, 

1818, the Portngnese government made the like prohibition 
as to the porchose of eUree on any part of the coast of Africa 
north of the equator. In 1821, there was not a Sag of any 
European state which could legtdiy cover this trafBc, to the 
north of the equator; and yet, in 1836, the importation of 
slaves covertly continued, if it was not openly countenanced, 
from the Bio de La Plata to the Amazon, and through the 
whole American Archipelago.* 



WW, nndtr ipAdal Mitboritj from Mcb of die two gof«inmcoti, tod iwtw to b« 
tzerciced upon tb« Aipi of wftr of «iAer nttion. The XJoitod 8l*t«i have nliimd 
to become a partf to »nj cooveotioti tLOtboridig tlie mntoal right ef Mudi, vid 
Fnuie* adcrwardB refuied to rallfy ihe trtttj of IMl, taaatdiag tbe muta^ right 
ofKiKli. ru> tN^>fw,p.I6t, Tha eftirt* Mid tin Unro^th* effcrti to MoetlMi 
th* mutnal right of MM«h, iit reepect to Aa ekvo tnuh^ fotm an imtrnctiTe ibsa 
h modmn diplomatic Uatorj. la lSlB,tlMBiiUihgOT«nuiieot propoeedtoTnuoa 
the mutual rfgtit of March of mcrdunt Teasel* on the high sea*, with a view to the 
more effectual enppreMtMi of the dave trade, and whiii had been wuceded hj 
Spain, Portogal and the HeOterlaDdi. The propodtioi) vm at the laaie time made 
to the UDiled Statee, and rejected by both powm. In IToreinber of that year, the 
Britiafa goTennneot propoaed to the Congreii of Om fire great powen, at Aix-la- 
Ohapelle, (ha tblloving propodtioB* ; (l,}The tnotoalright of tearcb ofmerdiaiit 
veaael* engaged b the >la:Te tnde ; (!.) The dedaiatim that the alcre tnde wai 
piraey, under tlie law of oatlaM. Both propoatioDa were rejected <m the part of 
France, Amtria, PnuBa and Auria. lie propoaitloni were reoewed at the Oon- 
greea at VetOM, in IBS!, bat without iuccmb. Aft«nrarda, in 1B41, the matnal 
right of aeardi wia conceded hj the Dorthem BnropeaD power*, parties to the 
Qotatople Treaty, at, aee tupra, p. 1S8, Thon^ the government of the Unitad 
Statea has mdlbrmly objected to the admiuion of the right of TUtation and aeardi, 
in lima of peace, aren In reepect to the AIMcan alaTe trade, yet they agreed, in 
Avtherance of efficaent measnrea fcr fta npi^eMioD, hj the treaty of Waahii^toi^ 
b IM!, with Qreat BrHab, that each patty ahonld "prepare, eqoip and tnajnt^in 
in aerrlo^ on the eoaat of Africa, a aaffident and adequate aqnadron, or OKTal force 
of Tcaaala, of anitable nombera and deacriptiona, to carry, in all, not leas than eighty 
gnni^ to enforce, aeparately and reapectiTdy, the Uwa, tighti and obiigatioDa of 
each of the two conntriea, fbr the aappresaioD of the elare trade — the aaJd aqnad- 
looa to be bdependeot of each other ; bat the two govenuneDta atjpulatlt:^, nerer- 
tbeleaa, to giTt andi ordera to the ofScera oommanding thdr reapectire brcea, a* 
ahall enable them moat effectnally to act b oonoert and co-operation, npon matnal 
eonaaltaiiona, aa ezigaiicjaa may ariae.' 
■ Btport of a OammiOM of IJit Hmu§ t^ Rtfrtttntalnn af th* Unittd Btatn, 



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902 OF THE LAW OF NATIOm. [Put I. 

**197 *71ie case of the Amedie^ was the earliest deciuon in 
English conrtB on thegreatqneetioiLtoaclungthelegalitj' 
of the Blare trade, on general principles of iDtemational lav. 
That was && case of an American veesel, employed in carry- 
ing slares from the coast of Africa to a Spanish colony. She 
was captured by an Tilnglinl> cruiser, and the Tessel and cai^ 



FAmary IZth, ISSB. Sm, kUo, tha Quarterli/ Rtvieic, Vo. S8 mi No. 89. pp. 
S4>— !4S. Aliton,'! Hilary of Eurapt, roL tL pp. US, 1!S, wtd tli«Ei«1uIi pv 
liMnaittiTduciudoDBkaddoCDinetita. It ftppcMtUiat IIiaAfiicaaakTe tndami 
Mcried OD to u moimoui extuit doro to tlla jtu 18SB. Th« tnda wu piiDat 
pidl; betv««ii Afria, Mid Bnsl tad Cuba, Id IBiS, 4S,000 AlHcan ilaTca vcr* 
imported into tlM 1% of lUo Jtoein. Bat by a ooDTKitioQ between EogUnd 
■nd Braiil, in 18IS, it wu nude pintickl for tha aul^ecta of Bruil to ba engaged 
in ttietnde after UiejearlSSO; udit ia nndentood tfaat thegoienunait ofBia- 
■il, in 18G1, Dot ootj put « atop hj Uw to tlie importslioit of daTaa, but doilired 
that *U aUTea tlMceafiw importad ^Mmld be baa, ud impoeed kbeavy uaeaament 
00 die importeia, and proTided tot the twuportation of each n^roee back to 
AtnCL Li tha treatj ooDcladed lOth September, ISO, between Oreat Bribun, and 
the Imaam of Huaca^ the latter agreed to aboliah the foreign slare trade fbr arer 
m hia dominiooa. Eto^ bj the treaty of the !Sd of October, 1B17, between Qreat 
BiitaiD and R ada m a, king of Uadagaaear, it wu agreed tiut there abouU bt, 
throngbont all the domiaioM of theldi^of Madagaacar, an entire ceautkn of the 
•ale or tianafer of alarea. And in the treaty of commerce and narigation between 
Oreat Britain and the United ProTinoea of Rio da la FUta, Fetimarj id, 18SB, it 
was agreed by the latter to prohibit aL peractM anbjeat to ita joriadkitioa, bj tbe 
moat aolemn lawa, (irom taking any ahare m tha alare tnde 1 and yet it wu atated 
hy bigb authority b the Britiah parliament; May, 1838, u a natter of &et, and 
•greed to atterwarda in ao addreaa to the Queen, that DotwitbatandiDg all tha 
eSbrta of Qreat Britain to put down the alave trade, it etill conlinited. little di- 
miDiabed in extent, and much aggnvated in horror. Portugal wu the principal 
offender. What wae once a l^at had become now a contiaband traffia Bba had 
^■temalically and groealy violated her treaty oigi^emeale on that lubject Sinoa 
Ifise there bad been IBS Portugneee Teeeela leixed u alaroi, oontaining upward* 
of 181,000 ilaTei, and Portugal had, lince that period, tranaported a milliaD of 
^re*. Hie eoonnoua abnae induced Eogland, in 18S9, to antboriie by law tba 
fordble czanuiuitioii aod eearch of veaaels aoipeoted to be eonceraed in that tndtk 
The Britiah miniater, Sir Robert Peel, atatad in tha Houae of OomiDOD*, ia Jslf, 
1844, that Spain and Bradl were the two powen chargeable with the whole re- 
apooalUlity of the cootiouanee of the alare tiada, and that the ialand of Cuba ia in 
a p^carioua, if not a periloue poeition, from the uttled determination of her Uaek 
population to emandpate themsalTee ; and it ie atal«d, on atrong authori^, that 
the EngUeb eflbrt to pat down the alare trade by an armed force of Britiah axmtt* 
on the coaat of Africa, hu increased the horrora of the (lave ttade, without materi- 
ally dlminiahiDg ita amoont See Biirt yatralivt 0^ U/ly Dag* on Board a Slo»t 
Ship, Sir F. Bitat<M on African Blmi Tradt, and the otlier doconenta referred to 
and diacussed in WutatintUr Stnaw/or Jmu, 1844, p. 44C, Ac 
> I Adon'i Btp. S4a 



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Ue. EL] OF THE LAW OF VATIOHS. 908 

were condemned to the captois, in a Tice^dmirsl^ cooH in 
the Weet Indiee, and, on appeal to the coort of appeals in 
England, the judgment was affirmed. Sir Wm. Grant, who 
prononnced the opinion of the conrt, obaerved that the slave 
trade being abolished by both England and the United States, 
the conrt was anthorized to assert, that the trade, abstractly 
speaking, coold not have a legitimate existence, and was, 
prwtut facie, illegal upon principles of unirereal law. Tba 
claimant, to entitle him to restitution, mnstshow affirmatiTely 
a right of property nnder the municipal lawB of his own conn- 
try; for, ifit be unprotected by his own mnnicipal law, he can 
have no right of property in human beings carried as his slaves, 
for such a claim is contrary to the principles of justice and 
humanity. Hie Foriu/na,^ was condenmed on the authority 
of the Amedief and the same opinion was again affirmed. 
Bnt in the anbeeqnent *case of the Diana,^ the doc- *198 
trine was not carried so &r by Lord Stowell, as to hold 
the trade itself to be piracy, or a crime against the law of na- 
tions. A Swedish vessel was taken by a British cruiser on the 
coast of Africa, engaged in carrying tiaves from Africa to a 
Swedish island in the West Indies, and she was restored to 
the owner, on the ground that Sweden had not then prohibited 
the trade, and had tolerated it in practice. England had 
abolished the trade aa unjust and criminal, but she claimed 
no right of enforcing that prohibition against the sabjecls of 
those states which had not adopted the same opinion ; and 
England did not mean to set herself up as the legislator, and 
eustoa mantm, for t^e whole world, or presome to interfere 
with the commercial regulations of other states. Hie princi- 
ple of the case of the Amedie was, that where the municipal 
law of the country to which the parties belonged had prohibit- 
ed the trade, TJlnglJHb tribunals wonld hold it to be illegal, 
upon general principles of justice and humanity, but they 
Would respect the property of persona engaged in it under the 
sanction of the laws of their own countiy. 

The doctrine of these cases is, that the slave bade, abstract- 
ly speaking, is immoral and unjust, and it is illegal, when 
declared so by treaty or municipal law ; but that it is not 



* 1 IhdMMt'i AdM. Rtp. 81. * I Doitm't AAn. Rtp. W. 



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204 OF THE lAW OP HATIOSa [Pirt t 

piratical or illegal by the common law of nations, because if it 
were so, every claim founded on the trade wonld at once be 
rejected everywhere and in every court, on that ground 
alone. (1) 

The whole subject underwent fordier and a most fnH, 
elaborate and profound discussion, in the case of the Xe 
Xouis.* A French vessel, owned and documented aa a Frenoh 
vessel, was captured by a British armed force on the coast (^ 
A£ica, after resistance made to a demand to visit and searcb. 

She W8S carried into Sierra Leone, and condemned by 
*199 a court of vice-admiralty, for being concerned *in the 

slave trade, contrary to the French l&w. On appeal 
to the British high court of admiralty, the question respect- 
ing the legality of the capture and condemnation was argued, 
and it was judicially decided, that the right of visitation and 
searcb, on the high seas, did not exist in time of peace. Jf it 
belonged to one nation, it equally belonged to all, and would 
lead to gigantic mischief, and universal war. Other nations 
had refused to accede to the English proposal of a reciprociU 
right of search in the A£ican seas, and it wonld require an 
express convention to give tbe right of search in time of peace. 
He slave trade, though nnjofit, and condemned by the statute 
law of England, was not piracy, nor was it a «rime by the 
nniversal law of nations. To make it piracy, or such a crime, 
it must have been so considered and treated in practice by all 
civilized states, or made so by virtue of a general convention. 
On the contrary, it bad been carried on by all nations, even 
by Great Britein herself, until within a few years, and was 
tiien carried on by Spain and Portugal, and not absolutely 
prohibited by France. It was, therefore, not a crimina. 
traffic by the law of nations ; and every nation, independent 
of treaty, retained a legal right to carry it on. No one nation 
had a right to force the way t» the liberation of Africa, by 
trampling on the independence of other states ; or to procure 
an eminent good by means that were unlawful ; or to press 
forward to a great principle, by breaking tliroogh other great 



■ 3 DediotCi AJm. Rtp. 810. 
(I) Bnnm T. Dcnmaii, 1 IWf. K il (Tor. S, 1(T. 



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LtalX.] OF THE L&W OP HATIOKS. SOS 

principleB that stood in the waj. The condoinnatioii of the 
French veasel at Sierra Leone was, therefore, revereed ; and 
the penalties imposed b; the French law (if any there were] 
were left to be enforced, not in an English, but in a French 
court. 

Hie same subject was bronght into discoBBioii in the K. B. 
in 18S0, in Madraao t. WtUea.* The court held, that the 
British statotes against the slave trade were only ap- 
plicable *to British BobjectB, and only rendered the *200 
slave trade oolawful when earned on by them. The 
Brilaah parliament could not prevent die snbjects of other 
states from carrying on the trade ont of the limits of the 
British dominions. If a ship be acting contrary to the ge- 
neral law of nations, she is thereby subject to condemnation ; 
bnt it is impossible to say that the slave trade was contrary 
to the law of nations. It was, until lately, carried on by all 
the nations of Europe ; and a practice so sanctioned can only 
be rendered illegal, on the principles of international law, by 
the consent of all the powers. Many states had so consented, 
bat others had not, and the cases had gone no further than to 
establish the role, that ships belon^ng to conntries that had 
prohibited the trade, were liable to capture and condemna- 
tion, if found engaged in it 

He final decision of the qnestion in this conntry has been 
the same as in the case of the Le Zouis. la the case of the 
Za JewM Eugemty^ it was decided, in the Circuit Court of 
' &e United States, in Uassachnsette, after a masterly discus- 
sion, that the slave trade was prohibited by universal law. 
But subsequently, in the case of the Antdope," the Supreme 
Oonrt of tiie United States declared that the slave trade, 
though contrary to the law of nature, had been sanctioned, in 
modem times, by the laws of all nations who possessed dis- 
tant colonies ; and a trade conld not be conudered as contrary 
to the law of nations, which had been authorized and pro- 
tected by the usages and laws of all commercial nations. It 
was not piracy, except so far as it was made so by &e treaties 



• S Bam. ± AUkrtan, Ut. 

• S Momm'* Rtp. 409. 

• 10 ifibatoft, ee. 



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200 OF THE LAT OP NATIONa [Tutt 

or statutes of the nation to wMch the party belonged. It 
might still be lawfiilly carried on by the enbjecte of thoee 
nations who have not prohibited it by mnnicipal acts or 
treatiea.* 



• Ths dodriDB in tlie cMa of the AttUopi, mod to Om BbgUth cmm tbann 
Mfomd to, it, tb«t right of tnnging id for kcljiNUcatioii, in lime of p««M, foraipi 
TCMeli u^iged in Um alAva badc^ Mid aptored oa tlw high um for Uut csum, 
Si not mM ; and vemli to captored irould ba rartored, luilm tbs tzade vh liao 
mlawfiil, Mid prohibited b; th« eoDDtrj to whioh the Te«el belonged ; end if > 
daim be pot in for Afrieuii u lUvei and property, tbt mm pnbmdi u thrnwii 
upon the claimant to make epecifia proof of the indiTidoal proprietaij Jiitiiinf 
aoBordiiv to tlie law* ot the eaanUj to vhich the veael belongs 



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PAET II. 



OT THI QOVXBiniKNT AND 00N8TITDTI0VAL JUBISPBUDBNOE 
OF THB UUITBD STATES. 



LECTURE X. 

or THE HIBTOBY OF TEE AHSBIOAS CNIOIT. 

T^goTeramentof &e United States was erected bj the 
free voice and joint will of the people of America, for thdr 
common defence and general wel£u%. Ite powers apply to 
thoee gTBat intereeta which relate to this conntry in its na- 
tional capacity^ and wliich depend for their stability and pro- 
tection on the consolidation of the Union. It is clothed with 
the principal attributes of political sovereignty, and it is jnat- 
ly deemed the gnardian of onr best rights, the sonrce of our 
highest civil and political duties, and the sure means of na- 
tional greatness. The constitation and jurisprndence of the 
United States deserve the mmt accurate examination ; and 
an historical view of the rise and progress of the Union, and 
of the establishment of the present constitutioD, as the neceS' 
saiy finit of it, will tend to show the genius and value of the 
government, and prepare the mind of the student for an in- 
veetigation of its powers. 

The association of the American people into one body 
politic, took place while they were colonies of the British 
empire, and owed allegiance to the British crown, 
lliat *the mtion of this country was essential to its *203 
safety, its prosperity and its greatness, bad been gene- 
rally known, and frequently avowed, long before the late 
revelation, or the claims of the British parliament which pro- 



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308 JTrMSPRnDESOB OF [Pui II 

oiDftdawiT daced it The people of the New-England colonies were very 
jbgud ool early in the habit of confederating together for their common 
defence. As their origin and their interests were the same, 
and their manners, their religion, their laws and their civil 
institutions exceedingly similar, they were naturally led to a 
very intimate connection, and were governed by the same 
wants and wishes, the same sympathies and spirit, l^e colo- 
nies of Masaachnsetts, Plymouth, Connecticut and New- 
Haven, as early as 1643, under theimpression of danger from 
tbe surrounding tribes of Indians, and for protection against 
the claims and encroachments of their Dutch neighbours, 
entered into a league, offensive and defensive, which they de- 
clared should be firm and perpetual, and be diBtinguished by 
the name of the United Colonies of New-England. By tlieir 
articles of confederation, each colony was to have exclusive 
jurisdiction within its own territory; and in every war, offen- 
sive and defensive, each of the confederate* were to furnish its 
quota of men and money in a ratio to its population ; and a 
oongrees of two commiBsionas, delegated from each colony, 
was to be held uinually, witii power to deliberate and decide 
on all affairs of war and peace, and on all points of commtHi 
concern ; and every determination, in which three fourths in 
niuxiber of the assembly concurred, was to be binding upon 
the whole confederacy.* 

This association may be considered as the foundation of a 
series of effiarts for a more extensive and more perfect union 
of the colonies. It contained some provident and 
*203 ^jealous provisions, calculated to ^ve security and sta- 
bility to the whole. It provided that no two colonies 
were to join in jurisdiction, without the consentof all ; audit 
required the like unanimous consent to admit any other 
colony into the confederacy ; and if any one member vio- 
lated any article of it, or any way injured anotiier colony, the 
commissioners of the other colonies were to take cognizance 
of the matter, and detennine upon it. In this transaction 



• Baimitt Slat* faptrt, i9i. 69a. SK. SutckinMon'i Sittory^ Manaduutli*, 
loL i. pp. 1S4. lee. Jtaberlton'M Potthiimota Hittory of Avuriea, b. 10. pp. IVI, 
Ifll. WinthTop't Hit. of NrtB-Bngtand, £y Biuagt, ToL ii p. 101. Ba^iei 
Eii4orieai Mimiir, *oL ii p. 118. TVunMri illtt. of Ootmtttiatl, vol i p. ISi. 
JPIfmmtUi CUony Zaiti, App. p. HOB. «dit. 18S6. 



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Lm. X.] THE VlimD STATES. 209 

«nd under the aothorit;^ of this onion, the New-England colo- 
niee acted in &ct as independent statw, and free from the 
control of any superior power, because the civil war in which 
England was then involved, occupied the whole attention of 
the mother coonby ; and this first step towards afutnre inde- 
P^idence wassofferedto pass without much notice, and with- 
out any animadvenion. The confederacy subeieted, with 
Bome alterations, for npwards of forty yeare, and, for part of 
that time, with tiie conntenauce of the government in Eng- 
land. It -wm not dissolved until the year 1686, when tiie 
chartfflis of the New-England colonies were in effect vacated 
by a commission from king James IL' 

The people of this country, after tiie dissolution of tiiis 
earliest league, continued to afford other instractive prece- 
dents of association for their safety. A congress of govemoTS 
and commissioners from otlier colonies, as well as from New- 
England, was occasionally held, to make arrangements for 
the more effectual protecti(m of Qor interior frontier, and we 
have an instance of one of theee assemblies at Albany, in 
1722. >• But a much more interesting congress was held 
there in the year 1754, and it consisted of commissioners 
ftvm New-Hampehire, Massschnsetts, Khode Island, Con- 
necticut, New-York, Pennsylvania and Maryland, and it was 
cidled at the instance of the lords commissioners for trade and 
the plantations, to take into consideration the best means of 
defending America, in case of war with France, which 
was then impendiDg. The object of the English *ad- *201 
ministration in calling this convention was in refer- 
ence to treaties of friendship with the Indian tribes ; but the 
colonies had more enlarged views ; and the commissionen 
which met in congress, and who enrolled among tiieir num- 
ber some of the most diatingniahed names in our colonial his- 
tory, asserted and promulgated several invaluable tmths, tiie 
proper reception of which, in the minds of their coanttymeo, 
prepared the way for their fnture independence, and our pre- 
sent greatness. One of tiie colonies (Massachusetts) expressly 
instructed her delegates to enter into articles of union and 



* Sniehmten'i BitlMy ef Mau a ei u — ti l, ToLL p. 118, noU. 
*■ BmiO:* Hitorj pfiTf^Tarh, toL L p. 111. 

TOL.L 14 



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SIO JtJRiaPBDDBHOE OF [FnilL 

coafederation with &e other coloniea, for their general eecn- 
rit^ in peace as well as in war. The convention unanintonalj 
resolved, diat a anion of Uie colonies was abeolutelj' necee- 
aaiy for theirj>reeervation. They rejected all proposals for a 
division of the colonies into separate confederacies, and pro- 
poaed a plan of federal govenunent, consisting of a general 
council of delegates, to be triennally chosen by the provincirf 
assembliea, and a president-general, to be appointed bj the 
crown. In this council was vested, subject to t^e immediate 
negative of the president, and the eventual negative of tiie 
king in conncil, the rights of war and peace, in respect to the 
Indian nations ; and the confederacy was to embrace all the 
the tiien ezistiDg colouiee, from Kew-Hampshire to Oeorgia. 
The council were to have antiiority to make laws for the go- 
vernment of new settlements, upon territoiies to be parchased 
from the Indians, and to raise troope and build forts, and even 
to equip veesela of force, to guard the coast and protect trade, 
as well on the ocean aa npon the lakes and rivers. They were 
likewise to make laws, and lay and levy general duties, im- 
posts and taxes, for those aeceseary purposes.' But the 
*205 times were *not yet ripe, nor the minds of men enffi- 
cienfly enlarged, for such a comprehensive proposition : 
and this bold project of a continental onion had the singnlar 
tste of being rejected, not only on the part of the crown, bnt 
by every provincial assembly. It was probably supposed, on 
the one hand, that the operation of the union would teach 
the colonies the secret of their own strength, and the proper 
means to give it activity and direction ; while, on the other, 
the colonies were jealous of the preponderating influence <tf 
the royal prerogative. We were destined to remain, for some 
years longer, separate, and, in a considerable degree, alien 
commonwealtlis, emnloas of each other in obedience to the 
parent state, and in devotion to her interests ; bnt jealous of 
each other's proqierity, and divided by policy, institution, 
prejudice and manners. So strong was the force of these 
considerations, and so exasperated wwe the people of the 



• JUranilin'i Worki, tdilid by Bparkt, loL vL pp. SS— GG. Bmilh't BMory vf 
l^etB-ToTJC, ToL iL }^ tlS— SSG. Marthair> Li/t of WtuhmgUm, tOL L DOt« S. 
JfiiuacAuMfft SiUorital OeilteHon*, toL vil pp. £08 — 2U. 



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Lta. X] THB UHITBD STA^TBS. 311 

colonies in their disputes with each other conceming bounda- 
ries and cliarter clatmB, th&t Doctor Franklin (who was me 
of the commissioiiera to the congress that formed the plan of 
nnion in 1Y54) observed, in the year 1760, that a nnion of the 
coloniea against the mother conntiy was abeolntely impossible, 
or at least wil^at being forced by the most grievons tyranny 
and oppression.' 

The great valae of a federate nnion of the colonies had, ^. °?v 
however, sunk deep into the minds of men. The snbject was 
&niiliar to our coktnial aDceHtors. Hiey had been in the 
habit, especially in seasons of danger and difficulty, of form- 
ing asBociatioDB, more or less eztensiTe. The necessity of 
onion had been felt, its advantages perceived, its principles 
explained, the way to it pointed out, and the people of this 
conntiy were led by the force of irresistible motives, 
*to resort to Hie same means of defence and security, *206 
when they considered that tJieir liberties were in dan- 
ger, not from the rexatioas and irregular war&re of the In- 
dian tribes, bat irom the formidable claims, and still more 
formidable power of Hie psrent state. The assOTtion by the 
Britjah parliament of an nnqnalified right of binding the colo- 
nies in all cases whatsoever, and speoiflcally of Ate right of 
taxing them without their consent, and the denial by the colo- 
nies of the right of taxation without representation, and the 
attempt of the king and parliament to enforce it by the power 
of the sword, were the immediate causes of the American 
revolution. Soon after the first unfriendly attempt upon our 
chartered privileges, by the statute for raising a revenne in 
the colonies by means of a stamp du^, a congress of dele- 
gates from nine colonies was assembled at New- York in Octo- 
ber, 1765, upon the recommendation of Massachnsetts, and 
they digested a bill of rights, in which the sole power of taxar 
tion was declared to reside in their own colonial legislatores.^ 



' FranUiK,'* Werli*, tiUtd bg Sparlct, to), ir. p. 42. Oovtnwr PowimI, in hfa 
work DO Tha AdminUiratioii of tit CoIouUm, (iJm itb aditioa of wfakli KfipMred 
in 11SS,) daelvad that Uw colooua had m ods prbeipla of iMockdon ammigat 
thrai, and that their buddm- of Mttlcmeot, diTcrn^ of ehartwit eoafiietiDg in- 
tereat^ and matnal rivalahip and J«aloDti««, would nodn «iniiaaiia{rBotic^ilal 
pp. 8S, gS. 98. 
^ 1 Btiknap-t If.H.p. 8Se. Jeumali ef the AimNy t^ tha Oakmj/ ^K K, 



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312 JURISPRCDBirOB Or [Put n. 

TiuB was preparat<»7 to a more ezteoaiTe and general aasocia- 
■■tionof the colonies, which took place in September, 1774:, and 
laid the foondatioDB of onr indepoDdence and permanent 
^017. Hie more serioas claims of the Sritiah parliament, 
and the impending oppreencms of tiie Britiali crown at this 
last critical period, indnced &e twelve colonies, which 
*207 *were spread over ihia vast continent, irom Nova 
Scotia to Qeo^^, to an interchange of opinions and 
views, and to unite in sending delegates to Philadelphia, 
"with aathorily and direction to meet and conanlt together 
for the common welfiu^" In pnrsoaQce of their authority, 
tiiis first continental congress, whose namee and proceedings 
are stiU familiar to the present age, and will live in the grati- 
tude of a distant posterity, took into consideration the afBicted 
state of their country ; asserted, by a number of declaratory 
resolutions, what they deemed to be the unalienable rights of 
English freemen ; pointed out to their constitnents the system 
of violence which was preparing against those rights ; and 
bound them by the most sacred of all ties, the ties of honour 
and of their country, to renounce commerce with Great Bri- 
tain, as being the most salutaiymeaDB to avert the one, 
*208 and to secure the blessings of the other.' These *reeo- 
lutions received prompt and nniversal obedience, and 



Oetobtr, 17es. ManJiairt lift of FaiAin^n, ToL il App. No. S. A'^Mk'* 
PdiAtti mi Civil BiHory efthe UnUed Blatti, toI. L pp. 118—186. App. No. 1, 
S, 9. A fall and mppveoUj rerj •ntbwtie " Jonniml of ^le CootiDCtiUl CoogrcM 
of 17S6,° wu puUiihad at New-York, bj E. Wbcbeatcr, 184B, beh^ Ahum] tmaDg 
Hie pap«n of Cksu Bodnej, ono of the delegate! to tb* Oaareiition of 11BG, uid 
fint niMitioDMl ID NiW Nitiooal B^iitei, ki 181S. It irai m precunor, in point 
of ability, intelligeoGe aod spirit, of tbe proceedinga of Ibe Contiorntal Coogrtas ot 
1774. The flth aod 7tli cbapten of Ibe fint Tolncae of Mr. Piltin't Bitory. con- 
tain a dear, autbcntic and tctj inlereatiDg detail of tlie reaolutioDa and acta of the 
Briti^ parliament, reUtiog to America, eubaeqacoll; to the peace of 176S ; of tbe 
proceediogs of the Britiah goTerament to enforce tiiem ; and of the spirit of oppo- 
eitioD and reeiataoce which thej met with on the part of the colraiiea. Tbe !•• 
■iitaDce kept pace with the parliameDtar; impoeitioDS, ai>d wu coDitsotij growini; 
in etraDgth, aetirit; and detoraitwd paipoM, until it wm cocamninated \ij tlte 
permaoent nnioD of the coloniea in 1774. 

• The moat material of those deolaratorj raaolntioDa waa the one which etated, 
thAt, as tha oolooiea w«e not, and oonld not properlj be repreaented In the Biilisk 
paTliauant,th«j were entitled "to a free andexcloBTe power of legidation in thev 
BtTenJ provincial legialatorea, in all caaes of tazadMi and internal poli^, eutgect 
only to the negatire of their eoTerngn." Tile eoloniea, from tbe earlieit periods of 



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1*B.X.] THE VNITBD STATES. 218 

the ITmon, heing tJius anspidonalj formed, it was continued 
hj a sDCceesion of delegates in congress ; and throngli ererj 
period of the war, and dirongh every revolution of oor go- 
vemment, this Union has been revered and cherished, as the 
gdardian of oor peace, and the only eolid fonndatlon of na- 
tional independence. 

In May, 1776, a congress again aasembled at Philadelphia, 
and was clothed with ample discretionary powers. The dele- 
gates were chosen, as those of the preceding congress had 
been, partly by the popolar branch of the c<donial legislatures 
when in session, hnt principally by conventionB of the people 
in the several colonies." They were instmcted to " concert, 
agree npon, direct, order and prosecnte " such measures as 
they ehoold deem most fit and proper, to obtain redress of 
American grievances, or, in more general terms, they were to 
take care of the liberties of &e conntry.^ 

Soon after this meeting, (Georgia acceded to and completed 
tiie confederate of the thirteen colonies. Hostilities had al- 
ready commenced in the province of MaesacliusettB, and the 
claim of the British parliament to an onconditifmal and nn- 
limited sovereignty over the colonies, was to be asserted by 
an appeal to arms. The continental congrese, charged with 
the protection of the rights and interests of the people of &e 
united colonies, and instructed with thtf poww, and suetained 
by the zeal and confidence of their constituents, prepared for 
resistance. They published a declaration of the causes and 
necessity of taking np anuB, and proceeded immediately to 



the uttlemeat a{ ths coonby, with the exception of P«iitu;lTuu», whoat ehuter 
ncogaiBed the force of luob kw*, hwl genemUj claimed, trnder thwx dmrten, ta 
•zemptun from tlM operation of the BrilMi raTigatioD mebi,»ad cf tbtlr ayiteiaof 
omnnMMuI monopoljr ; ud thej had, by all indirect meaiiiibott of open renituwe, 
eT»dad the (brce of those Uw*, «ad Hnned tb« rigfat to a free tnde. (1 Unleli. 
Hi4L 3!S,) Bat the oongreaa ut lTl4,iii the wpbit of condUktiaD, rewHuced arery 
■nd) pretendoD, and decUr«d, that * from tlie neceadtjof the case, and in regard to 
the matoal iotereati of both wiwtriea, thej dieerfidlj ooDWDtad to tlie openUtoa 
of iDcfa acta of the Briliih pariiaincnt u were ionajUi rertreined to the nguialioa 
of their external coounerce, for the porpoee of ■eoaring the commM«al adTaotagee of 
the whole empire to the mother ootiatry, and the eominerdal boicfiU of ita reapectiTe 
membere : 4xcl«ding twtrj/ idta <^ laxalion, inlimal or erltnial, for nriein^ a rlM- 
iMMmt fA<nir*^iin jltiMHe^ieilAaHl lArir MHamt" JbarnW* B^ Cbi^nu, toL i. 

• AMTMb of OimtT*»M, of Mmj. 1110, pp. a»— 74. 

* /oynuli of Om^tM, ot U».J, 11TE, toL L p. 14 



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S14 JUKISPBUDEITOE <»r [Put II. 

levy and organize an army, to preecribe rules for the goveror 
ment of their land and nftTal forces, to contract debts, and 
emit a paper cnrreDcy upon the faith of the Union ; and 
gradnlly mwnming all the powers of national sovereigaty, 
tfaey at last, on the 41ih day of Jnly, 1776, took a separate and 
eqnal station among the nations of the earth, by declariog the 
onited colonies to be free and independent atatea 
Dcoiuadoii This memorable deolaration, in imitation of that published 
dMHK by the United Nedierlaods on a similar occauon, re- 

*309 capitulated *tlie oppressions of the British king, as- 
serted it to be the natoral right of every people to 
withdraw ftam tyranay, and, with the dignify and the fortitade 
of consciooB rectitnde, it contained a solenm appeal to man- 
kind, in vindication of the necessity of the measore. By this 
declaration, made " in the name, and by the authority of the 
people," the colonies were absolved from all allegiance to the 
British crown, and all {>oHtical connection between them and 
Great Britain was tot^y dissolved. The principle of self- 
preeervation, and the right of every oommunhy to freedom, 
and happiness, gave a sanction to this separation. When the 
government established over any people becomes incompetent 
to fal£l its purpose, or destructive to the essential ends for 
which it was instituted, it is the right of that people, founded 
on the law of nature and the reason of mankind, and sup- 
ported by the soundest authority, and some very illostrions 
precedents, to throw off such government, and provide new 
gnards for their iiitare secnrity. This right is the more ap- 
parent, and the duty of exercising it becomes the more clear 
and unequivocal, in the case of colonies which are situated at 
a great distance from the mother country, and which cannot 
be governed by it without vexations and continaally increas- 
ing inconvenience ; and when they have arrived at maturity in 
strength and resources, or, in the language of Montesquieu, 
which he applied to our very case, " when they have grown 
great nations in the forest they were sent to inhabit." If, in 
addition to these intrinsic causes, gradually and powerMly 
tending to a separation, the parent state should think fit, in the 
arrogance of power and superiority, to deny to her colonies 
the equal bleesings of her own free government, and should 
put forth a claim to an unlimited control, in her own discre- 
tion, over all their rights, and the whole administration of 



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LmXJ tbb urttbd statk ai6 

their affuTs, the oonBeqttence would then be almost mevitahle, 
Uiat the colonists woald rise, ftud repel the claim ; and 
more certuuly would Ihia be the case, if *they were a *210 
spirited and intelligent race of men, true to them- 
selres, and jnst to their postfiritT-. 

The general opinion in favonr of the importance and valnfl 
of the onion, appears evident in all the proceedings of con-uo^ 
greae ; and as earlj as the declaration of independence, it 
was thought expedient, for its secorily and duration, to define 
with precision, and by a formal instrument, the nature of bur 
compact, the powers of ccaigress, and the residuary eove- 
reignty of the states. On the 11th of Jane, 1776, congress un- 
dertook to digest and prepare articles of confederation. Bat 
the business was attended with much embarraesment and 
delay, and, notwithstanding these atataa were then eurrouoded 
by the same imminent dangers, and were contending for the 
same illustrions prize, it waa not until the ISth of Norember, 
1777, that congress could so far onite the discordant interests 
imd prejndices of thirteen distinct communitiee, as to agree 
to the articles of confederation. And when those articles 
were sabmitted to the state legielatnrea for their perusal and 
ratification, they were declared to be the result of impending 
necessity, and of a disposition for conciliation, and tiiat they 
were agreed to, not for their intrinsic ezceDence, but as the 
best system which could be adapted to the circamstanoes of 
all, and, at the same tune, afftnd any tolerable prospect of 
general assent.' 

These celebrated articles met with still greater obetacles in 
their progress through the states. Host of the legislatures 
ratified them with a promptitude which showed their sense 
of the neceesdty of tiie confederacy, and of the indulgence of a 
liberal spirit of accommodation. But Delaware did not ac- 
cede to tiiem nntil the year 1779, and Maryland explieitiy re- 
jected them.b She instructed her delegates to withhold their 



* AarniJ* of Cangnu, voL iiL Hm iMtrocUoM giTW to tlw delcgatai to Um 
omtiocDUl coDgTW, bj Ilia laTcial onloiu&I oongreuei, conTeotioDa md u««cabliwi 
k 1776, Mid prior to Ibe dedaradoa of iDdependeDCC, oonUiiied in exproa roMm- 
tioo to aioh ooLodj, of the lole wmI azduuT* regnktloD of it* own tatenwl gonn- 
DMot, police txA eoDCMM. 

^ JiutTil 



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216 JDKIBPaVDSKOB OF [Part U. 

assent to the articIeB, nntil there was an amendment, or addi- 
tional agreement, to appropriate the iincaltivated and un- 
patented lands in the western part of the Union, as a 
*211 common *fand to defray the expenses of the war.^ 
Hiese lands were claimed by the states within whose 
asBca-ted limits and jnrisidiction they were situated, and several 
of them, from a deep sense of the importance of the union, 
agreed to an onconditional ratification of the articles, or, in 
other words, to a separate confederacy between the states so 
ratifying the same, though Maryland, or other states, should 
withhold their approbation and sanction.'' The legislatore of 
New-York, by their acts of 23d of October, 1779, and 19th 
of Febmary, 1780, even consented to a release of the unsettled 
lands in the weet«m part of the state, for the nse and benefit 
of each of the United States as should become members of the 
federaLalliance ; and to resign the j nrisdiction, as well as the 
rij^t of preemption, over her waste and uncultivated terri- 
tory. The refiisal of Maryland, bo long persisted in, gave 
enoooragement to the enemy, and injnred the common cause, 
and damped the hopes of the friends of America at home and 
abroad. These considerations at last induced that state to 
make a generous sacrifice of her pretensions ; and on the 1st 
of March, 1781, and which was upwards of three years irom 
their first promulgation, the artidesof confederation received 
the onanimons approbation of the United States. 

The difficulties which impeded the framing and adopting 
the articles of confederation, even doling the pressure of a 
common calamity, and whioh nothing at last but a sense of 
common danger could surmount, form a striking example of 
the mighty force of local interests and discordant passions, 
and they teach a m<mitory lesson of moderation to political 



' Notwithatandingtiie articles of confederation conferred npon 
congreea (though in a very imperfect manner, and under a 

iliost uuskilfnl organization) the chief rights of political 
*312 supremacy, the jura tvmmi wiperii, by which *oar 

existence as an independent people was bound up 
together, and known and acknowledged by the nations of the 



• JvitmaU of OiMgrttt, toL t, jn 808. 



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Lac X] THB ITIinTBD STATES. 21? 

world ; yet they were, in fact, bnt a digest, and eTen a limita- 
tioQ, in the shape of written compact, of those undefined and 
discretionary sorereiga powers which were delegated by the 
people of the colonies to congress, in 1775, and which had 
been freely exercised and implicitly obeyed,* A remarkable 
instance of the exercise of this original, dormant and vast 
discretion, appears on the journals of congress the latter end 
of the year 1776. The progress of the British arms had, at 
that period, excited the most alarming apprehension for oar 
safety, and congress transferred to the commander-in-chief, 
for the term of six months, complete dictatorial power over 
the liberty and property of the cHizenB of the United States, 
in like manner as the Boman senate, in the critical times of 
the repablic, was wont to have reconrse to a dictator, n« quid 
mpt^ieadtirimentieapiat.^ Suchlooee, undefined authority 
as the Union ori^nally possessed, was absolntely incompatible 
with any regular notions of liber^. Though it was ezercieed, 
in the instance we have referred to, and in other strong cases, 
with the best intentions, and under the impulse of an irresisti- 
ble neces^ty, yet each an irregular sovereignty never can be 
durable. It will either dwindle into insignificance, or de- 
generate into despotism. 

The powers of ctm^^ss, as ennmerated in the articles of 
confederation, would perhaps have been competent for all the d* 
essential purposes of the Union, had they been duly distributed 

' Hw ^Tcramsnt of Uw UnioD U eaitnd«r«d lo hira beeo rayolutJoDsiy id ita 
iMtara, from it* flnt imtitatiaD bj tha peopla of the etriooiei, in 1174, do«n to th* 
AmI mtifloatkn of tha MtielM of coafMltnttioi^ ia 1781, and to h«T« poaMwed 
powers adequate to CTer7 iutiiK»l emergeoCf , wid oo-eztauire with tha object to 
be obtnined. (PatereoD, J^ Iredell, J., «ad BEur, J, ia PenhalloT t. Doue, 8 
Doll. JUp.B0.ti.9i. III. Datu'i Abr.roL ix.A^ pp.1. IS. It. II. iS. Ju<^ 
Wilmi, in hU HgunMnt ta Mppwt of the ordioaiKe of congTM*, of DaMinb«r Slri) 
1781, iucorpon^ the Buk of North America. Wilxnt'i Warin, toL ilL SVr. 
8tor/t Oomm. en tit OotutittUion, toL L pp. 18S— IBI.) Mr. HBdiun, who waaa 
member at ooogreu at the time, aaja, that the member* were generally of llw 
opioioa that tfaej l»d no power, lutder the receotly adopted articlei of coofederatSot^ 
ts kworpoista the hank. Hey were, in {ut, impelled lo do it ttota tha great ez- 
padieoGj, if not abaolute ncoeadty of tiie inelitutim, to eaataio the war and onr 
uredib TMt MadUm Paptrt, toL L lot. AcoordlDg to Mr. Dane, the goTenunent 
of the nniCad Stale* bM paiead through three fbroii: 1. Tlie roTolutioDary', S. 
TIm ooflfedarata; L Hm canetitatiaMl ; and the firat and Hie third procMdad 
aqnall; from tha people in their original Ofiacitf. 

^ JmtmaU nf Oei^frtm, roL a. p. 47B. 



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318 JURSPEUDEITOB OF [PartlL 

among die departmentB of a well-balanced goremment, and 
been carried down, throngh the medium of a national, jndi- 

cial and executive power, to the individual citizens 
*£)18 *of the Union. The ezclofiive cognizance of our 

foreign relations, the rights of war and peace, and the 
right to make unlimited requiaitioDs of men and money, were 
ocmfided to congress, and the exercise of them was binding 
upon the states. But, in imitation of all the former confede- 
racies of independent states, either in ancient Greece or 
modem Europe, the articles of confederation carried the 
decrees of the federal council to the states in their sovereign 
or collective capacily. This was the great fundamental defect 
in the defederation of 1781 ; it led to its eventual overthrow ; 
and it has proved pemicions or destmctive to all otiier federal 
governments which adopted the principle. Disobedience to 
the laws of the Union must either be submitted to hj tiie 
government, to its own disgrace, or those laws must be 
enforced hj arms. l%e mild influence of the civil magistrate, 
however strongly it may be felt and obeyed by private indi- 
vidnak, will not be heeded by an oi^snized communis, 
eonscions of its strength and swayed by its passions. The 
history of the federal governments of Greece, Germany, 
Switzerland and Holland, afford me]ffiadM>Iy exampke of 
destmctive civil war springing from the disobedience of the 
separata memben. I will mention only a single instance to 
this effect, taken &om the generally uninteresting annals of 
the Swiss cantons. By one of the articles of the Helvetic 
alliance, the cantons were bound to submit any difference 
which might arise between &em to arbitratora. In the year 
1440, a dispute arose between Zurich on the one side, and the 
cantons of Schweitz and Glaris on the otlier, req>ecting some 
territorial claims. Zurich refused to submit to a decision 
against her, and the contending parties took to arms. All 
Switzerland was, of course, armed against Zurich, the refrac- 
tory member. She sought protection from herancient enemy, 
the house of Austria, and the controversy was not terminated 
in favour of the federal decree, until after six years of fiirious 
and destructive war.' 



• SiiL Jt U Oanfid. AI>. par WatlMlU, Ut. t. J-lanUi Bid. af Anteriand; 



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Lae. X] THE UlTITED STATES. 219 

*Had there been Bnf&cient energj' in the goremment *214 
of the United Btates under thg articles of confedera- 
tion to have enforced the constitutional reqaisitions, it might 
have proved fatal to public liberty ; for congress, as then 
oonstituted, waa a most unfit and unsafe depositoiy of political 
power, since all Uie authority of the nation, in one com- 
^ plicated mass of jurisdictioQ, was rested in a single body of 
men. It was, indeed, exceedingly fortunate, as the event has 
Bubsequently shown, that the state legislatures even refused 
to confer npoa congress the right to levy and collect a general 
impoe^ notwithstanding the refusal appeared to be extremely 
disastrous at the time, and was deeply regretted by the intelli- 
gent friends of the Union. Had such a power been granted, 
the effort to amend the confederation would probably not have 
been made, and the people of this conntry might have been 
langaishing to this day, Uie miserable victims of a feeble and 
incompetent union. 

There was no provision in the articles of confederation 
enabling congress to add a sanction to its laws. In this 
respect, they were more defective than some of the other 
federal governments which are to be met with in histoiy. 
The Amphictyonic council, in Greece, had autiiority to fine 
and punish their refractory states. Lacedsemon and Phocis 
were both prosecuted before the council of Amphictyona, 
(which was a council of the representatives of twelve nations 
of Greece,) and all the Greek states were required by procla- 
mation to enforce the decree. The Germanic diet, as it 
formerly existed, could put its members under the ban of the 
empire, by which their property was confiscated ; and it waa 
aided in enforcing obedience to its laws by a federal judiciary 
and an executive head.* Congress, onder the old confedera- 



rtH. L last ah&pt«r. The Siriu OonfodentioD wm remodelled hj tfae fedenl act of 
1S15, lod eotiniU, at tbe preuDt time, of tw«D^-&r« eaotooi. Tbe federal Diet 
eonrieta of am deput; from ladi of the tven^-two caoloiM, with one vote ead^ 
ai»d i*ith a half roU only to the thre* additioiial eaotoDa, dreated on a eabdiTiaioD. 
na powcra of war aod peace, allianoe and ooaraeree, reside exduatTelj in the 
general Diet, with a common army and treaeury; bat eaoh caDlon may conelad* 
■eparate oapltulatiau aod treatie* relatire to local end municipal nutlera, and 
Ntaia ita original eorereign^ miimpairad fbr all domestic porpoaee. Whaloi^$ 
BUmenlt itf JnltrtMioiuU Lme, td edit p. 8S. 
* Tbe imperial diamber had appellate J arisdidioti only. Ite ttatenaaa wer* 



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220 JUKBPRUDENCE OF [PwtU. 

tion, like the states genentl under the Batch coofade- 
*316 racy, *were restricted from any constructive aseumptioQ 

of power, however essential it might have been deemed 
to the complete enjoyment and exercise of that which was 
given. No express grant conveyed any implied power ; and 
it is easy to perceive, that a strict and rigorous adherence to 
flie letter of the grant, without permisBion to give it a liberal , 
and equitable interpretation, in furtherance of the beneficent 
ends of the goyemment, most, in many cases, frustrate entirely 
the purposes of the power. A government too restricted (or 
the due performance of its high trust, will either become 



c*rri«d into eieeatloa tgnioit nfrmctorj lUtc^ b; tlie military fbrea of tb« drclM. 
PfiffO. Air. Chn. A f ifirt. iAlttmapf, toii» iL p. 100. PoUtrt Omrt. Hiu. p, 
BOS. Th« new Otnnuue Confedcnuy, dtaUiahtd atider tbe acti of Um CongrcM 
of Tieniw,iD 1814 uid ISIB. and modified aftcnrardi, in IBSt and IBM, oonuta 
of tli« MTereigD prioces and free dti»> of Qennaii j. It iodudea tlie great powara 
of Auatria and Pnuua, io rei ptct to tbdr pucMukina, wbieh fonnM-l; belonged to 
the Ormuoic Empire, Dcimnuk, in retpect to Ihc Ducbj of Holatcin, tlie Netlier- 
landa, Bararia, Buod;, HaooTer, Wcrtcmburg, and maoy other leaver prineipali- 
ti«« and tiatea, together with the free dtiea of Lubeck, Frankfort, BremeD and 
Hambucg. The federatire diet or CoDgret* meet* at Ftaoklbrt-oii-the-Haiii, and la 
lepreMDted bj the refpective powera by their miniiter^ and tbeir Totea in the 
Oeceral Auemlil; or Diet ar^ in point of nuiobere, io wme degree in a ratio t» 
their TelatiTo paver. While a few of the great poirera have eadi iirat vote*, otben^ 
of a leaaer d^ee, ha*e r<«pectiTrlj three or tvo *ol««, and maoj of tbe atatea, 
and, among othera, the free dtiea, have cadi i«ilj one vote. It ia a lingular lod 
oonplicated union of mixed poweia, partly nriiunal nod partly wpanite and indi- 
TlduaL It is declared, ia tbe eolemn acta of union, to be a federal league of the 
Borereign princea and free dtiea of Germany, formed tor the eit«rior and interior 
•afMy of Qenuany, and the indtpendencc and iofiulabiUty of the coolcdenited 
■tatea. In their internal ^el«tiaD^ tbe itatei are independent between themeelTea, 
and Iraund \a each other by redprocal rights aod dutieaj and in reepect to their 
eitenial relation*, they are a eon«olIdat«d urereign power, e«tabliili«d on th« 
principle of political union. Tbe General Aieembly baa a great masa of eoverelgD 
powen confided to it; but ita federal law* do not operate diatincdy on tbe priTata 
bdiTidoalaubjectaof the atatea of tbeoniocit but only through tbe agency of tbeii 
■epuat« goTemmente. Though there are very great restnints upon tbo internal 
•OTOreignl^ of the atatea, yet the Oermanic Ooofedenu^ ia eaaenlially an alliaooa 
between independent atatea, though, in many important partieulara, they are aab- 
jeet to the ooofederate power. Tbo aoTereign powera ara ao intermixed and dia- 
bibuted among the membera of the union, between the federal head aod the 
aeparate atate, a* to ruider the ajatem exceedingly complex; but it dora not bll 
within the pronnca of thia work to enter iota detail A more general aod pro- 
ciae aketdi ia given in WlitatotC* Smunt* of InUrnatiMul Lou, td «i& n>- 
1»— «S. 



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LM.X.] THE nniTBD STATES. m 

inaignificaiit, or be driveD to nenrpatioii. We have examplefl 
of this in the governiaent of the United Netherlands, before 
it was swept away by the violence of the French revolution. 
"While that government moved within its constitutional limits, 
it was more absolntclj nerveless than any other government 
which ever existed. The states general could neither make 
war or peace, or contract alliances, or raise money, without 
the consent of every province ; nor the provincial states con- 
clude those points, without the consent of every city having 
a voice in their assemblies. The consequence was, that the 
federal head was frequently induced, by imperious necessity, 
to assume power unwarranted by &e fandamental charter of 
the union, and to dispense with the requisite unanimity. 
This was done in the years 1648, 1657 and 1661, as well as 
in another strong instance in 1668, given by Sir William 
Temple, and of which he was the author.* 

The former confederation of this country was defective, in 
not giving complete authority to congrees to interfere in con- 
tests between the several states, and to protect each state from 
internal violence and rebellion. In many respects our con- 
federation was superior to those of Germany, Holland or 
Switzerland, and particularly in the absolute prohibi- 
tion to the several states, from any interference or *con- *216 
cem in foreign or domestic alliances, or from the main- 
tenance of land or naval forces in time of peace. Eut in the 
leading features which I have suggested, and in others of in- 
ferior importance, it was a most unskilliil &bric, and totally 
incompetent to fulfil the' ends for which it was erected. Al- 



* Tempti'i Workt, toI. L pp. IIB. I!8. 3B7. Id ITBl, > report tu mide \ij ft 
eoninittcc of eongrest, for aubniiUing to tbe itstea Mt RmendnieDttothe ISth arti- 
cle or the coDrederatioD then rterati; aabecribed b; all tbe itaui, in whicb amciid- 
ment il wai to be praTided, that in cbk of tclusal or ocglect of aoj one or more of 
the eonfederated atatea to abide b; and obe; the detetmiDationi of oongrcu, b re- 
■pect to reqaUitiona of men aad moDe;, agrcMblj to the apportioned quotaa, 
coogresa might employ tlie land aad oaval forces of the ITmled States to compel 
ooinplisocg bj the delioqueDt etatei, aod to malce di«tre«i of the property of audi 
ataCe aDd ita ddieoB, and alao prohibit and preTaat their trade and commerce with 
ether itatee and with Ibreif^ powen. Hr. MadiioD, and CTen Oeoeral WaihingtoD, 
pereeived tbe neceMity of inch a ooerdra federal power. Tkt Madimm Ptpirt, 
ToL L pp SI. 86. 88. But the power waa neTcr formally propoaed to the itate^ or 
granted ; and if it had bean, it never would or eould bsT« been «secate«^ withont 
Uadiug to the dettnietioD of the Union, 



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223 J0HI8PRUDENOB OP [Put H. 

moet as soon as it was ratified, the states began to fail in a 
prompt and faithful obedience to its laws. As danger receded, 
iDStsnceB of neglect became more freqnent, and before the 
peace of 1783, die inherent imbecility of the goTemment bad 
displayed itself with alarming rapidity. The delinqnencies of 
one state became a pretext or apology for those of another. 
The idea of snpplying the pecuniary exigencies of the nation, 
from requiaitiona on the 8tat«a, was soon found to be altogether 
delusive. The national engagements seem to have been en- 
tirely abandoned.' Even the contributions for the ordinary 
expenses of the government fell almoat entirely upon the two 
states which had the moet domestic resources. Attempts 
were very early made by congress, and in remonstrances the 
most manly and persuasive, to obtain from the several states 

the right of levying, for a limited time, a general im- 
*217 post, for the exclusive *pnipOBe of providing for the 

discharge of the national debt. It was found imprac- 
ticable to unite the states in any provision for the national 
safety and honour. Interfering regulations of trade, and inter- 
fering claims of territory, were diasolring the friendly attach- 
ments, and the sense of common interest, which had cemented 
and sustained the union during the arduous strugglee of the 
revolution. Symptoma of distress, and marks of humiliation, 
were rapidly accumulating. It was with difficulty that the 
attention of the states could be sufficiently exerted to induce 
them to keep up a sufficient representation in congress to form 



• Th« efforta of Raiert Morrit, the tapcriotcDdcDt of finance, in th« je«n ITBl 
Bud I1BS, to infuBe some portioD of life ud eoergj iDto the Itognuhing poven of 
the caDfedcr&tioD, were iaceasaat, devoted and muterlj, and hii appeals to the 
intereata sad honour of the itatea were moet eloquent, biit utterly UDavai ling. See, 
•moDg oUiere, hie CircWar Letlert to tlit Govemori of llit Slalet, of the data of 
Jaaoary Sd, February IBtb, May Iflth, and October Slst, 116% and hia Lttlen to 
Oongni.ot February llth and May Hlh, 11S£, and UartJi ITtb, 116S. Di^»- 
nuttit Corritpondentt, edited by J. Spfu-lu, toL xiL Here we may Bay, if erer it 
might be truly taid, 

Si Ptryama d^xtra 
Dtfindi pottenl, tliam bat defttuafiiiMtfU; 

and tiie perusal of the or^nal correapondence of Mr. Homi, while at the head of 
Uie fioancial department of Um United Stntea, cannot but awaken m the breaits of 
the present generation, in respect to the tAleots and services of that accomplislMd 
st&tesmau, (he most lively sentjmeola of admintioo and gratitude. 



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Im. X] THB UiriTED STATBa 223 

a qoornm for bosineeB. The finances of the nation vere anni- 
hilated. Hie whole army of the United States was reduced, 
in 1784, to 80 persons ; and the states were nrged to provide 
some of the militia to garrison the western poets. In short, to 
use the language of the satliorB of the Mderalitt, " each state, 
yielding to the voice of immediate interest or convenience, 
snccessively withdrew its support from the confederation, till 
the frail and totting edifice was ready to fiill upon our heads, 
and to cmah ns beneath its mins." 

Most of dte federal constitutions in the world have degene- 
rated or perished in the same way and by the same means. 
They are to be classed among tJie most defective political in- 
BtitntiouB which have been erected by mankind for their secu- 
rity. The great and incurable defect of all former federal 
govenuoents, such as the Amphictyonic, the Acheean and 
Lycian confederacies, in ancient Greece ; and tbe Qermanic, 
the Helvetic, the Hanseatic and the Dutch republics, in mo- 
dem history, is, that they were sovereignties over sovereigns, 
and legislations, not for private individuals, but for communi- 
ties in their political capacity. The only coercion for disobe- 
dience was physical force, instead of the decree and the pacific 
arm of the civil magistrate. The inevitable consequence, in 
every case in which a member of such a confederacy chooses 
to be disobedient, is either a civil war, or an annihilation of 
national authority. 

*nie first effort to relieve the people of this country *218 
from a state of national degradation and ruin came i 

from Virginia, in a proposition from its le^latnre in January, 
1786, for a convention of delegates from the several states to 
regulate our commerce with foreign nations. The proposal 
was well received in many of the other states, and five of 
them sent delegates to a convention which met at Annapolis, 
in September, 1786.» This small assembly, being only a par^ 



■ llongh tba prozimmt* ongin of the rederat eooTCDtioD of 11ST wu Uw pro- 
poatioD from Virginfk, In 1788, yet tba ii«ceadty of aiiilioDalooaT«Dtiaii,iriUifiiU 
antbari^ la uneod and reorguitc tbe goTetnment, vat fint snggttted, and Mlj 
■bom^ bj OoIomI BanUtoi^ Id 178U,wlul«h« WMaii aid to Qcnenl WasbiDgtoa 
Id tui maaterlj and to; eztnordinarj letter, (ooniidaring bia age of on); SS yearn,) 
addr«Med to ttie Hooonrablo Jamei Doane, a member of eot^rem from yew-Toifc, 
ID September, ITBO, ha allowed mortmaDifettljr Ilia defects and abaolnte beffideDcj- 



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224 JUEISFRVDEHOB OF [Put IL 

lial representation of tlie states, and l>eing deeply sensible of 
the radical defects of the B^stem of the existing federal gov- 
ermnent, Uion^t it inexpedient to attempt a partial, and pro- 
bably only a temporary and delusive alleviation of our na- 
tional calamities. They concarred, therefore, in a strong ap- 
plication to congress for a general convention, to take into 
consideration the sitnation of the United States, and to devise 
anch fnrth^ provisions as should be proper, to render the fe- 
deral government not a mere phantom, as heretofore, bnt a 
real government, adequate to the exigencies of the Union. 
Congress perceived the wisdom, and felt the patriotism of 
the suggestion, and recommended a convention of delegates 
from the several states, to revise, amend and alter the ai^ 
tides of confederation. All the states, except Khode Island, 
acceded to the proposal, and appointed delegates, who as- 
sembled in a general convention in Fhiladetphia, in May, 
1787. 



of die trtieln of confedenlwii; aod tlitt tiM Unittd SUW fbttbdr Mfrtf Mid 
baptnoea^ if not tur Iheir fotnra ezUt<Dc«, stood io need of a nitioiMl goTemment, 
clotlied vitb tbe rpquuiu aoTirtipi powers, audi ae the conledentioa theoretit-allj 
MoUiiied, but without posrcuing onj fit orgwu to recciTC them. Tbil letter is to 
ba WCD Bt large in " Tbe Life of AleuDdcr Qimiilbm, b]* bi* wo, Johu C. HimiltoQ,* 
vol. L pp. !84— SOB, and in tbe HamiltoH Papert, vol. L 4S8, edited bj Dr. Bnirks. 
Tbe Mrliest IrgUlBtive suggeetioD of a coHTentioEi for tbe purpaw of refiinTiing: the 
goTcrDoient, wiia tbe concurreDt reaolatioiu of tbe two boasea of tbe legislature of 
New- York, pnwed on the iOtb aod Slut of Jnlj, 1782. Tboy were iotnidueed 
into tbo seiute b; Oeoeral Scbujier, and Ibej stated, lbi.t "tbe ndical aource of moat 
of our embarrassmeiita was the want of auffioeiit power in congren; tbat tbe con- 
federation wna defective in several eaaential points, particularly in not vHtiag tbe 
federal government eilber with a power of providing revniae for it<elf.or with 
ascertained and productive funds ; that its defects could not ba repaired, nor tbe 
powers of congreas extended, by partial deliberations of tbe stales eeparatelj; and 
that it would be advisable to propose to ooogress to recommend, and to each stata 
to adopt, tbe measure of assembling a general convention of tbe states, spedally 
Butboriied to revise and amend tbe coofederation.' Ana- Font JmtmaU of tht 
Btnatt and Attaiihly, Julj SOtb and Slst^ 178!. 

There ia no doubt dF the justnese of tbe inference drawn by bis son, (Life of 
Hamiltoo, vol. L p. 40G,) that Colonel Hamilton, wbo was attending the legisltture 
wheo tbe reaolutiona passed, and who bad an interview with a joint oommitte* of 
(be two housea, in bis public character, under the auparintwtdent of finance, and 
who was, Ht the same time, cboaeo a del^ate in coi^eas. by tbe legialatura, was 
the diatinguiabed individual, wbo by bis wisdom suggested, and by bis irflnKice 
pramoted. that earliest aDtbonlative meaaiue taken for a general convention of 



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Lto. X] THE UNITED STATES. 235 

This was a crisis most solemn and eventful, in respect to 
our future fortune and prosperity. All the fruits of the revo- m 
lution, and perhaps the final destiny of republican govem- 
ment, were staked on the experiment which was then to be 
made to reform the system of oar national compact. Happily 
for this country, and probably as auspiciously for the general 
liberies of mankind, the convention combined a very rare 
union of the best talents, experience, information, patriotism, 
probify and character which the country afforded : and it 
commanded that universal public confidence which such qua- 
lifications were calculated to inspire. After several months 
of tranquil deliberation, the convention agreed, with 
unprecedented unanimity, on the *plan of government *319 
which now forms the Constitution of the United States. 
This plan was directed to be submitted to a convention of 
delegates, to be chosen by the people at large in each state, 
for tlieir assent and ratification. Such a measure was laying 
the foundations of the fabric of our national polity, where 
alone they ought to be laid, on the broad consent of the peo- 
ple. The constitution underwent a severe scrutiny andlong 
discussion, not only in public prints and private circles, but so- 
lemnly and publicly, by the many illustrious statesmen who 
composed these local conventions. Nearly a year elapsed before 
it received the ratification of a requisite number of conventions 
of delegates of the people of the states to give it a political 
existence. New-Hatnpsliire was the ninth state which adopted 
the constitution, and thereby, according to one of its articles, 
it was to become the government of the states so ratifying the 
same. Her example was immediately followed by the power- 
fiil states of Virginia and New- York ; and on the 4th of 
March, 1789, the government was duly organized and put 
into operation. North Carolina and Bhode Island withheld 
some time longer their assent Their scruples were, howevexi. 
gradually overcome, and in June, 1790, the constitution h»d! 
received the unanimous ratification of the respective conrwi^ 
tions of the people in every state. 

The peaceable adoption of this government, under aQ? the- 
circumstances which attended it, presented the cas» of an 
effort of deliberation, combined with a spirit of amity and of 
mutual concession, which was without example. It must be,- 

ToL. I. 15 



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2S6 nnUBPfitTDEHC^ Aa [Putn. 

a source of joet pride, and of the moBt gratefiil recollection, to 
ererj- American, who reflects Berionaly on the difficulty of the 
ezperiment, the manner in which it waa conducted, the feli- 
city of its isBue, and the fate of similar trials in other nations 
of the earth. 



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LECTTTRE XI. 



or 00K0BS8B. 



T&B power of maMng laws is the supreme power in a state, 
and the department in -Which k reeidee will natnrally have 
BQch a preponderance in Ae political system, and act with 
snch mighty force upon the public mind, that the line of sepa> 
ration between that and the other branches of the govern- 
ment onght to be mail:ed very distinctly, and with the most 
carefiil precision. 

The Constitation of the United States baa effected this pni^ 
pose with great felicity of ezecntion, and in a way well cal- 
culated to preserve the ieqaal balance of the government and 
the harmony of its operations. It has not only made a gene- 
ral delegation of tlie legislative power to one branch of the 
government, of the exeontiveto another, 'and of the judicial 
to &e third, bnt it has ^>edaUy defined the general powen 
and dnties of each of those departments. This ia essential to 
peace and safety in any government, and especially in one 
clothed only with Specific powers for ilational pniposes, and 
erected in the midst of nnmeroos state governments retaining 
the exclusive control of their local concerns. It will be the 
ottject of this lecture to review the legislative department ', 
and I shall consider this great title in our national polity 
under the following heads : — (1.) The constituent parts of 
congress, and the mode of their appointment : (2.) Their 
joint and separate powers and privileges : (8.) Their method 
of enacting laws, with the qualified negative of the preei- 
dent 

(1.) By the constitution,' all the legislative powers 
therein *granted are vested in a congress, consisting of *223 
a Senate and House of Representatives. 



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238 JURiaPRnDBHCB OP [Put U. 

DiiUonor The diviBion of the legislatare into two separate and inde- 
t»^« pendent branches, is founded on such obvious principles of 
good policy, and is so strongly recommended by the une- 
qniyocal language of experience, that it has obtained the 
general approbation of the people of this country. One great 
object of this separation of the legialatnre into two honaes, 
acting separately and with co-ordinate powets, is to destroy 
the evil effects of sudden and strong excitement, and of pre- 
cipitate measures, springing from passion, caprice, preju- 
dice, personal influence and part^ intrigue, which have been 
found, by sad experience, to exercise a potent and dangerous 
sway in single assemblies. A hasty decision is not so likely 
to proceed to the solemnities of a law, when it is to be arrest- 
ed in its course, and made to undergo the deliberation, and 
probably the jealous and critical revision, of another and a 
rival body of men, sitting in a different place, and under 
better advantages to avoid the prepoesessious and correct the 
errors of the odier branch. The legistatnres of Pennsylvania 
and Georgia consisted originally of a single hooae. Hie in- 
stability and passion which marked their proceedings were 
very visible at the time, and the subject of much public ani- 
madversion ; and in the subseqnent reform of their constitn- 
tioufl, the people were so sensible of this defect, and of the 
inconvenience they had suffered from it, that in both states a 
senate was introduced. No portion of the political history of 
mankind is more lull of instructive lessons on this subject, or 
contains more striking proof of the &ction, instability and 
misery of states under the donunion of a single unchecked 
assembly, than that of the Italian republics of the middle ages, 
which arose in great numbers, and with dazzling but transient 
splendour, in the interval between the fall of the Western 
and the Eastern empire of the Eomans. They were all alike 

ill-conatituted, with a single unbalanced assembly. 
*223 "They were alike miserable, and all ended in similar 

disgrace." 
Many speculative writers and theoretical politicians about 
the time of the commencement of the French revolution, were 
struck with the simplicity of a legislature with a single assem- 



■ Adam^ Dt/tnet of tit AmiHcan OoiulilMliem, toL iii f. BOS. 



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Lm. XI.] THE UNITED STATES. 226 

hlj, and concladed tiuit more than one house was nseless and 
erpenfiive. This led the elder President Adams to write and 
publish his great work, entitled, " A Defence of the Constita- 
tions of GoTemmeat of the United States," in which he vin- 
dicatee, with Mach learning and ability, the value and neces- 
sity of the division of the lefpelatnre into two branches, and of 
the distribution of the different powers of the government into 
distinct departments. He reviewed the history, and examined 
the construction of all mixed and free governments which 
had ever existed, from the eaiiiest records of time, in order to 
ded&ce, with more certainty and force, his great practical 
tmth, lliat single assembliee, without check or balance, or a 
government wi& all authority collected into one centre, ac- 
cording to the notion of M. Tm^t, were visionary, violent, 
intrigning, corrupt and ^rannical dominations of majoritiea 
over minorities, and noiformly and rapidly terminated their 
career in a profligate despotiBm. 

^is visionary notion of a single house of the legislatiiTe 
was carried into the constitation which the French Kational 
Assembly adopted in 1791. The very nature of things, said 
the intemperate and crude politicians of that assembly, was 
adverse to every division of the legislative body ; and that as 
. the nation whidi was represented was one, so the representa- 
tive body ought to be one also. The will of the nation was 
iadivisible, and so ought to be the voice which pronomiced it. 
If there were two chambers, with a veto upon the acts of each 
other, in some cases they would be reduced to perfect inac- 
tion. By snch reasoning the National Assembly of France, 
consisting of upwards of one thousand members, 
*after a short and tumultuous debate, almost nnani- *224 
mously voted to reject the proposition of an npper 
house.* Ibe same &l8e and viciooa principle continued for 
some time longer to prevail with the theorists of that country ; 
and a ^gle house was likewise established in the plan of 
government published by the French convention in 1793. 
The instability and violent measures of that convention, which 
continued for some years to fill all Europe with astonishment 
and horror, tended to display, in a most forcible and affecting 



' Jfa» An*. R^. ftr HBl. JSirf. p. \%. 



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230 JtTBISPRnDEirOB OF [Put n 

li^t, the miaeriee of a single unchecked body of men, clothed 
vith all the legifilative powera of the state. It is veiy possible 
that the French nation might hare been hurried into the ex- 
cesses of a rerolntion, even under a better organization of 
their goTermnent ; but if the proposition of M. Lallj Tolendal, 
to conatitnte a senate, or upper house, to be composed of 
members chosen for life, had prevailed, the coostitiition wonld 
have had much more stabilitj^, and would probably have 
been mnoh better able to preserre the natum in order and 
tranqnilli^. Their own sufferings taught the French people 
to listen to that oracle of wisdom, the experience of other 
coontries and ages, and which for some T'ears they had utterly 
disregarded, amidst the hurry and the violence of those pas- 
sions by which they were inflamed. Ko people, said M. 
Boissy d'An^as, in 1795, can tastify to the world with more 
truth and sincerity than Frenchmen can do^the dangen inhe- 
rent in a single legislative assembly, and the point to which 
factions may mislead ah assembly without reins or counter- 
poise. We accordingly find that in the next con^tntion, in 
179£>, there was a division of the legislatore, and a council of 
ancients was introduced, to j^ve atabili^ and moderation to 
the govenunent.; and this idea of two houses was never 
afterwards abandoned. (1) 
,<tf (2.) The Senate of the United States is composed* of two 

senators from each state, chosen by ^e legislature 
*i25 thereof, *&r dx yeajs, and each senator baa one vote. 

If vacancies in the Senate happen hy resignation, ot 
otherwise, during the recees of the l^;:islatnTe of any state, the 
executive thereof may make temporary appointments, until 
the next meeting of. the legislature, which shall then fill such 
vacancies. >> The Senate at present ccmsists of six^ members, 



• Art 1. uc 8. 

b It TM seUled bj the 8«imU of tlM TTnited StatM, id tbe ewe of Landmui, in 
1 Sl(, tbkt Um atata ezccotin oonld not kmIm u ftppointment in tlie racen of Um 
rtkU Uglabtun, in wiUeipatton of an appnmAinq rmaaeff. Ha niut -nit notil 
Uw Tuuicf hju kctoallj occnired before be mu oonatitutimkallj ftppoiot. 



(1) IT llu Mlbor h rl|lil In ■HribntlDg the sxoiHi of Ihe Int rrench rercdiitlDa to tho wnl 
oTKdiirlilon of the legtalalnra Into Rro l^uchrt, Oe ICMOtu of aipatleiuia haTc Ungkt HUhlBi 
biFnim. ThttweaUBllimitlelaDrthaeililliiccaiitltiillcDcflheFnBidiBepiibtlolaulbDovii 



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Lee. XI] THE tTNlTED STATES. 281 

representing the thirty etates of the TJmon.* In this pari of 
the conetitntioii we resdUy perceive the featores of the oM 
conf«deration. Each state has its equal voice and eqnal 
weight in the Senate, without any regard to disparity of popn- 
lation, wealth or dimenBions. This arrangement must have 
been the result of that spirit of amity and mutnal concession 
which was rendered indispensable by the peculiarity of oor 
political condition. It is groimded on the idea of sovereignty 
in the states ; and every independent commonity, as we have 
already seen, is e^n&l by the law of nations, aiai has a perfect 
rigbt to dictate its own terms, before it enters into a social 
compact. On the principle of consolidation of the Mates, this 
organization woold have been inadmlBsible, for in tiiat case 
each state woold have been merged in one single and entire 
government. At the time the articles of confederation were 
preparing, it was attempted to allow the states an influence 
and power in congress in a ratio to their numbers and wealth; 
but the idea of separate and independent states was at that 
day BO strongly cherished, t3iat the proposition met vidi no 



The election of the Senate by the state legislatures, is also 
a recognition of their separate and independent existence, and 
renders them absolutely essential to the operation of the na- 
tional government" There were difficulties, some years ago, 
as to the true construction of the constitation in the choice of 
senators. They were to be chosen 5y the legislaiwrea, and the 
legislature was to prescribe the times, places and manner of 
holding elections for senati^rs, and congress are anthorieed to 
make and alter such regulations, except aa to the place.' Aa 
the legislature may prescribe the ma/nner, it has been con- 
sidered and settled, in N'ew-York, that the legislature 
may prescribe that they shall be chosen 'by joint vote *226 



■ la lS40it wmsaolarged thKaiS to SS member^ l>;'t]ia tdmiiuoaof Uidiigan 
•iid Arluimi u ttate* into tli« Uniixi, in 1SS6, viib iii/ra, p. 8U, wid sabM- 
qneotlj to 60 mtinban, b^r tin admladoD of Iotb, Florida, Wiacooab ud Tcxu 
aa ttalM into tlM TTidoa Fitft Jn/Vo, p. 884. Tli«in«mbenortheE "~~ 
of Lordi we about 460 In Dttmbtr. 

* Jeumalt of Coagrut, toL ill p. 416. 

■ It giTM to Uh itala goT«mmMita, layi tha FtdtrtlitI, No. 61, noh an i 
ID tlM fbrmatioD of the Maral gorenuneiit u miut ■eonre tbur antliori^. 

' Art 1. MC. 4. 



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983 JUBUPBUDEKCB OF [Put a 

or ballot of the two hoiis^, in case the two houses cannot 
separately concur in a choice, and then the weight of the 
Senate is dissipated and lost in the more numerous vote of the 
assembly. This construction has become too convenient, and 
has been too long settled by the recognition of senators so 
elected, to be now disturbed ; though I should think, if the 
question was a new one, that when the constitution directed 
that the senators should be chosen hy the legialatwre, it meant 
not the members of thelefpslature^ieroapto, but the le^slar 
tore in the true technical senae, being ^e two booses acting 
in their separate and organized capacities, with the ordinary 
constitutional right of negative on each other's proceedings. 
Tbia was a contemporary exposition of the clause in question, 
and was particularly maintained in the well-known letters of 
the Federal Farmer,^ who surveyed the constitntion with a 
jealous and scrutinizing eye. 

The small nnmber and long duration of the Senate were 
intended to render them a safeguard against the influence of 
those paroxysms of heat and passion, which prevail occasion- 
ally in the moet enlightened communities, and enter into the 
deliberation of popular assemblies. In this point of view, a 
firm and independent Senate is justly regarded as an anchor 
of safety amidst the storms of political faction ; and for want 
of such a stable body, the repablics of Athens and Florence 
were overturned by the Airy of commotions, which the se- 
nates of Sparta, Carthage and Kome might have been able to 
withstand. The characteristical qualities of the Senate, in the 
intendment of the constitution, are wisdom and stability. 
The legal presumption is, that tbe Senate will entertain more 
enlarged views of public policy, will feel a higher and juster 
sense of national character, and a greater regu^ for stability 
in the administration of &e government. Th^e qaalitiea, it 
is true, may, in most cases, be equally found in the 
*227 other branch of the legislature, but *the constitutional 
sti^cture of the house is not equally calculated to pro- 
duce them ; for, as the House of Bepresentatives comes more 
immediately from the people, and the members hold their 
seata for a much shorter time, they are presumed to partake. 



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Xm. XL] THE UNITBD STATES. 233 

with a quicker sensibility, of the prevailitig temper and irri- 
table dispoeition of the times, and to be in much more danger 
of adopting measures with precipitation, and of changing them 
with levity. A mutable legislation is attended with a formi- 
dable train of mischief to the community. It weakens the 
force, and increases the intricacy of the laws, hurts credit, 
lessens the valne of property, and it is an infirmity very inci- 
dent to republican establishments, and has been a constant 
source of anxiety and concern to their most enlightened admi- 
rers." A disposition to multiply and change laws, upon the 
spur of tlie occasion, and to be making constant and restless 
experiments with the statute code, seems to bo the natural 
disease of popular assemblies. In order, therefore, to coun- 
teract such a dangerous propensity, and to maintain a due 
portion of confidence in the government, and to iusnre its 
safety and character at home and abroad, it is requisite that 
another body of raen, coming likewise from the people, and 
equally responsible for their conduct, but resting on a more 
permanent basis, and constituted with stronger inducements 
to moderation in debate, and to tenacity of purpose, should 
be placed as a check upon the intemperance of the more popu- 
lar department >> 

The Senate has been, from the first formation of the go- 
vernment, divided into three classes ; and the rotation of the 
classes was originally determined by lot, and the seats of one 
class are vacated at Uie expiration of the second year, and one 
third of the Senate are chosen every second year.= This 
provision was borrowed from a similar one in some of the 
state constitutions, of which Virginia gave tlie first example ; 
and it is admirably calculated, on the one hand, to in- 
fuse *into the Senate, biennially, renewed public *228 



• FtdtTiJiit. vol iL No. <1 

^ Tbe eoiutitutioD of Rboda Uud, vbich «m orgcnitad and wtot into opention 
iolBlS, baiGODstitnlad tbt 3ai«t« of that lUte npoDcoiuervBliTepriiidplca,iFhi]* 
Uie Houu of RdpreseDtatiTe* u cooitrurtMl upoo lliebuli of papuUtioD, girii^to 
Mch cit; uid Uiwn a repr«aeiit>LTa ia * ntlio to iti number of ioliabituiti. Ths 
Sciute it eompowd of only ana member from Mch dtj or town, w that tbo l^it- 
latiTO pov«r canaot be vielded bj OTerwhelmiog oumben in a few great mano- 
bctoring toviii or dtiea, to the oppreauon of the agTicnltuntl towna. It h a lala- 
taij and prorident check to the tyrannj of majoritiei over miooritiea, 

• CiMlittUioni^Ui*UniltdSlatn,mit.l.tec.Z. 



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234 JURI3PRDDBN0E OF [Put U 

confidence and vigonr ; and, on the other, to retain a large 
portion of experienced members, duly initiated into the gene 
ral principles of national policy, and the formB and coarse 
of business iil the honse. The Vice-President of the United 
States is president of the Senate, bat has no vote, nnless they 
be equally divided.* It would seem to be the better opinion, 
that he has authority, as presiding officer, virtute officii, and 
vithout any special delegation of power by the Senate, to 
preserve order; bat from some Bcruplea on that sabjeet, the 
Senate, in 1838, established by rule, that every question of 
order should be decided by the president of the Senate with- 
out debate, Bubject to an appeal to the Senate. i> 

He superior weight and delicacy of the trust confided to 
the Senate, and which will be shown more fully hereafter, is 
a reason wby the constitution^ requires, not only that the 
senators should be chosen for six year?, bat that each senator 
should be thirty years of age, and nine years a citizen of the 
United States, and, at the time of his election, an inhabitant 
of the state for which he is chosen. The same age was also 
requisite for a Koman senator, though in their executive 
oESces no qualification of age was required, iVe cEtat quidem 
diatinguebatur quinprvmajuventa oonsulaium ac dictaturas 
imrent.^ It has been also deemed fit and proper, in a conn- 
try which was colonized originally from several parts of 
Europe, and has been disposed to adopt the most liberal policy 
towards the rest of mankind, that a period of citizenship, suf- 
ficient to create an attachment te our government, and a 
knowledge of ita principles, should render an emigrant eligi- 
ble to office. The English policy is not quite so enlarged. No 
alien horn can becOme a member of parliament This disa- 
bility was imposed by the act of settlement of 12 Wm. IIL c. 
2 ; and no bill of natnralisatioii can be received in either 
honse of parliament, without such disabling clause In it. 
at (3.) The House of Kepresentatirea is composed of members 
** chosen every second year by the people of tixe several states, 
who are qualified electors of the most numerous branch of the 
legislature of the state to which they belong. The legislature 



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Lea XI} TBB nNITKD BTATtS. 286 

of each Btate preeoribee the limes, places and manner of hold- 
ing electiona for repreeentatiTes, but congress may, at anj 
time, bj law, make or alter such regulations.* No person 
can be a representative until he haa attained the age of 
twentj-five years, and has been seven years a citizen of the 
United States, and is, at the time of his election, an inhabit- 
ant of the state in which he is chosen. >■ 

*The qnsliflcations of electors of the assembly, or *229 
most nnmerODB branch of the legislature, in the several 
state govenunents, generally are, that they be of the age of 
twenty-one years and npwards, and free resident male citizens 
of the state in which they vote ; and, in some of the states, 
they are required to possess property, and in the most of them 
to be white, as well as free citizens. The description is, al- 
most everywhere, so large as to include all persons who are 
of competent discretion, and are' interested in the wel&re of 
the government, and liable to bear any of its duties or bur- 
dens. The House of BepresentatiTee may, therefore, very 
&irly be said to represent the whole body of the American 
pet^le." Some of the state constitntione have prescribed the 



' Art. 1. sac. 4. 

* Artl. wc. C lit question iriKthar tlia bdiridml atatn eau aopandd to, or 
TBTj tfaa quilfSoBtioDa.pKeeribai] to Hit rvprtttiataiiT* hy Uia CoutitutioD of tha 
Doited Stataa, ia ezanintd in Hr. Jnatioe Storj's (^mmmtttriei on lit Ccnttitutiem, 
yol.u, fp, 99 — lOS. But tbe objediona to dia NJatenceof anjani^ power ai^Mar 
to me to be too palpabla and weightj to admit of toj diaeuMon. 

* In alnKMt all tfaa itatea, do proparty qnalifinlion vhaterer, not aran paying 
tase*, 01 aarring in tba mililia, or being amraani let asd woAhig on the pnblic 
highway, i> rtquiaite for tlia axerdie of the ri^ of an&agc. Ejmj tm male 
(and in a majority of the atat«a) white dtiien of the age of twentj-ona yean, and 
who aball have been a Teaident for aonia abort girea period, varyiog in thoae itatea 
from two yean to three mooiha, ia entitled to rote. In lUinna it bae been adjndgad, 
that the word MkaUUmt, in tlie ooMtitntien of the atata, neaatall penou who 
hare a fixed permanent rMtiimei bona fit*, and not one eaanal or temponi;, and 
that a raaideoee of <ax. notittt* entitJea erery iohabitant to vote ; — tliat Doder the 
ordinance of 1167, and the oonstitutian of the stata, and the atatutea of ISIB, 18S1, 
183a, 1819 aod 1BS8, sJJnu, being reiidenta, are entitled to Tote, though the dia- 
tbctioa between dliiciM and inhabllanta ii euataiued for variona other purpoaea; 
and that it beloaga to the atatce reqMClifely to preaoribe the qoaHficationa of par- 
aoDa entitled to asairiae .the right of anftage, not only aa to atata bat to congrea- 
lional electtiiaa Spiagioa t. Hooghlon, S Sranwimt, 8TT. Tbia latitudnmij 
ntendon of the right of tnffra^ to alieoa. «««ma to be pecsliar to aomc of the 
■tatea fonned oat of Ae ITorlbweetero Territory, nnder the ordinanea of tbe ooa- 



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JCBISPRUDKKCB OF 



same, or Ugher qnaMc&tiona, as to prc^erty, Id the elected 
than in the electors, and some of them have required a re- 



fedfrated coii|;r«» in ITBT. The ttaU of Hichigui adopted it; to Lm Wiiconnn, 
bf ber OMutitutioD ia 1846; but in Ohio, b; Ihe act of 1831, th« right of »u5r«g« 
is TotricUd to lutml boiu and naturmliied dtiiaii, and »o I thuik it ought to ba 
ID all MMmd policj ; and th« view tttken of lbs subject in the aboTe »««, bj oat of 
the couuel who Bfgu«d the cauae, i» a muterly atgunuat. la the atatM of Hat- 
tacbuutta, CoDDecticut^ PeDDSjlTuia, Delavare, O«orgia, (the irords of the god- 
■titutioD of Georgia are, that the eleeton ehall " hare paid all laze* which may hara 
been required of (bent, and which Ibey may bare had an opportnoitj' of pajing^ 
agreeably to la<r, for the year preceding Ibe election,"] Ohio and Louiiiana, the 
elector is required, ia addition to age and revdence, to hare been aneued and 
paid, or, m Ohio, ehatgtd with a stale or oouotj tax. or, in CooDecticut, to have 
■erved in the icilitia. The rerisad eomtitulion of PemujlTania, in 1B3B, requires 
the elector to have redded one year in the etatc, a4id toi days in the dirtrid, im- 
mediately preceding the eUelioa, and hating within two yean, if of £S years of 
age, paid a tax, assessed ten days belbre the election. And in the amended oon- 
stitulinu of Louisiana, in 1B46, the qualification of having paid a lax is dropped, 
and the elector is only required to have been two years a dliiea of tbe United 
State^ or reaideat in Ibe state lor two consecutive yean oeit preceding the elec- 
tion, and tbe last year in tbe paiiih where he proposes b) Tote, and do person shall 
Tote except in his own paiiih or election predncL In Rhode Island, New- 
Eampehire, Virginia and North Carolina, a qualiScatioo as b> property is still 
requisileL The Rhode Island charter of 1S8S prescribed no regulation ai to tbe 
right of suffivge. Ilia power of admitting freemen was exercised by the general 
assembly, until tbay authorized Ibe towns to admit freemen. In 17!i an act was 
pass e d by the general aesembly, proTiding that do pereosi ahonld be admitted a 
freeman, ooless he owned a frtehiUd estate of a eertak value, or was tbe eldest 
son of Buefa a freeholder. Sodi hu been Ibe law stm sinee, and the requisite 
value of the estate is said to be $181. Bat the new eonstitulioo of Bhode Island, 
which went into operation in May, 1B4J, has eatablisbed and defined tbe property 
quaUGcation of electors, being native eitiieDS,M toreaI«Mate,(obeof Ibe value of 
8184, over and above all incumbcanccs, and together with a previous reudeoee 
and home in the slate for one year, and of liz months in tbe city or town in which 
be votes; or, without it, the elector must have bad bis residence and bonie in Iba 
state two years, and in tbe town or city in which he votes, six montlu next prece- 
ding tbe election, and bis name must be registered in tbe city or town bslbre the end 
of* December preceding the alection, and he must have paid a tax of tl, or been 
enrolled in the militia, and done military service or duty Iberein. Bo pauper shall 
be permitted to be registered or to vote. Natnnlised dlUeasare reqwred to have 
a freehold estate of the value before required ; and no person can vote to impoee a 
tax, or to expend money, in any Iowd or city, uuleaa be shall have paid a lax 
within tbe year preceding, upon property valued at least at (ISi. llesa pro- 
viuoot, together with that relating to tbe judicial tenure and compensation, men- 
tioned infra, at p. 29S, render the aspect of the oonslitution of that state mors 
wise and oonservatire llian any other slate constitution recently farmed or amended. 
Indeed, that constitution laems to stand [K's-eminently valuable in tbe guards it 
introducae sgunst one of the most alartoiDg evils incident in large lowos and cities 



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THE UNITED STATES. 



ligions teat But the Constitution of the United States requires 
no evidence of property in the representatives, nor snj decla- 



to oat democMtkal MUblisbnwDt*. I meto llie ti«iKltil«Dt abusa of tbe right of 
mffrage. Ha praTioui raaidcoce of the elector io the towD or ward where he 
offen bin vote, anil biaucertuned qualificatioDS, ought to bo defined and registered, 
M absolutely ewential to the order and purity of elections. The legid proTitiou 
on tbii subject In Hanacbusetts is valuable. Every citiien must hare resided 
within tlie stata <nM year, and within tha town in which he mnj claim a right to 
vote, six moDtba preceding the aleolioii. The Mlectman of each town, ten days 
bafi>re the first Hooday in March, and before the second llooday in Noveniber, 
aoaually, are t« make out a correct list of all qualified voters for officers to b« 
elected at Iboea perioda, and ten days before the electim to cause their lists to be 
poated up in two pnbtie placet in each town. The eelectiiiea are also to meet in 
aesMon within fbrtj-eight hours next preceding the election, to receive evidence of 
the qualificatioD of persous claiming to vote, and to correct the Ust^ and Co meet 
tor the libe pnrpoee for one hour on the day of electioo, and before tlie upeuii^ of 
it The moderator at tuwn meetingi refuses^ of coarse, to receive the votes of 
peraofls ttot on the lisL Matt. R. S. pp. tt, 94. The constJtntiou of tba rtate of 
Florida, of I8SB, contains a wholeaome provision on this subject, in declaring that 
the legislature ehonld, at ita first eessloD, provide for tha registraUon of all the 
qualified electors in each oonnty, and thereafter, from time to time, of all who may 
become lucli qualified electors, and tiiat every free white male qualified elector, 
when be ofl'ers to vote, miwt be a eitiHn, and have bad bis bome, domicil or per-' 
manent abode in the state for two yean next preceding, and for tbe last MX mootha 
In the county in which he offers to vote. The conalitutioo of the state of Texas, of 
IB46. ts quite latitudinary od tbe subject, and all white male dtizeos who have 
re«ded in the state one year, and six months in the district, county, city or 
town, are entitled to vote. The constitution of Iowa, in 1 S4B, goes much further, 
and gives the right of suffrage to every citiien who has resided in the state 
six montlv, and in the county thirty days. In Virginia, tbe elector must 
be either a freeholder or owner of a leasehold estate, or a householder, and 
have been asseesed and paid taxes. In ITorlh Carolina, tbe electors of the senate 
must be freeholders, as was the case formerly in New-Yoik, and the electors of the 
bouse of commons must liave paid public taxes, and none but freeholders can be 
members of either bouae of the legislature. In Georgia, the coostitutiun of 17SB 
Teqnired a property qualification in tbe members of the legislature, over and above 
the am<junt requisite to diubargc their debts; but tbis qualificntion was dropped 
in the emended constitution oFI79B. In New-Hampshire, a state seoatnr must be 
•eiied of a freehold estate, in the state, in bis own right, of the value of £900. semI 
a state assemblyman must bare an estate within bia district, of the value of £100, 
one half thereof to be a freehold. Hbode Island and New-Jersey were the only 
states in tbe Union that brought down their constitutions from 1776 triumphantly 
■gainst every assault ; but tbe former of those states changed its conititution in 
1842, and tbe latter in IS44. The progress and impulse of papular opinion is 
rapidly destroying every constitutional check, every coDservatlve element, intended 
1^ ttie sages who framed the earliest American constitntlons, as saf^uards against 
die abuses of popular suffrage. 11ias,in Massachusetts, by the cunsUtution of t7B0, 
a defined portion of real or personal property was requisite in an elector, and that 



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JETUaPRUDENOE 07 



ratioD of religions belief. He is only required to be a citizen , 
of the competent age, and &ee from an; nndne bias or 



qtuHficaliMt vu diipouwd vith bj tlie ftmeDded comtitutioD of IBSI. By tlw 
practica, under the charters of Hbi>d« IsUnd «od Ooanccticut, » prapeit; qiUklifleai- 
&m VM requisite to cooatitute freemen ud roten. This test is Mill coatioued in 
Blioda Isbii^ bat is done BwBj withb CaDoecticut bj tbeir consiituiioit oflSlS- 
TIm Ifew-Torfc cooRitDtioa of I77I, reqairttd the electors uf Uie seute to be free- 
holden, snd of tha aaaemU; to be Ntber fneboldera, or to hsTe rented ■ tenement 
of the jetiij Taloeof for^ shiUings. The amended conatitiition of IBSI reduced 
this qiulificfttion down to payment of & tax, or performuoa of militia doty, or 
aaaeasment and work on tJie highways. But the constitution, as again amended in 
IBSfl, swept away all theae impediments to umTersal inffrage. In the [bitbai 
Bewittd Cotutitution af Nat-Tork, m 184S, art: 8. sec S. S, the senate is divided 
bto 82 aaoator districts, and each district to choose one senator. So the membera 
of assembly ere to be divided into ISB assembly distiicts, and each district tochooae 
MM member. Ihis appears to ba a valuaUe improTement on the eleclioii of 
members of the legislature. To entitle a penoo to Tota in the election dislncta, 
be most hare been a ciUien for ten days, and an inhabitant of the state one year 
nest preceding the electiun, and for the last four months a resident of the oouoty 
where be may offer to Tot«, and he must Tote in the electitn district of which he 
diall be a resident at the time, and for thirty days oeit preceding the election. 
He constitution furtlier (sovides^ that for the purpose of voting, no person should 
be deemed to have gmntd or lost a reudence bj reawo of his [vesence or absence 
while employed in the service of the United Btat^s, nor while engaged 'in the 
navigation of the water* of the state, or of the Umted States, or of the lugh seaa, 
nor while a atudent in any seminary of leeroiiig, nor while kept at soy alni»4»DS« 
or other asylom at pablic ezpeose, or while confined in any public prison. Art S. 
sec 1. 8. These provisions are very good, if duly and Mthfully cooetnied and 
observed. The constitution further adds, tec 4, that laws shall be made for 
BBCertainiDg, by proper proofs, the dlizeos who diall be entitled to the right of 
anffiaga. Thaw was the aame as this last provision b IheeoDsUtatioitof 1821, and 
tbe legislature, in the year tSlO, carried the eoastitutional provinon bto ei&ct^ 
acmrdiDg to ita sjniit and meaning, by the act entitled, "an act to prevent illegal 
votii^ b the dty of New-Tork, and to promote tbe CMivraiieiice of legal voters,^ 
SSsess. c 78, by dividing the dty bto election districts, and providing for a rajrUtry 
oftkt Ugal voter* in each district, to be made b each year, and the registry was 
made condusiva evidence of the right of persons so registered to vote. This act 
worked well, and waa admirably eelcnlated to prevent illegal voting «n3 fraud* 
in election, by which the ligfat of suHiige iu the dty has been grossly perverted 
and abused. But the r^t^ proviuou was repealed on (he SBth Febriniy, ia4e, 
(B6tli sese. cliS,) and the abuses, impositions snd fmuds attending the city election* 
left to re-assume their wonted mischieb. The constitutional provisioo of 184S, as 
it stands, ia therefore, a delusive pmiision, unless wiser oouncils prevail m futore 
legialatares. In Haiyland, by thdr constitution of 1776, electors were to be fre»- 
holders, or poasessing property to £81 ; but by legislative amuidments b 1801 and 
1809, (and amendments are allowed to be made b that state bf w< ordinary statute 
if confirmed by the next aucceeding legislature^) all property qualiGcaticoa waa 
disregarded. The coostitotion of Viiginia, b 1770, required electors l« be free- 



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Lee. XI 3 THB DHITBD STATES, 239 

dependence, by not holding any office, under the United 
States.' 

The term for which a representative is to serve, ought not 
to be 80 short as to prevent him from obtaining a comprehen- 
sive acquaintance with the bnsineBa to which he is depnted ; 
nor so long as to make him forget the transitory nature of his 
seat, and his Btate of dependence on the approbation of his 
conetitaenta. It ought also to be considered as a fact deeply 
interesting to the character and utility of representative repub- 
lics, that veiy frequent elections have a tendency to render 
the office less important than it ought to be deemed, and the 
people inattentive in the exercise of their rights, or else to 
noorifih restlessness, instability and factions ; whilst, on the 
other hand, long intervals between the elections are apt to 
make them produce too mnch excitement, and conse- 
quently to render the periods of their *retnm a time *230 
of too much competition and conffict for the public 
tranquillity. The constitution has certainly not deviated in 
this respect to the latter extreme, in the establishment of 
biennial elections.^ It has probably selected a medium, which, 
ccmsidering the situation and extent of our country, combines 



bolden ; bat the oonititutioD of 1 8S0 reduced down tha propertj qoklificatknu t« 
thiit of being tlie oinier of & leuefaold eitate, or ■ boiutbolder. Id Uiadsslpid, bf 
Ae ooiHtttution of IBIT, elcctori were to hare been enralled in tbe militia, or paid 
taiea; but thoM impedimeota t» imivenal Boffivgewere remoTed hj tbe new 
oooatitDtioD of IB88. Ba the fteebold quAliflcation, requiuU, in certain caaea, b; 
tbeooDsUtutionof Taiuiessee of 1196,11 eatirel; discoDtinued bj the eonatitaliao of 
ISSB. All Ibe atatea and oomtitationa, formed (dnce 1 BOO, have omitted to require 
an; proper^ qnalificationa in «□ elector, except what may ba implied Id the 
requiaitiui of bariog pud a state or county tax ; and ereo that i« not in the oonali- 
tntiaDa more recentty fortced or ameDded, except in the Bhode Island oonaiitutioii 
of 1843. In «ome of the atatea, aa in NeT-Hampabire, Ibr inetance, a proper^ 
qnalificalioi) it «till required in the elected, a* governor or ■■ member* of the tvo 
hooaai of the legialature. Such a rapid conree of deBtmcticn of tbe former cciuti- 
tntional checka (and of which further examples are hereafter noticed, aee infra, p. 
SSfi,note]ie matter Ibrgrave reflection; and to coucterad the dangerous teudencj of 
taeb combined tin«ei u uoiveraal loffrage, frequent elections, all offices for abort 
periods, all officers elective, and an unefaeelced press ; and to present them from 
neUog Mid dastroying our politicsl machitjes, the people tnost have a laiger abare 
than uanal of that wiadom wluch iajfritpur*, thtn piactaiU, gentle, andnuy to b 
tntmUtd., 

• AjTt 1. MO. A. 



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240 . JPBISPaUDENOE OP [Pwt H 

as many advantages, and as many inconveiiiences, as any 
other term which might have been inserted. 

The representatives art directed to be apportioned among 
the states, according to numbers, which is determined hy 
adding to the whole number of free persons, including those 
bound to service for a term of years, and exclusive of Indians 
not taxed, three fifths of all other perBOns> The number of 
representatives cannot exceed one for every thirty thousand, 
but each state is entitled to have at least one representative. 
The actual enumeration or census of the inhabitants of the 
United States is to be made every ten years, and the repre- 
sentatives newly apportioned upon the same, under a new 
ratio, according to the relative increase of the population of 
the states.'' The number fixed by the constitution in the first 
instance, and until a censuswas taken, was sixty-five members. 
He apportionment under the fourth census, by the act of 
congress of 7th March, 1822, was to a ratio of one represen- 
tative for every forty thousand persons in each state, and it 
made the whole number of representatives amount to two 
hundred and thirteen members. Under the fifth census, 
completed in 1831, and which made the population of the 
United States amount to twelve millions eight hundred and 
fifty-six thousand persons, the ratio of representation was 
enlarged to one representative for every forty-seven thousand 
and seven hundred persons, making in the whole, two hundred 
and forty members.? The rule of apportionment of the 



■ Art 1. MO. 2. t Ibid, ftc 2. 

* ActofCoiigTMa,Hay SSd, lSS!,e.e. lu 18S6 Uie t«rriloriesof MtcbigaDMid 
Arkanew were admitted m itatet ioto tbe TTnion. See in/ia, p. 884. And k 
1846 tbe lenitorieB or Iowa and Florida were sl>o admitted asstatea. Betivfia, 
p. SB4. AtkI in 1940 the terriloiy of WiecoatiD, aod !□ IS46 tlie republfo of 
Texa*. — Jd, By tbe 6tb cenous, completed in 1841, the number of pereoDS io the 
United States «aa 17,069,4fi3, making an ioereme over tbe ceneui of 1830, of 
t,i02,MB iuhabitaDts, uid ahoiriiig a giua id a ratio ezceediDg SS^ per cetit for 
llie last ten ;eara; and bj tbe act of CoDgreu of June SB, 1842, c 47, tlie ratio of 
repreaeDlatioD waa enlarged to one repraaentati^e for every 70,680 pereoM ia each 
•tate, and one additional representBtlve for eacb state having a greater fraction 
Ihaa oDB moietj of the aaid ratio. Tliia ratio reduced the number of Ihe memben 
of tbe HoutaofRepreiientatiTee, after the 3d March, 1843, to 2S 3 member^ besides 
a delegate from the three territories then eiitting. By thii reduction, and vith 
tbe addition of members from tbe new atatea, the House of BepreaenUtires coo- 
listad, on Che let January, 1847, of iSO membeia, and representation by delegatea 



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Lm.H] the UHITED STATBa 341 

repreeeotatiTee among the several states according to nnmbera, 
has been attended with great difficnlties in the application, 
becaose the relatLve nambers in each state do not, and never 
will, bear such an exact proportion to the a^regate, that a 
common divisor for all will leave no fraction in any state. 
Every decennial apportionment has raised and agitated tiie 
embarrassing qnestion. Aa an absolute, exact, relative 
eqnality^s impossible, the principle which has ultimately 
prevailed,-ie the principle of approximation, by making the 
apportionment among the several states according to their 
numbers, ae near as may J>e. Ibis is done by allowing to 
every state a member for every fraction of its uombeis, ex- 
ceeding a moie^of the ratio, and rejecting all representations 
of fractions lees ihan a moiety,^ 



of cotaio temtoriw h*d ecMed. He act of Oougran kit mwtionad alio prt- 
•oribid, tliat Uie nomber of reprcMotalivM b each itaU, under the apportioDineat, 
■hould be elected bg dittrieli, compoied of oontiguoiu tanterj, equal in number 
to the Dumber of rcpresenUtiTe* to 'nhicfa tlie itste ibonld be eotitled ; and th«t 
DO one diitrict ebould elect more thao ona repreaentative. Ilia direction vaa 
aotboriied bj the proTtrioD m tli« eoiutitntkm, (art 1, see. t,) tliat "the timeii 
[dace* aod maoDer of holding eledioDB lor Bniatora or MpreMUUtiTM shall b« 
p«4cribed in each itate b; the 1(gi«latare th«T«of ; bat the Oongren maj at aoj 
time, hj law, make or alter luch regalatioiM, except aa to the ]dac« of cbooung 
■enaton." The eleetioa of memben of OongreM bj dittrleta bad b«en heT«tofor« 
•dapt«d in nme of the ttatei^ utd not in othera. Umfbrmily on the subject vaa 
doiraUa, and the DMaaore iteelf vaa lecommended bj the wisdom and Justice of 
giving, ai far aa possible, hi the local subdiridoiM of the people of each state, a 
dne influence in the choice of refvesenlatiTcs, so as not to leave the aggregate 
minority of the people in a state, though approaching perhaps to a majority, to be 
wholly overpowered bj the oombtDtd aolioD of the numerical nuyority, vitbout any 
voice whatever in the national ooundlc 

' Sec Slor^i CoBm. on Ike Cmttilvtio*, toL u. pp. Kl— 1T1, where the sub- 
ject is falty examined, and the-opinion of Mr. Jefferson on the one aide, and Ur. 
Webster's report in the Senate, in April, 1883, on the other, are given at Urge. 
llieee docomeiita ooutain the substanoe of the ai^umenta for aod against the 
principle of apportioDment as adopted and settled by Congress. The same diS- 
eulty arose in the legislature of K^ew-Tork, in 1791, on the apptwtionmoit of the 
state representation, according to the eentns then recently taken, and the same 
principleofapproiimation was adopted; and the aathor of this note was then one 
of the members of the House of Assembly who cooeuTTed in that rule. (JiMmal 
e/llu Aftmbly of Nt»-Yi>rk fbr 1701, p. 9«.) But the ooiutitiitioa of New-Toi^ 
gave greater facility to eudi a rule, for it directed the senators in each (fistriot to 
be apportioned aooordingtothennmberof theqaalifiedelecton,M vrastna]r}f; 
■I)d this i» the manner in which the amended eonstituljon of 182! expieaaes itself 
on the subject 

Vol. L 16 



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349 JDmSPBUDEKOE OF [FkrtIL 

The rale of apportioiuneiit establi^ed by the oonstitatioa 
is exposed to the objection tliat three fifths of the sUres in 
the eoatheni states are compnted in establiBhing the appor- 
tionment of the repreeentatioiu But this article was the 
resnlt of neceeeity, and grew oat of the fkct of the 
*231 existence *of domeslio Blavery in a portion of onr 
conntEj. Ibe evil has been of too long standing, and 
is too extepsire and too deeply rooted to be speed^y eradi* 
cated, or even to be diBcuwed 'without great judgment and 
discretion. Bat the same role which apportions the repre- 
Bentativee, extends to direct taxes; and the slaves in the 
southern states, while they give those states an increased 
number of representatives, contiibnte, on the other hand, 
when that mode of taxation is resorted to, equally to increase 
the measure of their cOntribations.* 

Hie number of the Honse of RepreseotatiTes wonld seem 
to be qnite lai^ enongh, oa its present compntation ; and, 
unless the ratio be hereafter enlarged from time to time, as 
&e exigency may require, the house would be in danger of 
increasing too rapidly, and would probably become, in time, 
mnch too unwieldy a body for conrenience of debate and 
joint consultation. A due acquaintance with the local in- 
terests of every part of the 0nion ought to be carried into 
the house, and a sufficient number collected, fw all the 
purposes of information, discnsaon and dil^ve sympathy 
with die wants and wishes of the people. "When dieee objects 
are obtained, any fnrtlier increase neither promotes delibera- 
tion, nor increases the pabUc safe^. All numerous bodies 
of men, aldiongh selected with the greatest care, are too much 
swayed by passion, and too impatient of protracted delibe- 
ration. 

The United States, in their improvements upon the exercise 
of the right of representation, may, as we apprdiend, chum 
pre-eminence over all other governments, ancient and modem. 
Our elections are held at stated seasons, established by law. 
The people generally vote by ballot, in small districts, and 
public officers preside over tiie electicms, receive the votes, 
and maintain ordw and fairness.* Ibongh the compe- 

■ FidrralUt, toL u. Va. 61. 

» Yatiiig bj hUkt wu introdaccd in tht proTiace of MukdmHtlj in ISU. 



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Lw. ZI] THE USniSD STATXS. 943 

tition between candidates is active, and the zeal *of *S3S 
rival parties Bofficimtly excited, the elections are eveiy- 
where condncted inth tranqoillity. The legislature of each 
state prescribes the times, places and nuumer of holding 
elections, anbject, however, to the interference and control 
of congress, which is permitted them for the sake of their 
own preservation, and which, it is to be presnmed, the/ will 
not be disposed to exercise, except when any state shall 
neglect or refuse to make adequate provision for the purpose. 
The privilege of voting, as we have already seen, is conferred 
npon all peraoDB who are of sufficient competency by their 
age, and of sufficient ability to take care of themselves. The 
ancient Greeks and Bomans had not only very imperfect 
notions of the valne of representation, but the number and 
power of their popular aasembliee were so great, and they 
were bo liable to disorder, as to render it a very provident 
measure with them, to be guarded in difiosing the privileges 
of free citizens. Not a tenth part of the people of Athens 
were admitted to the privilege of voting in die assemblies 
of the people : and, indeed, nine tenths of the inhabitants 
throughout all Greece were slaves.' In Sparta, the number 



In Nnr-Torb, Uie p«op1« roted n» voet, until Kfter tlie Terolutioti, and tliMi Toting 
bj ballot wa» aoDsUtulionallf estabMied. ELectioM in Tirginia and Kentucky nre 
■till n'tto vote, and not bj ballot, and tlui prorUon ii eetabUahad bj Cha ezuting 
can«titDtiona of tltow ttatta. In Oeorgia, ^^to, bj the crawtitutioD of ITSO, all el«c- 
tiona hj the people were by Totea viva voet; bit Uie l^iilature mi^t otberwiie 
dtr«et ; and tliej bare liDce declared all eltetioo* to be by ballot 

■ l/UfariTi Otmm, toI. i pp^ 3B4. SS7. Id the traatiae of O. F. Scbamann, a 
pro&Hmd Q<nn«n i^Ur, Dt CtmitiU AlhtnUiunan, pnbUabed in Latin in 1819, 
and tnnelatcd into Ei^Uab, at Cambridge, in England, in 1888, tbe democratical 
gOTCmmcDt of Atbeni ia dienuacd with maaterly enidilica. He atatct, that 
during the vigour of Uie AUieniaa denioaracy, evmy dtiaen of die age of eighteen 
bad a right to bold offic«t, aod to give a Tote at the MaemUie* of the people. 
That the meet crowded aaaembliea rarely exceeded 8,000, thongh Attica contained 
S0,000 dtiieni; pp. 6G. Sfl. ISS. lliat all were reckoned citinna wboae parenti 
were both txtA ; p. tS. To auame nnlawfully the righta of a citiien, wa« poniihed 
by being Kild into alaTery; p. H. He aaseinbliee of the people wore conTened 
hj magiatratea, {Pritaui aitd Slratfffi,) and the chainnen or ireaidmte (/Vttoiw* 
tad Pradri) preuded at them, and propoaed the mtjecta to be diaemaed, and had 
the billa, which had been preTiooalj prepared and aanctioned by the Senate^ (for 
the fundamental law allowed none othera to be ooneidered,) redted, and gaTe 
parmlaaioD to tbe orator* to apeak, though the libtr^ of addraaang the people 
on tba aabject from tbe Bema wu opeo to aU. He diairman alao pat tha 



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JURISPBUDEITOB OV 



of votes were fixed at ten thousand. In Some, this privilege 
was for monj ages confined to the Pomoeria of the cit^i* 
and it continued to be bo confined, and to be tolerable in its 



q(i«*tuin lo Totc, wbcthcr to adopt or reject the propodtioD. The aaemblj had 
the right to rarj or alter it; pp. 6S. 81. 90. 101. lOi. 107. ISO. Hi. The people 
genenll; Toted hy ■hovofhwidi.andioinetimeabf ballot; p. 1ST. Thsj Totad 
hj bibes, (of which there were tan,) hat a majoritj of the vhole aaaemblj, ooUeot- 
frdj, dedded 

"liM itructuTeaadhiitoryof the AtheniaD deiiiocrme7haamDchtowani,atKlTei7 
litUe to oonaole the Menda of frcMlom. From the incnraUe defect, aouog olbei^ 
of aaeembling the people to make lava In maaaea, and Dot by reivaaeDtatioi), «od 
from the waot of a doe and veU-definad aepatation of the povert of govemment 
into diatioet departmenta, that celebrated republic became Tioleot and profligate 
in itt career, and aided in dcipatiam and alarerj. lla general asaembliet of the 
people, without tmj adequate eheclu, aenimed and exeidsed all the npreme powen 
of the at«t4^ l^WatiTC^ esecotir* and jodidaL 

■ Thirtj-fiTe tribe* Toted b the comitia held in the dly of Kome; but the dtj 
tribes {Pld» ur^na) coniiited only of lour within the walla of the citj, and the 
Liberli were inacribed in the dtj tribes. He other thirty-one tribes were rural 
tribes who occupied the lande far a connderaUe district of conntiy aromid the 
dty, and Ibey were the ruling aitd influential body. Sea Land, Q. Rttimt, 'So. 
lis, Ibr June, 1BS6, the Review of Profeaaor Druman't Ei>t4»7 of Roni& Bnt 
the Bonian ilaTea were not represented, and Bome exercised the right of abaolute 
•OTereignty orer the dominions of ita auxiliaries. The Roman dtiient, who exda- 
drely eierclsed as voters the powers of goTemment, bore, therefore, a lery small 
proportion in numbers to the groa amount of the inhabilanta. He Roman mode 
of passing laws, and Totiog in their eomitia, wa* orderly, aad under great diecki, 
during the best peiioda of the goremmenL When a law was proposed and dis- 
cussed, and the religions ritee doty performed, and do intercesuon made, the 
people proceeded to Tote, and every dtiaea was ordered to repair to his century. 
Hie method of voting was originally situ eoct, but after the year of the dty 
614, it waa by ballot by the legii liUrtUanta, which applied eqnally to the 
dediw of au^istrates, to publio triali^ and to making and repealing lawa Tie 
people were made to pass in order over some tnrrow planks, called ponltt, Into 
the sfpfo, cur encloeive^ where certain officer* deUvered to evefy voter two tablet^ 
MM for and one against the proposition, and each person threw into a cheat whidi 
of them be pleoset^and tbey were pointed ol^ and thegreatestDumtier of points, 
aithar way, determine the sense of (he century, and the greatest nnmber of 
eeoluriee paved for the vt^e of the whole people, who either passed or r^ected 
tha law. See Btinneecim' Anli^L Rom. Jut. htx 1. til. 2. sec. S— 11. Optra, 
tome iv, where the andent learning od the enl^ect is oollectad. And see HwMt 
B«nt. HuL b. 1. c T< sec 4, note. Cicero condemned the secret vote t>y ballot, aa 
bong a oorer for corrupt and hypocritical rotes. EU object was to obtaia or 
measure the moral vejue of the votes by a consideratioQ of the persons who gave 
them. Cie. d* Ltjibtu, b. S. Ur. Bamham, the trausUtor of Cipro's Treatise^ 
Lt Repvblica and De Legibui, in bis note U>b.S, De Legibia, learnedly discunes 
the superior value and aafetf of open voting by poll ; but the orderly and specific 
tnodeof voting by ballot seems to reader the latter preferable in that point of vie v. 



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Lm. XL] THB UHTTBO STATES. • 24K 

<^eratidiiB, nntil the memorable socitd war *extendeii *S33 
it to all tlie mhabitants of Ital^, eoutb of the Rubicon 
and the Amiia. Aa no teat of property or character was 
required, and as the people assembled within the walls of 
Borne in immense maeaea, and not merely to vote, but to 
make laws, this great innovatioD produced the utmost anarchy 
and cormption, and has jnstly been regarded as precipitatijig 
the Ml of that commonwealth.' 

Hie Engli^ nation, in common with the other feadal govern- 
ments of Europe, anciently enjoyed the blessings of popular 
representation, and the knighte, citizens and bnrgessee were 
intended to represent the farmers, merchants and manufactn- 
rers, being the several orders and classes of people of which 
the nation was composed. <■ But Qie mutations of time and 



.■ MontttpAtf* Stprit ^ Zeia, \oniaia>.i. ci^-Ormtd. tl Dttad. At Rim. 
c >. Augortu mlknrad Uu DMOikD^ or prinlcgMl dtindi, ia thft proTindal 
•bartend dliM in Italj, to rote at borne tOi Bomaa in»girtn>t«i^ and to tend te 
writing tlttir baUoU wider tad ta tht peOi at Ronu. Tbu, m;i Suctonio*, vm 
tnatttna^ opoo them, in a degrot, tiM prinlegea and dignitj of Rome itielC 
BmUm. Avf. e. 4S. 

k 1 SUik. 0am. IT4. MiUar m Ou £nglitk Ooiufttetion, b. S. e. S. tae. 1. In 
all llie Dortbeni natioDa, aiji T^nwr, in hi* Itaroad ffittoty ef Sn^and during ilu 
MiddUAgtt, ToLL41fl, great conncila were attached to the ruling chie( from thtir 
Ant emerging &om tba voodi of Qvrmaaj. The deetnclion of the Anglo-Saxao 
nobilitj, in their reTolta agaiut WHUan the Conqaetor, and the ceofiacslMD of their 
property among hU Norman faarooa, had annihilated the memben of their andent 
vitteoagemola, but did not terminate tlie inetitatioo. The Nannan baroni were 
M independent aa the Saxon witcna, and die; mrronoded the eoTereign in a 
national eooodl, M well after the eooqaeet as before^ Bot Uni]^ the national 
eoondla, which wen oommra to the Celtio and Teutomc tribei, m«j bava contained 
within them the geim of the Engliah parliament yet the modem antiquariana 
genw^ly conclude, that the Anglo-Saxon wiUanagemot had no repreMntatim of 
the eeorl% or inferior freemen. It eondsted of the monarch, the ariitocracy and the 
dei^, with TCi; little of the real libertj of deliberatjoi) and voting. Balltm vn Ik* 
MidStAga.a.fi.'^l. Titmtr'i Biit.of UuAttglo-8axont,vt>1'm. Paigraiif* 
SUt, of &igltmd, ToL i. Sir Wm. Stthan't DignilU*, Ffudal and Parliamtit- 
tar]/. The latter irrit«r oonclndes, from a careful examination of an immeme nuut 
of andent document*, that there exiitad no deliberatiTe legialaliTe aHerabtj in 
England ^iriaT to the reign of Een. III. That waa the en of the eitabli«hment of 
Mii^a charta, which declared that no taxation (the three fendal aub excepted) 
was to be impoeed but bj parliament, which ««> to coonit of the higher dergj and 
nobilit;, and of the tenanta in chief under the crom). This wai the era of the 
introduction of popular repreaentation in England, and of the eftahIi«hm«Dt of the 
HouM of Coramom in tbe timeof Hen. lU and Edward I. Landaheld bjfbndal 
tesnra were beld on Um eondHioB of partbnJng certain aarrieca-, and beli^ per- 



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S16. JURISPBUDEITOB OF [PutlL 

commerce, in depopalatdng ancient boronghs, and in eetab- 
liehing new cities and great manoiactariDg establishmestB, 
-without any direct parliamentaiy representation, inaenBiblf 
changed the stmctnre of the Honse of Conunone, and rendered 
it, in theory at least, a rery inadec^oate and imperfect oi^an 

of the will of the nation. Archdeacon Faley observed, 
*284 *maiij years ago,* that about one half of the commons 

were elected by the people, and the other half came in 
by purchase, or by the nomination of single proprietort of 
great eetatea. So extremely nn^qnal was the popular vote at 
elections in England, that less than seven tbonsand voters re- 
tnmed nearly one half of the Honae of Common8> Bnt not- 



IbriD*)] or Tendered, tiM featUlory eould mt rigbtruUj be ueeticd liirilier willtout 
Ml coDMOt, I^ royal toTU obtainad chuten of piinl^ea bj which thcj wen 
relieved troni ubitimiy tazatioa od paying or rendering the itipnlUed iiuiniiiii iili 
When the wants of Um itowd increued, aod Airther aide were atetmwj. It wai 
dcviied axpediMit Ah' the king and bii conecil of peer* ts eoaenlt the wiihes, and 
ttk« the CMwent of tb* anall toaibcj freeboldent and the inhaUtanti uf the dtiei 
•od boTOa^u; and kmgbta; dtiieDi and bnrgeeaea were aeoordinglj emnatooad to 
tifpttt by repreeeutatioii in tbe great oouncil or tt^Iatare under the feudal sjtlaaL 
Vbt tint e^et for the election of a represeolation of the oomnxituJ^ of the realm 
of kn^hta, dtiMO* and borgeaaee, from oountiea, dtie* and bofongha, wa« leaned 
mdcr Um mnrpatioa of Swhmi Uootfort, in the 49 of H. UL lie great ooandl of 
Am nation bad bithert« coneiatedof tbe prelatci and barony awUted by theoffleen 
•f tlMetate,aDd the jodgea. 

- Mural PhUotophy, p. 899, *i&t. MM. 

* b IgSl, it wea awertad, that o>ut of elx hundred KDd fifty-dgbt memben, of 
irUch the Eoglidi Honee of Commona conveted, the number of four hundred and 
•igbtj-ecTea wctb elected bj one hondred and kr^-fbor peei«, and dim htu>dred 
and twen^-thraa oommoneri. In ISSg the Engliah Honae of Commma wai 
lefbnned bj three ureral statutee, pamed to ammd iht r^rttniatioit of Uu ptvpU 
sf BitgUmd <md Wain, BeoHand and Irriand. Under tbe fint of theee ■tatntea. 
fif^-iii Engliah borougbe were totally diafhwcbiied, and thii^ borougbe were 
ledoced each to the right of retummg only one member. Twenty-two new 
borougha were created, with a right to each of retaining two memben ; and 
Uanduater, Birmingham, Leedi and Sheffield, were among the towna inTceted 
witli that privil^e. Sixteen olIieT new boroughs were created, with the right to 
each of retuRung one member. Tlurty-fbur ihirta were tnbditided in reepect to 
memben of parHamait, lo as to give an increaM of nxty-thrae knights. Tbe 
quUiBoatioiw of elacttsa, eoooetmg of freeholders, leeeeee and oopyholden^ were 
altered, and the name of every voter required to be preTioualy registered. Tlie 
Dumber of memben of the reformed House of Commons oouiat* in the if^regate 
of BBS, the same number is before the refbnned bill, vid, 417 memben for Engtaixl 
S9 for Wales, SI tut Scotland, and IW for Ireland. By the En^h reform act of 
S and > Win. 4. & 4S, tbe qnaliBcationt of eleeton of tbe oommocM House of Par- 
liament, for tnightt Iff lA« «Um, were nbetanti^y as fallows : That tbey nnut 



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Lw. XL] THE mrn-BD 8TAT8B. 247 

vitlistaiidiiig the great imperfection of the constitDtion of the 
English House of Commons, if it were to be tested by the 
arithmetical accuracy of our own political standards, neveiv 
thelees, in all periods of Kngliah hiatoiy, it felt strongly the 
vigctar of the popular principle. While on the continent of 
Enrope the degeneracy of the feudal ayst^m, the infinence of 
tiie papal hierarchy, the political maxims of the imperial or 
civil law, and the force of standing armies, extingniahod the 
bold and irregolar freedom of the Gothic goTemmbnts, and 
abolished the representaticm of tiie people, ^e Engliah House 
of Commons continaed to be the aaylom of European liberty ; 
and it maintained its station against all the violence of the 
Plantagenet line of princes, the hanghty race of tlie Tndoia, 
and the nnceasjng spirit of despotism in the hoose of Stnart 
And when we take into consideration tiie admirable plan of 
tlieir judicial polity, and fliose two distingnished guardians of 
civil liberty, trial by jnry, and the freedom of the press, it is 
DO longer a mattAr of astonishmrat that the nation, in fiill 
possession of those inestimable bleesings, should exxj oy greater 
secority of person and property than ever was enjoyed in 
Athens or Bpaita, Carthage or Borne, or in any of the com- 
monwealths of Italy, during the period o£ the middle ages. 

I proceed next to consider the privileges and powers of the 
two houses of c<aigrees, both aggregately and separately. The 



b>T« » frMhold or cop^hoU Mtate in potaviAia, or m lewee or uaignaa b 
poewwioD of the oDezpirtd rewdue of a Urm of di^ 7on> of tht deu yuul]' 
valius in titharoM of not lev tluii £10, ■bo7a all renU and diargM theraoD; or 
of Om oaeziMrad remdna in poaunioD of a term of twao^ J«*n, of the dear jtttlj 
ndneof £fiO, abova all rmta and «ha>gN; orbaateoant inoocnpatbaof laad^ 
liable to a yaarij rant of £S0. Tfaa claetor panit also Lara bean dolj regUtersd, 
and, to ba aatitlcd to tha ragiatrj, he mnrt. haTa bean m the actual poaaeaaion of 
the bowa, or of the ranta and proflta tliarao^ for liz monthi prerioua to the lait 
day of Jalf In eadi jear. Tlie elector for citimu and burgntf rooat oeeapj, le 
(nrner or tenant, a honae or bulldtng, other aaparatalf or jtonllj, with land vithin 
the borough, of tbaolear yearly value of 410^ and rated to the poor-iate, and been 
didj r^iAered, and a reeideot for nx montlit preTbua to the laat da; of Jaly in 
each jaar. Ha ragnlatiana raapacting the regiatry and tha reriitoi of the liate, 
are apeoifie and minute, to guard more efltetnally egainat tha daalnidiTe eril of 
frandolent and ipDiiona TOtea. No panon b aothlad to Tote nn1«e* hia name 
^ipean on tha regiatar of elector*, and hia qDaUlealio^ eauMt ba queatiotiad, 
at tha poUa, esoept OB three polnto : (I.) Hkkkntitj with the penoo r^itared; 
(3.) •* to haring voted already at the eleadoD ; (t.) that ha oontiDnca to poaaaa 
^e regiatared qnalifleatioii. 



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348 JOBIBPBUDIHOE OF [Put U 

congress is to aaeemble at leaat once in every year, and each 
meeting shall be on the first Monday in December, nnleea they 
by law appoint a different day.' 
FiiTiK(w*235 *£ach house is made Uie sole judge of the electioD 
kooM* i retam and qnalifications of its members^ The same 

power is vested in ihe British Honse of Commons, and in the 
legislatoies of the several states ; and there is no other body 
known to the constittition, to which such a power might safely 
be trusted. It is requisite to preserve a pure and gennine re- 
presentation, and to control the evils of irregular, corrupt and 
tumaltnous elections ; and as each honse acts in these cases 
in a judicial character, ifa decisions, like the decisions of any 
other court of justice, ought to be r^;ulated by known princi- 
ples of law, and strictly adhered to, for the sake of uniformity 
and certainly. A majority of each honse constitutes a quo- 
rum to do buainese, but a smaller number may adjourn from 
day to day, and compel the attendance of absent members, in 
sncb manner and under such penalties as each house may 
provide.^ Each house, likewise, determines the rules of its 
proceedings, and can punish ite members for disorderly beha- 
viour ; and, with the concurrence of two thirds, expel a mem- 
ber.d Each house is likewise bound to keep a journal of ite 
proceedings, and &om time to time publish such parts as do 
not require secrecy, and to enter the yeas and nays on the 
journal, on any question, when desired by one fifth of the 
members present* Neither house, daring die session of con- 
greas, can, without the assent of the other, adjourn for more 
than diree days, nor to any other place than that in which 



■ Art. I. aw. <. ^ Ibid. wo. S. 

* lo ttie Bn^hh Hbnu of OommoD* tarty mcmben are reqmaite to fotm ■ 
qoonim for boiiaeM ; bat in ISIS Um nqoiuto Dumber wu reduced to tweii^, 
•0 &r M rdatad to the mnnuDg Mttiogl, (.ppropriated to priTkto buaJoeM ud 
petitiom. The Bon** of Lord* uaj proceed to bnunen if onl; Hires lords be 

* The poT«r of expalsoo ii in iti natare disiretionsij, ud iti eierciM of ft 
more tmaaazj rh«imrt«r tbu tbe power of judidtl tribnn&U. Cue of /. Smiti, 
ISOT. Tbe eaue art Dnmennu ia wbkli memben of Ibe Hodm of Common* in 
Eoglaod Iiayg beeo oUgd to amount and pumahed bj admoniticMi, impri*onmant 
or ezpubion, u the eaie might require, Ix oBeasv vordi or oonduet belbre the 
Houe*. Jfoy'j TVm^ih on (A* Zow o^ FarlimiunI, p. 60, 

* Art 1. iM 0. 



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Ue. XL} THE UVTTRD STATES. 249 

the two houaes shall he sitting.^ The memben of both 
hoosea are likewise privileged from arrest daring their attend- 
ance oa congress, and in 'going to and retumiBg from the 
eame, except in cases of treason, felonj and breach of the 
peace.^ These privileges of the two houses are obviooslyne- 
cessary for their preservation and character; and, what is 
still more important to the fi-eedom of deliberation, no mem- 
ber can be questioned out of the house for any E^eech or de- 
bate therein. ■> 

There is no power expressly given to either house of con- 
gress to ponish for contempta, except when committed 
*bj their own members ; but in the case of Anderson, *236 
who was committed, by order of Uie House of Eepre- 
sentatives, for a contempt of the house, and taken into costody 
by the sergeant-at-arms, an action of tr^paas was brought 
against the officer, and the qtiestion on the power of the 
house to commit for a contempt, was carried by writ of error 
to the Supreme Court of the United States.* The court de- 
cided, that the boose had that power, and that it was an im- 



* ArLl. «ecO. 

* Art 1. B«e^ e. Tbii priril^e U coD&i»d to tbe tnembcra, and ioa not ezUnd 
to their HfVMit^ and it kppliu u veil Ui ureita oa «x«cu(ioi) oa to «imta on 
niMDa proccu. Tbe oirest u illegal mi void, and alter tha ceaeation of the priri- 
lega, the membtf roaj b« arreatod di rtovo tar the lame eauae. If elected a meni- 
b«r kMU in cwlody, oa civQ procea* of auj kind, bia privilege m a member op«- 
ratea to aotitle hitn to hii discharge during the oaotiiiiiaDCa of the privil^e. Thia 
ia the Engtlab parliamentaiy lav. JVay'i TVialitt, ^ pp. BS. ST. But bj aevanl 
atatulM ia the reign of Qeo. ItL (10 Oeo. IIL ib Geo. UL 47 6ea. UI.) priviltge ia 
DO ataj of proceedioga ia ciril euita, down to jodgnent aod eiecation, with the exeap- 
tioo of pcraonal aireat aod impriaonioent, iwr doea the pririlege extend to anamit- 
mcDta for contempta in oonrta of JtutiecL Wellealej's caae and Charlton'a caat^ died 
b Ma^i TVsoMw, ife. 108, 109. 

■ Art. 1. aec. S. Ilie queation whether a aeoator or member of (he Houae of 
BepreMDtatiTea waa liable to impeachmeni for conduct io hia Ifgialalive capadtj, 
ia conaidered by Mr. Justice Storj. b bia Comlnantariea, toL ii pp. SS9 — 2fiS ; and 
the weight of aatboritfi and the reaaon and polic; of the thing, are deddedlf io 
the aegative, and in faTonr of the priacipla that member* of congreae abould be 
exempt from impeachment and puoiahawnt for acta doae io th^ collectiTe or 
coagrewiooal capacity. Hough a member of congreaa ia not reapomiUa oat of 
ooDgreaa lor wnrde apoken thera^ (hoi^ libelloua upon indiTiduata ; yet if be 
eanaaa Ma apeedi to be pobBahed, h« may be pnniahed aa tor a Tibei by actloa ot 
bdictneoL lliia ia the Bngliab and the joat law. Tla caaea of Lord AUagdon 
aod of CreeTj, ZEg.J^.P. Cattt, tii, 1 M. A a 318. 

* Aodenon v. Duno^ 6 WAtaion, S04. 



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350 JtTRISPBVDBiraK OF (Tint It 

plied power, and of vital importance to the safety, chaiBcter 
and dignity of the honse. lie neceseitj of its existence and 
exercise was fonnded on the principle of self-preserration ; 
and the power to punish extends no farther than imprison- 
ment, and &at will c<mtinae no longer than the doration oi 
the power that imprisons. The imprisonment will terminate 
with the adjoamment or dissolution of conferees.' 

He Hoose of Kepresentataves has the exclomve right of 
originating all hills for raising revenue, and this is the only 
privilege that house enjoys, in its legislative cliaracter, wbidi' 
is not sliared eqoally by the other ; and even those bills are 
amendable by the Senate in its discretion.^ The two houses 
are an entire and perfect check upon eadi otlier, in all bu«- 
uees appertaining to le^slation ; and one of them cannot even 



■ Tba dutitioD otimprfwtCHiitfiir eoDtenipta tanniutw iIm in Atgland npon 
Um doH of Urn «xistnig leiaoD of pvliwunt Btoddal* t. HwiibTd, titei in 
May'* TVtatitt on tit PritiUgu of Farliamimt, p. 16. Ilia decuioa of tba So- 
prcme Court, in the cmM of AnderuM, li accooipuiicd with a coana of rtaarnAig 
wbicfa vouU leem to b« uffletent to pbea Ibe tuithori^ of cjtlief booM of ooo- 
gren to pimUi cootempta mud breaebai of priTilegca on Um moit lolid loliDdatioil, 
indepeDd«Dt of tba abaolnta Mtboritf of the dediioD. Tht oonatitutioul enrciM 
of tba Mina power b; cMbhouae of parliAmcnt hw bt«n repeatcdlj TindkMadin 
WeatmiDBter Hall in the moat mAiterly mumer. Lord Ch. J. Do Qrtj, m R«x T. 
Oroibj, S WiU Rtp. 188. Lord EUanborongh, in Bordatt t. Abbots 14 
Sa^t Rep. 1. It U » power inbaraDt in all legialatire aNembliai, and ia 
•aaeotial to anabla them to czaoite their great troata with freedom and nfe^ ; 
and it lui been frequentlj azerciMd, not onlj in eongren, but by the respectiT* 
bnndiM of tba ttate legiilatnraa, and may be oonaidered ai Indiiputablj actiiow- 
bdgad an) aettlad. Stor^* Omntntarut, vol iL 80G— SIT. What act) ihall 
•moDDt to a cootampt of dtber booM of eoDgret* an not defload:, and mnit b« 
led to the jndgmeot and diacretioa of the houae, under the drcumatAnees of each 
CM«. Id K^land, libel* opon the diander or procaedingi of either houae of par- 
lismeot, or any of ita membera, are regarded aa breachea of priritega, and poniiba- 
Ua ai for eootampta, by ImpriaonmeDt. Maj/i TWoliaf oh lA* Lme and Prinlfgti 
»/ Partiammt, p. ti, Bordett *. Abbott, tuprit. Bat with lu, such a oodtm of 
lodraai bai not been adopted, and the bonie tfaat waa injured woqld probably, if 
ledreee waa uuglit, direct a public proaecntioD h; indietmaat. llie act of ermgttM 
of 14th July, 1798, mad* it an indictable oOeuce to libel the goTenunent, Oongreat 
or Prendeat of tha United Statea. Seefn/Va,Tol.u.S4.(l) 

* Art 1. eeo. 7. 



(1> Bee tbe eaw of Howard T. OaaKt, W Ad, ^ SO. jr. AIM. Is lU* laaa Ibe pown lal 
priTDcfs of pufluntDt w«n TtiT e>>>>Dnletr ■■<! ■>»> dtaoaMed ; bat llH Oomt or Jkv*<pMr 
Okam^M-.tB ibelad dedikio. ptaoed lOelf OD tba namw pnwllhuihe Bpwko^ wnnal 
■MM U osnMrnad aa pnecN y a Snptilor OoBT^ Bot appMrtii; 10 r> tiarond lliJiirtiilMloa. 



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Lie. ZI] THB UVITBD STATBS. ^$X 

adjonm, daring the session of coogrees, for more than lihree 
daye, vidiont die consent of the other, nor to any other place 
than that in which the two houses shall be sitting.' 

The poweta of congress extend generally to all subjects ofa 
national nature. Many of those powers will hereafter become *^ 
the subject of pardcnlar obeerration and critioism. At pre- 
sent it will be sufficient to observe, generally, that congress 
are anthorized to provide for the conmion defence and general 
wel&re, and for that purpose, amcmg o&er express 
grants, they are authorized to lay and collect taxes, *dn- *237 
ties, imposts and excises ; — ^to borrow money on the 
<a«dit of the United States ; — to regolote coomierce with fo- 
reign nations, and among the several states, and with the In- 
dian tribes ; — to declare war, and define and ponish offences 
against the law of nations ; — to raise, maintain and govern 
armies, and a navyt — to cn^aniee, arm uid discipline the 
militia ; — and to give full efficacy to all powers contained in 
the constitution. Some of these powers, as tiie levying of 
taxes, duties and excises, are concurrent with nmilar powers 
in the several states ; but in most oases, tilieee powen are ex- 
dirare, because the concurrent exercise of tfiem by the states 
separately, would disturb the general harmony and peace, 
and beoause they would be apt to be repugnant to each other 
in practice, and lead to dangerons ooUisions. The powers 
which are conferred apon congress, and the prohibitions 
which are imposed upon the states, would seem, upon a fiiir 
and just construction of them, to be indispensable, to secure 
to tliis country the inesUmable blessings of nnion. The arti- 
cles of confederation, digested during the American war, in- 
tended to confer upon congress powers nearly equal to those 
with which they are now invested ; but that compact gave 
theau none of the means requisite to carry those powers into 
effect. And if the sentiment which has aniformly pervaded 
Reminds of the people of this country be a just one, that the 
consolidated union of these states is indispensable to our na- 
tional prosperity and happiness — and if we do not wish to be 
once more guilty of the great absnrdi^ of proposing an end, 
and denying the means to attain it — then we must conclude 



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S5S JITBIBP&tmENCE 09 [Put It 

that the poweiB conferred upon congress are not dispropor- 
tionate to the mo^tnde of the truBt confided to the Union, 
and which the Union alone ia competent to fnlfil. 
tt The mles of proceeding in each bonae are substantially the 
same; and though thej are essential to the transaction of 
husinees with order and safety, they are too minute 
*338 to be treated at length in an elementary sarrey *of the 
coDStitntioDsl polity and general jnrispradence of the 
United States. The Honse of SepresentatiTes choose their 
own qteaker, bnt the Vice-President of the United States is, 
AD ^ffioio, president of the Senate, and gives the casting vote 
when they are equally divided. Tie proceedings and dis- 
coBBiona in the two hotiaes are public. This afTords the com- 
munity early and authentic information of the progress, reason 
and policy of measures pending before congress, and it is like- 
wise a powerful stimulus to industry, to research, and to the 
ctdtivation of talent and eloquence in debate. Though these 
advantages may be acquired at the expense of much aseleaa 
and protracted discussion, yet the balance of utility is greatly 
in favour of open deliberation ; and it ia cert^n, firom the ge- 
neral opposition to the experiment that was made and con- 
tinued for some years by the Senate of the United States, of 
sitting with closed doors, that such a practice, by any legisla- 
tive body in this coanhy, would not be endured. 
or The ordinary mode <^ passing laws is briefly as follows:' 
"' One day's notice of a motion for leave to bring in a bill, in 



■ 8m tht tUmding ndt* and orAn of ttit Smm of Rt^rttaUMM^ printed in 
119G, bj FnncU Cluldi. The rules and Ibnns of proceeding b l^ialatiTe biMUM 
w« Dot onl; «auiitial to orderly and fr«« diaeiiMiao Mid delibemtkiii, but tboae 
formi become mbaUnca \ for Ihej' opente u skfegurdi of liber^, and n prntw- 
tioD to tbe minoritj agiioat the violeiMW and tjranny of tb« nu^joritf. It wai an 
obMmtkni of Hr. Ontlov, fiw man; jmn t^takvt of Uie Engiiili Honae of Oon- 
mona, tbat ha had ofton heard old aod ezparienced memben aaj, that notluDg 
tended more to throw power into the hande of the administntiotl, than a neglect 
of or depaiture from the ralea of pn>ceedb^ HaUtTt PrtcedtnU of Fractadingt 
in tht HouM of Comment, and Jtg^trtom't Manval of Pariimnonimy Fraetiet, and 
eapedall/ Maift TVtatiM upon Ih* Xow, Pntilaget, PreemAiiy and Utafft of 
Parliammt, London, 1844, and OuAing't Jtu/f* of Proettdaig emd DtbaU U 
DdiUraiiM Autmblie*, Boetoiv 1S16, ought to be tborougUy itudied hj all 
laadiog and efficient membm in the legielative auembliei. 

Among the mlea of the Honie of BepreaeolatiTea, the eetaUiahnent uf what 
ia termed tht prtviou* qnttlioit, it of great Ir 



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Lm. XL] ISE UNITED STATES. 358 

CBfies of a general nature, is required. Every liill mnat have 
diree readiogs previous to its being passed, and tliese read- 
ings mtist be on different days, and no bill can be committed 
or amended until it hae been twice read. Such little checks 
in the foims of doing bnainese are prudently intended to guard 
against surprise or imposition. In the House of Bepresenta- 
tives, bills, after being twice read, are committed to a 
committee of tiie whole house, when the ^speaker *2S9 
leaves the chair, and takes a part in the debate as an 
ordinary member, and a chairman is appointed to preside in 
his stead. When a bill has passed one honse, it is trans- 
mitted to the other, and goee throng a similar form ; though, 
in the Senate, ihere is less formality, and bills are often com- 



■pplj vheo k bill or motiiHi ia under diMUHioQ in a oommittee of Uie irhole boose, 
bat onl; when Uie ume is before the house, nith the speaker lu the cbair. The 
prerioos queslion ia admitted when demanded hj a mejoritj of the member* 
present; and it enable* a teajoritf at an; tjine to pnt an end in the Aowst to all 
dimueion, and to put the minoiit; to liieDca bj a prompt and final Tot« on th* 
tnaia qneatioa. It is whether the question under debeta shall dow be pat ; and, 
until it is decided, it preclude* all amendment and debate of the main question, 
and all niotioDS to amend, commit or postpone the nuun question. If the previotis 
qneetion be decided affinnatif eljr, tbe main question ia to b« put imtantaneooslj, 
and DO member is allowed to ammd or discuss it. Ilia prerious qnestioD bu long 
been in use in the English Eous« of Commoo*; and if it be carried in theafflnna- 
lire, no alteraUoD ean then take place, no debate is suffered to iatenene, and tlie 
speaker puts the main question immediately. Jhiarrit en Statulei, 1830, p. 2V1. 
During the period of the oontiuental congress, uoder tbe article* of confederation, 
the prefioDB question was ngarded rather ■« a preliminary inqoiry iato the pro- 
pria^ of the maia question. This wa* al*o the case under tlie preMot constitu- 
tion of the United States, for maoj years. Its object was to avoid decision on 
delicat* qnettioD^ as inexpedient ; and if it was decided that the main question be 
put, the main qaestion wM open to debate. It was not until ISll that the [»•■ 
none quettioa attained ita present absolute sway. The Hon. WittioM Qatton, a 
member of the Hooie of Kepreaentetive* from Horlh Carolina, is 1B16, made a 
fruitleas effort to expunge the previous question from the rule* of the bouse. His 
■peedi was a very able and vell-iofunned discussion of the merib of the rale, and 
he regarded it as a IbimidaUe instrument of tyranny of majorities over miooriti**, 
and, to the extent to which it i* carried, without a precedent in the annaia of any 
frae deliberative assembly. 

Legislation was a science cultivated «ith *o much care and refinement among 
the ancient Roman*, that tbey bad laws to inabnct Iham how to make laws. The 
Lix Lidnia and Lex ElmUa, the Ltx Caeilia and Ltx Didia, provided diecks^ 
Uiat the law should not uniotentionally contain any particular personal privll^a^ 
or weaktfi the force of former laws, or be crowded willi mnltitarions matter, 
fframna, J)* Orlu tl Progrtttu JurU dvilU, lib. I. c. 29. 



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954 JD&IBPBUDE5aB OF [pMtIL 

mitted to a select committee, choBen hj ballot. If a bill be 
altered or amended in the hooBe to which it is Iransmitted, it 
10 then returned to the house in which it ori^nated, and if the 
two houses cannot a^«e, they appmnt committees to confer 
tc^ether on the subject* When a bill is engrossed, and has 
passed the sanction of both houses, it is transmitted to the 
President of the United States for hie approbation. If he 
approves of the bill, he ei^is it. If he does not, it is retomed 
with his objections, to the houBe in which it originated, and 
that house enters the objections at large on its jonmale, and 
proceeds to reconsider the bill. If, after such reconsidera- 
tion, two thirds of that house should agree to pass the bill, it 
is sent, together with the objections, to the other house, bj 
which it is likewise reconsidered, and, if approved by two 
thirds of that house, it becomes a law.^ But, in aU snch 
eases, the votes of both houses are determined by yeas and 
nays, and the names of the pereons voting for and against the 
bill are entered on the journals. If any bill shall not be re- 
turned by the Frcadent within t«n days (Sundays excepted) 
after it shall have been presented to him, tho same becomes 
a law, equally as if he had signed it, unless congress, by ad- 
journment, in the mean time, prevents its return, and then it 
does not become a law.' 

The practice in congress, and especially in the second or 
last session of each congress, of retaining most of their bills 
until within the last ten days, is attended with the disadvan- 
tage of shortening the time allowed to the President for peru- 
sal and reflection upon them, and of placing within &e power 



■ Bj tli« Rtvittd ConmMitm of H«w-ToTk, of 18*6, it ii declared tliat do UIl 
■btl) b* pMMd udIcu bj Hie uMot of k nujorily of all fbt tnemben eleoted to 
each braDcb of tiie l^sUttirc ; and tbe qaestioD upon the final pamage shall b« 
taken imin«diate1j' upon its last reading, and lbs jeaa and Daji eDt«red on the 
joiinmL(l) 

' Tie constJtutian do«« not MJ irbether the vote of two thirds of each boose, on 
tin TeeoDuderatioD of a bill retomed by the Preddeot, vith objeclioiiB, aball be 
two thirds of the members elected, or onl; two tliirda of tbe members present. It 
ia midentood that tht latter comtrectioo hat be«D adopted in ptactic«. 

• Art. 1. sec. 7. 



(I) Bt lbs KeThed StilnlH otS. Y, preirlaiH nodeH oToeMaiu ^plleithiu lo lb* legUtfUM 
niiiK be glvea bT adiertlMmenL 1 A £ IBS. lee. 1. Th* want of lUi noace wUI ud^ bowsr*, 
aOM lbs nlldliT oTan soL Smllh T, Bdiiur, T .8»«. & C B. Ul. 



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Ue. XL\ TBZ UHUBD STATES. SS6 

ci tiie President the absolnte oegative of eveiy bill pre- 
sented vithin the last ten days preceding the 4th of 
*March ; and this he can effect merely bj retaining . *240 
them, Trithont beisg obliged to assign anj reason what^ 
ever ; for he is entitled to ten days to deliberate. Hoet of the 
bills that are presented to the President in the second Bession 
of erery congrees, were, a few years ago, presented to him 
within the last ten days, and generally within the last two 
days ; bnt the rules of congress have latterly checked ihe 
evils and danger of sach an accimiiilation of bosinees on the 
last days of the session. 

Tina qualified negative of the President upon the formation 
of laws, is, theoretically at least, some additional security 
against the passage of improper laws, through prejudice or 
want of due reflection ; but it was principally intended to 
ffTB to the President a constitutional weapon to defend the 
ezecutire department, as well as the just balance of the con- 
stitution against the usurpations of the legislative power. To 
enact laws is a transcendent power ; and if the body tiiat pas' 
sesses it be a fiill and equal representation of the people, 
there is danger of its pressing with destructive weight upon 
all the other parts of the machinery of the gOTomnent It 
has, therefore, been thought necessary, by the most skilful 
and most experienced artists in the science of civil polity, that 
strong barriers should be erected for the protection and secu- 
rity of the otiier necessary powers of the government. No- 
thing has been deemed more fit and expedient for the purpose 
than the provision that the head of the executive department 
should be so constituted as to secure a requisite share of in- 
dependence, and that he should have a negative upon the 
passing of laws ; and that the jadiciary power, resting on 
a still more permanent basis, should have the right of deter- 
mining upon the validity of laws by the standard of the con- 
stitntion. A qualified negative answers aU the salatsiy pni^ 
poses of an absolute one, for it is not to be presumed that two 
thirds of both houses of congress, on reconsideration, with the 
reasoning of the President in opposition to the bill spread at 
large upon their journals, will ever concur in any un- 
constitutional 'measure.* In the English constitution, *241 

■ TUaqtMlifladDegatiTaoftlw nwidttt twi^ n "" I"ir**' "* **** ■■^"■*'^-*— - 



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256 JDBISPRUDEMCB OF [Put IL 

the king has an absolute negaiive ; but it has not been 
necessary to exercise it eiuce the time of William m. The 
influence of the crovra has been exerted in a more gentle 
manner, to destroy any obnoxious meaenre in its progress 
throngh the two houses of parliament. Charles L stood for 
a long time upon the strict and forbidding rights of his pre- 
rogative ; but he was compelled, by the spirit and damoor of 
the nation, to give his assent to bills which cut down that pre- 
rogative, and placed the power of government into the hands 
of the parliament, ^e peremptory veto of the Bomaa tri- 
bunes, who were placed at the door of the senate, would not 
be reconcilable with the spirit of deliberation and independ- 
ence which distangoishee the councils of modem times. The 
French constitation of 1791, a laboured and costly fabric, on 
which the philosophers and statesmen of France exhausted all 
their ingennity, and which was prostrated in the dust in the 
course of one year from its existence, gave to the king a ne- 
gative upon the acts of the legislature, with some very feeble 
limitations. Every bill was to be presented to the king, who 
mig^t refuse his assent ; but if the two following legislatorea 
should successively present the same bill in the same terms, 
it was then to become a law. Tha constitatioiial negative 
given to the President of the United States, appears to be 
more wisely digested than any of the examples which have 
been meutioned.^ 



tioD of tba gowmnattA, ooee die tint puUicktloD of (Imm OommeotaiiM, b IBU, 
bcoome a Terj grwtt power, BDd applied under the oTdinary mane of tM^o^ wlUi • 
Ikmiliui^ Thkh appean Dot to have b««n aiiticipat«d bf tfae generatioa vfaidi 
adopted the Constitution. 

■ He orjuiiiatioD of the two honui of ooD^ees, and the (xinciple* on which It 
Tcati, were profouDdlj discuued in the FtJeraliil, from No. GS to No. !14, ioeln* 
■ire. There t> do wort on the tubjeet of the conititution, sod on repablican and 
federal govemmeDt generslt j, that deaervea to be more (horoughlj stodied. "ttm 
Federalist appeared originally in a seriee of numbere, published in the Sew-YcA 
daily pepera, between October, 1187, and Jane, 1188. Hey were read with ad- 
mimUon and enthtuaiin aa they aueoeeuTelj appeared, and by no pereoti more m> 
than the author of this note, wbo made a frnltlea* attempt at the ^me to afaridg* 
them for the beaeflt of a oountiy liUage print. So ccnutitutjon of goTemment ever 
recelTed a more masterly and eacceMful Tindication, I know not, iodeed, of aoj 
work OD the priocipleg of free govemmeut that is to be compared, in instrnctioa 
and intiiaaic value, to this small and unpretending Toluma of the Fidtralitt ; not 
«T«ti if we reant to Aiistotle, Cicero, HacbiaTel, Hmtwquien, Milton, Lo<±e or 



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Lm. XL] THS mnTED STATB8. 257 

Bmke. It ii •qnallf wlminble in Uu dtptli of ito wUdiHii, Um conprelieDdTe- 
ncM of iSt Ti«ir«, th* MgiMitf of it* refledioD^ uid tiw fawUa mn i^ [mtmtisoi, 
caudoDT, dmplidty and dcgtiiM with irhich iU ti'iiUM vS uttered and reoom- 
meoded. Ur. Jnatioe Storf acted wiielj in makii^tlM Federalut tbe baiis of hii 
OomauBlatj; tad ai wt l«d (he ezperieooa of nearij flflj jean nnee the Feda- 
laliit TBI writtai^ the 'Tork of Judge Stoiy wa« eorUied with the nnilta of that 
expericooe, ai>d it ii writtoi in the nma frea and libanl apirit, with eqnal exact- 
new of raeaich and •onndiMM of doctrine, and with great beao^ and elegance of 



TotL 



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LECTURE ZII. 

OF JDDiQiAi. oosersvanoTtB of the fowebs of conokxbs. 

I FBoozED to consider the coses in which the powers of con- 
gress hare been made the Bubject of judicial investigatioa.* 
PitocttT rf (!•) Oongreefl have declared by law that the United States 
KandHo. " were entitled to priorily of payment over private creditors in 
casee of insolvency, and in the distribution of the estates of 
deceased debtors. The act of congress of 81st Jnly, 1789, 
sec. 21, confined the priority to cnstom-boose bonds. The act 
of 4th of Angust, 1790, c. 85, sec, 45, limited the priority in the 
same manner. The act of 2d May, 1792, placed the snrety in 
a cnstom-honse bond, who paid the debt, on the same footing, 
in respect to priority, as the United States ; and it confined 
the cases of insolvency mentioned in the former law to thoee of 



■ Ur. Jniticn Story, io his Cc>nl»ini(ar(«i on iKt OonMUtntiim of tht Uttiiid 
SlatMtJoL L pp^ SB! — 142, hu given m veiy mtJonal vi«irDrtlieru1cBofint«rpre- 
tatioD mpplioble lo tJi* ooDititulioa. I itiXt ooufined myielt in Ihia lecture to 
tboM aotliotitative expositions vhidi bate been giveD to it I7 tbe codiJb of tbe 
Umtad Stat«e ; kod I tgree totird; wtlfa th«t leuned oomneDtelor, that we tn 
U> look to die initniliMDt itaelti 'us eooatitntioil of goTeinineut ordained sod 
e«t«bli^ied by Uie people of tbe Umted States.' Tbe imtninieat fumiabes et- 
Motially Uie mnna of ila own interja'etation ; and to retort to it wai tbe practice 
of tbe late Cbief Juetice MarabaU, in those dear and admirable jndidal fiewe of 
tbe eonatitnlioD, wMcfa, so far as tbey go, leave us notbing more perfect to expect 
or deure. It u, at tbe same tim^ jnst and true, that " the most uDezceptionable 
source of eoUaUrai interpretation is from tbe [aactical exposition of tbe goTemmcDt 
itself, in its Tnrioas departmeDts, upon particular questions discussed, tad settled 
upon their owu intriusic merits. Iliese approach the Dearest in tbrir owu nature to 
judicial ezpoeitions, and hare the same general recommendation that bdonga to 
tbe latter. Hey are decided upon eolemn argument, pro re nata, upon a doubt 
raised, upon a li» mota, upon a deep tense of their importance and difficulty, in 
the bee of tbe nation, with a view to present action, to the midst of jealoot in- 
terest^ and by men capable of ntgfing or repelliug tbe grounds of argument, from 
their exquiute genius, their comprehetiUTe leaniin?, or their deep meiVtation upon 
tbe abeorbing topic' Btorjfi Comm. toL i. p. S93. See, also, infra, p. Ill, 
to a P. 



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a Tohmtary assignment, and of sttachments against abscond- 
ing, concealed or absent debtors. Ilie act of 3d Marcli, 
1797, c. 74, sec. 5, went farther, and gave the United States a 
preference in all cases whatsoever, whoeTer might be ttie 
debtor, or however he might be indebted, in case the debtor 
became insolTent, or Uie assets in the baods of his representa- 
tives, after his death, were insnfQeient to pay his debts. This 
priori^ was declared to extend to cases in which the insolvent 
debtor had made a volnntary assignment of all his property, 
or in which his effects had been attached as an absconding, 
cODcealed or absent debtor, or in which an act of legal bank- 
mptcy had been committed. This act applies and gives the 
preference as i^inst deceased debtors, whether the debt was 
contracted before or after tiie passage of the act, provided 
there be (mly general creditors, without any specific lien 
created.* Hie act of March Sd, 1799, c. 138, sec. 65, 
provided, that in like eases *of insolvency, or wbere any *344 
estate in the hands of execntore, administrators or as- 
signees, eboold be insnfficiefnt, debts due to the United States, 
on bonds taken nnder the collection act, should have prefer- 
ence^ and soreties in snch bonds, on paying the same, had 
the same preference as was reserved to the United States.i> 

lliese were the legislative provisions, giving preference to 
debts due to the United States ; and in Fiaher v. BUgkt," the 
anthorily of congress to pass snch laws was drawn in ques- 
tion. JFhe point discussed in that case was, whether the Uni- 
ted States, as holders of a protested bill o^ exchange, nego- 
tiated in the ordinary course of trade, were to be preferred to 
the general creditors, when 'the debtor becomes bankrupt. 
Hie Supreme Court decided that the acts of congress, giving 



• OonunonwalQi t. Leiri% tBbuug, MS. 

• HuDter r. United StatM^ 5 PtUri B. ITS. Id Uw on* of th« Uoittd SUm 
T. Coucfa, C.C. U.a. Nnt- Yerk, April term, 1M1, it vm dieUred to bftT« bMB 
Ui« DUTaried conitructioD of the lEtJi tecUoo of Hie met of Much id,llBS,tli»ttlM 
prioritT tliereia g:iv«a to tb« nuitad States to b« paid out of the eatatA of aa io- 
•olTcnt debtor, take* eSect odIj when tb« iHoWeiK^ ii eeUb&hed bj an avign- 
uent of all bii proptrty, either bj hi« owa act on fa^ act «f law, and wbw 
■neb aaeignmeiit ii carried into exc«DtioD bj the MtigMM. S<aH'» JAreAonf* 
iJagatine. TStnYoik, Ai^iut, lUI, p. IBS. U. B. t. Wood A Irea, iAU. ^ 

no, a p. 

• S Oranek, 8G& 



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aSO JUKSPBUDEHOE OF [PtttH. 

that general priority to the TTuited States, were constihitioiiaL 
It was a power foanded on the anthoritT' to make all laws which 
should be neceeeary and proper to cany into effect the powers 
Tested by the conatitntion in the gOTemmfflit of the United 
States. Where the end was within the lawM powers of the 
goremment, congrees poBsessed tlie choice of the meaiiB, and 
were empowered to use any means whicli were in &ct con- 
dacive to the exercise of the powers granted. He goTem- 
ment is to pay the debte of the Union, and mxat be andiorized 
to use the means most eligible to effect tiiat object It has a 
right to molce remittances, by bills or otherwise, and to take 
those precautions which will render the transaction safe. If 
this claim of priority interferes with the ri^t of the state 
sovereignties, respecting tlie dignity of debts, and defeats the 
measures which they would otherwise have a right to adopt 
to secure themselves, it is a neceesaiy consequence of &e 
supremacy of the laws of the TJnitm, on all subjects tA which 
the legislative power of congress extends. 

The principle was here settied, that the United 
*2i5 States are •entitled to secnre to themselves the exclu- 
sive privilege of being preferred as creditors to private 
citizens, and ev^i to the state antborities, in all cases of &e 
insolvency or bankruptcy of their debtor. But the court ob- 
served, that no lien wot created by the statutes ^ving t^e 
preference. No lonafde transfer of propwty in the ordinary 
course ofbusiness was overreached. It was on]y a priority of 
payment, which, under different modifications, was a regula- 
tion in common use ; and a honajide alienation of property, 
I before the right of priority attached, was admitted to be 
good. 

Hie next case that brought into discussion this question of 
priority, was that of the Umied ^xOea v. Sooe*' It was 
there held, that the priority to which the United States were 
entitled, did not partake of the character of a lien on the pro- 
perty of public debtors. Th» United States, in the mere - 
character of creditor, have no lien on the real estate of their 
debtor. If the priority existed from the time the debt was 
contracted, and the debtor should continue to transact busi- 



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Lm. Xn.] THE TTNTTED STATES. 261 

nesB Tvith the world, the inconyenieaca vonld be immeiifie. 
The priority only applied to oases where the debtor had be- 
come actoally and notorioosly inaolrent, and, being unable 
to pay his debts, had made a volttntary assignment of all his 
property, or having absconded or absented himself, his pro-i 
perty had been attached by process of law. A bona fide con- 
veyance of ^Jort of the property of the debtor, not for the 
frandolent purpose of evading the taw, but to secnre a iair 
creditor, is not a case within the act of congress giving pri- 
ority.* In this case of the United States v. Mooe, a col- 
lector of the revenue had mortgaged part of his pro- 
perty to hia surety in his official bond, to 'indemnify *246 
him from hia responsibility as surety, and to secore 
him from his existing and fotore endorsements for the mort- - 
gagor at bank ; and the mortgage was held valid against the 
claim of the United States, although the collector was, in 
point of fact, unable to pay all his debts at the tiifle the mort- 
gage was given ; and althocgh the mortgagee knew, when he 
took the mortgage, that the mortgagor was largely indebted 
to the United States. 

Afterwards, in ffarrieon v. Sterry^ it was held, that in the 
distribution of a bankrupt's effects, the United States were 
entitled to their preference, although the debt was contracted 
by a foreigner in a foreign country, and the United States 
had proved their debt under a commismon of bankruptoy. 
Though the law of the place where the contract is made be, 
generally speaking, the law of the contract, ye t the righ t of 
priority forms no part of the contract. The insolvency which 
was to entitle the TTuited Statee to a preference, was declared 
in Prince v. BarUett," to mean ale g^ and known ins olvency,/ 

• U. 8. r. HiNM, tip. United Btatea t. OlMk, 1 Paitu'i Rap. 820. Umted 
Sttt«a V. IfoorM, S MMtm't Rtp. S72. Unit*)! Bute* r. HawkiiMi 14 itartitCi 
Xmuoiind B^. SIT. la England ft pcoTinoml uugnmsat in bukrnptcy will 
deTeat the king's extaotv if it pnoedei tin tett of the wiiL King r. Cminp, 
Parkn'i Rep. Hi. Lord Btdoi^ li F'msi'i Rtp. SB. In the cua of the United 
Btatei T. McLellBii, 8 Skbumt R. 8i6, it wm held that a com «jaMa by a iato-wa 
ioKilTeDt debtor, of all bi> property to one or more crediton; in di*chMrg« of ttieir 
debts, not exceeding the amooat da«, and not Gir the benefit of any other creditor!,' 
was not a rdatitary Mngmnent within the act of I78II, «o aa to be affected by the 
ptlofitj of the United States, 

• fi Oraiteh, 289. 

• 8 CVtmeA, 4S1. a P. U.S. t. Oanal Bank, 8 Blor]^* B. 19. 



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26S JtmiSntUDBHOB OP [FwtU. 

manifeated by some nptorio ya ^tct of the debtor, piiTsiis&t to 
I ft w. This was giring to the world some teisonable and defi- 
nite test by which to ascertain the axistenoe of the latent and 
dangeroiu preference given by law to the United States. In 
this lost case, Hib effects of an insolvent debtor, dnly attached 
in June, were considered not to be liable to the claim of the 
United States, on a custom-house bond given prior to the at- 
tadunent, and put in suit in Angost following. The private 
creditor had acqoired a lien by his attadimrait, which conld 
not be divested by process on the part of the United Stetee 
snbeeqaently issued. JS'or will the lien of a jadgment credit- 
or, dnly perfected, be displaced by the mere priority of the 
United States. (1) The word insolvency, in the acts of con- 
gress of 1790, 1797 and 1799, means a legal insolvent^ ; and 

a mere state of insolvency, or inability in a debtor to 
*247 pay all his 'debts, gives no right of preference to the 

United States^ nnlees it be accompanied by a voluntary 
assignment of all the property, for the benefit of creditors, or 
by Bome legal act of insolvency. If, before the right of pre- 
ference l)as accrued, the debtor has made a bona ^de conT«y- 
ance of his estate to a third person, or has mcolgaged the 
same tosecure a debt, or If the property has been seized un- 
der an execution, the property is divested &om the debtor, 
and cannot be made liable to the United States. > 



■ TlwIluMOD T. Snulh, ! FAnrfon, BBS. CouBnl t. Tha AUaolio famniiM 
Oompuir, 1 PterJ ir.a.Rtp. S8e. Br«DtT.BMik<ifWMbiDgtaii,I0i'<(n'i,G9e. 
lite priority o( tb« U. 8. doM Dot klEeet any IwR, gaosral or ipecific, ezistii^ Thai 
tba flTcnt took pkce, whidi gan the United SUtM • claim of priority, nor prevent 
Uie InrntmiMJon of the pivper^ to atrigDM^ •aaadon Hid admkiulratota aabjact 
tc the liea — lb. Id EEvhnd, in the caoe of QUea t, QroTer, beibre the EonM of 
Lordi, (9 Biny, Rtp. 118,) it ww decided, after ft moat eUbonte dUeaauon, in 
oanAirmi^ with the oplnima of t, majorit; of the twelrs Judg«i, that the goodi of 
a debtor, already aeiKid uader t,fi.fa. at the suit of a subject, but not eold, might 
be taken oDder a imt of extent Cor a debt of the crown, and which writ of extent 
waa teated after the eeiiure under the Jifa. Tie eeiiure under the jt /a. was 
coiaida^d ■« not Verting the debtor of hli geMixI property in the good> eeiied, 
or in any maimer altering the property, and that no property «m thereby acquired 
therein by the execution creditor, or by the aheriS Tie claimt of the crown and 
the nibject on the goode were held to etand In eqnal degree, and the two execntiona 
to be in effect ooneutr^ ; end in aniA caua the king"! prerogatire had the pre- 

<t) UMM SaaKa T. OMMl Sank, ■ ibry^ £. m. 



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THE UHITKD STATES. 



The United States have, accordingly] a preference as credit- 
ors, to the extent aboye declared, in fonr cases, viz. : (1.) In 



ftnciM QuattJo jut Damiiti Btftt et tuMUi IniimiJ tenetttmnt jai rrgit 
pnrftrri Met {9 Oa. Ita b.) Ila Bhoriff bad tba Isg^ eaOoij of the Koodt, 
Md ■ ipedal prop«rtj in them by Tirtae of the Mtmre, for tbe porpote of pro- 
tcctioD utd Mle ; but milil the lale, wtueh wu the divldii^ tine mi Hie owumhip 
of the goodi, the abiolute property of the debtor wu not altered or direited. The 
piori^ of tte gioTetnuent dainu in thii oonqtry ia cot cnrriAd to that extent, 
Mooidiiig to the opintaa of Jvdge Waihiagtai^ ia IUIohmi t. BbJUi ; bat It ii 
to be obeetred, tliat the obaerratiaD of Judge Wuhii^^ was a tns« (KcfMM, and 
not a turning pmot in the case. The eune reniark af^ea to vhat wai aaid bj tlM 
judge irbo delivered the Dpidto of tl>e ooort b Oonani t. Hm AUantio Iiaamiei 
Company; for the dfetun waiquoUd m the conrM of the opinion inddeotaUj', and 
irlthout *aj eriticiam upon it, or pajliculir aUeution tn iL Id Hoke t. Heoderaon, 
(8 Dn. N. C. Rep. II,) Judge Baffin eooaiderad tlie prarogatiTe of the aoTereiga 
aa to priority, equally applitable here aa in fiigUnd. ai»d that it went to the 
eitaot claimed in tbe above caae of Qilea t. GroTsr. On the otlier ham], in 
Wilcocki'v. Walcn 10 Berg. A Rau. S80, andin U. Statw t. Mechanica' Bank, 
Oilpin, CI, it *aa held, that the priori^ of tbe U. Statce gave no lien on proper^ 
*ni«dDnder a fieri Eadaa, vhen the lien accrued, lor tbe debtor traa divetted of the 
property. A very oonteaUd question ba* been raiaed and diacuited in tbe oourta 
in Una conntij, on the conflieting chunis of a judgmffiil or attaching creditor under 
itate laws, and the aaaigDee under the bankrupt lav of the United States. It wai 
declared and adjudged by Mr. Juatice Storyi.in the Circuit Court of tbe Uoitad 
Slstea, in Maaaachoaette, and by Mr. Juatice Ware, b the Diatrict Court of Maine, 
that an attafhment uoder aatatelawivBaaat en abeolutcliei^butaoaDtiDgentona, j^ 
dependent upon a aubsequent judgment in tbeattacbiog auit; and that a bankrupt^ 
diacbaiged upon a petition b bankruptcy, tiled alter the attachment and during tb« 
proceaa of lud) auit, would ba a bar to the recovery of any judgment thereon, and 
that tbe Ken created by tbe attadunent muat give inj and beoomea avoided, aod 
the debt alao, by tha lubiptnit iWree and diaohaige m bankruptcy. Ex part* 
Foater, 2 filory'a R. ISI. In tbe matter of Cook, 3 Stor^t R. alS. Sx part* 
Bellows A Peck, B Blary'i R. 428. Smith v. OordoriTfl i^x Rtforttr, 811. 
Everett v. Stone, 8 Btanft R. 14T. Tbe courts of tbe United Slntea, and several 
of the state courts, mabtab a different doctrine. Tbe doctrine i^ that a creditor, 
by bis sait ia equity, cammooly called a creditor's Inll, on bis nntatiirfled judgment^ 
thereby acquires ao equitable lien, and which operates as ao attachment of property, 
and creates a right to priority of payment as agaiust the assignee of a bankrupt, 
under a petition b bankruptcy itJiteqtttnttj/ made. That aucb a lien was not 
divested by a decree in bankruptcy, upon a petitioa filed lubeeqaent to the com- 
mencement of a chaneeiy suit, or the levy of the attachmenU That the aaaiguea 
in audi a caae takes tbe debtoi's property subject \o (be creditor's lien, even inde- 
pendeaC of the proviso b tbe bankrupt act, and upon general prindptes applicable 
to insolvent and bankruptcy b this country and b England. That Ibe asdguee 
of the bankrupt or insolvent takes only eDcb rights, and subject to soch equities as 
betonged to tbe baakmptUnuelf at the lime of the bankruptcy. That tbe judg- 
mtait eradilm had alio a Ui^ npoo the tnw eoMtivetien of tb« proriio in Iha Id 
lectionof the bankrupt law, paramotint to the datm of the aMgnee, and a« ttnng 



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S64 JURIBPBtTCEITOB OF [Fnt U 

tlie case of the deatih of the debtor wiihoDt Bofficient aasets; 
(2.) bantroptcy or legal inflolvency, mamfeeted hy some act 
pDiBnant to law ; (3.) a voluntary aasignment by the inBolvent 
of all hia property to pay his debts ; (4.) in the case of an ab- 
sent, concealed or abeconding debtor, whose effects are a^ 
taohed by process of law. The priority was intended to ope- 
rate only where, by law, or by the act of the debtor, his 
properly was sequestered for the use of his creditors ; and it 
is proper that this prerogative right of the United States 
shonld be strictly constraed and precisely defined, for it ig in 
derogation of the general rights of creditors." 



npon tlii* proruo m npoo g«a«ml pradpUi of law, for Uw woitl itemritUt 
itiAat bU moitg«gM ind Ueo^ ind Umj maj be colbrMd in tko state oouH*. 
n» attaehmmt ii a lien, and Um creditor'a till a lien witliiD Uia proTiso, and tbo 
proper^ ot Ilis baokrapt vu not divated ODlil tha d(«e« fa baDlmiptej-. Tie 
dedikoi fa tlie Cireoit Conrta of the IT, Btatos in Ytrmoui, Nev-JirMj and 
F«tMirrltBi>ia,u>dof tb«Dutnct Comtaof Vemmt^of Nortiien] New -York and 
of aoTOal of tbe tUtt cotnt^ are all dted io rappoit of Om doebioe, hj tba Am*! 
y. OL of New-York, b tb« eaie of Btorm t. Waddell, S If. T. Ltgal Ob*en*r, til. 
S. 0. S Ban^erd, CK. R. 4M, and wMch caie ii dirtii«iiidwd hi iU leamii^ tnd 
alnlity, aod ila logical nndieatioa of tlie doebrme. ^le two caaai of Eitb«dge t. 
WacKO, and of Eitfavdgg t. EmeiMii, decided Id tba Safrone Court of Naw- 
HampeUre, in the jear 1 Si4, and in which the jndgnMat of the ooort waa deKramd 
bf Hr. Oh. Jnitioe Aiker, are eqnallf worth; of apadal not)M bt tbdr learned 
Nuanb, and powerfbl, if not fareditltde, dedDciiaia.(l) See, abo, Doronu v. 
Walker, Alabama JI. JIT. A toL TiiL p. IM, uid Vtbrj t. HondoD, /if, B4S, to tha 
S.P, udbfitToaroftheTigMofaieatataconrtito mquininlotheTBlidit^ara 
diecharge opoo tbe allegataoD, tliat the baoknipt did Dot noder a tone ioTentiirf of 
hla property, but fraodnleiitlj oooeaaled tb« uunfc 

■ WatUM T. Oti% 2 Piditrim^t B»p. lOE. The pioci^ ginn by law to tha 
Vidtad Btatea doea Dot ezteod to the real estate, or the prooeadi of the real ertat^ 
beloi^iig tooTTeetadin thebdmof the debtor. Tb» priori^ doei not attach oe 
agaiiul At Mr, bat onlj when the real eatete, ot the proeeeda tbereot pauee to, 
or ii rerted by law in the haod* of an antgnee of en iiMolTeot debtor, or hie 
e»onton or adminiitraton. Ciuted Btatee v. OrooUiatik, 1 Bdu. Ck. Rtp. SSI. 
It doe* not extend M aa to take the property ofapaitoier inpartoerehip eflecti^ to 
paj the lepaiate debt of mdi partner, when the paitaienhipeSedaar« not enlBdeDt 
to ntlafr the erediton of the parfaienbip. United State* t. Bade, S PfUri U. B 
Btp. Sll. It doea not ajtend «o a* to raadt the alkiwaDce made bj the judge of 
probatea to the widow of the deceaaad deUor, nntil Ute law of dietribntion of 
■otertatM' ertatea. PortBaatteH}eoend r, BobUn% ITore'i Stf. 18S. It doea not 
extend to a enre^ to a enrtMn-home bocd, to ai to entjtl* him, alter pajlng the 
debt, to be mbrogat«d to the ri^t* of the United Btatee ae agakat hii tx^an^ij. 



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im. zil] the ohited states. 265 

The goyenunent was a privileged creditor, under the Bo- 
mau law, and entitled to ptioriiy in the payment of debta. 
Hie oessio horwrum was made subject to this priority. Thia 
is genetally the case, in all modem banbrnpt and insolvent 
laws. In England, the king's claim is preferred to that of a 
subject, provided the king's process was commenced before the 
' enbjelit had obtained judgment.^ As to the fiscal lien 
of liie government of the United States, it *was held, *24S 
in Harris t. Deunie,^ that the government had a lien 
on goo d s importe d, for the payment of duties accmiag on 
them, and not secured by bond ; and that the United States / 
were entitled to the custody of tite goods ontil the duties were | 
paid or secured ; and any attachment of the goods under | 
st ate process, during such cnatody,*waa Toid. Chi the other 
£tuid, it was held, ^t the government had no general lien 
on the goods of the importer, for duties due b; him up<m 
other importations.^ 



or to gin bia damind for eoDtaibotkn k pMferNiM orer otlMr crediton. Pollodc 
T. Pntt A Hu^, e WoMk. a a Stp. ««a Buik v. Adgcr, 1 HUFt 8. C. Hep. 
SM. But thk prioiit^, m pvoi bj tlie lUtota of IIV), appUaa to 4gtiitBl)tf u 
wall ■■ t«g«l debta. Hove v. Shcppwd, 1 AoMwr, 182. It wm fiuther held, in 
BtMtoi) T. Ftiman' Bank of Ddawc^ It Pdan, lOS, that no lien wu crcttad bj 
the (tiOiita of Kareh Sd, lltl.mA tb»t the priority ettabliahad bj it eoald nerer 
aUacli, wbile tba debtor contioiiee lb ovner Mid in poeMtdm of tbe propertj, 
thoo^ b« b« notUa to paj hia debta— llMt do a*kl«>oe of lua inMlTcn^ eui bft 
reoiiTad, tntil b« bu been dirartad of bis ptvpertj; and when thw diTcat«d, tba 
pcnm who fadtes tba litla beoomca », truitee for the United State). Sea Conic- 
Jli^f TVaati*^ Sd edit 46» — i7S,fi>r acondaiaadTiew ottbestatutee andjudidal 
dadskna oD tUa qnartion of prioritjr Maarted bf tba Umted 8t»t«a. 

■ Stat Bn Via c 19. 

k 8 Ptttnl U. a. Btp. 81)2. 

■ la Hacj'lBnl bj atatuta, paaed in 1T78, tba ccraunencamait of a lolt by (Ac 
ilait agilnat a pnUio debtor, ereated a lieD on tbe landa of tbe debtor, aod a 
pr«&raDoaoTeraUoUiercr«ditoia,vb0kad not, prior to tbe cominencemnilorilM 
ndl^ aacned a Hen bj judgment, mortg^^ or ollierwiae. Davidaoo t. Cl^laod, 
IBarr.AJolUiM.Hi. HiepnrenooainpajmcatofdebtBinBabnndiof goreiB- 
naot pmogativa at ocnunoi lav, and it vm introdneed m end) into Hwjland. 
It ia the lav atOl, vUre tbe propotf of tlu debtor remaiDa in hai>d, and there ia 
■MlienatBDdi^bi tbaimr- State of MHyland t. Baak of Har^land, S ffW .« 
Maum, SOe, In Ooonaetioat^ tiba atata bu a priority of claim asninat tbe aetata 
«f an ioaolTeiit debtor; aod itateanretieapajiog tba debt bare the wme^Tiiege. 
BtnttiSlaMm o^ CbiuweUcHf, 18t«, p. 81S. Hm atat« prelwence reet^ in tUa 
eontf7,npoD*tatntaa; and thacommoak«gi*eanoiMorerollier(3edilora. The 
State T. ^iria, S Bmil*^! 8. C. Sip. B*8. Kedlaj t. EebUej, S fliVt 8.0.CK 
Rtf. SSS. Hie ooDunon lav prerogatira of tbe king, to be paid b praferenca to 



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JUBIflPEUDEHOE OF 



Cdocih (2.) 'nie next case which called forth a constructioii from 
Cli^. every part of the government as to the implied powers of eon- 



•U other crctfiton, ia th(refcir« not miif timlly adopted ia this comitry. It preraik 
in tlie eaT«rBm«nl of tba Uohccl 8t«t««, and in IIftiylMid,HortIiCaraItaa, IndiaiM, 
Ooonecticirt,A(i,batiMbinSoDtliCandb«. lDOaamM,«titatBMBlMV«preteuicM ' 
vut tl\ ioambr*ac» Tli*ta(wr«r. State v. Funbrrtoii, Dufitif* Btp. Id. In 
Tn^i.nm (he ttAte hu ptcfereDce of all other creditor*; and iral and penotutl 
cat«t« U boond on bebalf of tbe Btato ftom tiie teste of the first proceH. R. BlataUt, 
Uf8.p.iB8. 

As to the lieu of jadgmwteobbdmd br bdiTidnali In tbt tMknl eOTM^ it waa 
decided in the Cireoit Court of Uie United Stotc^ in New-Torb. in KoTembcr, 
1BS9, in tba caM of Konig v. Bayard, tha^ judgnieota in tlia Circuit and District 
Courta Id ITev-Torli were a lioi upon laoda as agaioet tubaequeut purchasers, from 
tta time they vrsre regularlj docietod, aooording to tho pnctioe of those courts 
MidtliattlMDMge(rfda*k«tieKtiwM}odgnieaUhanprantll«dMe«11St. TIm 
aame docbiue was aasamed in lafensce to jw^aaeoto io ttte fcdenl eooits b 
PeoDsjlTania, in the case of Conard t. Atlantic lu. Co. 1 Ptttri II. & Rt^ SSB ; 
Bod the priDciples contained in this laat case vers revieved and oonfinaed in 
aoaazdy.SioM,iP*ltT/ U.S.IUp.a<H. Tbe eaiiM nde as to jndgmtnt* in the 
Circuit Court of the TJaited SbOes in Ohio. Sellers t. Ctmrin, 5 BiauttiMit R^ 
too. Tbere is no act of congresa makii^ JudgmwitB ia the United Statea courta a 
lien on lands. Such a lien depends upon the local lava of the state wIhts the land 
liee. Tajloe t. Tliompeon, S /'«f«ri' A.SB8. InNe«-Torb,tiien(bn,aJBdpiMDt 
b one of the federal courts within that sUte, ia alien i^ion the lands of tlia debtor 
witliin the state, for tbe term of ten jears from the docketing of the jodgtMoW 
He Manhattan Company t. Erertson, S Paige't R. 4(7. lDdee(^ io vrij stat^ 
Ihejudgmenlsof the federal courta luife thesBineIien,totheeztent ofitiinriBdie- 
tion.aa thejudgmeDtaofthehigbest court ofthestate. Den T. Jo[)e^ 2 JfeXson'* 
Jttp. IS. B3. 

Debtors to the Uuited States fbr monoTH received, theii executors and admBais- 
trators, ix, omittiog, im due notice, to render to the auditor of the tfeasucf their 
accounts and Touchers for the expviditura of such mooajs, are to be sued under 

(the direction of the comptroller of the treuui;, and are (o b« siit^ect to the cost* 
and charges of such salts, wAriA«r tht ulliaiali dKition be in thtir fammr or agmut 
(Ann. (Act of Oongrca, March id, 179ti, c 113.) So receiTers of public mtinefs, 
induding sll public officen^ who shall ful to account and pay over the same, tbej 
•nd their sureties may ba proettdtd agaimt/ortliieilh by mint of dittrtu, and baTe 
their gooda and chattels seised and sold, sjid if uot sufficient, the; may be impiisoDed. 
Tlio amount doe is a lien on the real estate fiom the time of the levy of the diatreas 
warrant ; and for want of sufficient goods and chattela, the lands may be sold on 
three weeks* notice, and a conveyance executed to the purchaseil by (he musbal. 
(jlcf of Conp. tup. ces. 3, and Act of May ISth. 1820, sec e, B.)(l) Any penon 
aggrieved by the diatreto, may apply by tall to the district judge for relief under 
the process of injunctioo, and if friSl unredressed, he may sjipeal to the Circuii 
Court. {Ad of Congreu, ISth Hay, 1820, sec t. fl.) He nu^ also, if in prison. 



{!) BiiIieeeipitteBindolp)i,lA«at(ra.)Si<p.MT.4n— Sa tr.B.v.SoK,10Aw.lOfc 



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Lm ZII] THK UHITSD STATES. 967- 

grees, was, -whctlier congron had power to iooorporate a baak. 
liithe 7eaTl791,the secretaiy of the treasTuy bad recommended 
theinstitution of a national bank, as being of primary import- 
ance to the prosperons adminbtratiun of the financee, and of 
the greatest ntiUty in the operationa connected with the sap" 
port of pnUic credit Bat the bill for establishing a bank 
was opposed in the House of BepresentatiTflB, as not anthorized 
Ir^ the constitation. It vaacontieDdedtbatthegoTeni- 
ment of the United *State8 was Umited to the exercise *Sld 
of the enimersted powen, and tliat the power to in- 
cwporate a bank was not (me of them, and, If vested i» the 
goTomment, it mnst be an implied power ; and it was con- 
tended, that the power given to congreas to pass all laws 
sAoeesary and proper to execute the epeoified powen^mnst be 
limited to means necesswy to the end, and incident to ti» 
nature of the ^>ecified powers. On the other band, it was 
n^d in &Tonr of the bill, that indldental, as well as express 
powers, necenarily belonged to every govemzaenfe, and that 
■wbea a power was delegated to «ffect partieolar objects, all 
the known and nmal means of e£feeting them passed as inci- 
deotat to them ; and it was inaisted^that a bank was a known 
and osnal instroment, by which .'Several of the ennmevated 
powers of govenaasot were exercised. After the bill bad 
passed the two honses of congress, the qseetion toncbing its 
constitutionality was agitated with equal ability and ardour 
in &e executive cabinet. The seeretary of state and the at- 
tMney-genentl oonceived tbat eongtees had transcMided their 



b» relieTsd upon ka6eat eorput "bj tlw Circuit Court of the TJaitod Statai. 
(nDit«d States t. Nouree, V Ptltn, 8. Id. p. IS, note.) The doctrioes of tli« 
govennneiit Bod conrla of tb« XJniUd State* are qoite rtringent In recpect to tb« 
oUigatkaia of inportencf giMd*. He impett duty liheU to be a' pcrtOBal debt > 
ehatgeable spon the importer, ai well a* a lieu on Ilia good* thMnwlTM, and that / 
the penooal debt ooDtiDues, though tha goods be deposited with a bond girett fbr i 
the duties, and the gopda be lost or destinjed. Meredith r. tTnited Sute^ 11- 
Pettrt, 4M. 494. Ao^Jier part of that ease wean the same forbidding aspect. 
Hm enforoement of &»-«, peDiUei or forfcitnrM; under tbs nmiM taws of the 
Vidtod8tBtea,ia«xtraE>pjiPMriatN»ilt^orDii*; but tha Ad of Ooi^TMiofUaRii 
Id, 1797, sec. 1, and made perpetual b? act of Feb. II, 1800, authorisea the 
Betretary of tha^ Treasury, on application, to mitigate or remit tbo penalties of 
tliaae lairs, when, froro the ftct* c^ the case, flrst j udidally ascartair wd, ha should 
be of cfiukni that inch paHltleaWvt beanliMnrrtd Mtl*k(iH$U iut^fm»i,tr 



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Sjgg JUBISPEnDEBCE OF [Fart IL' 

poveiB, bnt the secretaiy of the IreaHiuy maiDtained the ap- 
posite opinioii. TheiT respective opinions were foonded on a 
train of reasoning, denoting great investigation of all the lead- 
ing and fimdamental principles of the constitntion, and they 
vere submitted to the consideration of the President of the 
United States. It was argnod against tie constitalionality of 
tlie act, that the power to incorporate a bank was not among 
the ennmerated powers, and to take a single step be;ond the 
boundaries q>eciaUy drawn around the powers of congress, 
woold be to take possession of an undefined and undefinable 
field of power ; tliat thongh congress were authorized to make 
all laws necessary and proper for carrying into execution the 
enumerated powers, they were confined to those means which 
were necessary, and not merely convenient. It meant those 
means without which the grant of the power woald be nnga- 
toiy, and that if such a latitude of constmction was allowed, 

as to give to congress any implied power on the ground 
*260 of convenience, *it would swallow up all the list of 

enumerated powera, and reduce the whole to one 
phrase. On the other hand, it was contended, that every 
power vested in a government was, in its nature, sovereign, 
and gave a right to employ all the means fiiirly applicable to 
flie attainment of the end of the power, and not spe<»ally pie- 
claded by specified ezceptions, nor contrary to the essential 
ends of political society ; that thongh the government of the 
United States was one of limited and q)ecified powers, it was 
sovereign with regard t» its proper objects, and to its declared 
purposes and trusts ; that it was incident to sovereign power 
to erect corporations, and, consequently, it was incident to the 
United States to erect one, in relation to the objects intrusted 
to its management; tha't implied powera are as completely 
delegated as those which are expressed, and the power of 
erecting a corporation may as wdl be implied, as any other 
instrnment ot means of carrying into execution any of tbe 
specified powers ; that the exercise of the power in that case 
had a natural relation to t^e lawful ends c^'tbe government, 
and it was incident to the sovereign powe^c^ regulate, and 
to employ all the means which apply with the best advantage 
to that regulation ; that the word neceasary, in the constitu- 
tion, ought not to be confined to those means, without which 
the grant of power would be nugatory, and it often means no 



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Lwl ZIL] THE mfTTED STATEa 2^9 

more than needful, requisite, naefol or conducive to, and that 
was the true sense in vhich the word waa oaed in the consti- 
tatioQ. The relation between the meaanre and the end was 
the criterion of constitntionalitj, and not whether there was a 
greater or less necessity or utility. The infinite variety, ex- 
tent and complexity of national exigencies, necessarily re- 
quired great latitude of discretion in the selection and appli- 
cation of means ; and the authority intrusted to government 
ought and must he exraxjiaed on principles of liberal construc- 
tion. 

President Washington gave these argomenta of his ca- 
binet a deliberate and profound consideration, and it 
*temiinated in a conviction, that the incorporation of *261 
a bank was a measure authorized by the constitution, 
and Uie bill passed into a law. 

This same question came before the Sapreme Coort of die 
United States, in 1819, in the case ofJPOuUooh v. Ths State 
of ifaryland,* in reference to the Bank of the United States, 
which was incorporated in 1816, and upon which the legisla- 
ture of Maryland had imposed a tax. Notwithstanding the 
question arising on the construction of the powers of congress 
had been settled, so &r as an act of congress could settle it, in 
1791, and again in 1816, it was thought worthy of a renewed 
discussioD in that case. The chief justice, in delivering the 
opinion of the court, observed, that tiie question could scarce- 
ly be considered an open one, after the principle had been so 
early introduced and recognised by many successive legisla- 
tures, and had been acted upon by the judicial department, 
as a law of undoubted obligation. He admitted that it be- 
longed to the Supreme Court alone to make a final decision 
in the case, and that the question involved a consideration of 
the constitution in its most interesting and vital parts. 

It was admitted, that the goTemment of the United States 
was one of enumerated powers, and that it could exercise 
only the powers granted to it ; but though limited in its pow- 
ers, it was supreme within its sphere of action. It was the 
government of the people of the United States, and emanated 
from them. Its powers were delegated by all, and it repre- 



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370 nnuBFBUDmtoB or [Putn. 

sented all, and acted far all. In respect to thoee sabjecto on 
which it can act, it moet necesaarily bind ita eomponent p^« ; 
and tfak was the express language of the ccnstitattoii, whoi it 
declared that the ocnstitDtion, and die laws made in pnnn- 
■nce thereof, were the supreme law of the land, and required 

all the officers o( the state goTemmenta to take an oath 
*253 of fidelity to it Iliere was nothing *in the constita- 

tion whicji exelnded incidental or implrad powers. The 
arliolce of the confederaticm. gave nothing to the UnitedStatea 
bnt what was expressly granted ; but the new constitation 
dropped the word tapretslj/, and left the question, whether a 
particnlar power was granted, to depend on a fEtir coostrne- 
ti<m of the whole inetmment No constitation can contain an 
accurate detail of all the sabdiviaione of its powere, and of all 
the means by which they might be carried into execution. 
It would render it too prolix. Its nature requires that only 
the great ontlinee should be marked, and its important ob- 
jects deeiguated, and all the minor ingredients left to be de- 
duced irom the nature of those objects. The sword and the 
purse, all ihe external rdatious, and no inconsiderable por^ 
tion of the industry of the nation, were intrusted to the gene- 
ral government ; and a government intrusted with such am- 
ple powers, on the due execution of which the happiness and 
prosperity of the nation vitally depended, must also be in- 
trusted with ample means for their execution. Unless the 
words imperiously require it, we ou^t not to adopt a con- 
straction which would impute to the frameiB of the constita- 
tion, when granting great powers ibr the public good, the in- 
tention of impeding their exercise, by withholding a choice 
of means. 

Ihe powers given to the government imply the ordinaiy 
means of execution ; and the government, in all sound rea- 
son and fair interpretotioti, must have the cjioice of the means 
which it deems the most convenient and appropriate to the 
execntion of the power. The power of creating a corporation, 
though appertaining to sovereignty, was not a great, substan- 
tive and independent power, bnt mwely a means by which 
other objects were accomplished ; in like manner, as no semi- 
nary of learning is instituted in order to be incorporated, bnt 
the corporate charter is conferred to subserve the purposes of 
education. The power of creating a corporation is never used 



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for its own sake, bat for l^e purpose of efCectiDg some- 
tbiiig else. It is nothing but ordinary ^means to at* *358 
tain some public and oseM end. The constitation has 
not left the right of congress to employ the neceesaiy meaap 
for the execution of its powers to general reasoning. It is 
expressly authorized to employ such means ; and necesiary 
means, in the sense of the constitution, does not import an 
absolute physical necessity, so strong that one thing cannot 
exist without the other. It stands for any means calcnlated , 
to produce the end. The word necessary admits of all de- 
grees of comparison. A thing may be necessary, or very ne- 
cessary, or absolutely and indispensably necessary, ^e 
word is used in various senses, and in its construction, the 
subject, the context, the intention, are all to he t^en into 
view. The powers of the government were given for the wel- 
fare of the nation. They were intended to endure for ages to 
come, and to be adapted to the various crises of human 
affairs. To prescribe the specific means by which govern- 
ment should in all future time execute its power, and to con- 
fine the choice of means to euch narrow limits as should not 
leave it in the power of congress to adopt any which might 
be appropriate and conducive to the end, would be most un- 
wise and pernicious, because it would be an attempt to pro- 
vide by immutable rules for exigencies, which, if foreseen at 
all, must have been seen dimly, and would deprive the legis- 
lature of the capacity to avail itself of experience, or to exer- 
cise its reason, and accommodate its legislation to circnm- 



If the end be legitimate, and within the scope of the con- 
stitntion, all means which are appropriate, and plainly adapts 
ed to this end, and which are not prohibited, are lawful ; and 
a corporation was a means not less usual, nor of higher dig- 
nity, nor morerequiring a particular specification, than other 
means. A national bank was a cMiveuient, a useful and e»- 
eential instrument in the prosecution of the fiscal operations 
of the government. It was clearly an appropriate measure; 
and while the Supreme Court declared it to be with- 
in its power and its dnty, to maintain that an act *of *i}64 
congress exceeding its power was not tbe law of the 
land, yet if a law was not prohibited by the constitution, and 
waa really calculated to efiect an object intrusted to the go- 



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27S JITBIBPKnDEItOB OF [Fvt IL 

Temment, the court did not pretend to the power to inqaire 
into the degree of its neceeait^. That would be passing the 
line which circumscribes the judicial departmest, and be 
treading on legiflUtire gronnd. 

The court therefore decided, that the law creating t&e Bank 
of the United States was one made in porsaance of the con> 
stitotion; and that the branches of the national bank, pro- 
ceeding from the same stock, and being conducive to the 
complete accomplishment of the object, were equally const!- 
tational. 

The Supreme Conrt were afterwards led, in some degree, 
to review tliis decision, in the case of Osbom t. The United 
States Bank;*- and tbey there admitted that congress could 
not create a corporation for its own sake, or for private pur- 
poses. The whole opinion of the court in the case of Jf'CW- 
loch V. The State <jf Maryland, was founded on, and snstainetf 
by, the idea, that the bank was an instrument which was ne- 
cessary and proper for carrying into effect the powers veetod 
in the government. It was created for national purposes 
only, though it was undoubtedly capable of transacting pri- 
vate as well as public business ; and while it was the great 
instrument by which the fiscal operations of the government 
were effected, it was also trading with individuals for its own 
advantage. The bank, on any rational calculation, could not 
effect its object, unless it was endowed with the faculty of 
lending and dealing in money. This faculty was necessary to 
render the bank competent to the purposes of government, 
and, therefore, it was constitutionally and rightfully engrafted 
on the institution.'' 



• S jntatoB, SDB, 880. 

^ It bwortli^of Dotic^ tluittbepowerofcaiigreM to eatabliali a tuUiaiwl bank 
eren under tbe Briiclei of ooaHBdenitloD, bmum not, at the time, to baTe beco mod 
qoMtioned ; and coiigr«M did aetuallT' approTo of soeb a propoohiDa od tb« 2flUi 
of Mb7, 17S1; andon ttisSlttof D«Mmb«T (oUoiriii^tlwfprocMdedbytadjnaiioa 
to ioftitut* and incorporate tba Bank of North America. Joumalt of Congrti*, 
voL viL pp^ 87. 1S7. Iln oonatitutionalitj and rali^^Df Hiia ordinance irera ablj 
enforced bj Judg« Wilsoo. B«e WUion'i Warhi, voL iiL p. SS7, and a«« lupra, p. 
21t,n. The Gnt and tin iMCDd bauki of the Uoitod Statw w«r« aatablUied 1^ 
•tatute^ which receiTed the ajqMvhatioD of Fresdoila WaiMn^toa and IlBdi■OI^ 
and the oooBtitutiDnali^ of the eatabluhment of tttoae banhi b«ang rape^edlf 
dedared b; the Bapteme Conrt of the Ftuted BtatM,it waaeonaldered aiaiettled 



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Lm. to.} the ithitbd states. 378 

(3.) The coDstmcticai of the powers of congreaB relatiTe to 
tajifttion waa brought before the Supreme Court, in 1796, in " 
the case of Mj^ton v. The United Statei.^ By tlie act 
of *5th June, 1704, congreos laid a Auty npon carriagea *226 
for the conveyance of persons, and the qnestion was, 
whether this was a direct tax, within the meaning of tiie con- 
Btitntion. If it was not a direct tax, it was admitted to be 
rightly laid, under that part of the constitntion which declares 
tliat all duties, impoeta and excises shall he nmform tbrongh- 
oat the United States ; bnt if it was a direct tax, it was not 
constitutionaUy laid, for it must tlien be laid according to the 
census, under that part of the constitution which declares that 
direct taxes shall be apportioned among the aereral states ac- 
cording to numbers. The Oircnit Court in Yirginia was di- 
vided in opinion on the question ; bnt, on appeal to the Su- 
preme Conrt, it was decided, that the tax on camagee was 
not a direct tax, within the letter or meaning of the constitu- 
tion, and was therefore constitnlionally laid. 



qnettioii, not opw for ftirtiiw diicuiaioii. nie oixutitatioii decUrtd, that 'all 
Itgiilatitt ptnttri tlieraia gimated ihoald be rested io tlie oougreM of the Dmted 
StaCee ;" and Uiat * the txaeutivi pmecr dwold be Tested io a Freeideat of the 
Onited State! ; and that Ott judidal poietr of the United States abonld be Tested 
in MM SnprenM Oonrt, and ia inch inferior oooiti aa the ool^Ten nught, From time 
to linH, ordain and estaUiah; and that ika Judieial peiter Aould txttntl ta alt eaitt 
i»laHanitgyii^,aTiniig wider AecoaMtiUion? (ArLI.»e«il. — ArL3.MC.l.> — 
AtL S. lec 1, S.) lUs umple and beautiful diatribution of povei would seem to 
be too clear to b« miatakeo, tod too *aer«d to be ioTaded. He otith to uipport 
the eooatitulioo MoeMariljr tDcIndes, b ila aeaiiing and effieac;, the mipport of Uue 
diitribotioD of pover, and of the jodieial eogninnce of all caia arislDg onder Uw 
ooDstitutioa lliat eogniianoe extendi, of coune, Ui the qontioD, whetber oongreaa 
haTe the oousUtatioiial power to iaoorporata a oaCioDal banb. It ii a eatt arUing 
under the conttiivtiiHt ; and the decaaioiu of tbe Supreme Court in fiiTour of the 
exiitence of luch a power, and of the Tahd tzxroie of it m the establiibinent of a 
national bank. TtiewoTd«nw(iMryaiiJprcip«r,b UweotMtitalioii, werenot toba 
oonSned to mMiie that were itnfi<p«matf» in the exerdae of any e:q)rees power ; 
but ezteoded to all meaoa tbat congreM ihoold deem tzpedUnt and utefid, aod 
ooDducJTe to llie end proposed in the 'execution of any «xpreM powtr. That coo^ 
etruetioo ia binding and ooodnaire, aa well npon the other depaitmenta of the 
govenuneot ae npoo the nation at largtk lb* ooogreM, id whom i* TMled tha 
leg^slaliTe power, and tbe Fraiideo^ b whom is rested the ezecutiTs poweif.ara 
rtcpectivelj bound to receire and obey that construction of the constitution whidi. 
has been duly settled by the jndidnl power. See, farther, in/ra, ^ ttt: 404,^ 

• 8 IM. Rtp. 111. 
Toi_ L 18 



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974 JURSIPRnDKirOK of [PmUL 

Tlie qneetioB was deemed of very great importance, and 
waa elalioratel^ ai^ed. It was held, t}iat a general power 
was given to congrees to lay and collect taxes of eveiy kind 
or nature, without any restraint They had plenary power 
over every species of taxable property except exports. Bat 
there were two mies prescribed for their goTetnment : the mle 
of uniformity and the mle of jippordjjnment TbTSO'^nds 
of taxes, viz., duties, im^oets and exdaes, were to be laid by 
the fint rule ; iu9 capitation, and other direct taxes, by the 
second role. If there were any other species of taxes, as the 
conrt seemed to suppose thbre might be, that were not direct, 
and not included within the words duties, imposts or excises, 
ihtj were to be laid by the mle of amformity or not, as cwa- 
grese should think proper and reasonable. 

Ihe constitaUon contemplated no taxes as direct taxes, but 
such as congress could lay in proportion to the census ; and 
flie rule of apportionment could not reasonably apply to a tax 
on carriages, nor coold the tax on carriages be laid by that 
mle, without very great inequality and injustice. If two 
states, equal in census, were each to pay 8,000 dollars, 
*266 by a tax on carriages, *and in one state there were 100 
carriages, and in another 1,000, the tax on each 
carriage would be ten times as much in one state as in the 
other. "While A, in the one state, would pay for his carriage 
eight dollars, B, in the other state, would pay for his carriage 
eighty dollars. In this way, it waa shown by the court, that 
the notion that a tax on cairiages was a direct tax, within the 
pnrview of the constitutiou, and to be apportioned according 
to the census, would lead to the grossest abuse and oppression. 
TioB argument was conclumve against the construction set up, 
and the tax on carriages was considered as included withhi 
the power to lay duties ; and the better opinion seemed to be, 
that the direct taxes contemplated by the constitnticai were 
only two, viz., a capitation, or poll tax, and a tax on land. 
Hie comt concluded that the tax on carriages was an indi- 
rect tax OQ expense or consumption, and, therefore, properly 
laid, pursuant to the role of uniformity. 
In Loughborougk v. Blahe,*- the power of taxation waa 



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Lm xa] THK mnrsD atixta. 375 

again brought ander jadidal discnnion. Tba qneetjon vas 
immediately of a local nature, and it was, whether congren 
liad the right to impoee a direct tax apon the nnrapreeented 
Diatrict of Clolnmbia. Bnt there were piiiioiplos inTolvedin 
tho deoBion, which had an extenaiTe and important relation 
to the whole United States. 

It was declared that the power to tax extended eqnally to 
all places over which the goyemment extended. It extended 
as well to the District of Columbia, and to the territoriea 
which were not represented in coDgreas, as to the rest of tlie 
United States. lian^ daties were to be uniform, and taxes 
were to be- a^Kirtioned according to mmibera, the power was 
eorextenaiTe with ^ empire. I3ie inhabitants of the then 
territories of Michigan, and of Florida and AxkansBs, for in- 
stance, as well as the District of CJoliuobia, thon^ without 
any representatian in ooogreas, were subject to the 
*fiill operation of the power of toxAtion, equally aa the *357 
people of New- York or UaesachuBettB. But the court 1 

held, that congress are not bound, though they may, in their | 
diacretioa, extoid a direct tax to the territwiee aa well as to 
tile states. A direot tax, if laid at all, must be laid on every 
state conformably to the oensoa, and therefore congreea has 
sopowerto exempt saj state team its doe share of the bur- 
then. Butit waa nndooatood that congress wereunderno noi 
oeeaity of extending a tax to the unrepreaented Bistriet of 
Columbia, and to the territoriee ; though, if they be taxed, | 
then the conatitadon givea the rule of aaaeaament. Thin con- 
structjonwas adifitted tobe moBtoonTenient,ft>r the expense 
of assessing uid coUeeting a tax in a territtny, aa the Nortb- 
Weat territory, for instanoe, then exiated, might exceed ^to 
amount of the tax. Here waa an anomaloua caae in oar go- 
vernment, in which representation and taxation are not insepa- 
rable, though the prindlple that the power of taxation conk) 
not rightfdlly sziat without representation, was a fitndamental 
ground of our revolution. The court did not consider a de- 
parture from a general principle, in this case, to be very ma- 
terial or important, because the caae was that of territories 
which were in a state of infancy, advancing to manhood, and 
looking forward to complete equality, as soon as that state <^ 
manhood should be attained. It was the case, also, of the 
District of Columbia, which had voluntarily relinqniahed the 



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270 JITBiaPErDBNCB OF [Fwtn. 

right of representatioii, and adopted the vbole TkmIj of con- 
grefls for its legitimate goTemment 
Btuof (4.) CongreeB hare the ezclmiTe right of pre-emption to all 
"ii. Indian lands l^ing within the territories of the United States. 
This vaa so decided in the esse of Johnson v. M^IntmK*- 
TJpon the doctrine of the coort in that case, and in that eS 
FUteJuT y. Peek,^ the United States ovn the sofl, as well as 

the jurisdiction of the immense tracts of impatented 
*S58 lands included within their territories, and of *aU the 

prodnctiTe funds which those l&nds maj hereafter 
create. The title is in the United States hj the treaty of peace 
with Great Britain, and bj BDhseqnent cessiona fixtm France 
and Spain, and hy cessions from the indiridoal states ; and 
the Indians have only a rig^t of occapancy, and the United 
States possess the le^ title, sabject to that occnpancy, and 
with an absolnte and exclusive right to eztingaiBh the Indian 
title of occupancy either by conquest orpmvhase. The titie 
of the European nations, and which passed to the United 
States, to this immense territorial empire> was founded on dis- 
coTeiy and conquest ; and, by the Europeui customary law 
of nations, prior discoTery gave this titie to the soil, subject 
to the possessory right of the natives, and which occupancy 
was all the right that European conquerors and discoverers, 
,aad which the United States, as succeeding to their title, 
would admit to reside in the native Indians. The principle 
is, that the Indians are to be considered merely ss occupants, 
to he protected while in peace in the possession of their lands, 
but to be deemed incapable of transfening the absolnte title 
to any other than the sovereign of the country. Die consti- 
tutiim" gave to congress Ae power to dispose of, and to malte 
all needfdl rules and regulations respecting the territory, or 
other property belonging to the United States, and to admit 
new states into the Union. Since the constitution was 
formed, the v^n« and effica^of this power have been mag- 
nified to an incalenlable extent, by the purchase of Louisiana 
and Florida ; and, andior the doctrine contained in the cases I 



• S Tn*t«n, bit. 

' « Ormdk, 112, US. 

• Art 4. MC. S. Q. 1, !. 



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Cm-XIL] the TnnrsD states. 377 

have referred to, congreae have a lai^ and magnificent por- 
tion of territorjr nnder their absolute control and disposal. 
Hub immense property has become national and prodnctive 
stock, and congress, in the administration of this stock, have 
erected temporary goTemments nnder the proviaiona of the 
<nrdinance of the congress nnder the confederation, and under 
the constitntional power ; and they hare appointed the offi< 
cen to each territory, and allowed delegates in congress 
to be chosen by the ^inhabitantfl every second year, *259 
and with a right to debate, bat not to vote, in the 
Hoose of Bepresentatives.' 

The unpatented lands belon^ng to the United States, within 
the states of Ohio, Indiana, Qlinois, IGchigan and tiie terri- 
tory of Wisconsin, arose from ceaaions from the states of Yir- 
fpnia, HJoasachosetts, Conneetiont and New- York, before the 
adoption of the present constitution of the United States.^ 



* Ordiuooa of Ooi^^ of 18th Jnlj, 178T. Aelt of Om^rMi of Avgtui tik, 
tTSV; January 14(A, ISOS; JTokA M, 181T ; FtbrMory ISO. 1818; April S4IA, 
1810; JforcA SOU, 1828. Tbe Mqidaitkiii of Om fcrdgn territoriM of LonUini 
•Dd Ftixida hj tb* Doitod Statai, b^ porcbue, wu to be npportad onlj bj a Tuy 
libeiml »ai latitodinarj wottmctioD of Um iD(a<ltDtal pairen of tbe goTenmuot 
nnder tbe ooDititntioo, Th« otjectioM to mcb ■ eoutnictioii, wUcb vare mgcd 
at tba tinui, m «tat«d to > Storyi Oomm. 1S«— Ifll. Bat tbe oaiHtitiit>oDa£tj c^ 
Om aaqnUOM of fimisii tanitor? n viodieated, e>UMidiad and mtihi hj tba 
Snprame Oonrt, at mm nee«Muilj Sawiag tnn tbe pover of the UDkn to inake 
Ueatiea. AmeriiaiiI[u.Oo.T.auiter, li><(M^ IT: A A^^Sll. It bekog^ tbera- 
fan, upon tbat priocpU, excJiuirel; to Ibe Preddtn^ with tbt adtice and con- 
■ant of tiro third* of the uemben of tbe Sraato proieot, to make Iba aaqntritJOD- 
Bnt in 18W, oongraal, by joint ranlntion, nnder tbe powei in the conditutaon, (ait. 
i, aMb S,) tbat " new itatM may be •'^•ft'A by tbe oongreai into Ihii UmoD.'' 
admitted tbe foreign and indcpaodcot ftate of Ttau into tbe UaioD a« a Mparata 
■tala, upon termi to wUch Teza* aftanrardi aooaded. SnalvtUm of Ooiigmt ^ 
Mmrck 1, 1841. Una waa giTiiig a naT legiilaliTe eoutnidioa, of eoetmant 
tAeaejraodextw^to tbe oonKitotioaal pover to aeqnire foreign atate^and woold 
appear to be eODtrary to tbe prioci^ of conatra eti on reoogniaed by tba BopraoM 
Oonrt, that the anoaiation of fcraign atatea oat of tbe limiU of tbe United States 
miut be tbe act of tbe trea^-nuhing pover. 

k HMtofllev-Torkwaemade Hard) lil; 1)81, nndar the antboiity of the act 
oftbaUgidataMofthatatata,of tbelnhFebroaiy, llsa That of Viiginia vaa 
made KaRfc lat, ITH <■«)« the antbncitj of an net of tba SOth December, 178S. 
llMt of UaMwteMtt^ on tba IHb of ApfO, list, and* tba antbori^ of tbe acta of 
tbatitat*,oflttbiraTember. 1184, and ITdt Hanfa. 17S6 ; and that of CoDoecti- 
eat,aalbe 14tt Beptember, 1188, mdw tbe aDOarity of an act of that riat^ot 
Hay,118«. lliatofSoiitbOaioBn^iiiAaftta^llST. Tb* titiea to the landi ba- 
loi^liiV to lb* ViHtad Sttf«a mH tf Uu Mitdaiffi k anppartad by tnatlaa 



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978 jmtispiuTDBiroB or [Pwtn. 

Kortli Carolina, Soatli Carolina and Georgia, made siinilar 
ceasions of their anpateoted lands, and which now cotnpoae 
the states of Tenneosee, Alabama and UiBsiesippi. ^e lands 
BO ceded were intended to be, and were considered, as consti- 
tating a common fund, for the benefit of the Union ; and 
when the states in whidi the lands are now sitaated were ad- 
mitted into the tTnion, the proprietaiy right of the United 
States to those nnimj^roved and tinsold lands was recognised, 
lliose lands belong to the United States, as part of their pnb-> 
lie domain, subject to the Indian rig^t and title of occnpancy, 
in all cases in which the same haa not been lawftilly exdn- 
gnished. It is not to be concealed, however, that the title of 
the United Ststee to the unappropriated lands l^ing wiAiin 
the limite of the separate states, has been serioiisl7 qnesticmed 
hy some of them, as hy Missisrai^, Dlinois and Indiana. 
Tlie latter state, in Janaar^, 1829, advanced a claim to the 
excInsiTe right to the soil and eminent domain of all the unap- 
propriated lands within her acknowledged boundaries ; and in 
1630, MissisMppi put forth a similar claim. But the ceseionfl 
of the territorial claims of the separate states to the western 
counti7, were called for by the resolntions of congress of tiie 
6th September and 10th of October, 1780, and were made 
upon the basis that they were to be " disposed of for the 
common benefit of the United Statee."* It was stipulated by 
congress, in the last resolution, that the lands to be ceded 
should be disposed of for the common benefit of the United 
-States; be settled and formed into distinct republican 
states, with a snitable extent of territory ; become members 
of the American Union, and have the same rights of sove- 
reignty, freedom and independence, as die otherstates. 
*260 It was likewise provided by *tho ordinance c^ Jaly 
18tb, 1787, for the govammmt <f the territory of the 
Z/hited States northwest of the river Ohio, that the lepslatores 
of the districts or new states to be erected therein, should 



VMlt with Oratt BritalD, ia ItSS, 1818, IBIl, taA tMi FMoee, is ISOt, mmI 
with Spain, in 18S0, md wllh M«kIoq, m 1811. Tiila JKutft ^nwr>Mn Dipl«- 
matU Codi, Wuhiogton, ISM, S Ttdt, vhidl ti ■ nxMt nlnablt oonpibdioD of 
•U Um traaliM down to ttat (UU, id irbidi tin TTnltsd StatM Imt* nj bterert. 

■ /<Ninu/t«/a<aM>/fllO>njrm>,*oLTLpp.1tt.l4T. JM(lToLTiiLpp.ieS.8H. 
AM ToL ijc. p. tl AU TuL X. p. 9a. AU toL li p. ISO. /Nd vol xil p^ 91. 



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LM.XU.] THE UHTTID STATKS. 279 

" never interfere with the primary disposal of the soil hj the 
Uoited States, in coogrees assembled, nor with any regala- 
tioDS congress may find necessary for securing the title in 
anoh soil to the lonafide pnrchaser."^ (1) 

(B.) By the Constitution of the United States, oongress were, Mj«««ji«fc- 
by general laws, to prescribe the manner in which the pnblio 
acts, records and jadicial proceedings of every state ^oold 
be proved, and the effect thereof in every odier state. la 
pnTBoanee of this power, congress, by the act of May 36th, 
17dO, provided the mode by which records and jadicial pro- 
ceedings ehoold be authenticated, and then declared that 
they should have snch faith and credit ^Ten to them in every 
eonrt within the United States, as they had by law or nsage 
in the coorts of the state from whence the records were taken. 
Under this act it was decided, in the case of MiU» v. Ihiryee,^ 
that if a judgment, duly authenticated, had iu the state court 
from whence it was taken, the faith and credit of the highest 
nature, viz., record evidence, it must have tiie same faith and ^ 

credit in every other court It was declaring the effect of the 
record, to declare the fUth and credit that were to be given 
to it (3) The constitution intended something more than to 



* For dUpodi^of tlubiidiof Hi* Vnited SUtai, BamMvm bud oSe«a hkT* 
twaa g»Ubluh«dbjieUof oongr«w,ia the etotoaot Ohio, IiidiMi*,Illuiou.HiMoiiri, 
Looiiuuiii, Hiatiiaippi, AUbuna, Uidiigui uid ArkAmu, uid ia Uie tamtonM of 
WiKCHuiD, low* ud Eloridi. See OordotCt Dtgttl of ihi Lam* of tki UniUi 
Staitt, 1881, pp. 8tl — SS9, in vhiefa all di« itetnto prorinoni ntatiTe to tb« dit- 
pontioD of the paUk doouda of the tJoiled SUtM >ve collected, and deari; and 
Deatlj MTmnged and digeitad. Bj His act of eongreN of Saptamber 4lh, IS41, a. 
16, tao per ceot. of tlie net proceadi of tlie uIc* of the public Isndi, to ba made 
aabaeqneot to the Slet of Dwamber, 1841, within the limits of the atatai of Ohio, 
Indiana, IllinoU, Alabama, Hiwonri, KimMpfi, Loninana, Arkanaa* and Mklugan 
were to be paid to those etatea reapectlTel;; and the rendue of tboee t>rtproce«di, 
•objaet to certain pvriioM, ibouM ba divide^ baU-yaarlj, amoi^ ttie twtntf-aiz 
■tate* of the nn)aa,and tlra ISetrict of Columbia, apd the terrilorie* of WUoooii^ 
Iowa nod Florida, according to their reapcctiTe federal repreeeotalire popnlatioi^ 
aa aacertained by the lait cauua, to be applied hj the legleUturc* of the add itatea 
to HMh purpoaa* at tbey ahoiild direoL 

^ 7 Ov»a^481. 

0) AHlioiigti tiM Mi oreoofiMi, I liar, ino, laohtbll* Uw psmbug of ludi Da annml of 
Uu17alK>dBIaia,u>Mp(l>rip«alal law, ret Ika UnU*] BUtts suj lapilra ibe lafal lUU to 
laDdtakiDulkaHaarlOo/aM>L Niilaaa t. La|Dw, It OhhwiI K & Aip. M 

(1) AnulioiiofdablvUliHtUsiciiiu(u*diidiilatne«'lBaiuiUts,ODi]udsinsDtid)lalua< 
M iDlsMala, eppolaled Doder the uukotUr o( BoMber 



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980 ^ftlSPRUDEHOE 09 [Ttt U. 

make the jndgmcaits of state courtaprwia fade evidence only. 
It contemplated a power in congrew to give a conclnsiye 
effect to such judgments. (1) A jndgment is, therefore, con- 
clasiTe in eveiy other state, if a court of the particnlar state 
where it was rendered would hold it conclnBiTe. (2.) JfU 
dAet is not a good plea in a anit on a judgment in another 
Btate, because not a good plea in such state. Ifvl tid record 
is the proper plea in snch a case. The same decision was fol- 
lowed in Sairr^>ton t. M'Connsl,* and the doctrine 
*261 contained *in it maj now be considered as the settled 
law of the land. It is not, howerer, to be understood, 
that nul tid record is, in all cases, the neceasaiy plea ; hnt 
anj special plea may be pleaded which would he good to 
avoid the judgment in the state where it was pronounced. *> 
And in Maykew v. Thateher^" the court would seem to im- 



• S Wktato*, £84; ■nd b Wcmwig t, Favling, 6 Oitti AJbuon, MO. 

• Shtimway t. Bttliman, i Omem't Rtp. SSL 

• Whtttini, 139.— Id Tliurba t. BlukboDnie, 1 X.N. Rip, Hi, it wu held, 
that nii Jib*f «u b good pl«a to delit on a jadgmeat of •notbtr ttetc wb«D It did 
not ^p«u bj lbs reoord that the derndant had notiM «f tb« miL And in 8p«D- 
o«r T. Bfodnraj, 1 HamnonSi Ohio Btp. 122 ; Holt t. AUovay, S Slael^. 
lud. Sep. 108, and Hozii T. Wright, ! Virmanl £«p.2eS,th«JDdginn)tof aoollMT 
■lata, r^golarij obtaioed, wb«a the defendant had been eerred vllh proceM, oi liad 
otlxrwite aj^Mred, waa held to be ooncIuuTe eTideoce of the debt But the 
daCaodauttaiatfaa** had dne notie* to appear, and be mliject to the jnriidietion 
of (be contt, oi if a forcigDer or noo-rerideot, he must bare adoallj appeared to 
the ani^ or the jndgmMt of another ttaU vill not be deuned anj raliditj. (>) 
Tlda ]■ a plak priociple of jnatioe, vhieh pertadea the jmupn>dei>ce of Ihia and 
of an other eonntriea. KiUbani v. WoodTOrth, 6 Muu. Sip. ST. Aldruh t. 



italb Ituemetbirsli&oiKMtTbetiraailhetwoadiiiliiUnlm^uidtbajDdriiHnleuiuitbe 
rifirded h ose <■ rwt icalort the MUte ai * ootpcnta luUr. 6Ucj t. Ttrnthtr, t Ifow. S. 

u.n. 

0) Itlwibtandei)ldeitIhiteJntffnieiitr>ikderBdb]ra)iiilt»of Uwiwaeehi ucOiaitilaiam 
DoteonMiriailiiaeeouatiiUoiulpniTUcB rsOrrad to la (ha leil,««1IU& Iba HtoflTga 
SnrdM' T. WlH, 10 Xorfj £. IGT. 

(S) la inaoMaBi^an a iMnd eoodUloaed •vtbeptrniMilgradebtbj'lBaUliiWDli, tbe plain- 

"~ DtlaNew-Uani|ialilral]rllLapanaJ^,ud«xeaiUaavAaliiDad fbr tbeiiit 

Ana, AMltk*irtivliaaBbfDaghllnVcTnHntMilha)odiBHBl,HwuAaUlhal 

lDOl(Teal>aaabKiM*lDd*M*dneii,whbiliwaD)dBi«alii u iMIob ofdeMta 

OiOrltrMUlBgM 

T.Bnaki,ai rtrmomtlLtm. 

9) Tha Botlo* miHl be nuHt at tb* Mile c<*l>>I ■■ 1* eompeleDt to OnA, Hen knoiriedie of 

tha paodeoo]' of Iha nil k not infllalaol. Slata trlboDala hsTs do anflwrnj barood Um Umltt 

oTbeKale; A hmh Ibal doOm aored an a pgnon natdeal tn anMber Male, and while be la 

vttUn«uihilala,wUlM(Kad(r Iha tmcBjadfOMnlbtodliwapoDUM. Binrir.Ooan,l 

auk. (jtml) a. n. 



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Im. xn.] IBB UKITED STATSS. 281 

ply that a judgment in one state, founded oa an attachment 
in r«m, would not be conclnwve evidence of the debt 
in other states, if the defendant *bad not personal no- *263 
tice of the anit, so as to have enabled him to defend it 



ONM7, 4 (^H. Adp. SSO. KtMU T. Brigga, S JTow JZip. 481. Fub«r*. 1^114 
S Witt. Rtp. 197. Buduuun t. Suckw, 9 Eattt Rtp. let, Donglu t. FoirMt, 
t Sing. Rtp. ess. T02. Becqu«t t. H-Otithy, i Bam<t. A Adotph. 901. Bruce t. 
'Wui.MlimningAOnmgtr.l. Pavlb^ T.Krd, IS /oAnt. St}). 193. Eutlmuu 
T. Jni«g, S Ttrga't Thui. Rtp. 484. HUler t. HiU«r, 1 BaU*^* B. 0. Rtp. 343. 
Bcntoa t, Ballot, 10 S*t). i Ra^ !40. Rog«r* v. Colenuo, Eardin'* Rtp. 41S. 
Bi>rd«D T. SUA, 15 Jehiu. Rtp. ISI. B«U t. WDIUm^ S Piek. Rtp. !S1. Bate* 
T. Delitan, B Pd^ BOB. BruUuiv v.EMth, 18 IFnuU/, 407. See, liio. infra, 
vol fi. I3a Hie dacbine b Mills t. Dorjee, Ii to be taken wiUi tLe qiulificatioa, 
tlMt in all inrtuwM the jnrMdietiaa of Um oomt nodering tlia judgment Uky b« 
toqniMd toto, and the |dM of nil Mtt will aUnr tb« defendMit h> ekaw Hiat Um 
court bad DO jnriadietion orer bla penon. It ii oalj wben tbe jurisdMioo of tlia 
court in anotlMT itato ia not impeached, eitber ai to tba lubjeet maUer or Um 
penoD, that the recwd of tlu Jodgiuent ii eotitled to full fiulh and cradiL Hu 
oourt murt bare bad jurisdietioa, not ool j of tJie tautt, bnt of tit partin, and id 
tbat eaaf tb« Jodgmeot i* flual wad eooduMTe. If the luit in another etate wm 
eonuoelKad }>j the attaduDant of propertj, the defeodant may plead in bar, that 
DO proMM wai Hrred (hi him, and that be Derer appeared, either m pernn or bf 
•ttorDey. Starbnck t. Mvmj, 6 WmddTi Rtp. 14S. Shumnay t. Stiltmau, « 
WmMTi Rep. U1. W:koaj.mM,l BalTt y.T. Btp-MB. QleaMAT.Dodd, 
4 Mtttitt/, SS& Aaryi Comm. on tht CouJIiet of Lou, BOS. Bangely t. Wehetar. 
11 N. B. Rtp. SftS. But ao inipcdMit dietiDdko it ben to be obeerred, that a 
procaedii^ by fbreigo attachmeot, and •(pioet garaUiee* to Jadgmeat and execu- 
tion, if binding in the itate, ia ooaclueiTe eTerywbere at a proceeding in ran 
against moveable property and debta attached or gaimsbed ; bnt the jiidgmeDt it 
of no force agatort tKtperton of tbe debtor wbo had not been eerred with pcooeaa, 
or appeared id the foreign aUachment, dm' agaioat bis property in aoother jmiedie- 
tion. Cochran V. F!uh, 1 5aiiiJfWirtCA. Ji. 14!. (1) Tbe procen by attachment 
of pfoper^ ot, and of debta due to non-reaidente, or of pereou absent from the 
jmiidiettoii, will antject the property attached to ezeentioD npou the jadgtntat or 
deoee fonaded on the procea* ; bat it is ooosidered as a mere proceedit^ «■ ran, 
and not pentnallj Unding^ ai h*Tii^ any extra terrilOTial force or oUigation. 
Blorjft Oonaii. on iKi Conjlitl 1^ Lamt, il% — 1«^ AU EOS. Cbew t. Randotidi, 
Walkti'iMif.R.l. OTentreetT.Sbaimon, lJVtaaMin.R^ fi29. Aspedalplea 
in bar «f a tult eo a Jodgmeot in another state, to be valid, must deny, by posiliTe 
•rennecife^ eToy bet which would go to ahnr tl^t the court in another state had 
jiBiadietiaa of tbe psiMi^ or of the aoliject matter. Eund t. Banetto, I Ballt 
N.T.Rtp. IBB. 

a>irUlasTT,Walih,lCI>*h(JK>«).)A.M. »t»a»cm»tfna,aM»,JT.DItLS:T.Li«B 
Stp. Ttbntarr, UM, p. 488, when tb* oooit mi itf iqiiBtoB that aJadfDMOt In rtm, nodend 
k paiOBOS e« ao Ht of (Ulo, vonld be a nolll^ In MlMT iMet, ul«H me owner of the i^id 
pvacesdsd aiplaal appsved tn Iba nlt,cr had doe notiee and oppntttillf lo make a detaee> 
Sea, Uta, As Tdecltr, J/. DM. <fir. T., nportsd In Lou Bip. Am, IBSO, p. CL 



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983 JDRraPRtTDKITCB OF [PwtU 

Pow«r (6.) Congress have anthoiity to provide for calling forth flia 
•w tb* ml- mililJa, to execute the laws of the Union, snpproBB insnrree- 
tions and repel inyasions; and to provide for or^aniziiig, 
aimiDg and disciplining the militia, and for gOTemiug each 
part of tliem as may be employed in the serrice of the United 
States ; reserving to the states, respectiTely, the appointment of 
the officers, and the anthority of training the miHtia, accord- 
ing to the discipline prescribed by congress.' The President 
of the United States is to be the commander of the militia, 
when called into actual service. ISie act of 28th of Febroary, 
1795, authorized the President, in case of invasion, or of im- 
minent danger of it, to call forth such nnmber of militia most 
convenient to the scene of action as he might judge necessary. 
The militia BO called oat are made sabject to the roles of war; 
and the lew imposes a fine npon every delinquent, to be ad- 
judged by a court-martial composed of militia officers only. 
These militia court-martials are to be held and conducted in 
the manner presodbed by the artidee of war ; luid the act of 
18th of April, 1814, prescribe the manner of holding them. 

During the war of 1812, the authority of the President of 
the United States over the militia became a subject of doubt 
and difficulty, and of a collision c^ opinion between the general 
government and the governments of some of the states. It 
was the opinion of the government of Oonnecticnt, that the 
militia coold not be called out, upon the requisition of the 
general government, except in a case declared and founded 
npon the existence of one of 'the specified exigencies ; that, 
when called out, they could not be taken fitim under the com- 
mand of the officers duly appointed by the states, or placed 
under the immediate command of an officer of the army of 
the United States. Nor could the United States lawAiUy 
detach a portion of the privates from the body of the 
*363 company to which they belonged, and which *was or- 
ganized with proper officers. Thiawould,intheopinion 
of Uie government of Connecticut, impair, and eventnally de- 
stroy, the state militiat When die militia are duly called into 
the service of the United States, they must be called as militia, 
furnished with proper officers by the state. 



• CoMt Ml 1. M& 8. 



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Lw. XIL] THE UHtTBD STATES. 388 

Similar difficnltiefl arose between the govenuoent of the 
TJnited States and the state of MaasachosettB, on the power of 
the national govemment over the militia. Soth those states 
refused to fiimiBb detachmenta of miliiaa for the maridme 
frontier, on an exposition of the constitation, vUch tliey 
deemed sound and just. 

In ConnecticQt, the daim of the goTemor, to judge whether 
the exigency existed, anthorizing a call of the militia of that 
state, or anj portion of it, into the service of the Union, and 
the claim on the part of that state to retain the command of 
the militia, when duly ordered ont, as againstany subordinate 
officer of the army of the TJoited States, were submitted to, 
and received the strong and decided aanction, not only of the 
governor and council of that state, but of the legialatore itself.> 
In Massachnsetta, the governor consolted the judges of the 
Bnin«me judicial court as to the true conatmction of the con- 
stitntion on these very interesting points. The judges of the 
Supreme Court were of opinion that it belonged to the go- 
vernors of the several states to determine when any of the 
exigencies contemplated by the Oooatitution of the United 
States existed, so as to require them to place the mili- 
tia, or any part *of it, in the service of the Union, and •364 
ander the command of the President It was ob- 
served, that the Constitution of the United States did not give 
that ri^t, by any express term, to the President or Congreea, 
and that the power to determine when the exigency existed, 
was not prohibited to the states, and that it was, therefore, as 
of course, reserved to the states. A different coDstmctioQ 
would place all the militia in effect at the will of congrees, 
and produce a military consolidation of these states. The act 
df 28th of February, 1795, vested in the President the power 
of calling forth the militia when any one of the exigencies ex- 
isted, and if to that be superadded the power of determining 



■ Sm Cgjlei^ DoemitnUt t^ Out 8Ul4 »f OoMtHiad, Aiigoti, 181S. Tha 
Jaaloniy of tlie sserciM of anj power (otlwr Iban Uuit of llie to««l goTinmieDU) 
OTCT tbs militk, wh tmj itiongl; muiifeaUd t^ tlie legfcUtuT* and people of 
OooMCtkut, u Mrij u lass, ThcD Umj bxAvAj and lueMwfuUj- resuted tfa« 
olum of OoTenoT Fletdier, of ITew-Tork, raaliDg od a eommusioii ibr that piir- 
poM, from tbe Uog, to lb* azdunTa ombiumkI of Um militia of CmiweticDt 1 
2ViMtJi«V> JiM. 41fr-414. 



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384 JUETSPBODEKOB OP [Ewtll 

when the ceuutfaderia ocenrred, the militiB would in feet be 
under the Preaident'a control. 

As to the qnestion how the militia were to be commanded, 
when duly called out, the judges were of opinion that the 
President alone, of all the officers acting under die tJnited 
States, was aathorized to command them, and that he must 
command them, as they were ot^anized under officers ap- 
pointed by the states. Hie militia could not be placed under 
the command of any officer not of the militia, except that 
officer be the President of die United States. But the judges 
did not determine how the militia were to be commanded, in 
case of the absence of the President, and of a nnion of militia 
with troops of the tlnited States ; and whether diey were to 
act under their separate officers, and in concert as allied 
forces, or whether the officer present who was highest in rank, 
be he of the militia or of the federal troops, was to command 
the whole, was a difficult and perplexing question, which 
the judges did not undertake to decide.^ 

Tae, President of the United States declared, that these 
constructions of the constitutional powers of the general go- 
vernment over the militia were novel and unfortunate, 
*265 *and be was evidently and decidedly of a different 
opinion. He observed, in his message to congress tm 
the 4fli November, 1813, that if the authority of the United 
States to call into service and to command the militia, could 
be thus fimstrated, we were not one nation, for the purpose 
most of all requiring it. These embsrraading questions, and 
the high authority by which each side of the argument was 
supported, remained unsettled by the proper and final de- 
cision of the tribunal that is competent to pat them to rest, 
nntil the case of Martin v. MoU,^ in 1837. In that case it 
was decided and settled by the Supreme Court of the United 
States, that it belonged exclunvely to the President to judge 
when the exigency arises, in which he bad antiiori^ under 
the constitution to call forth the militia, and that his decision 
was conclusive upon all other persons. 

the case of Hbuaton v. Moore' settled some important 



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LmZIL] the DHITBD STATES. 38fi 

qaeetions arising iipon the natLonal authority over the militia. 
The acte of congress already referred to, and the aft of Stfa 
March, 1792, for eetablishiDg a uniform militia, were consid- 
ered as covering the whole grotiud of congreasional lefpslation 
over the subject. The manner in which the militia were to be 
organized, armed, diBcipline(j^ and governed, was fully pre- 
scribed ; proTision was made for drafting, detaching and call- 
ing forth the state qnotas, when requested by the President. 
His orders were to be given to the chief executive magistrate, 
or to any militia officer he might think proper. Neglect or 
refusal to obey his orders was declared to be a public offence, 
and scbjected the offender to trial and punishment, to be ad* 
judged by a court-martial, and the mode of proceeding was 
perspicuously detailed. 

The question before the Supreme Court of the United States 
was, whether it was competent for a court-martial, deriving 
its jurisdiction under state authoritj, to try and punish militia 
men, drafted, detached and called forth by the Presi- 
dent *into the service of the United States, and who *266 
had refased or neglected to obey the call. The court 
decided that the militia, when called into the service of the 
United States, were not to be considered as being in that aer- 
vice, or in the character of national militia, until they were 
mustered at the place of rendezvous, and that until then, the 
state retained a right, concorrent with the government of the 
United States, to punish their delinquency. But after Ihe 
militia had been called forth, and had entered into the service 
of the United States, their character changed from state to na- 
tional militia, and the authority of the general government 
over siich detachments was exclnsive. Actual service was 
considered by congress as the criterion of national militia, and 
the place ofrendezvous was the tenmnue d quo the service, 
the pay and subjection to the articles of war were to com- 
mence. And if the militia, when called into the service of the 
United States, refose to obey the order, they remain within the 
militaiy jurisdiction of the state, and it is competent for the 
state to provide for trying and pmiishing Aem by a state 
court-martial, to the extent and in the manner prescribed by 
the act of congress. The act of Pennsylvania, of 1814, pro- 
vided for punishing, by a state court-martial, delinquent mi- 
litia men, who were called into tiie service of the United 



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3S6 JURISPEUDEBOB OF {FMIL 

States, and neglected or reftised to serve ; and they were to 
be pnoifljied hj the infliction of the penaltiee prescribed hy 
the act of congresB, and such an act was held not to be re- 
pugnant to the coBBtitation and laws of the United Btatai. 
It was the lawful exercise of concnrrent power, and could be 
concnrrently exercised by the national and state conrt»-niar- 
tial, as it was aothorized by the laws of the state, uid not 
prohibited by those of the United States. It would renudo 
to be BO exercised, nntil congress should vest the power ez- 
clnsively elsewhere, or nndl the states ehonld direst their 
coorts-martial of sach a jurisdiction. This was the de- 
*267 cision in the first instance, of tlie Sopreme *Cotirt of 
Pennsylvania;' and it was affirmed, on appeal, by the 
majority of tbe Snpreme Court of the United States, 
of (7.) The authority of congress to appropriate public moneys 
S for internal improvements, has been much discussed on public 
occasions, and between the legislative and executive branches 
of the goveroment ; but the point has never been brought 
nnder judicial consideration. 

It has been contended, that, under the power to establish 
post offices and post roads, and to regulate commerce among 
the states, and to raise moneys to provide for the general wel- 
&re, and as incident thereto, congress have the power to set 
apart funds for internal improvements in the states, with 
their assent, by means of roads and canals. Such a power 
has been exercised to a certain extent It has been the con* 
stant practice to allow to the new states a certain proportion of 
the procee^b arising from the sale of public lands, to be lidd 
ontinthe construction of roads and canals within those states, 
or leading thereto. In 1806, congr^s authorized a road to be 
opened from Nashville, in Tennessee, to Natchez ; and in 
1809 they authorized the cana) of Carondelet, leading from 
lake Pontohartraiu, to be extended to the river Mismsaippi. 
So late as the 8th of August, 184^, congress granted lands to 
aid in the improvement of the Fox and Wisconsin rivers, and 
to conned the same hy a canal, in the state of Wisconaitt. 
The Cumberland road was constmctednnderthe actof Vareh 
2dtb, 1806, and this road bad been made nnder a covenant 



> Hona T. Houton, I Btrg. ± SmiU, les. 



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Lm XH] THS UHTTBD BTATES. 387 

viih &e state of Ohio, by the «ct of April 80, 1802, that a 
portion of the proceeds of lands lying within that state shonld 
be applied to the opeiung of the roads leading to that state, 
-with tilie consent of the states through which the roads mi^t 
pass. Bnt the ezpeDditnreB on that road far exceeded the 
proceeds of sales of public lands in Ohio, and, in 1817, the 
President of the United States objected to a bill, on the ground 
that the constitalion did not extend to malting roads and 
canals, and izaproTing water cooises through the diSer^it 
states; nor could the assent of those states confer the power. 
AAerwards, in 1833, the President objected to a bill appro- 
priating money for repairing the Omnberland road, and es- 
tabUsbing gates and t<^ on it 

On these and other occasions, titere has been a great 
*and decided difference of opinion between congress *368 
and the President on the constitutional qaeetion. 
President Jefferson, in his message of December 2d, 1606, 
and President Madison, in his message of December Sd, 
1816, equally denied any snch power in congress. On the 
other hand, it appears that congress claim the power to lay 
out, constmct and improve post roads, with the assent of the 
states through which they pass. They also claim the power 
to open, construct and improve military roads on the like 
terms, and the right to cut canals through the several states, 
with their assent, for promoting and securing internal com- 
merce, and for the more safe and economical transportation 
of military stores in time c^ war ; and leaving, in all these 
cases, the jurisdictioaal right over the soil in Uie respective 



■ In the cue of Dickey t. Tnrnpika Boad Co. T Jhma R. 113, Um Ktotndj 
Comt of Appekis decided, thkt tbe pover girea to congreie bj the conetitutioD to 
MtoUitA pott rooA, eoabled them to makt, rtpair, kt*p opoti mil improft poet 
nads, whtu thej sboald d«cm th« exerciee of tbe power ezpedieot. But m Ui« 
•zerdu of the right of emicent domain od thia subject, the United States hare no 
rig^t to adopt and nee road^ bridgee and fcrriee, OHntnlcted and owned bj rtataa, 
eorporatioiw or iadividualt, iritbout their conaent, or without making to the partiee 
ooDcenied juet oompeoiation. If the Coited States elect to nee nKh aooom- 
nKNtatJow, without tbe perfonnance of mch a preTiona condition, thej etand 
■pon the lame footing, aod ara wliject to the aame tolU and regutation^ aa 
print* individoalA Ttua impcotant deduoa vaa well *apport«d \>j aotad 



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288 JUBISPBUDrarOE OF [Fwt u 

In the insngnral addreae of Freeideiit Adams, on the ilk 
of March, 1825, he allnded to this quefition, and ins opinion 
seemed to be in &Tbiir of the constitational right, and of the 
polity and wisdom of the liberal application of the national 
resonrcea to the internal improvement of the country. He 
intimated, that specnlatiTe ecrnplee on thia sabject wonld 
probably be eolved by the practical bleesings resulting from 
the application of the power, and the extent and limitations 
of the general govemmcmt, in relation to this important in- 
terest, settled and acknowledged to the satis&ction of all. 
TiaB declaration may be considered as withdrawing the in- 
fluence of the official authority of the President from the side 
on which it has hitherto pressed, and adding it to the sap- 
port of the preponderating opinion in favour of the compe- 
tency of the power claimed by congress.^ 



■ Id February, 1827, lAaran wiimatwt dcbata, tlu Hodm of BepreaeotUiTM, 
by ft vote of 101 to flf, roted to sppropriKt* |30,0O0 for lbs coiitiDuatitxi of hit- 
raji of routes ibr roadi ind cuula. la April, 18S0, on Out IhII, in llw Boom of 
BepnaenUliTes, to coutniet a roftd from ButUo, in Nev-YoA, throi^ Wuhkig- 
too to Ncv-Orlean^ gieat otgcction we undo to ths ooiutitatioiuUit; of the 
power, Mid tbe bouw^ by a Tot« of 10t> to S8, rejected tb« bill, tLougb probably 
tbeTote wBjgoTenied,inpMt,b]r otber eoiuideralioiM; for othw UIli, for aiding 
the making roads and caoali, paaied into lave daring Ibat MiaioD, and tbeir 
aTowed purpose wtm tbe grent olject of internal improremcDL President Jack- 
son, in 1630, deelued himself to be of opiaim, that amgress did not possea the 
constitutional power to coDitmct ro«d» wid caoals, or appropriate tnonej for Im- 
proTements of a local eharader; but be admitted Ibat the rigbt to make apfvo- 
{Hriations for audi as irere of a itatiottal Aaraeter, had been so generallj acted 
upon, and bo long acquiesced in, as to joslifj lbs ererdaa of it, on tbe groond of 
continaed osage. He objected, upon tbit distinction, to tbe bills autborisog lob- 
ecriptioDS to tbe Uajerills and SockTills Boad Companies as not being within 
tbe legitimate powers of oongresi. The great quealioo oaneeming tbe power of 
congreu to appropriate mane;* Ibr internal improTemente within the etate^ r«- 
mamed still as unsettled as ever, as late as tbe Sd of Augost, 184S ; for on that 
day Present Polk objected to and defeated tbe bitl, which had paaeed both 
botue»ofcoDgreae,for approf«atingtl,l'I8,450, for separata ai>ddistiact objects of 
ioteniat improvement, in certain harbours, rifen and lakes in varioas parts of the 
Umteil States. Tbe Preodent denied the existence of a conetitutiooal power in 
tfao federal gorenunetit to coDstroct work* of internal improTement within tbe 
states, or to appropriate moneys from tba treasorj for that purpose Be eoa- 
eidered tbe abeeoce of each a power to be a principle of conslroctioQ well settled, 
aod Ibat the inexpedient of die power was demoostrated m tbe eserdie of it in 
that case ; for the tuU oonlahiad ■ppropriatiau of money for mors than twenty 
objecti of internal improremeDt, called, to tbe UII, harbotirs, at plaeea which bar* 
oeTer been declared by law either ports of vitiy or deliTeiy, and at wbkh there 



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LM.ZIL] THI UHITKD OTATBS. 389 

faM iHrer b»«a m anlnl of tarviga mctehaodiH, aad ft«m whioh thare hu Dsm 
b«M ■ tmkI el««r«d for t, lorvga eoanliy. Tfas coortitatioDal acniplca of th« 
PrMtdcDt ynat, fn tb«ir ki^lication in this cue, to interdict tha iwoeuuy, and, in 
mf opinion, tha elMrif ooatitiitioiikl juriadictitm ud diMMllon of eoogitm, "to 
refohta oommMVo with IbreigD uilioa* trad unong th« mthbI states,* m to tb* 
improTement of tha naTigation of the mauT' riren, barbonn and great lakes vltldn 
the Unittt] Statea, and on which vaten ia carried an immeDselj raluaUa conunerco. 
IWibriet DODstructionoftfaeeonaUtaticiDii in atdkiiigooo bast with that Urge «»>- 
straction which ha> beoi giren to the eoostitutioD, in satboriiing congress to admit 
new atalM into the Union, and to which we hare alreadj alladed in aprecedii^DOte. 
See anU, p. 3110. lie rightful power of the general gOTsmniect to direct the im- 
proTement of the narigation of the intenud water* of the United States (w the 
commercial nse of tha Umoo, and to applj the reTennei thereof for that porpoa^ 
appears to me to resolt from a eouad constructiao of the ooDstitutioD. It is one of 
Its great and «MeDti*l nfajeeta. Tlie Hiasiadp^d, for instance, with its milHMM of 
inhabatanU, Mtd great dties and town* on its hank^ call* londlf for means to dear 
and remove ohsbnctiona to a nfs narigatioiL Tb« statee Eanoot do it, and the im- 
proTement most come, if it eomea at all, from Uie general goremmenL Tha whole 
Union is deepi j interested m the safe and easj navigatioii of the great rivtn aod 
lakes within theUmitaofthe United States, and bordering on two or moreatate^ 
It makes no diflbreoee in reason or polity in the iiiii iiamj application of the power, 
whether the rirert or lakes are dirided bf two or more slates. It ia saffident lor 
the power, if the improremeot to be called for be genoral in its object, and for 
national pnrposea, and for the regolatian, safetj and bdlitj of commenMk All 
Darigable waten, Dot land-locked within a etate, whether thej be rirers, harbonrs, 
gaiU, ba^s, lakes or ooasta of the ocean, are, and were blooded to bs, aod oogbt 
to bs, subsrrrient to the power to regolate oommerce with foreign nations, and 
among the sevenl statea. He/ &11 within the cot^essiona] power, and are sub- 
ject to the regolation of the Umted States, and the; ar« entitled to the pattiiiiag«, 
protection and peetndarj rapport of the general govenmiect. This power is justly 
to be applied to the erection of light-booses, haajt, p)er^ breakwaters, harboura, 
and for clearing obstructlona, and deepening and videmng narigable watera. lie 
United States have the sxclouTe comroand of the revenuai derired from oom- 
merce and navigation, and the reason, justice and policy of hotdii^ this power to 
exist in coDgr«n, and that it ihoold be liberally and largely applied, strike me with 
obriont and dednTS force. He grant of commercial power to congress is gerrnaX 
and most rest essentially in its application in the discretion of oongressi aod In its 
judgment as to the importance of this eisreise of the power to the promotioo and 
security of commeiM among the states and with fordgn nations. There does not 
appear to be any just ground for constraiug ths power strictly and within straight 
and narrow liuea. A grant of geoent power tor greatnational objects ongfat to ba 
liberally construed to be made adeqnate to alt future edgendes wttbin the teop* 
of this power. There doea not appear to be any eolonr in the constitution foi pre- 
scribing arbitraiy lines and limits to the power to r^olate ooninaeroe. 

Mr. Justice Story, in bis OmmtttlaTia o» llu OmtlUmtutn of iMt VnittS SlaUt, 
Tol. iL pp. 429—440, and again, pp. G19 — S38, has stated, at larg^ the argameota 
for and against tbe propodtioa, that cn^rress hare a eoDstttutioDBl authority to lay 
taxe^ and to apply ths power to regulate commerce, as a means directly to «o- 
eouiBge and protect domestic manufiictnrea ; and without giring any ojNnion of 
U* own on that oonteslod doetriue, be Ins left the reader to draw bis own oondn- 
ToL. L 19 



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390 JUBISPBUDKHO:^ Ao. [FMtIL 

nmk I dioaU tlmik, bow<Ter, framaTiewofUMarBiinieDUMitttod.tliatwrai/ 
mind vbidi hH tabo no part iu tbe diMtaiBioD^ and bltnoprejudkeortaritaiU 
ocparl? faiMODtttbtttideof tliaqaMtiai^ wooU dMtt tb* ugnineDta in &T«nr 
ofaeoonKTMBOOBl poww TMtlj MipcriDT. TIm l««n«d comnuDtatior I duidd 
apprt^MMl to be dwidwlly of dwt wk; of tUddi^ He wj^ -tint lb* oom- 
DMrcial iTilam of tba United States bu b«cn cmpkyed •ometiiiMa lor tb« pnr- 
poM of MTtDM; aoiiutunw for tb* purpow of prohibition; HincliDtt for tin 
pnrpoHofrstiliationMid commerdU redprod^; KmetimM to laj cmbargoM; 
■omttiinca to eooowiga dooMatia UTifatiei^ and tb« i^^iins and tnwMntile 
Intaraat, by bonntiM^ by di«iTlni>n>ting dntJM, and by tptdai preStnoee mi ptvri- 
l«g«B; iDdiomttimcitoTignlateintenwtin^ witbaviawtomvapoUtisalolgeob, 
neb M ta repel mgrcittow, fncnaM thepreamceof var, orTiodiGate tbe rights of 
nentnl lOTBrafga^. Ib all tlieee caeei, tke right and duty b»Te been caiMded to 
ibe uatituid goTMiUMid by the anequiTOcal Toioe of the people." Mr. Hatnilton, 
k hit KiguttMOt in Ibe cabbMt in February, ITS), on ^ utioul bank, aoneidered 
that tlM r^olatiMi of poUoM of ioMMue^ of aalf age iqion (oedt found at tea, tbe 
regolaHon of pjloli and of foreign biUi of esdiMips M «ming viUho tbe powtf to 
regnlata oommene. iUA p. S19. 



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LECTUEE XIII. 



OF THB PBESIDBNT. 



Tbe title at tlie present leetnre may conTanientlj "be ez- 
smined ib the following order : 1. The nnitf of thiB depart- 
ment 2. The qnalifieatlcais required bj. the constitation for 
die office of President. 3; The mode of his sppointmeitt. 
4. His duration. 6. Hisaopport. 6.. Hispoweie. 

(1.) By the constitation, it ia ordained that the execntiTe 
power shall be vested in a Fresident.^ 

The object of this department ia the eseentton of the law ; vaxr at 
and good pidiey (tictatea that it should be oi^^anized in the pmnr. 
mode beet c^culated to attain that end vi^ precision and 
fldelilj. (1) OongultatioQ ia necessary in tbe making of lawa. 
The defect or grievanoe they are iateoded to remore moot be 
distinctly pereeiTed, and the operation <^ die remedy upon 
the interests, the morals and the opinion of the commonily, 
profoondly considered. A comprehensire knowledge of the 
great interests of the nation, in all thur complicated itelationa 
and practical details, seems to be required in sound legisla- 
tion ; and ' it shows the aeceflsity of a flree, Ml and perfect 
repr«6entation of the people, in tiie body intnuted with tbe 
legislative power. Bat when laws are dnly made and pro* 
mulgated, they only remain to be executed. No discretion is 
snbmitted to tbe ezecative officer. It is not for him to de- 
liberate and decide npon the wisdom or expediency of the 
law. What has been once declared to be law, under all the 



(1) Tba Bicentln bnocb or Oic OcrtniDWit or the DulUd BUM 1i orfwiLwd DBd*r ill I>B- 
ptfliiMiili, t^z. : Tha BUIa Depubdoiit, (he TreuoiT Dcjartmaiil, Ihii WirDcptMiiMDl, IlialltTT 
Dqmrtiimt, dw FoMOOn l>e|Mftiuait, ukd tti Dfputamlof tbe IMaMrj itlb* bnl gf 
BBoh of irhlch then li a Beer«tu7» ippoLnted bj Uio prevddent, hj mid with Ihe utTles uhI 
•nuFut cT ihg Snuil* ; but (Otjeet to nmo'il br the FnildeDl alone. The Deputmenl of QiB 
iBlarJoiniinUad tvuM(flrC(»fRB,pui«d UareliS, 1M>. Thli MfMItBMDt taa ■ |» 
■cnl ■nltarrltf it npervlilan and ippeal otct Ibe ntilecU ctf Pilcnli, PabUe Ludi ud Ulnei, 
iDdlu Albln, Pmilou. PoUJa Bnlldlnii, the AaoobbM tt Hinball, Oofci ud PiUlo OS- 
Mn, u veil u oToi lOur nUwc nbtMUi 



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302 JURISPRUDEITOB OF (Fut IL 

cftBtionB forms of deliberation prescribed by the coustitntion, 
oagbt to receive prompt obedience. The diaracterieti- 
*372 cal qnalities required in the *execatiTe department 
are promptitade, decision and force ; and theee qnali- 
tiea are most likely to exist when the executive anthori^ is 
limited to a single person, moving by the onity of a single 
will. Division, indecision and delay are exceedingly nnfa- 
vonrable to that steady and vigorous administration of tiie 
law, which is neceasary to Bectue tranqoilli^ at home, and 
command the confidence of foreign nations. Every goveni- 
ment, ancient and modem, which has been constituted on 
different principles, and adopted a compound executive, ha» 
suffered the evils of it ; and t^e pnblic interest has been sacri- 
ficed, or it has languished under the inconveniences of an im- 
becile or irregolar administration. In those states which 
have tried the project of executive councils, the weakness of 
them has been strongly Mt and strikingly displayed ; and in 
some instances in which they have been tried, (as in Pennsyl- 
vania and Oeo^a,) they were soon abandoned, and a single 
executive magistrate created, in accradance with the light 
afforded by their own experience, as well as by the institu- 
tions of their neighbouTB. 

Unity increases not only the efficacy, but the responsibility 
of the executive power. Every act can be immediately 
traced and brought home to the proper agmt 13iere can be 
no concealment of the teal author, nor, generally, of the mo- 
tives of pnblic measures, when there are no associates to di- 
vide or to mask responsibility. There will be much less 
temptation to depart from duty, and much greats solicitude 
for reputation, when there are no partners to share the odium, 
or to communicate confidence by their example. The eyes 
of the people will be constantly directed to a single conspicu- 
ous object; and, ibr these reaaous, I>e Lolme' considered it 
to be a sound axiom of policy, that the executive power was 
more easily confined when it was one. " If the execution of 
the laws," he observes, " be intrusted to a number of 
*378 hands, the tme cause of public evils is hidden. ^Ty- 
ranny, in such states, does not always beat down the 
fences that are set around it, but it leaps over them. It 

■ OaiaLi^ England, p. in. 



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Lm. XnL] THB tnflTBD STATBS. 398 

mocks the efforta of the people, not becsose it is invincible, 
but becAOBe it is nnknown," The joatnew of these reflections 
mi^t be illastrated and confirmed, by a review of the pro- 
ceedings of the former council of appointment in New-Tork, 
nnder the constitntion of 1777. All efficioat responsibility 
was there lost, by reason of the constant change of the mem< 
bers, and the diflScnlty of ascertaining the individnal to whom 
tbe origin of a bad appointment was to be attributed. 

(2.) The constitntion reqfiires> that the President shall be (^umem- 
a natnral bom citisen, or a citizen of the United States at the SSSif"^ 
time of the adoption of the constitntion, and Ihat he shall 
have attained to the age of thirty-five years, and shall have 
been fourteen years a resident within the United States. 
Oonsidering the greatness of the tmst, and that this depart- 
ment is the ultimately efficient executive power in govern- 
ment, these restrictions will not appear altogether nseless or 
mumportant. As the President is required to be a native 
citizen of tiie United States, ambitions foreigners cannot in- 
trigue for the office, and the qualifications of biith cats off all 
those ioducementa fK)m abroad to corruption, negotiaticm and 
war, which have frequently and fatally harassed the elective 
monarchies of Germany and Poland, as well as the Pontifi- 
cate at Kome. Hie age of the President is sufficient to have* 
formed his public and private character; and his previous 
domestic residence is intended to afford to his fellow-citizens 
the opportunity to attain a correct knowledge of his principlee 
and capacity, and to have enabled him ta acquire habits of 
attachment and obedience to the laws, and of devotion to the 
public welfere. 

(8.) He mode of his appointment presented one of the « 
moet difflcnlt and momentous questions that occupied the de- 
liberations of the assembly which framed the c<»)stitntion ; 
and if ever the tranqnillity of this nation is to be dis- 
turbed, *and itB liberties endangered, by a struggle *374 
for power, it will be upon this very subject of the 
choice of a President Tiaa is the question that is eventually 
to test the goodness and tiy the strength of tiie constitution ; 
and if we shall be able, for half a century hereafter, to conti- 
nue to elect the chief magistrate of the Union with discre- 



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394 JDBISPBTmBKOB 07 [PHtlL 

tion, moderation and integrity, we shall undoubtedly stuap 
the highest yalae on our natioDal character, and reeommend 
onr republican institotiiHis, if not to the imitatioB, yet cer- 
tainly to the eateem and admiratdoa of the more enlightened 
part of manUnd. The experience of ancient and modem 
» Enrope has been nnfevoorable to the practicability of a fair 
and peaceable popolar election of the ezecutiyfa head of a 
great nation. It has beeu fbond impossible to gaard the 
election from the mischi^ of fitretgn intrigue and domestic 
turbulence, from violence or oormption ; and mankind have 
generally taken refbge &om the evik of popular elections in 
hereditary ezecatiTea, as being the lea8t«Tilof the two. I^e 
most recent and remarkable change of this kind occnrred in 
France, in 1804, when the legiBlatave body changed didr 
elective into an hereditazy monarchy, on the avowed ground 
that the cconpetition of popnlarelectitHas led to ccomption and 
violence. And it is a corioos &ct in European history, that 
on the first partition of Poland, in 1773, when the partition- 
ing powers thoQ^t it expedieatt to foster and eonfinn all the 
defecte ofita wretched govemmrat^ they Bagadoaely demand- 
ed of the Foliah diet that the crown should continne elective.* 
This was done for the very pnrpoee of keeping the door open 
■ for foreign iatrigoe and inflnence, ISj, Faley^ condemns all 
elective monar^iea, and hetiiinkB nothing isgained by a 
popular choice, worth Uie diasetiBiaDB, tnmultB and int«mip- 
tions of regular indnstry, with which it is inaeporably In- 
tended. I am not called upon to question the wJadtna 
*276 *or policy of preferring hereditary to elective memer- 
chies among the great nations of Europe, where diffo-- 
ent orders and naka of society are eetahUshed, and large 
masses of prc^gr^ acoamnlated in the hands of single indi- 
' yiduals, and where ign<nw)ce and poverty are widely diffused, 
and standing annies ar« necessary to preserve the stabilily of 
the govemmenb. The state of society and al pnq>erty in this 
country, and our moral aad politioal habits, hate enabled us 
to adopt the repablican principle, and. to maintain it hitherto 
with iUustrioQB soccese. It remains to be seen, whether the 
cheeks which the nmatitntion has provided against the dsn- 

■ Oeiit TVaMli tit Palamd, Rauia, Ae, vol L 
k PrindpUt of Jtwral anJ P»t. Ptalotophy, I4S. 



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hm. XnL] THS UITTTBD STATES. 395 

getoos propenfiitieB of our e^teon, will ultumttelyproTe effee- 
tD&L The election of a supreme ezeoatiTe magistrate for a 
whole natioii, affects so many intereets, addresses itself bo 
Btron^y to popnlar pasricms, and holds oat snch powerful 
tenq>tidioii8 to ambition, that it necesBarily becomes a Eitrong 
trial to pnblic virtae, and ovsn haxardouB to the pablic tran- 
gnillily. Tho constitntion, from an enlightened view of aH 
the difficulties that attend the subject, has notthonght it safe 
or prudent to refer the election of a Presidsnt directiy and 
immediately to the people; but it has confided the power to 
a small body of electors, appointed in each state, onder the 
direction of the legislatare; and to close the (^portoni^ as 
much as possible against negotiation, intrigue and corruption, 
it has declared that congren may determine the time of 
choosing the electors, and the day on which they shall vote, 
and that the day of Section shaE be tiie sune in every state.* 
This secority has been still fiirther extended by the act of 
coDgreaa*^ directing the electois to be appointed in each state 
within thirty-four da^ of the day of election. 

Tbs constitation" directs that the number of electors in 
each state shall- be equal to the whole number of senators and 
representatires which the state is entitled to send to con- 
groBB ; and, according to the appwtionment of congress 
*in 1882, the President was to be elected by a majoii- *3Te 
ty of i9i electtas ; and in 1814, the number of electos 
was reduced to 275,' And to prevent the petani in office, 
at the time of the election, from having any improper influ- 
ence on his re-eleolion, by his ordinary agency in the govern- 
ment, it is provided, that no member 'of congress, nor any 
person blading tm office of trust or profit under &e ITnited 
States, shall be an elector ; and the constitntion has in no 
other respects defined the qualifications of the electors.* These 



• Arts. *ee.4. 'Bjth* Mt of Ootigreu of Jantuuy EStit, IStS, c l.miiairann 
time Ibr hildliig eleetuna for alecton of Pnodeot u>d Tio^-PrwdcBt ia bU Iha 
■UlM wu preMTibod. It vu to b« on th« Tattdtj nest after tli« fint Hgodi^ 
b lira month of IToTembai of the jau m vhicb Otej ue to b« appojoted. 

* AettfltlMareKnit- • Ait a. mo. 2, 8. 

' "Rm tron ftom the tDlargemcDt of tbe nttio of repreKiitatioa from 41,100 to 
lO.SSO penom, fcr a m«mber of the Houm of ReprceeDtatiTcr ; hj whidi prortaiaD 
the nomber of the booM m* rtdnetd from 24S to iSS mMnbm. Aa of Otagrtm 
o/JhmESIA, 1841,0. 41. 

■ Art S. MO. 1. 



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S9e JURISPRnDKeiOl 09 [Pnt U. 

electors meet in their reepectiye Btatee, at a place appointed 
by the legislature thereof on the fint Wedneedaj in Decem- 
ber in every fourth year succeeding the last election, and vote 
by ballot for President and Yice-Presideiit, (for this last officer 
is elected in the same manner and for the same period as the 
President,) and one of whom, at least, shall not be an inhabit- 
ant of the same state with the electors. They name in their 
ballots the person voted for as President, and in distinct bal- 
lots, the person voted for as Tice-Premdent ; and they make 
distinct lifitB of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of 
votes for each, which lists they sign, and certify, and trans- 
mit, sealed, to the seat of the government of the United States, 
directed to the president of the Senate. The act of congress of 
Ist of March, 1792, sec 2, directs, that the certificate of the 
votes shall be delivered to the president of the Senate before 
the first Wednesday of Janoary next ensuing the election. 
Tka president of the Senate, on the second Wednesday in 
Februaiy succeeding eveiy meeting of the electors, in the 
presence of both hoosee of congress, opens all t^e certificates, 
and the yotes are then to be counted. The constitution does 
not expressly declare ^ lohom the votes are to be counted 
and the resolt declared. In the case of questionable votes, 
and a doeely contested election, this power may be all-im- 
portant; and, I presume, in the absence of all l^;islative pro- 
vision on the subject, that the president of the Senate 
*377 connts the votes, and ^determines the result, and that 
the two houses are present only as spectators, to wit- 
ness the fairness and accuracy of the transaction, and to act 
only if no choice be made by the electors." The House of 



> IndeUniuidDglhemaltoftheeltctioofor Premdaatiii lMt,it wMdcclnred, 
by Jmnt naolnliaD of Um two houM* of eongrcM, thftt om pcnini b« tpptdnUd 
teller OD the p«t of Um BoMtt, ind two oa the put of the Howe of BeprsMDlft- 
tirei, who were, in the preBCDce of the two hooiee, to make ■ liit of the fota u 
the; ibouM be decUred, uid the jettUt declared to the preudeot of the Senate, 
-who va« to be the preeidii^ officer, aod to anoooDce to the two booue the atate 
of the Tote and the pwaoiM deotad. The Vica-Preadent, b that case, broke the 
aeaUof the eoTelopeeof the rote^ and deli T«red theeaneoTer to the telleta to be 
MnntMl. The teller* hanng read, oounted and loade daplicata liita of the volea, 
thej- were delivered oxer to the Viee-PreeideDt, and read, and he then declared 
the reeul^ and dinolTed the jtniit meeting of the two boneea. 



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Zm. XIU] THS united BTATEa 397 

BeprewntatdTee, in sach case, are to choose im/mediatdy^ 
though the constitatioii holds their choice to he valid, if made 
hefore the fourth daj of March foUowiog. And in the cases 
of the elections in 1801 and 1824:, as no choice -n-as made, 
the HooBo of BeprmentatiTes retired and voted, and the 
Senate were admitted to be present as spectators. The peiBOn 
having the greatest nnmber of votes of the electors for Pre- 
sident, is President, if snch nnmber be a toaj ority of the whole 
number of electors appouitod; bnt if no person have snch 
a majority, then, &om the persons having the highest nnm- 
ber, not exceeding three, on the list of those voted for as Pre- 
ffldent, die House of Representatives shall choose immediately, 
by ballot, the President Bnt in choosing the President, the 
votes shall be taken by states, the representation from each 
state having one vote. A qnomm for this pnrpose shall con- 
fdst of a member or members from two thirds of the atates, 
and a majority of all the states shall be necessary to a choice. 
If the Hoose of Bepresentatives shall not choose a President, 
whenever the right of choice shall devolve npon them, before 
the fonrth day of Mardi next following, then the Yice-Preu- 
dent shall act as President, as in .the case of the death or 
other constitntional disability of the President.^ 

Ute person having the greatest nnmber of votes as Tice- 
Pre^dent, is Vice-President, if snch nnmber be a majority of 
the whole nnmber of electors appointed ; and if no person 
have a mejori^, then, from the two highest nnmbets on the 
list, tiie Senate shall choose the Vice-President ; a qnomm 
fi)r the purpose shall consiBt of two thirds of the whole nnm- 
ber of senators, and a majority of the whole nnmber is neces- 
sary to a choice ; and no person constitntionally ineli- 
gible *to the office of President, shall be eligible to *2Y8 
that of Vice-President of the United States.^ The 
oonstittttion does not specifically prescribe when or where the 
Senate is to choose a Yice-Preeident, if no choice be made by 
the electon ; and, I presume, Uie Senate may elect by them- 
selves, at any time before the fourth day of March following. 

Hie President and Vice-Preddent are equally to he chosen 



• AmtniauitU to tk* CbMtiMwn, art 11. 
k AmmiminU to At OontUntion, art. IS. 



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998 JxnusFHDDEiroE or [Tutu. 

for Hie Bsme tenn of four jaan ;> and it is provided by law,^ 
tiiai the term ahall, in all oasea, oonimmoe on ll>e foorth day 
of Harch nextsBcceeding the day on which the votee of 1^ 
electors eball have been given. 

In case of the remoral of the Freaideut from office, or d 
his death, reeignstion or inability to diaoharge tlie powers and 
duties of the office, the eame devolve on tiie Vice-President ; 
and except in cases in whicli the President is enabled to re- 
assome the office, tiie Yice-Preeident acts as President darii^ 
tie remainder of the term fiw which the President was elected. 
OoBgress are authorized to provide, by law, for the case of re- 
moval, death, reaigoation or inability, both of the President 
and Yice-Prendent, declaring wbat.officer should then act as 
President ; and the officer so designated is to act until the dis- 
ability be removed, or a President shall be elected, and who 
is in that case to be elected on the fint Wednesday of the en- 
suing December, if time will admit of it, and if not, then on 
&e same day in the ensoing year.« In purenance of this con- 
stitntional provision, the act of congress of M^rch 1st, 1793, 
sec. 9, declared, tiiat' in case of a vacancy in tlie office, both of 
President and Yice-Preodent, the president of the Senate 
^0 teTTt^Ktre, and in case there should be no president of the 
Senate, then the Bpesker of the Honse <^ Bepresentatives 
for the time being, ^umld act as Frendent, nntiL the vacancy 
wassnpplied. The evidence ofarefiisal to accept, or of a resign 
nation of the office of President and Yice-President isdeclared, 
by the same act of congresE^ sec 11, to be a declaration in 
writing, filed in the office of the Secretary of State. And if 
the office shonld, by the conrse of events^ devolve on the 
Speaker, after the congress for which the last Speaker was 
chosen had expired, and before the next meeting of 
*279 congress, it might be a qnestion who is to serve, *and 
whether the Speaker of ^e Honse <^ Kepreeentatives, 
then extinct, could be deemed the person intended. 

The mode of electing the President appears to be well calcn- 
lated to secure a discreet choice, and to avoid all those evils 



» AH of Cmgrmt, Mmnk I, IISS. 

• Cbfuttlidtoii, wt a. MS. 1. Ai>H>fC»»fM>»,M»ttk\,\'m. 



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LM.XIIL] THK tmiTBD flTATSS. £99 

wliich the partiliftiu of monarcliy hare described, and &e 
experience of other Datioos and past ages hare too clearly 
ahowu to be the ccHiBequence of poptilar elections. Had the 
choice of President been referred at once, and directly, to the 
pet^Ie at large, as one single ecHmnnnity, there might have 
been reason to apprehend, and such no doabt was thesense of 
the conrention, that it wonld hare produced too violent a con- 
test, and have been trying the ezpmment on too extended a 
scale for the public virtue, tranqniUty and hap^ttneas. Had 
we imitated ihe practice of moat of the sonthent states, in re- 
spect to their state ezecntiTee^ aad referred the choice of the 
President to congress, this would have rendered him too de- 
p«tdeut Qpcai the immediate authors of his elevation, to com- 
port with the requisite energy of bis own department ; and it 
would have laid bim under temptation to indulge in improper 
intrigue, or to f<Hin a dangeroas coalition with the legislative 
body, in order to secure his oontionanco in <^tce. All elections 
by tiie representative body are peculiarly liable to prodnoe 
cembinationB for riaister purposes. The ooostitution has 
avoided all these objections, by ocmfiding the power of election 
to a small numbert^ select individuals in each state, chosen 
only a few da^ b^ore the election', and solely for that pur^ 
poee. niiB would Beem, prima/at»e, to be as wise a 
proviswm as the wisdom of man eould have *deviaed, *280 
to avoid all c^portuuity for foreign or domestic intrigue. 
These electors assemble in separate . and distantly detached 
bodies, and they are constituted in a manner best calculated 
to preserve them free from all indooemeots to disorder, bias 
or corruption. There is no other mode of a[^inting the chief 
magistrate, under all the circumstances peculiar to our politi- 
cal condition, which appears to uuite in itself so many unal- 
loyed advantages. It must not be pronounced to be a periect 
scheme of election, for it has not been sufficiently tried. He 
election of 1801 threatened the tranquillitrf of the TJuion ; and 
the difficulty that occurred in that case in producing a con- 
stitutional choice, led to tiie amendment of the coustitntion on 
this very subject; but whether the amendment be for the bet- 
ter or for the worse, may be well doubted, and remains yet 
to he settled by the lights of experience. The constitution 
says, that each state ia to appoint electors in such a manner 
as the legishtture may direct ; and in some of Ute states, the 



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800 nrRISPRVDKKOB OF [Put U 

electors Iiave been diosea by the legisUtnre Itself, in the mode 
prescribed by law. But it ia to be presumed that there would 
be leea opportunity for dangerona coalitionB and combinationB 
for party, or ambitious or aelfiBh pnrpofles, if the choice of 
electors was referred to the people at large ; and this seems 
now to be the sense and expression of public opinion and the 
general practice. 
,er (4.) The President, thus elected, holds his office for the 
term of fonr , yeaiB," a period, perhaps, reasonably long for 
the pnrpoee of making him feel firm and independent in the 
discharge of bis trust, and to pve stability and some d^free 
of maturity to his system of administration. It ia certainly 
short enough to place him nnder a dne sense of dependence 
on the public approbation. The President is re-eligible for 
Bucceeaive terms, but in practice he has never consented to be 
a candidate for a third election, and this usage has indirectly 
established, by the force of public opinion, a salutary limita- 
tion to his capacity of continuance in office. 

(5.) He support of the President is secured by a 
^81 provision *in ttie constitution, which declares,*' tiiat 
he shall, at stated times, receive for hia eervicee a com- 
pensation, that shall neither be increased nor diminished, 
during the period for which he shall have been elected ; and 
that he shall not receive, within that time, any other emolu- 
ment from the United States, or any of them. Iliis provision 
is intended to preserve the due independence and energy of 
the executive department It would be in vain to declare 
Hiat the different departments of government shoald be kept 
separate and distinct, while the legislature possessed a discre- 
tionary control over the aalariea of the executive and judicial 
officeia. llhis would be to disregard the voice of experience 
and the operation of invariable principles of human condi^ct 
A control over a man's living is, in most cases, a control over 
his actions. The constitution of Vir^nia considered it as a 
fundamental axiom of government, that the three great and 
primary departments should be kept separate and distinct, so 
that neither of tbem exercised the powers properly belonging 
to the other. But without taking any precautions to preserve 



• OoMtUnlian, Ht S. MO. 1. 



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lk. xm.] THE umriD states. 301 

this principle in practice, it made the governor dependent on 
the legislature for his annual existence and his annual support 
The resalt was, as Mr. Jefferson has told us,* that daring the 
whole session of the legislature, the direction of the execatdre 
was habitual and familiar. The constitution of Massachusetts 
discovered more wisdom, and it set the first example in this 
coontr;, of a constitational provision for the support of the 
executive magistrate, hj dedaring ibat the governor should 
have a salary of a fixed and permanent value, amply sufficient, 
and establi^ed by standing laws. Those state constitutions 
i^ch have been made or amended since the establishment of 
Ihe Constitution of the United States, have generally followed 
the example which it has happily set Ihem, in this and in many 
other instances ; and we may consider it as one of the 
most signal blessings bestowed on *thiB country, that *283 
we have such a wise &brio of government as the Conr 
stitntion of the United States constantly before our eyes, not 
only for onr national protection and obedience, but for oor 
local imitaticoi and example. 

(6.) Having thus considered the manner in which the 
President is constitated, it only remains for us to review the ^ 
powers with which he is invested. 

He is commander and chief of the army and navy of the 
United States, and of the militia of the several states, when 
called into the service of the Unicm.'' The command and' 
application of the public force to execute law, maintain peace, 
and resist foreign invasion, are powers so obviously of an ex- 
ecutive nature, and require the exercise of qualities so charac- 
teristical of this department, that they have always been ex- 
clusively appropriated to it, in every well organized govern- 
ment upon earth.<> In no instance, perhaps, did the . enlij^t- 
ened understanding of Hume discover lees acquaintance with 
the practical science of government, than when he gave the 
direction of the army and navy, as well as all the other ex- 
ecutive powers, to one hundred senators, in his plan of a per- 



■ JVbfM on Virginia, p. 1ET. * All I. «ec 2. 

• Hr. Doer, in bit TWottM «n InnraiK*, toL i Zi9, iDtimates, tbttt in tim« of 
w*r,Bspcci>1eiDbkrp> lor B definite period m^t 1m deelu^d by Uie sola anthori^ 
of tlM Prwid«Db I do not pareeira taj nlBdaot gmnd Ibr tluit opiniM n 
napact to tha l«g«l axeran of nidi ■ power. 



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803 JURiBpairDsiTOB or [fm n. 

feet eommoDwealth.* That of Hilton was eqoallj chimeriesl 
and abenrd, when, ia his " lieady and eaaj way to estabUah 
a free commonwealth," he deposited the whole execntiTe, as 
well as legislative power, in a single and pennanont conncil of 
senators. That of Locke was equally onwiiie, fat, in bis plan 
of legislation ftn- Carolina, he gave the whole authority, l^ia- 

lativd and executive, to a small oligarchical assembly.^ 
*288 Such specimens *a8 these well justify the observaticoi 

of Preflident Adams,' " that a philosopher may be peiv 
feet master of Descartes and Leibnitz, may pnrsne his own inr 
qniries into metaphysics to any length be pleases, may enter 
into the inmost recesses of the human mind, and make the no- 
blest diecoTeries for the benefit of his species ; nay, be may 
defend the principles of liber^, and the ri^ts (^ mankind, 
with great abilities and Buccess, and, after all, when called 
upon to produce iv, plan of le^slation, he may astonish the 
world with a signal absurdity," 

The President has also the power to grant reprieves and 
pardons for ofiences against the United States, except in cases 
of impeachment. The Marquis Beccaria has contended, that 
the power of pardon does not exist under a perfect adminis- 
tration of law, and that the admiseion of the power is a tacit 
acknowledgment of the infirmity of the comia of justice. 
And where is the administration of justice, it may be asked, 
that is free from infirmity t Were it possible, in every in- 
stance, to maintain a just proportion between the crime and 
the penalty, and were the rules of testimony and the mode of 
trial so perfect as to preclude every possibility of mistake or 
injustice, there would be some colour for the admission of 
this plausible theory. But, even in that case, policy would 
sometimes require a remis^on of a pmiishment strictly doe, 
for a crime certainly aecertained. The very notion of mercy 
implies the accnracy of the claims of j ustice. An inexorable 

^ Bwne't ^tai/i, toL L p. S!fl. 

^ Ur. Lucke'i Tery complicated lebcnia of goveroment, under the title of Fitnim- 
mtntal Omililiiliml of Canlina, ie ioMrted ti hu^e in Lotkt't Watii, toL iK. 
pp. 6SG — 678. Hwm IcgulatiTe labooiv of that great uid txce1l«nt man periibed 
unheeded and unregrettcd by all partin, after an experience of twenty-tbre* j««n 
had prored tbem to be, in the word* of Ur. Qrahame, the hlitorian, "nttartj 
irorthleea and impraclicaU*.' 

• Dtftiet ^ tk* AmtTuum CotulitiMaiu, itHh. Letter 54. 



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Lm. Zm] THB 1THITRD STATU. 808 

govenunent, Bajs Mr. Yorke, in his " CoBsideiatioiia on the 
Iaw of Forfeitore,"' 'will not only carry jiutice in aome in- 
stances to the height of injury, bnt wiUi respect ta itself it 
Till be dangerously just. The clemency of HassschasettB, in 
1786, after an nnproyoked and wanton rebellion, in not in- 
flicting a eingle capital punishment, contributed, by the judi- 
cious manner in which its clemency was applied, to 
the more firm ^establishment of their government *284 
And this power of pardon will appear to be more es- 
sential, when we coofiido', that under the most correct admin- 
istration of the law, men will eometimee fall a prey to the 
TindictiTenees of accnseiB, the inaccoracy of testimony, and 
the ffdlibility of jurors. Notwithstanding thispower is clearly 
supported on principlee of policy, if not of justice, Engli^ 
lawyers, of the firet class and highest reputation,^ have 
strangely conclnded that it cannot exist in a republic, be- 
canse nothing higher is acknowledged than the magistrate. 
Instead of faUing into such an aroneons cwclosion, it might 
fairly be insisted, that the power may exist with greater 
eafe^ in free states than in any other forms of government ; 
because abuses of the discretion unavoidably confided to die 
magistrate in granting pardons, are mnch better guarded 
against by the sense of responsihihty nnd^ which he acts. 
The power of paf;don vested in the President is without any 
limitation, except in the single case of impeachments." He 

* Tcrkt on Forfniurt, p. lOL 

k Torkt m Fatf. 100. MoAU^ Com. ToL ir. p. SOa 

■ Tbere u do doubt tluit the power of pardoD coDferred on tli« Preudeot locIndM 
Iha power to p»rdoD kbulutelj or cooditionsllj. Opiniani ef t/u Atlomtyt- 
Chmiral, TsL i 25a ToL ii. 1081. The Prcndent ttaj umex t. amdiUon to tha 
pardon — u, lor iuatuiot, that the giultj penon ibotild quit the Dnited State*, or 
Join the DBTj — and if be doee not oomplf with the conditKHi, or brealu it, the 
paidoD becumea dqII and raid. If the culprit baa not complied with tha oanditioii 
OD which it waagnmtcd and accepted, he maybenibjectedto theopentiotiof the 
orlgioal conTiclioa and JudgmeuL Id EagUDd the king has the power, bjr tlM 
eommoa lav, to giant oooditiaul pardona. The poww of the Qorcmor of ll«w- 
Tork to grant a conditioDal pardon, and the power of acrimiDaljuriBdictiooof th* 
aame, or of a higher degree, to aireat the part; who has broken the conditjoo 
wiltully, and to aeDteDce and remand him to encutioo and pumihmeo^ on dnlj 
•aceriaiiiiDg hit itleollty, wa» largely dUcuued b the eaae of The Peo[Je t. Potter, 
ia the First Circuit of New Tork. T/u ilTm- Tori Ltgai Obtntr lor May, 1 648, 
p. 171. Tha Rttitti CotittiiiUiiM of Nm York, of ISM, art 4. «ml B, gruta tUa 
il power of pardon to the Ooremor. 



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804 jnUSPRUDEHOE OF [Put It 

it checked in that case from Bcreening public officers, with 
whom he might possibly httre formed a dangerous or cotmpt 
coalition, or who might be his particnlar fitvourites and de- 
pendants. 
nr ThQ President has also the power, hy and with the adrice 
and consent of the Senate, to make treaties, provided two 
tiiirds of the senators present concur.' 

WriteiB on government have differed in opinion as to the 
nature of this power, and whether it he properlj, in the natu- 
ral distrihation of power, of legislative or executive cognizance. 
Ab treaties are declared by the constitution to he a part of the 
BDpreme law of the land, and as, by means of tbem, new rela- 
tions are formed, and obligations contracted, it might seem to 

be more consonant to the principles of republican go- 
•285 vemment, to consider the right of concluding *specific 

terms of peace as of legislative jurisdiction. This has 
generally been the case in &ee governments. The determina- 
tions respecting peace, as well as war, were made in the pub- 
lic assemblies of the nation at Athens end Borne, and in all 
the Gothic governments of Europe, when ttiey first arose out 
of the rude institutions of the ancient Germans. On the other 
hand, the preliminary negotiations which may be required, 
the secrecy and despatch proper to take advantage of the 
sudden and favourable turn of public affairs, seem to render 
it expedient to place this power in the hands of the executive 
department. The Constitution of the TTnited States baa been 
influenced by the latter, more than by the former considera- 
tions, for it has placed this power with the President, under 
the advice and control of the Senate, who are to be consid- 
ered, for this purpose, in the light of an executive council. 
Hie President is the constitutional organ of communication 
witii foreign powers, and the efficient agent in the conclusion 
of treaties ; but the consent of two thirds of the senators pre- 
sent is essential to give validity to his negotiations. To have 
required the acqnieeceuce of a more numerous body, would 
have been productive of delay, disorder, imbecility, and, pro- 
bably in the end, a direct breach of the constitution. The 
history of Holland shows the danger and folly of placing too 



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LecXin] THE U5ITBD BTATES. 80S 

much limitation on the exercise of the treatj-makiiig power. 
By the fundamental charter of the United Provinces, peace 
coold not be made vithont the naanimoua consent of the pro- 
vinces ; and jet, without mnltiplying instances, it is snfficient 
to observe, that the immensely important and fundamental 
treaty of Munster, in 1648, was made when Zealand was op- 
posed to it ; and the pe(^ of 1661, when Utrecht wbb opposed. 
So feeble are mere Hnutations npon paper — mere parchment 
barriers, when standing in opposition to the strong force of 
public exigency. 

The Senate of the United States is a body of men most 
wisely selected for the deposit of this power. They are 
eaaily assembled, are governed by steady, systematic 
*view8, feel a due sense of national character, and can *386 
act with promptitude and firmness. 

The qnestiou whether a treaty, constitutionally made, waa 
obligatory upon congress, equally as any other national en- 
gagement would be, if fairly made by the competent authori- 
ty ; OP whether congress had any discretionary power to cany 
into effect a treaty requiring the appropriation of money, or 
other act to be done on their port, or to refuse it their sanction, 
was greatly discussed in congress in the year 1796, and again 
in 1816. The House of Representatives, at the former period, 
declared, by resolution, that when a treaty depended for the 
execution of any of its stipulations on an act of congress, it 
was the right and dnty of the house to deliberato on the ex- 
pediency or inexpediency of carrying such treaty into effect. 
It cannot bo mentioned at this day, without equal regret and 
astonishment, that such a resolution passed the House of 
!Representativee on the 7th of April, 1796. But jt was a naked, 
abstract claim of right, never acted upon; and congreea 
shortly afterwards passed a law to cany into effect the very 
treaty with Qreat Britain, which gave rise to that resolutioBi. 
President Washington, in his measage to the House of Itepre-^ 
sentatives of the 30th of Mux;h, 1796, explicitly denied the 
esjstence of any such power in congress ; and he insiBte^ that 
every treaty duly made by the President and S^iato, and! 
promulgated, thenceforward became the law of the landl. 

If a treaty be the law of the land, it is as mud» obligatory 
apon congress as upon any other branch of the goTemment, 
or upon the people at large, so long as it continaea iti iorce 
Vol. L 20 



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soft jnsispRnD&NOB OF . [Putn. 

and imnpealei]. ^e House of ItepresentatiTee are not abore 
the law, and they have no dispensing power. They hare a 
right to make and repeal laws, provided the Benate and Presi- 
dent concur ; bat without Boch coucnrrence, a law in the 
shape of a treaty is as binding npon them as if it were ui the 
shape of an act of congrees, or of an article of the constitution, 
or of a contract made by aathoritj of law. The arga- 
ment in faronr of the binding and conclusive efficacy 
*287 *of every trea^ made by the President and Senate ia 
80 clear and palpable, that it has probably carried very 
general conviction throughout the communis ; and this ma; 
now be considered as the decided sense of public opinion. 
This was the sense of the House of Representatives, in 1816, 
and the resolution of 1796 would not now be repeated.' 

Ilie President is the efficient power in the appointment of 
« °to the officers of government. He is to nominate, and, with the 
advice and consent of the Senate, to appoint, ambassadors, or 
public minist^B and consuls, the judges of the Supreme 
Oonrt, and all other officers whose appointments are not 
otherwise provided for in the constitution ; bat congress may 
vest the appointment of inferior officers in the President 
alone, in the courts of law, or in the heads of departments. >■ 

'Hie appointment of the subordinate officers of government 
concerned in the administration of the laws, belongs, with 
great propriety, to the President, who is bound to see that the 
laws are faithfully executed, and who is generally charged 
with the powers and re^nsibility of the executive depart- 
ment. The association of the Senate with the President in 
the exercise of this power is an exception to the general dele- 
gation of executive anthori^ ; and if he were not expressly 
invested with the exclusive right of nomination in the in- 
stances before us, the organization of this department would be 
very unskilful, and the government degenerate into a system 
of cabal, &vonritiBm and intrigue. Batthe power of nomina- 
tion is, for all the useful purposes of restraint, equivalent to 



■ Ha tresty-mtking po^er u nfceuarily and obTioualj lubordiiiate to tli* loD- 
ilameDtal Uwi and constitution of the tttit, ud it cnnnot change the form uf tha 
goTcrnmcnt, or umOiitate ita eoDstitotioDal powen. Star^'t Com. an tia Gxi- 

tUlulwil, TOL UL M«. IfiOI. 

^ Alt S. HC, ). 



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iM. xm] THE 0srrED OTATsa sOT 

the power of appomtment It imposes npon the President tlie 
same lirelj sense of reepooBibilitT', and the same indispensa- 
ble neceesity of meeting the public approbation or censure. 
This, indeed, forms the nltimste security that men in public 
stations will dismiee intereeted considerations, and act 
with a steady, zealous and ^^nndivided regard for the *S88 
pnblic welfare. The advice and consent of the Senate, 
which are reqnimto to render the nomination effectnal, cannot 
be attended, in the nature of the case, with very miechieTons 
effects. Having no agency in the nomination, nothing bnt 
simple consent or refoaal, the spirit of personal intrigue Snd 
pereonal attachment mnstjbe pretty much extingnished, from 
a want of means to gratify it. On the other hand, the advice 
of so respectable & body of men will add still furtJier induoe- 
mentB to a coolly reflected conduct in the President, end will 
be at all times a check on his own misinformation or error.* 
The reifaaimng dniiee of the President consist in fpving in- 
formation to congress oftbe state of the Union, and in recom- 
mending to their consideration such measures as he shall 
jadge necessary or expedient. He is to convene both houses 
of congreSB, or either of them, on eztraordinaiy occasions, and 
he may adjourn them in case of disagreement He is to fill 
Qp all vacancies that may happen during the recess of the 
Senate, by granting commissions, which shall expire at the 
end of their next session. <> He is to receive ambassadors and 



• ItwuMUM,iDUMOMaolHubiii7T. Maduoi^lCVm«ft,181,tbawbeQa 
pMson hu been Donun&ted to ttM S«ii«te for office, t? the Prwdsot, kod (1m 
Preudent bM reccired tli« »d*ieB aad coDsent of the Senate to Hie eppoiiitiiun^ 
tad bM dgned the oonumMiaii, the ippombDent it Sotl mi complete, *ad tbe 
pereoD eppoioted i« eotltted to the poeMs^o of Qie cominueiDD, uid to bold the 
office notil coDititntionally remored. The priodple settled io that caaa vai, that 
the otBdal acti of the headi of tbe ezeeotire department, as organi of the Pneident^ 
which are of a political nature, and reat, under tbe eonctitntioti aod lairi, in exeon- 
tjre ducretioD, are not within jndidal oognizance. But when dntiee are impoMd 
npoomcbheftd^affiecting tbe right* of indiTiduaU, and which the Preddeot eaimot 
lawlbllf forbid — a*, for inataiiw^ to record a patent, or fiimiah (he copy of a 
r«cord — tbe penon. In that caie, ii tbe officer of tbe law, aod aiiMBaUe thereti^ In 
the ordniaiT eonrta of jnitice. Rid. ITO, 171. 

> In the oflldal opinion given hj Mr. Wirt, a» Attomey-Oeneial of the Unitad 
Statea, to the Preiident^ in IgtS, he conddered that, aeoordii^ to the reaaon and 
apirit of the coMtitalJOD, the Preadeot hai the rightfbl power to tnpplj Tacanciea 
in office exiatjog when the appointment ia nude daring tbe receaa of tbe Sanata, 



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808 tveispsfjDWOE o? [PHtn. 

othco* poblic miniflters, to conuniBBion all the officers of the ' 
United States, and to take care that the laws be foiUtfolly exe- 
cated.' 

The propriety and simplicity of these duties speak for them- 
selvea. The power of rec^viug foreign miniaterB includes in 
it the power to diBmiss them, since ho alone is the organ of 
commnTtication with them, the repreeentaliTe of the people in 
all dipton^tic cegotiationB, and accountable to the conunonity 
not only for the ezecntion of the law, bnt for the competent 
qualificstions and conduct of foreign agents. 
if*]>k« In- Id addition to all the precautions which hare been men- 
tioned to prevent abnse of die ezecntiTe tmst in the mode of . 

the Freeidenf B appointmoit, his term of office and the 
*289 ^precise and definite limitations imposed npon the 

ezerdae of bis power, ^e constatntion boa ^\ao ren> 
< dered him directly amenable by law for mal-administration. 
Tha inviolability of any officer of government is incompatible 
with the republican theory, as well as with the principles of 
retributive ^jnatice. The President, Vice-President, and all 
civil officere of the United States, may be impeached by the 
House of Bepreeentalivefl for treason, bribery, and other high 
crimes and misdemeanors, and, upon conviction by the 8«iate, 
removed from office.^ If, then, neither the sense of duty, the 
force of public opinion nor the transitory nature of the seat, 
are sufficient to secure a faithAil discharge of the executive 
bust, bnt the President will nse the authority of his station 
to violate the constitution or law of the land, the Honse of 



Ibongti tba nnacj <fid Kapptit bafcra the ■^jonrnnMot of tb« Stnftto. Tb« in- 
rtancet h« girM of Uw iMMMity of nnIi k oolMtniction aixl power, sre thoM in 
vbich it wu ncari; or qniu impo«ibIe to lure Mot ia ■ DonuDBtioi] before the 
adjoniiiDient of the Senate. Opinion* of tin AitarMtyt-Oenirat, toL i. 4tS. 

■ Alt 2. Mtt. 1, 1. It vu ooDddered, in TM* Mniagt of PmidnU Jaektaik to 
Congnu, of At Sl«< Dtctmhtr, ISSt, in niatiat to Ttxai, to b« an unaettltd qiM*- 
tioD, to ■whom, under the goTanuneot of the United States ■tiktiy bekngcd tbe 
p«w«r of origlMlly reoagoUiiig a Dew atate. It wa« cither DcccMarilj invoWed in 
tome of the gjnat powan given to congren, or in that giTtft to the Prerident and 
Senate, to fimn troatie* viUi fbrwgn povcn, and to appoint aubatuukn and other 
poblic niiuatera, w m that eoalerred npon tbe Pteaident to receive mbiaten Irom 
fbrdgn naliaa^ It vai admitted to be moet expedient that tie reeogmtiou of the 
iiklep«Ddeoe« of a mwIj aMamcd Mate ihanld be left to the dcdeion of oongteaa, 
and eapeeiallr when Ae emroM of the power would ptobaUy lead to war. 
* Art t. MC. 4, 



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lm. zih] thb UBrrsD sta.te& god 

BepresentatiTes can arrest him in Uh career, hj Tesorting to 
the power of impeachinent. 

I have now fimshed a general sarvey of tiie office of Presi- 
dent of the United States ; and, conmdering the nature and 
extent of the powers necessarilj incident to that station, it 
was difficult to constitute the office in snch a manner as to 
render it eqnallj safe and osefdl, hy combining in the stmc- 
tore of its powers a due proportion of eaergy and responsi- 
bility. The first is necessary to mainttpn a firm administra- 
tion of the law; the second is equally reqaisite, to preaerre 
inviolate the liberties of the people. The anthers of the con> 
etitation appear to have snrveyed the two objects with pro- 
found diecenunent, and to have organised the executiva de- 
partment with consummate skill. 



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LEOTTTRE XIV. 

OF THk JQCICIABT DEPAKTUZNT. 

As the judiciary power is intmsted with the administratioa 
of justice, it interferes more visibly and onifonnly than any 
other part of goyemmeQt, with all the interestdng coocerm of 
social life. Fersooal security and private proper^ rest en- 
tirely upon the visdom, the stabili^ and the integrity of the 
courts of justice. In the survey which is to be taken of the 
judiciary establishment of the United States, we will in the 
present lecture consider, (1.) The jadgee, in relation to their 
appointment, the tenure of their office, and their support and 
responsibility. (2.) The structure, powers and officers of the 
eereral courts. 

L Hie constitution^ declares, that "the judicial power of 
the United States shall be vested in one Supreme Court, and 
in such inferior coarts as the congress may &om time to time 
ordain and establish." In this respect it is mandatory upon 
the legislature to establish courts of justice commensurate 
with the judicial power of the Union, Congress have no dis- 
cretion in the case.'' ^ey were bound to vest the whole ju- 
dicial power, in an original or appellate form, in the courts 
mentioned and contemplated in the constatntion, and to pro- 
vide courts inferior to the Supreme Court, in which the judi- 
cial power, unabsorbed by the Supreme Court, might be 

placed. The jadicial power of tlie United States is, in 
*291 point of origin and title, equal *with the other powers 

of the government, and is as exclusively vested in the 
courts created by or in pursuance of tiie constitation, as the 
legislative power is vested in congress, or the executive power 



I T. HoDter, I Wh£atoit, 8E8— 181. 



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Lm. XIT.] JVmSPWSDVSOi, Ac . 811 

in the President* The President is to nominato, and, by and 
with the ftdvice and consent of the Senate, to appoint "judges 
of tiie Supreme Oonrt, and all other ofScere whose appoint- 
menta are not therein otherwise provided for, and which slutU 
be established by law. Bat congress may, by law, Test the 
appointment of such inferior officers as they think proper, in 
the Freeid^it alone, in the courta of law, or in the heads of 
departments.")* It has never been judicially settled, bnt it 
has been very authoritatively and very wisely settled by the 
uniform practice of the government, that die judges of the 
district courts are not inferior officers, whose appointments 
might be withdrawn by law from the President and Senate, 
and placed in other huids. 

IhQ advantages of the mode of appointment of public offi- 
cers by the President and Senate, have been already consid- 
ered. The mode is peculiarly fit and proper in respect to 
tiie judiciary department The just and vigorous investigar 
tion and punishment of every species of frand and violence, 
and the exercise of the ]power compelling every man to the 
punctual performance of his contracts, are grave duties, not 
of the most popular character, though the fitithM dischar^ 
of them will certainly command the calm approbation of the 
judicious observOT. The fittest men would probably have too 
much reservednesa of manners, and severity of morals, to se- 
cure an election resting on universal sufirage. Nor can the 
mode of appointment by a large deliberate assembly be en- 
titled to unqualified approbation. There are too many occa- 
sions, and too much temptation for intrigae, par^ prejndice 
and local interest, to permit such a body of men to act, in 
respect to such appointments, with a sufficiently single 
and steady regard for the general welfare. *In an- •392 
cient Borne, the prsetor was annually chosen by the 
people, but it was in the comiiia by centuries, and the choice 
was confined to persons belonging to the patrician order, until 
the close of the fourth century of the city, when the office was 
rendered accessible to the plebeians ; and when they became 
licentious, says Montesq^uien,' the office became corrupt 



> Blor^t Comm. voL itL pp. 449— 46C ^ QhuI. ut !. lee. S. 

• April A Zoix, liv. riu. & 12. 



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812 JUBispRUDEinnc OP [Putn. 

Tike popnUr elections did very veil, as he observeB, bo loog 
83 the people were free, and magnaniinoiis, and TJrtaotis, and 
the public was without cormption. But all plans of govera- 
ment which suppoee the people will always act with wisdom 
and integrity, are plainly Utopian, and contrary to uniform 
experience. Government most be framed for man as he is, 
and not for man as he would be if he were free from vice. 
Without referring to those cases in our own country, where 
judges have been annually elected by a popular assembly, we 
^ may take the less invidious case of Sweden. During the diets 
which preceded the revolution of 1T^2, tiie states of the king- 
dom sometimes appointed commissiouers to act as judges. 
The strongest party, says Catteau," prevailed in the trials that 
came before them, and persons condemned by one tribunal 
were acqnitted by another. 

By the ConstitDtion of the United States, '> " tiie judges, 
both of the supreme and inferior courts, are to hold their 
offices during good behaviour ; and they are, at stated times, 
to receive for their serriees a compensation, which shall not be 
dimini^ed daring their continuance in office." The tenure 
of the office, by rendering the judges independent, both of the 
government and people, is admirably fitted to produce the 
free exercise of judgment in the discharge of their trust. 
This principle, whichhas been the subject of so much deserved 

eulogy, was derived from the English constitution. <= 
*S98 He English judges anciently held their seats *at the 

pleasure of Ihe Iring, and so does the lord chancellor 
to this day. It is easy to perceive what a dangerous influ- 
ence this must have ^ven to the king in the administration 



■ 7^i^&wfai,«. 8. 

■ Tbe high juduikl officer In the Mtcieot kingdom of Aragon, called tha Jutlieia, 
ud ftppobled by the king, luring repeatedly and boldly protected private indi- 
-ridnali tram the peneeotiotM of Uie crown, tu. in more tlian one ioatance, reeooved 
tram oIBm at tbe inctaiKe of tbe kbg. To guard againrt tbe like proetnrfko of 
tbe independent discharge of duty, it was provided, \tj a «tatat« of Alfimea T, in 
IMS, tliat tbe jaatke should oontiDiie in olflee during life, rtmevabU only on tuffidaU 
OMM ly iMf king UMd tk* tarttt wtiMd FntcoU't BIA of Ftrdinmui and JtcMia, 
yoL i. lot. pL 1 08. Tbie vae tbe nMrt aneieot precedent in bTonr of tbe eataUiab- 
meat of an independoitjadidary, aDct it did great credit to the wisdom and spirit 
«[ tbe fret «Ute* of Aragoo. 



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Lm. Zir.] TBB UmTBD STATES. 818 

of justice, in cases vhere the claims or pretensioiis of the 
crown were brought to bear upon the rights of a private indi- 
Tidnal. Bnt, in the time of Lord Coke,* the barons of the 
exchequer were created daring good behaviour, and so ran 
^le commissions of the common law judges at the restoration 
of Charles JL,^ It was still, however, at the pleasare of the 
crown, to prescribe the form of the commissioQ, until the act 
of settlement of 12 and 13 Wm. IIL, c. 2, which was in the 
nature of a fandamental charter, imposing fiirther limitations 
upon the crown, and adding fresh securitieB to the Protestant 
Buccession, and the rights and liberties of the subject. It es- 
tablished that the commissions of l^e judges be made guam^M 
86 bene gesserint, though they were still to be removable upon 
the address of both houses of parliament." The excellence o( 
this provisicMi has recommended fiie adoption of it by other 
nations of Europe. It was incorporated into one of the mod- 
em reforms of ^e eonstitation of Sweden,<> and it was an ai>- 
ticle in the French constitution of 1791, and in the French 
constitution of 1795, and it was inserted in the constitutitmal 
charter of Louis XVTCL The same stable tenure of the 
judges was contained in a provision in the Butch constitution 
of 1814, and it is a principle which likewise prevails in most 
of our state oonstitntions, and, in some of them, under modifl- 
cations more or less extensive and injurious. 

In monarchical goTcmments, the independence of 
the *^ndiciary is essential to guard the rights of the *3M 
snbject from the injostiee of the crown ; bat in repub- 
lics it is equally salntary, in protecting ibe constitution and 
laws from the encroachments and the tyranny of ihction. 



* * rtuL UT. 

^ I jSId S. QihIm L, In hii m«i«ga to p«rH«ineat Jnlf StK 1S41, infonnitig 
tbtm of havlDg tigDMl tlw fail] far mboli*hk^ Uig high amuuinioD court ud th* 
ttM diftmbeT, add«d, *Iio, ibtt he hid granted that the judge* should tbereslter 
hold Hietr placei guawiJht u i«u gtmrinl. Home, in hia SitL. of Eitglamd, toL 
tL 4CII, tmjt, that this grant of die judgea" patenta during good behanonr, waa 
nMd« at the reqn«t of tba pariiacMnt 

* Hm English jodgaa, notwilhatanding the form of Uitir oommnrion^ continnad 
tooon^er that ttM demise of the oownTacatad their Bvta, But this hnptrfectkn, 
if one reallj eiiatcd, -wt remorcd \tj the atatote of 1 Geo. IIL, tUMted at the 
noommtDdatioo of lh« king. 

* OXftoM't Time/ &Mim, 0.8. 



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814 JtrmSPBUDEKOE OF [Put IL 

laws, hovever vholesome or neceesaiy, are frequently the 
o1)ject of temporary aveTsion, and sometimeB of popular re- 
Bistance. It is requisite tliat the courts of justice Rhonld be 
able, at all limee, to present a determined countenance 
against all licentiouB acte ; and to deal impartially and tru- 
ly, according to law, between suitotB of every description, 
whether the caase, the question or the part)', be popular or 
unpopular. To give them the courage and tiie firmness to do 
it, the judges ought to be confident of the security of their 
salarieB and station. Nor is an independent judiciary lees 
usefhl as a check upon Uie legislative power, which is Bome- 
times disposed, from the force of party, or the temptationB of 
interest, to make a sacrifice of constitutional rights ; and it is 
a wise and necessary principle of our government, as will be 
shown hereafter in the course of these lectures, that legisla- 
tive acts are subject to the severe scrutiny and impartial in- 
terpretation ttf tiie courts of justice, who are bound to regard 
the constitution as the paramount law, and the highest evi- 
dence of the will of the people.* 

The provision for the permanent support of the judges is 
well calculated, in addition to the tenure of their office, to 
give them the requisite independence. It tends, also, to se- 
cure a succession of learned men on the bench, who, in con- 
sequence of a certain undiminished support, are enabled and 
induced to quit the lucrative pursuits of private basiness for 
the duties of that important station. The Constitution of the 
United States, on this subject, was an improvement upon all 
our previously existing constitutions. By the ^English act of 
settiement of 12 and 13 'William QL, it was declared tiiat the 
salaries of the judges should be ascertained and esttSiUthed; 
but by the statute of 1 Geo. HI., the salaries of the judges 
were absolutely secured to them during the continuance of 
their commissions. Hie constitution of Manachusetts fol- 
lowed the declaration in the English statute of William, and 



■ The FrotvettoD of law and liber^ from llw aMraadmeoti of Ibt tttramga, 
wtM ma BTOired purpou of tlx iutitiilion of Um JiMieia in tlu AivgoDcse ooiati- 
tulbm, tw quid ohMm d a m iu dttrvntntiv* Itga ad libtrMtmoitTa patianlur, 
judae qaidaiH xmUiw mdtito adqm»maTtf]>rvvoeart,ii«liqiim Itmml, ii^Mriaiqm 
areeri ri gma* fitrtan rtipub. inlnltrit, jiu favju* *tUt. Bkl 
!S. cited ia 1 FrMcMt F*rdiiumd aid /(ai«Ua, lot p. 107. n 



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Lm. XI7.] , THE TOTrKD STATES, gig 

provided that permaaent and honourable salaries 
should be established by law for the jndges ; but *thiB *2&5 
was not Bnfficiently precise and definite to guard 
against all evasion ; and the more certain provision in the 
Oonsdtation of the United States bos been wisely followed, in 
the snbaeqnent eonstitntions of most of the individual states. 
Id Pennsylvania, the jndges of the Supreme Coort, and the 
president judges of the Courts of Common Pleaa, by Ae con- 
stitution of that state, are to receive, at stated times, an ade- 
quate compensation for tlieir services, " to be fixed by law, 
and not to be diminished during their continuance in ofiBce." 
'Qie legislature, by act in 1848, repealed the act of 1839, 
which had increased the salaries of the judges ; and they also, 
by act of 1841, assessed upon the salaries of the judges a tax 
of two per cent., which the state treasurer retained. The in- 
ralidity of the statutes reducing the salaries and assessing a 
tax thereon, was afterwards adjudged as being unconstitu- 
tional, and a peremptory mandanmia was awarded to the state 
treasurer to pay the salary so retained-, free of the reduction 
and of the taxation. Commonwealth tse reUU. Hepburn t. 
Mann, 5 Watta <& Serg. 403. The authority of the constitu- 
tional provision, and the void nature of the statutes, were 
illustrated and enforced in the opinion of the Supreme Court, 
as ^ven by 2&. Justice Bogers. But the decision of the 
court has been questioned, on the ground that the vncreaaed 
salary was subject to legislative control, under the restriction, 
however, that the allowance was not to be lessened in respect 
to the judges, or any of them, below that point at whidi it 
stood when they respectively came into office. This last con- 
struction is supported by the FederaUet, No. 79, and by Mr. 
Justice Story in bis Commentaries, in the remarks on a simi- 
lar coostitntionBl provision under the United States. The 
constitution of New-Tork, as amended in 1831, is an excep- 
tion to this remark, and it left the judiciary department in a 
more dependent condition, and under greater disabilities, than 
it found it, and greater than in any of those states in the 
Union, or in any of those governments in Europe, whose con- 
stitutions had been recently reformed." 

• B7tha«oartitutkiMofHMMdniMt^I)davaN,lCM7bna,rtrgini%K«Dtoc^, 
Horih CaroIioB, Sooth Oandina, Eloridi, MiaoDri ud Waxia, th* jndgw of th* 



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jmasPBUUKfroE of 



But thoagh the ConBtitation of the TJnited States hue ren- 
dered the courts of jostice independent o( nndae inflaence 



Sapreme Ooorto bdd th«ir officM dariog good bahtrionr. Tbts wm tli« e*M fai 
P«Dna;lTwiui under their ooDstitatioa of 1790; but bf Ui^ uneoded couititDtloD 
of 18S8, the t«iura of the jadgw, m to the term, wm redocad', that of the judge* 
of the Supretae Oourt to fifteeo yean, and of the preeideot judgei to ten jean, 
and of the amodate judg«a to fire yeua, Thb ww aJ*a tfae caie in Louuiaiia, 
notil tlwoeir conititutioaofthat alate, in1S46,whichniliicedthat«rmofofSe« to 
tight jMn. Id tlie itatea of Maine, ITew-Hampahira and Oonnecticnt, they liold 
during good b<i>aTiin>T, or tmlll MT«a^ yean of »ge, and in HiHoari nntii nzty-fiTa, 
and io New-Tork, mitil lately, fcr lizty years of age. In Tenoeuee the judge* of 
tke Supreme Court hold tbeir offioa* lor twelre yean, and of the hfcrior courta for 
ei^ yean. la Arkanaaa Hie jn%ei of tlie Bapreme Oonrt bold thdr offlee* Ibr 
dgfat jtitzt, and the judges of the Circuit Caurta tot four yean ; in the itales of 
If ev-Jenay, Oluo, Hldiigao and lodiaoa, they bold for the term of mtcd years; in 
Ahlmna, Uimi—ijiji unA Tw*, rfryi-ni .nH In Iowa for four yaara In Vennodt 
and BliodaUand they are Bumally elected. InQ*otgijithajndguoftb«Supr«ne 
Oourt for the Correctiia of Brron are to be elected for a t«in of years, to be pre- 
scribed by law, aud the judge* of Uie Superior Court tor tba tarm of four yean. 
The judges oftha Supreme Court condat* of three, and by itatnta ara elected for 
iix years. He new conttitnfiMi of Rhode bland, winch wa* adopted in I84i, and 
went ioto opentioD In May, ISIS, lDipn>Ted the tenure of the official t^cc^ by 
declaring that the judge* of Ifca Supreme Court tbould be elected by tbe legislature, 
■od bold their offie«a nspeetiTely until tba place of Iha judge be dedared racant 
by a resolution of the l^^atare paeacd by a majori^ of all tbe mamben elected 
to eadi house, at the annual aeaiion for tbe election of puUio officers Sy tba 
ordinaneeof Gongreasof July, 1187, for tbe gOTefnineat of the Northweat Territory, 
the oommiasioo* of tbe judge* were to continue in force during good bebaTionr. 
But the subsequent canstitnlioai of Ohio and lodiana cut down that permanent 
tenure to one for aeren year*. Tbe constitution of Alabam«,in 1B19, eetablisbed 
tbe judicial tenure to be during good behaTioar ; but the eonstitDtiuo bu been 
tlnn qncialiy alttrad In Ibat pMHonhr, so ■■ to diMg* th* teonre to the tem of 
lix yean. And by the Orrt contUntian of tbe sUte of Mi**iaup{d, in 1B07, the 
jndge* held tbair office* during good bebaTiottr, or tintil tixty-fiT* yean of age, and 
were appointed by the joint Tota of tbe two bouses of the legisl ature, given vi*« 
•OM^ and recorded. But by the oonatitntion, aa amended and re^rdalned in 1BS9, 
•very officer in the govemmoit, legidatira, exeeali*a and jiididal,iidactcd by tbe 
miTetial aoffirage of tbe people ; that ia, by arery free white tnala citiien of twan^ 
one yeanof age, who ha* rended within the atata for one year preceding, and for 
the last four mouth* within the county, city or tcwn m wbidi be offers to vote. 
Hie judge* of the SnprmiM Court of Skrora and Appeals in tfaui chosen by dls- 
triot* for ii> yeats. Hm chatMellar is elected for six yean by Hie electors of the 
wlKde*tat*> Tbe jndge* of tba Oircnit Courts are elected in diatriet* for four yean. 
TbeJo-lgMof probates and dark* of oourt* are elected fortwoyears,^ Thi* 
wa* cairyii^ tlie demooalic principle beyond all precedent theretofore m tld* 
ooQotry. In all the other Mate* of tbe Union (at least until ytrj recently) tba 
jodgeaofthaUgfaereourta of kwand equity rcoeired their appi^ntment* eilhv 
from the Qoremor and ComKsl, or OoreiDor and Benata— i* in Maine, M**m- 



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Lws. zrv.] THE UHITED STATES. 317 

from the other departments, it has made them amenable 
for any cormpt TiolBtioii of their trnst The House of Ke- 

diiM«m Kew-Hwnptbire, New- York, New-JerMy, Uvjland, Eentock;, Indiuia, 
LouiNMW, llfawHiri toA Hkliigiii — or from the Qortnor *loi w m in Pemiajlmiik 
Mid Dekwira— or fr<HD Uia legwlatura — m in Veimoo^ Rboda lalaod. Conoectient, 
Tiiginu, Smth tad aouth Caroliiui, Ctergia, Florida, TaDiunee, Ohio, lllinoia, 
lora, Alabam ■nd A r ^ff i*. In lodiank tlwre U a peculiar qoatifieatiaD ia Um 
jndidal appoiDtnHots; Ibr the Supreme Court is ■ppninted bj the Qo*enKir 
aitd Setwte, thepreMdentaof tbaCinaii(OaurU^UMlegialaUira,aDd theaaeodata 
<iMant jiaiget or* tUettd ^ Ikt p4oplt. By tlie reYued epnttitatina of New-York 
ot I MS, a momentoai reTolutioo wm efllMted in Uh mode of appointment, organ!- 
MlioD and tenuri of the judioial department, » well ■■ in tlie appoSntmeot of 
offieen geDarallj. It wh ordaintd that there ehoidd be a Court xtf AppaUt, eoni- 
poead of eight judgee, of whom four, to be elected bj the eUetcns of the *tat«, fbr 
dght Teai^ and four leteeted from tbe elaea of justicei of the Supreme Coart having 
tin (horteet time toeerre; and the judgea were to be «o da««iB«d, that one aliould 
be elected enxj aeoood year, nine wai to be a Buprmu Oourt, baTmg general 
joriuUctiuu ki law and cquit]'. Thtt *lAt« wat to be divided ialo erpU jmHei^ 
iiitTteii. and to bm faitr jtuHcn of Ik* Supnmc Court in taeh HHriet, and to b« 
M> claMified, that one of the jiulicee of eadi diitrict ehaU go ont of office at the end 
of ever; two yean ; and after the ei|NraliDO of their temu noder auch elaMi&ca- 
lion, the term of their office ahall b« a^t jttn. Om or more of the jndgee of the 
Supreioe Court, who ie not a judge of the Oonrt of Appeal*, to be doly dedgnated 
Id preude at the general terma of the aaid coorta to be held in the aeTeial diatrieti, 
■ltd taj three or more of tb«ju«ticee(tli« pratiding judge ao dedgnated to be one) 
to bold Buch geoeial taima. Any one or more of them ma; bold apedal tenna and 
Circuit Coitrii, and preude in oourta of Oyar and Ttrmintr in an; conn^. "nie 
judges of the Court of Appeala and jnaticet of the Supreme Court are to haTe a 
eompeoaa^n for their eervicea, not to be increaaad or dinuaiahed daring their con- 
tiouaoeB in office. Tfaejr ere not to hold en; other office or public tmat, nor 
•serdae aoy power of appoiotmeot to public office. The jueticea of the Supreme 
Court aod judgea of the Court of Appeals ma; be remoTcd by ooneiirreiit reaoln- 
lioDa of two thiide of aU the membcn elected to the aasembly, and a majority 
of all the nwmben elected bi the Senate. All other judicial offlcara and jiuticea 
of the peace may be removed by the Senate, on the recommendation of the 
Govenior. The jndgea of tlie Court of Appeala to be electad by the electon of 
the etate, and the joitieea of the Supreme Court by the electon of the leveral 
judidol dintricta. One counts Judge to be elected in each of the oninlies of the 
atata. except the city of New- York, to bold lua office for four yean, and to hold the 
OuDtity Cour^ and perform the dutiea of aurrogatc tlie County Court to have w> 
original civil juriadictiou, eicept in apedal preacribed caeea. But the comity judge 
and two juadceaofthe peace to bold CourU of StaionM with criminal juriadictioa; 
and be i* to reoMve an annual aalary, to be fixed by the Board of Snperrieon, and 
to be neither increased nor dimioiahed daring his contiDuaoce in office. Juatjcca of 
the peace, fbr aerriees io Oonrts of Sesaiooa, to be paid a p«r diam allowance out 
of the ODonty treasury. The legislatara may provide for the electioD of a anrrogate 
in cDuntiea where the populaticn exceeds 40,000 ; and they may confer equi^ 
jdriaiUctioa, in special naini. apon tlia ooon^ jodge, and estaldiah iabaioi local 
coorb^ of civil and oiminal juIiadietioI^ in dtjea. Joaticea of the peace ar« to be 



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JTJBJBPBXSVmQS OF 



preBentatives, as we have already seen, is inTested with the 
power of impeachment, and the judges may, hj that proceae, 



•lecUd in eich bnni at tbdr amual (own meetiag, wboM tom of offlo* ii to b* 
fbnr yeaza, utd thaj nujr b« removed in s dot nuuuieT by tin ooim^, titj or (tate 
eourta, M preacribed. Iliederkof the Conrtof Appeak i* tobe ex ^biode^of 
Uie Sqik^iim Court, ud to be cfaoeen b]r tli« elector! of tbe etate, and to hold hii 
offlM for three year^ and to be paid oat of the pablie ttmaarj. No jodidal 
officer, except jngtJcea of the peace, ahallrccciTe any feeior perqnuiteB of office. 

lUi u the ■ubetaiiee of the new judicial eyitem, under the rented oonatitulion 
of Hew-Tork, and it) Tcry democntk diaiMler petradci the whole inetnimeot 
Hw Miitnl apptnotiug power, with the extenaiTe patronage which, under the 
prior cmntitutMDs of 1771 and 18!1, eiMed in the QoTemor and Benate, i« brokcD 
up and diffused throD^eTeiy partoflbe body poHticL Allofflcaof any tnomait 
DOW reata on popular eleetioiL Beudea the judicial offieen abeady mentioned, 
tb« Secretary of Slate, OoiapbolleT, Treaaorer, AtloiD^-QaienU, a State Eogineer 
and Surveyor, the Canal Oommiaaoitera, the lospecton of State Prlaona, the Clerk 
of the Court of Appeal*, Sheii^ Cteriu of Countiea, the Segieter and Olerk of the 
dtj of New-Tork, Diitrict Attoroeya, and generally all local offieen, are to be 
choaen by populat election. 

The rcvieed conatitution of Ifew-Tork of 1840, is more democntic than any 
of the atate ccoalitutiona in the Umon, and it containa mors ipedfic reatcictioaa 
and limitatiooa on the exerdae of l^ialatiTo power than are any where to be met 
with. The oooTcotiaii aeem to have moet auiionily guarded againat the inflneneea 
of aelfiahoeaa, Jutrigue, ^Touritiam and comiptiDn, which hare Iwoi oupposed to 
have heretotino affected the action of the Icgialatire department All depeoda 
iww npon the diaereet ezerdie of the right of aufiage ; and aa the OMiTcotioD, in 
thdr drcnlar addreaa, truly obaerred, ' the hapfanen and prc^reas of the people of 
UuB atata will, under God, be In their own handa." Perhape the moat unwiae 
feature in the reriaed oooatitutioii ii the electing \)j unireraal anffiage, and for 
comparatirely ahort periodi, of aU judicial officers. Tie o(<nTentiou hare diare- 
garded, in tliia reipect, the leaaoni taught by the former conetitutiona of I7T7 and 
18£1, aa well as the wisdomof the ConatitnUon of the United Statea. flieoiffani- 
lalion of the judidal department is not so eaarntial aa the supply of intelligoit, 
learned and honest judges to administer the laws. The danger to be apprehended, 
as all past history teaehea na, in goiammenta resting in all their parts on uniTeraal 
Buffirage, ia the sfuiit of bctioD, and the influence of actira, amUtioum reckleaa aitd 
unprincipled demagogues, oomlNniDg, ctmtrDlling and abuaing the popular Toiee 
for their own ael&ah puipoaea. Much more gricToua would be such results when 
applied to the election of judges, for that would tend to break down and destroy 
the indepeodeDCa and integrity of the admiDiatrattni of justice. 

The cooatitutional proTiaion for making judges elective for sbnt periods, t;^ 
universal suffrage, is oontagiooa, and every new conatitDlional reform or establiab- 
meut lends that way. In the oooatitution of Wiaoonaiu, ettablished in IS4fl, the 
jodgee of the highest courts were to be elected for five years only. (1) 

In respect la tbacompenntionof the judgeaof the Superior Courts, the eonalita- 



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Lm. xit.] the united states. 319 

be held to answer before the Senate, and, if convicted, the^ 
may be removed from office. 

n. Hie federal jndiciary being thus eatablisbed on prind- 
ples which are easential to maintain that department in apoi 
proper state of independence, and to secure the pure and 
vigorons administration of the law, the constitation pro- 
ceeded to dengnate, with comprehensive precision, the ob- 
jects of its jurisdiction. Ihe judicial power extends* to all 
cases in law and eqoitjr arising onder the constitution, the 
laws and treaties of the Union ; to all cases affecting ambas- 
sadors, other public ministers and consuls ; to all cases of ad- 
miralty and maritime jurisdiction ; to controversies to which 
the United States shall be a party ; to controversies between 
two or more states ; to controversies between a state, when 
plaintiff, and citizens of another state, or foreign citizens or 
subjects ; to controversiea between citizens of different states, 
and between citizens of the same state, claiming lands under 
grants of different states ; and between a state or citi- 
zens 'thereof, and foreign states ; and between citizens *29d 
and foreigners. The propriety and fibtesa of these 
judicial powers seem to result, as a necessary consequence, 
from the onion of these states in one national government, 
and they may be considered as requisite to its existence. 
Hie judicial power in every govemment must be co-extensive 
with the power of legislation. It follows, as a consequence, 
that the judicial department of the United States is, in the 
last resort, the final expositor of the constitution as to all 
questions of a judicial nature.'" "Were there no power to in- 



tiotM of tfa« itatM of Hmdi, Rbode lalaod, NaT-Jersey, PeuiuylTRDin, Delaware, 
Yiigiaia, TenncHee, South Caroliii*, Oeoi^in, Florida, AlnbaniK, Ohio, lodlsDa, 
DUdou. Hiehigaa, UiMoori, MissiHippl, ArkMuu and Louisiana, eitlier eslabli^ or 
tiirect the Balaiica to be fixed by law, and tbat they shall not be diminiBhed during 
tlM cootiDuaiice of tfae judge* in office, In IT«w-B«mpahire, North Carolioa and 
KcDtaeky, adequate and pennaneo^ or fixed nlnries, are directed to be proTided 
by law. Id other itatei (aod Hew-York ie one of them) the compeneation of the 
jadgo, Mid the dnratioD of it, rest entirely h legtaktite diecretion ; fur though the 
■tatnte (ai in Bew-Tork] may declare that the judges shall have a specified annual 
salary, the statute ia liable, at any future time, to legtsktiTe repeal. 

* Art. S. aec S. Ammdmnli to Iht CMUtilulitm, art II. 

* Thi Fidiraiut, Noa. 18. 8S. Sfl. BO. Blor^i CtMmtnlariet on llu Coiulitiitiow, 
vol L pp. 3fl8. SAO. ses, notes. Uanhall, Cb. J., in Cohens v. Virgima, S Wlkaalom, 
tU. S81. The whole question is folly examined, and all the cootemponuy dlseaa- 



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330 JUBISPRUDENOE OP [FutlL 

terpret, pronounce and execnte the law, the goTenunent 
would either perish through ite own imbecilitj, as was the 
case with the articlea of confederation, or other powers mnst 
be assumed by tlie legislative body, to the destraction of lib- 
erty. That the interpretation of treaties, and the cases of 
foreign ministers and maritime matters, are properly con- 
fided to the federal courts, appears from the close connection 
those cases have with the peace of the Union, the confusion 
that difierent proceedings in the separate states wonld tend to 
produce, and the responsibility which the United States are 
under to foreign nations for the conduct of sU its members. 
The other cases of enumerated jurisdiction are evidently of 
national concern, and they constitute one of the principal mo- 
tives to union, and one of the principal cases of its necessity, 
which was the insnrance of the domestic tranquillity. The 
want of a federal judiciary to embrace these important sub- 
jects, was once severely felt in the German confederacy, and 
disorder, license and desolation reigned in that uidiappy 
country, trntO the establishment of the imperial chamber by 
the Emperor ifaximilian, near the close of the fifteenth cen- 
tury ; and that jurisdiction was afterwards the great source 
of order and tranquillity in the Ciermanic body.' 

The judicial power, as it ori^nally stood, extended to suite 
prosecuted against one of the United States by citizens of 
another state, or by citizens or subjects of any foreign state ; 
but the states were not willing to submit to be arraigned as 

defendants before the federal courts, at the instance 
•297 *ofprivateper8on8,be the cause of action whatitmi^t 

The decision of the Supreme Court of the United States, 
in the case of Chiahdmh v. The State of Georgia,^ decided 
in 1793, in which it was adjudged that a state was suable 
by citizens of another state, gave much dissatisfaction, and 
the legislature of Georgia carried their opposition to an open 
defiance of the judicial authority. The inexpediency of the 
power appeared so great, that congress, in 1794, proposed to 
the states an amendment to that part of the constitution, and 
it was subsequently amended in this particular under the pro- 



■oiu in ral&tioo to it, pUead io % itrikiiig yivw, in 1 Sb/rjf* CMmnmiflnn on Ui 
CimtftMicn, pp. 844— S8S. 
• BobtTlton!* Ckarlt* V. ToL i. pp. ISS. t9S. >9T. * i Delia*, 419. 



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Lett 2IV.] THE UlTITED STATES. $31 

vision in the fiftli article. It waa declared by the amendment,* 
that the jadicisi power of the United States shonld not be 
construed to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by citizens of 
another state, or by citizens or subjects of any foreign Btate.>> 
The inhibition applies only to citizens or subjects, and does 
not extend to suite by a state, or by foreign states or powers." 
Tliey retain the capacity to ane a state as it was originally 
granted by the constitution ; and the Supreme Court has 
original jurisdiction in the case of suits by a foreign state 
against one of the members of the Union.^ 



ill. 

> As the United StatM ia,n do ezMenc*, u * pditkal kImI \MOg, acergt 
Qoder the oTgHniz&tioii of the coiutitiitioQ Mid Uwi of the Dnitcd Btetdi, it ii 
Maumed as a prfociple floirii^ from tb« Mrereignty of Ihg Uuilcd StAtea, tliM tlM 
offlcera of tbe gnTerameiit are not enliiect to suit? tor nets ia Hie regnlar discfaaige 
of (heir official duties Opinian* t^ tlU Atlonuift-Gtiural, toI. L4e7. 

• TIm Obetokee Nation t. Oeo^ik, S Ptrr^ U. B. Rip. 1. Nelr-Jeaej t, 
Nev-Tork, ibid, 2B4. A manjiauu is a nil withia the mctniiig of tbe ooiutita- 
tioD, fiir it is B litigatioD of a right id a court of jiutice, teekiog a dedriua Wes- 
ton V. Citj of ObarleatoD, ! PeUr^ R. 449. Holmea t. Jenaiwn, 14 td, DM. 

' Blair, J., and Ouehing, J., in Chldudm v. State of Georgia. S JMIm, 41S. 
That a forupi prince or rtate nuj aae in our own, h wslt ai in the Sngliah oonria 
of lav and equity, ace Eiug of Spain t. Olirer, 1 Peler^ dr. Rep. £76. Tbe 
ColombiiiD GloTemtneDt T. Rothachild, I Simimt, 104. King of Spain *. Uoehado, 
4 RauM, SUB. 1 Dim P. O. N. B. ISS. 8. C. ITo direct amt on be maiiituD«l 
^ainat the Uniltd Statet, wUbout tbe Mthotlty of an act of ooi^>re«, nor can any 
direct Judgment be avarded against tl>eni for casta, Harshall, Ch. J., in Ooheu *. 
Vi^iida, « WkuUtin, 411, 41S. United States v. Clarke, S Pelen, 444. United 
States T. BanMj, a Q Usryland, 8 Hairi £. /. IIB. United State* t. We% 3 
Wank. O. O. R IH. 0/iitUoiu^llitAUonugt-OmtraI,y<A.U.9Vl,t66. BiA if 
an action be bronght bj the United States to reooTcr moaej in tb« liands of a 
party, he may, by iray of dahme, wt Dp any tcgal or eqaitnUe oIsId) be bat 
agBiiMt (be United Statea, sod need no^ in sudi sasa, be tonted ronnd to an appli- 
cation to Mi^ress. Act of eongrass, March Sd, 1797, & 74, sec S, 4. United 
Slatea v. Wnhims t Whtalm, ISS. 14S. Walton t. United States, 9 Wkeaton, 
eel. United Statea t. Mac Daniel, 7 PtttrJ IT. 8. Rep. U. United States r. 
Bingg 'Id, S aid. 108. United Sbktea t. Clarke, S iKd. 486. United State* r. 
Robeson, 9 Pettn, 819. Sftme T. Bavklos, 10 ihid. 126. Same v. Bank of the 
Uarupolis, 16 J'efari' U.S. Rep. 877. In the oue of tlie late Bank of the United 
Slates, who claimed damages by vay of set-off on a protested bUl drawn by the 
United States, the Attomey-Qeneral, in an elsborats offldal opinloD, held, that tbe 
set-<iff could not be allowed in a suit by the United States against the bank, Ibr 
dividends due the United States and withheld. OpUiiimt of the .if fornsys-SmsroJ^ 
Tol.iL9fl4.Sa2. Bnt b the samecaseof tbe Bank of the United State* v. Tbe 
Udted State^ in S HowtrUt U. 8. Rep. 711, tbe United State* laed the bonk for 

Vol. L 21 



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JVBISPRUDEHOB OF 



With these general remarira on the constitutional principles 
of die jadiciaty department and the objects of its authori^, 



dTldeodiwitlibeld; ud tlHb«ik,b7 Wky of Mt-o^ctunied IS per cmb dunagea, 
imdar tin Uv of Uujland, (which on thii point wu th« law at ths dt; of Wuh' 
ingtoo,) OD > protaitad bill dt*wn bj tb« gOTcnunoit of tbe United Blatas on 
PnuMA, Mid Ukw bj tb« bkok m flnt ettdonot, and proaoted at I^iii fin- paj- 
utnt, and protaatad for Doo-payoiHit, and tatei np bj a banlUng-bouM in Puis, 
mprapnifMf, for tbg bononr of tlw Bank of tbe United State*, vbich vaa tlw first 
eiidoncr. It na IwU, bj a majority of tba court, tbat the bank, on ladafying (he 
banking-houaa in Pnk, became tbe lawhl bolder of the bill, and aa tatk holder 
entitled to tlie damayei hj waj cf eet-off againat tbe Doited Statei aa draver, in 
like manner aa anj indiTidual liolder of a protested bill wonld be. Mr. Ch, J. 
Tanej, vbo vat tbe attraney-genenl tlat gare tbe ojHnioo aSnded to in the for- 
mer part of tbii note, added a new opinion fbimded on the apeaal drcnmitanccs 
of Iheoue, againit tbe allovance of like aet-ol^ denying that like United State* were 
bound, either in law or cquitj to pa/, or the bank eotillad to claim the conleeted 
damagea. Independent of any thing apecial in tbe caee, ths goieral doctrine of 
the decuion wu eoatHl and unqatetionaUe. To entitle the party to hi* aet-ol^ hi* 
daim mint bare been prerioDilj taboiitled to the accounting officer* of the 
treaaary and been diaallowed, or be moat reaioDaUy account for tbe omiauon. 
Be* lec 3 and * of the act aforeeaid. la the CMe ez parte Uadnuo, 7 Fttn^ U. 
S. R^. SST, a (object ot tbe King of Spain filed a libel in the admiraUs, againit 
the itaU of Georgia, alleging tbat the slate wa* in poeaceaion of mcaeyi, being 
the proceed* of eedaio proper^ belonging to bim, and i-Uiming a right to inttttote 
a (ult in the admiralty for the aame, and tbat the Uth amendment to the eooetitn- 
tion of the United Statta did not take away lb* jariadicdon of the oourta of tba 
United State* in imla in adntraAjr ^ainat a state. But on a[^>aal from tha de- 
cree of tbe Ciitult Court, aoriablng tbe Ubri, to the Supreme Court of the United 
States it waa held, tbat the procaeding in queition was a mere jxresnal *uit 
againat a atate, to reeorer ptvperty in it* poaawai o n; and tbat a prirate peraon 
conld not otanmanee Midi a *nit; and that it waa not a caae wAtr* tKtpnptrty laat 
in tka cHtloiti ^ a oowi of otbrirWfy, or hrmtgiit mlkm il* jurUdUlitn, and 
in po—uian ^ mi) p r i va l i ptr*o». Hw jnriadidion wonld aeem to bare been 
impliedly admttUd in tbe latter caae. A tlate cannot be tned in its own court* 
witboDt Ha eonaent. Michvan State Bank t. Haatinga, Walkti', Mitk CI R. 9. 
nii*i*anatlribat*oftoT*r«gnty andof nniretail law. But a foreign aorereign 
may rolnotarilj become a party to a suit in tbe tribonali of another oountiy, and 
have In* ri^t* aaawted and enforoed.(I) And it wa* dedared in the caae of 
Hie Escbaoge, 1 Ormneh, IIS, that all pcnon* and proper^ within tba territorial 



il,l>B.,lt4T, p.ST, iiiualanpattodirbldb OMonedln 

ltd SMmhaadlteonbe Pidw orEgipt"" 

lo irllk aa agsnl dTUh Puhi; U» mm dedared Uut 

a, except In Ibe c**g aTlmnMiTsUe ptt^ttlj, and 

a nude irllb the Sgjfnma fOTeniliinil Sw, iIki, Unodea >. DnU 
al Btatnii*,M -Ad. * JCa. /r. S. lat, }r<>£ng)li)i wunhu]iirt»]lcUontoeDt«UJouiicUoo 
apdnM ■ Kn^ tOTerdpi Rir niir Uiliig d«». or onillted ID be dooe \/j him. In bl* pnblla ci- 
pacltT «* refiwautallre ofUia utloo of irUcli hell Uiebead. Da H*b«r T. Queen of Poriogal, 



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Lac Xrv.] THE tTSITED STATB3. 833 

we proceed to a particular examiDation of tlie several courts 
of the United States as ordained by law. 

*(1.) The Snpreme Court was institated hj the con- *398 
stitntioD, which ordained that "the jndicial power of 
the United States should be rested in one Supreme Court, 
and in snch inferior courts as congress might from lime to 
time ordain and establieh."' But it received its present or- 
ganization &om congress, for the constitation had only de- 
clared, in general terms, that there should be a Snpreme 
Court, with certain original and appellate powers. It consists 
of a Chief Justice and eight Associate Justices, any five of 
whom make a quorum ; and it holds one term annually, at the 
seat of government, commencing on the fiist Monday in De- 
cember, and continued at discretion, ■■ But though five of tbe 
judges are requisite for business in general, yet any one or 
more of them may make all necessary orders in a suit, pre- 
paratory to the hearing or trial, and continue the coart from 
day to day, in the absence of a qnomm ; and the judge of the 
fourth circuit attends at the city of Washington, on the first 
Monday of August annually, for interlocutory matters. 



juritAetloD of mj ■BTtrdgn wtn tmttaMt to Um bed jnriidictiai^ with rodi «x- 
captJoDi ool; u commoa luiga and pnblie poiiej had ftUowtd. 1^ ramlt V 
(1.) ThU DO dtiMd of mj of the United States, oi lubject of a foreign itate, (in 
■□■ a Blate. (S.) That a foreign itate maj uia one of the United Slatei before the 
Bapreme Oonrt of the Uoited SlotM, and then onlj. (S.) That tfae United St«tea 
cannot beaded. (I) ('l.)Thatlh« United StatM may me a data, aod perhapa Ibe; 
ma;, m a bona jidt auiyiua of an iodividoal creditor of a atate, and perbapa an 
inditidDal Mtt, or a foreign state, ae mch aangnee, ma; do it Bee Hamiltim'i 
Rtpcrl <m PiMit OrtcBI, 1190, p. 9. Thii laat point ie witboot an; jndicial sup- 
port that I am awar* of; and it may be qneatioaed bow hi volnntary aadgnnMot^ 
made and aoeaptad fbr the lake of tl>e rented;, wonld be avaSable. 

• Ajl8.aae.l. 

* Att»<tfOiMgTtuofA}iTawk, ISOi; JlWuMrySifA, 1BD1, aec B; tfayHA, 
lSte;Jmuunj 21H, 1B!9, lee. 1,S; JfonA SJ, IW.o.tt-.aitdo/l'ltkJiiiu, IBM, 
c»6. 



(1 ) The UdIM etaica mar Mb« a #ra bK IN ■ frt^iM on lbs pntille land^ M 
•HUaoart*orlBtkilrow>MbnBale,bTlbegmiuiKmUv. OoUon t. United Bums, 11 
nt. aiMlm at Ftauflrmam J. 'WiMUagBiiiaa On, IS Bbward, Sit. 

Br eel oreoB(r«M,retniBi]iW,I3S>,<Ailii<£afv«iTDL i. p. Itojaa b 
■poo Ibe DnUed Stales srs dedand iM, luleH eieentsd In prawuc oT tn 
the aUowsine of ae elata. the n ' 

n or the OoT 



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334 JUBOPBDDEKCE OF [PMt IL 

The Sapreme Court lus ezclunTe jnriadictiQn of all cmtro- 
Tenies of a civil nature, where a state is a party, except be- 
tween a state aa d^endant and its citizens ; and except, also, 
between a state as defendant^ and citizens of other states or 
aliens, in which cases it has no jnrisdietion ; bnt in all these 
cases where a state i%plainiiff, it has ori|^iul but not ezdn- 
Bive jurisdiction. It has, also, exclosively, all sach jnrisdic- 
tirai of Boits, or proceedings against ambassadors, or other 
public ministen, or their domestice, or domestic servants, as 
a court of law con bare or exerdse, consistently with the law 
of natioDs; Mid original bat not exclnsive jnrisdiction of all 
snits brought by ambaasadon or other public ministers, or in 
whicb a coDSOl or yice-consnl ^11 be a party.^ The Sa- 
preme Coart was also clothed by the c(Histitntioni> " with 
*2dd appellate jorisdictioQ, both as to law and &ct, *with 
such exceptions and under such regulations as congress 
should make ;" and, by the judiciary act of 1789, appeals lie 
to this court from the circuit courts, and the courts of tlie 
Beveral states. Final judgments and decrees, in civil actions 
and suits in eqni^, in the circnit courts of the United States, 
whether brought there by original proceBs, or removed there 
from the state coorta, or hy appeal from, the district courts, in 
cases where the matter in dispute exceeds two thousand dol- 
lars, exclusive of costs, maybe re-examined, by writ of error, 
and reversed or affirmed, in the Supreme Court," (1) Final 



^ Act of Coitfra*, StpUmUr iM, 1789, mc. 18. 

k Art. 8. HC. S. 

* Attiif Ooitgnu^ BepUBihtrtiA,Vtit,»K.%l. JittlwGMwaf Qonloa t. 

<1) Ac lal of OngraN ctf Hit n. ISU, flTs inMDiM jolidlelkiB Id Ibe Bopniin* Cfflut, tai 
rareniH eaw^ wiUwDI nfuil to Ilia nnn la dlipBte, pnrldfd Ibe Jndgnaml aiipcated ban wu 
mdtnUita (Xrwtt OtHH^a^tMUiaaUt. "A* UuHed BUM T. OvT, B iRw. JL 1. 
V bT (Mn'<* «<iV>i''A''«i 1* «■ be iboVB IbM 4 rMOT4>T euDOt ucced two UwotMMl Mtan, 
BO ippcal an b* bid. Bowill t, Ctaunbsriila, B fiw, R. t. Th« tnpruu Ooait bu ■« ip. 
patlUa JnrladMkia wbn Iba Clmll Coart rcAMi Id frut ■ wiH of tiitwM ovjnu, pnyad fcr 
br k hlbw lo l*k« bU eUld oot of Iha nulodr of Ibo motbo. Tba Titos of tbc nbled rnntltr 
bi dlipata li, In IM uUn, Incapable of being ntimaled In mmai, ud tba nda of Jnriidlctlon, * 
Ibmllin. cumol ba ippKcd. B«tt t. Mtnein, B Ow, ILVA. Sea, aln, In ib« mlUr or 
HM|w,BiB>w.Altl. lDlbelutvaaallinabM.lbU«l — ■ ■ - 




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Lm. XIV.] THB nRTrE3> STATES. SS6 

jadgmente and decrees in the circuit courts, in cases of admi- 
ralty and maritime jurisdiction, and of prize or no prize, 
where the matter in dispute exceeds two thonsand dollars, 
ezclnsive of costs, may be reviewed on appeal in the Supreme 
Coort ;■ and in admiralty and prize cases, new evidence is ad- 
mitted to be receivable on appeal in tike Bnpreme Coort >■ 
This admission is conformable to the doctrine and osage of 
appellate conris of admiralty, permitting the parties, apon 
the appeal, to introduce new allegations and new proofe, and 
to add new counts to the libel.° 60, also, a final judgment 
or decree, in any snit in the highest conrt of law or eqnity 
of a state, may be brought np on error in point of law, to the 
Bnpreme Court of the United States, provided the validity of 
a treaty, or statute of, or authority exercised under the United 
States, was drawn in qnestion in the state court, and the de- 
cision was agaiust that validity ; or provided the validity of 
any state authority was drawn in question, on the ground of 
its being repugnant to tlie constitution, treaties (» laws of lihe 
United States, and the decision was in .&Tonr of its validity ; 
or provided the constmctiou of any clause of tiie constitution, 



Ogd«i, Slid Smilli t. HoQ«y, 8 Ptlert, 3S. 46S, it wm ded<Ie<l, tliat wbaterer lUftj 
haTS been the araoDDt oUimed bj the plaintiff in the ouurt below, tf tlie judgmeDt 
in hii favour Im lew than IS.DOO; and tbe writ of vrtvt haa been watA out by the 
Jtftni^Mt baknr, thaaoiirthMiMit jnriwlktion; but if the writ of eiror bebcongjit 
\/j the plaintiff below, and tbe unount claimed in hli dedaratioo exceeded $S,DOO, 
the oonrt hai juriadictioi], because, if the judgment be reverted, he di«j reooTer 
vhat he dnima. 

• Plough KtuneD am,j aue joiotlj' for y»gf in the admiralty, wider ddp- 
fMDK Biticlei for tbe nine Toyags, dieir ooDtneta are treated aa diatinct; and 
though Kveral elaimi of thli deacriptian, contained in one Buil, amount in the 
aggregate to more than fifiOO, that U not Bofflcient to give juriadietion oo appeal 
to (he Supreme Court OU*er t. Alexander, t Pttert, K8. Caniting't TWofiw, 
!d edit. SS. 

» Ael of Ctmgriu, Marth !4 ISOR, ho. II. It <n» dectdtd, In Vtuted StaUs 
V. Qoodwin, 1 OaacA, 108, that in dvil obmb at law, the jndgmaiit of the Circuit 
Oourt ij flual, where the euiM is removed iy writ o/nrer from tbe iKifnrtOMirt, 
and DO -writ of error Ues therefrom in snch asea to the Si^nnN Oonrt of the 
United States. See S Wktatm R. SaS. 12 Pittri R. 14S. 8. P. Bnt by the 
Mt of eoogrees of July tth, 1840, o. sa aeo. 8, this diitiiwtian -was kbidtibed, and 
writa of error now lie to the 8tipnm« Ooort ftmn all Judgment* rf a Oircuit Oontt 
In eaiM brought there bj kHU ef emr from the District Court, ib Hke maimer h 
if the suit bad t>een originally brought in the f^reuit Court. 

• The Mariaona Fkn, 11 FAMioK, SB, TiMlLui.ataiilur, 0.0. Ham. Amw. 
Jmr. ToL ii. p. tl. 



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896 JURIBPBODENCE OF [Put IL 

or of a treaty, or statnte of, or commiBsion held tmder the 

United States, was drawn in qneetioii, and the deci- 
*800 eion was against the tide, rij^t, privilege or *exemp- 

lion, speciallj claimed under t^e aadioritj of the 
Union.* (1) Upon error from a decision in a state conrt, no 
otlier error can be assigned or regarded, than such as appears 
npon the &ce of the record, and immediately respects the 
qnestions of validity, or construction of the constitution, trea- 
ties, Btatatee, conunissions or anthorities in dispate. (2) 

The Supreme Court is also umed with that superintending 
anthority over the inferior conrta, which ought to be deposited 
in the highest tribonal and dernier reeort of the people of the 
United States. It has power to issue writs of prohibition to 
the district courts, when proceeding as courts of admiral^ 
and maritime jorisdiction, and to iesne writs of mandamitt, 
in cases warranted by the principles and nsages of law, to any 
courts appointed, or persons holding office onder the authority 
of tlie United States. >> This court, and each of its jadgee, 
have power to grant writs of n« exeat and of injonction ; bat 
the former writ cannot be granted unless a snit in eqni^ b« 
commenced, and satisfactory proof be made that the par^ 
designs quickly to leave the United States ; and no injunction 
can be granted to stay proceedings in a state court, nor in any 
case, without reasonable notice to the adverse partr." All 
the courts of the United States have power to issue writs of 
scire facias^ hdbeae corpus, and all other writs not specially 
provided by statute, which may be necessary for the exercise 

of their reepective jurisdictions, and agreeable to the 
*S01 principles and nsages of law.^ ^'So the judges of the 

Supreme Court, as well as the judges of the district 

■ Aelof 0<mgrtuof8tpttMbrr%ith,l'm,te<:.il. 

* Act of aeptemb*T Uli, 1780, HC. IS. 

* Act of Ctmffrtu, Jfareh id, I79S, hc E. 

* Jd of 8*pttmlitr Ulk, list, tic H. Ei pute Hmmilton, 8 ilo^Iu, IT. Ez 
parte BoUtDu, 4 OomA, It. Ex parta Ketrntj, T WlualoH, S8. Ez put* 

(1) Thh doM not qiplj lo Uwi ofllH iHilkitln of Uw DDtled BtdH. UIbhi' Buk t. BI*I* 

cf lowk, 11 JEm. JLLAiloOwm ----- 

Odoi^ lo gin Ibe il|bl of ippnl to 
SaiBard, IM. ITo ippcal Hta fton On 
UbIM Ststia T. FwTam, 11 Ibward, 40. 

(S) And at JvUdlotton flna Id airUJUd ec 
qMMou VjtnK. Wltao&T.Bwinin, liraw. Jt: tSB. 



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Lm. XIT-l THE DHiraD 8TATBB. 897 

coTutB, may, by heAeas eorptu, relieve the citasens fivm all 
maimer of imjostimprisoiuneat occumng under or hy colour 



WktkiEu, 1 Ptltr^ U. S. Rep. G68. Tk> principli* and Mo^ of law bcre meu 
Hums gnieral priudplea and luagei which are to b« found, not in the l«gisl>tiTe 
act! of anj pertkuUr ttUt, but b that geamtUj raoogniMd and lotig estkbliihed 
law, wUcfa fornu the mbatntuin ot the Inra of erery itat^ Mmkall, Ch.J,ia 
Ui)it«d SbOM T. Butt. The jodidarj act of 1T8S, lec 11, gare to tlia coucta of 
tlie United States power to puniah, bj' fine or imptuoiuiiait, at tite di*cr«tioD of 
the- courti, all amttmplt of antlwnty, in aof came or bearing, before tlie eam^ 
But the act of Congrew of March 2, ISBl, c 9B, limited and defined this power, 
by declaring that the power to iaaoe atladimeoti, and inflict mmmaiy pnniihnwDla, 
for ooDtempt of eotiit, ah«n sot be conatraed to eitend to an; CMca cacept the 
miBbehaviour of mj pcreon in tbe praeence of the ooort, or m> near Ibsreto aa to 
obatruct the adniniitratioo of JMtice ; and the mi*b«b»Tioiir of anjr of the officer* 
of the Hid courta in thdr official tiaoMCtioiM; and tba diaobedkoea or TeaUtanoci 
t^ anj officer of the Mid courts par^, jnror, wiloeaa or anj othei penon, to 
any lawful wri^ prnfcea, order, rule, decree or command of (he Mid coutii 
The provitioM of tiiii act of imigre« hare been adopted in TeoDeaaee bj atatute, 
in 1B8I, and in Ohio by etatute, in I8S4, with eno aome impediment! thrown in 
the way of the prompt exeratiou of the poweri for tba itatuta ia the latter etate 
, dedaiea that the charge it to be atated in writiiig, and the aocnaed aball be baaid 
in hi* defence by hinuelf or oonneeL na power of the Eogliili oourta ia mora 
extenaiTe. !I1id^ wlme aereral penonawero lo be tried ancoeaaJTely fin- the Mme 
treaaoudile act, the Court of Oyer and Tnminer prohibited publication of any of 
the proeeedinga, until the whole of the bial* had been brought to a ootwluaioD ; 
•od it WM held that a paUicatioo, diaegarding Ihia order, wa« a contempt ponitb- 
able by fine and impriaonment, and that a party diaregardiog a mnunoni to appear 
■nd anawer for the contempt, tnigbl be finwl in bii abeenM The King *. Clemen^ 
4 Bonne. <£ Aid. £18. 11 Priest Rtp. 68. B. 0. The foir and impartial admiuia- 
tratioD of jmtice In mdi caaei would aeem to leqmre the eakteoM and cxenaie of 
auch a power. Hie act of cougreaa, bawcTer, reacbM and prohibila all interfenoca 
by attachment and imnmary puiuahment lor eontampto committed out of the 
preeence of the court, by libela upon the court and the paitJee, and pending oauae* ; 
and it ia a Tery coniideraUe, if not injndidoua abridgnieot of the immsowtially 
ezetdaed iatetvAaa of the court* in respect to oootempta, But in the 'SgileM tf 
Pa%al Lam,pTtpand far lA« tlata of Lattinama^ b 1S34, by Edward liiingetoiv 
Eaq, the oonrta were ibripped of almoat all power to preaerre themaelTee baa 
insult Ihe code prorided for eonteapt) in tht prunui of tin eoial, by word, 
damonr, ooiae or diaobedienoe to legal ord«n, or Titdenee, or Ihreala. Ii provided, 
alao, for contempt^ by udng verbally, b court, or b any pleading or writbg^ 
addntmd to tki jitign, b any toM— prndntg, any indecorous contemptuona or 
insoltiog ezinviBon, to or of the jndgea, with intent to inaalt But bow did it 
provide I Oootempta were to be tried on indictment, (wbidi may be at another 
eesaion,) and the jury ara to paa upm the intent, and wbetber tbe wordi were 
indecoTOOi, contemptnous or inaulting. There is no proTinon at all for ioaaltini; 
gesture* or look*. Oodi, tit 0. c. 11. Tbe JTivTort RmUM BtatuUt, vol ii 
p S7E^ have dealt with tbe nlject of contempt* man temperately and judicknuly, 
and with a wiaer regard for the boiWDr and dignity of the courts *o nwontiil t* 



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^8 JURffiPRVDEHOB OF [Put IL 

of the anthority of the United States, or for acts done, or 
omitted to he done, in puraoance of a law of the United 
8tatea, or of a judicial authority of any court or judge thereof. 
Thejofiticesof the Supreme Court, and the judges of district 
courts, may grant write of habeas corpus, when Bubj ects of any 
foreign government, and domiciled therein, are in coBtody, 
under the authority or process of the United States, or of any 
state, for acts done under the order or sanction of any foreign 
state, the validity of which depends upon the law of nations, 
or under colour thereof; and may hear the case, and dlscbai^ 
the prisoner, if entitled thereto by reason of such alleged 



Ibe or[]«Tt7, pure, iodepeiKlcDt tnA imptrtlil kdrnfaktrndoD of jmtice. Tb«j 
pKTldg that every nmrt of rMonI mtj ptmUi nnnmkrily, Utoritrly, tMtUmptvaia 
or intlnl btlunioitr, committed in tb« i)ninc<li«te preanec of the coort, and 
tending to iotcrropt its pnceedlDgt mmI impair Hm reopect dne to it* autbaritj ; 
and lor breacfaea of tbe peaoa, Dotwe and diatarbaDcee, tending directl j to internipt 
It> proceedings; and for wtlfnl diaobedioice or rceistance to lawful ordeni; and 
for the jmUieaHon of f^t or yrMtly ntocvwiaf* rtjmrU of iti jirvcmdtnff*. Tba 
MmmMnofwr* appMntid to r*fi*» th* ciwil tedt tf Ptitno^tanvt, \!j tbeir r^iorl, . 
In Januuy, 1886, loUoircd tbe eubrtanoe of tbe PeunjlTania aot of 1800, on tbe 
nibjMt of oootempta, and confined tbe power o( imprieoDmeot to ooDtemptt omd. 
mitted in open court. No pnblkatioD out of oonr^ reepeeting die ooodnet of tbe 
court, or anj of !la ^tcera, jurors, wittt«MM or parties in anj caoae pendtDg in 
wort, exposea the part; to «nmmar7 paniabmen^ and tbe oBljr remedy fbr tfa 
paaone aggriered is bj lodictBieot or aelioD at t*ir. Tba act of Penn^lvaiua of 
ICth June, 1810, enacted the same provlaioo. In tbe easesx partt PoaUoti, wlueh 
arose npMi a motion in tbe CSrcoit Court of tbe United States fbr the Eastern 
JMstrkt of Fennsjlyania, tn 183G, in dte cause of Drew t, Swi/t, lor a rule on 
Foulson, tbe editor of a daily paper, to show cams irby an atlxJimant dkonld not 
isaua against hint fcr a eoDtemirt, ia puUiahing a Ttry Kbelloos article upon tbe 
plaintiff pending &e trial, Judge Baldwin felt himsetf bouod to denj the notion, 
b eoneeqnencc of tbe act of eoogtfM of 1881. That act bad withdrawn trma lbs 
ooortaof the Vidted States the eoDnnoakw power to protect tbeir Bniton,oacers^ 
witaieesee and tbemadres, agaiBst the Kbeb of tbs pres^ bowercr atrocious, and 
tboDgh publiabed and cvcQlat«d pending tbe twj trial of a eanae. The ease 
before bim was co« wbicb showed, in a very strong ligfa^ tbe uorcnsonableness of 
tke kw, b leaving Ibe suitor unprotected, at tbe moment when be stands moit in 
need of it, and wh«i tbe miaohief to him might be great and ramedilees. Hm 
want of sndi protection, and the ondue disbuat which tb« denial ot tbe CMDtaoo 
law power otct contempts InpUee, tend to impair, in tbe eatimation of the poblic, 
Ibe Talue of the admimrtration of justice. 

me power of tbe aourti to panish snmnutrily for contempta, has been lately 
mudi reatnuned in Bngland ; for in tlie ca«* of Tba King r. Faolkner, (3 JToafa^ 
S AjfrtoiCt O—ti i* Bithntptey^ it was held, in tbe Court of ExdMqner, that a 
single commisitoner of tbe Court of Bankniptcy, rittiiig alone, had do power to 
ptadib any contempt bowever gross or peraonaL 



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Lm. XIV.] THE UNITED STATES. 329 

aathority set up, and the law of nations applicable thereto ; 
and all proceedings had in the meantime, under any state 
authority, are declared roid.»(l) ' 

(3.) I^e limits and jurisdiction of the circuit coorta of the 
United States have heen subject to frequent changes, and 
their nnmber has been steadily increasing with the increase 
of states and districts, ever since the first organization of the 
national courts nnder the acts of congress of the 24th of Sep- 
tember, 1789. They are established in each district (with a 
few exceptiona) of the nine great circuits iato which the 
United States srenow^ divided. The firet circuit is composed 
of the districts of Maine, New-Hampshire, Massachusetts and 
Rhode Island ; the second circuit, of the districts of Connec- 
ticut, Yermont and the northern and southern districts of 
New-Toric ; the third circuit, of the district of Kew-Jersey, 
and the eastern and western districts of Pennsylvania ; the 
fourth circuit, of the districts of Maiyland, Delaware and 
Virginia ; the fifth circuit, of the districts of Alabama and 
Louisiana ; the sixth circuit, of the districts of North Caroli- 
na, South Carolina and G^oi^a ; the Beventh circuit, of the 
districts of Ohio, Indiana, Illinois and Michigan ; the eighth 
circuit, of the districts of Kentucky, east, middle and west 
Tennessee, and the district of Missouri ; and the ninth cir- 
cuit, of the districts of MiBEdseippi and Arkansas. In each 



« ' Act of Cbngnu of BtpUiniir Ulh, 178S, ne. 14, and March id, IS38, a«e. 7, 
■nd Anglttt 2E)l}l, 1S43, c. SGI. Tlua lait itetate ma paaud io cofuequBDca of 
the eaM ot UcLnd, who wm imUcted fur iiiurd«r, ia eroMing the river Niagitra, ia 
tba Di^it, with an armed fore^ and ittaiug and destraTiiig (ha steamboat C^mjliDB, 
attached to the AmaTicait ibore, and in whidi affray ao AmericaD dtiieii was 
killed. Ha plcadad anthority from tlie Ganadian powo^ which autborit; was ad- 
mitted, oraMunwd.bylhg BritiahgovcnuncDti but the plea waa overruled bf the 
Judicial antboritiM of Kew-Tork, and UsLeod brougLt to trial See 1 MiJl, Z11, 
andSG Wmddl, iii.{i) 
- 1840. 



(1) Ai to Die anlborilr tf a* Snp«rf« Court of Ihs UoUed BUta to Ine ■ Jta 
an ipptdUle Mbnnil, ■» ante, j^ m, Mb. Stale eoam bsra JmMMDB, o 

BoawMiUlit. Foi.TAin'i&tSl TUi powtr b (tMlsd In The MtOHrtf YtrtU ™tUn, 

i>UkCl1or9.'DM.QtS.Y.LouB^>.Apr.\ai,f.tK,Sm-TorkLtg.Obtr.llayA%i\,v 120. 

(1) la Bnnm T, DeDnun, t ITiIi. ir. (I (Tof. S. ItT, ll WM held, Ihi ...... 

dlTldnaTi ul br the (OTOsmanl Tendered It en act «f Male, Rir which the er 



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$30 JURISPRUDBNCB OF [PutlL 

district of these circuits, with the excepfioa of some of the 
districts in Alabama, Looisiana, Mississippi and Arkansas, 
two circnit courts are 'annually held by one of the judges of 
the Supreme Coort and the district judge of the district; but 
the Supreme Court may, in cases where special circumstances 
shall in their judgment render the same necessary, assign 
two of the judges of the Supreme Ck>urt to attend a Circuit 
Court ; and when the district judge shall be absent, or shall 
have been counsel, or be interested in the canse, the Cir- 
cuit Court may coosist only of a judge of the Supreme 

Court* 
*302 *The8e circuit courts, thus organized, are vested 

with original cognizance, concurrent with the conrts 
of the several states, of all suits of a civil nature, at common 
law or in equi^, where the matter in dispate exceeds five 
hundred dollars, exclusive of costs, and the United States are 
plaintiffs, or an alien is a party, and the suit is between a d- 
tizen of tlie state where the suit is brought, and a citizen qf 
another state. >> They have likewise exclusive cognizance, 
except in certain cases which will be hereafter mentioned, of 
all crimes and offences cognizable under the authority of the 
United States, exceeding the degree of ordinary misdemean- 
ors, and of them they have concurrent joriadiction with the 
district courts." Bnt no person can he arrested in one district 



• AeUo/ Oonffrmot Aftil tiOt, ISO!, c. 81; of UudiSd, ISST.cM; « 
Febrottiy £2(1,1888, c IS', mix] of ADputl6(l^ 1M2, e. ISO. 

t He danugM laid ia the deeUration, if they «ic«ed %S00, gire the jurii^ctioD 
u to tlie matter in diipute. Man* t. Dapoitt, t Watk. dr. Stp. 48S. It ii Um 
amount of damAgee claimed in the declaration that determine! Uie juriadictton in 
the federal courts. OordoD t. Longnt, U Ptttri R. V\. He limitatioD to (IBOO 
Mid upvarda, vae aboiiebed by the act of March Sd, ISlG.incaaei vbere th« VnltMl 
StatM art fdaiutift. The luiti between dtiieni, in dril cauies, trbere the demand 
i« ba aoj email amount, beloi^ to the local atate coorta, and are gaoeraltj oofnun- 
ble before einglf magiilraten, and with joriee redoetd in oomber, or without jurieti 
aa the caM ma; be, A lata EoglUh itatute (8 and 9 Fid. c. 137) intfituted a 
conrt of that kind, of an efficient organization and nimmarj jnriadietioQi. It oon- 
a>t« of a lingle Judge, vbo ii to be a harrieter, a pleader, or an attorney of ten 
jeara* itanding; and it baa juriidktioD to try aummarily all enita &» d«bta ultdat 
£S0. He judge bas power to commit, in all ranni pf (rand or miacooduit, to pliiai 
for forty daye, and Ii the judge of all matten of law and ftct, and there ie to bene 
^peal from hie dedsioos; but Mrfiorori will lie to remove all auita above £10. 

• See (N/ro, pp. SflO — SSI, 



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J^fcXIV.] THK tnnTKD STATia SSI 

tea trial in another, and no civil salt can be bronght against 
an inhabitant of the United Ststee oat of his district ;■ (1) 
and the act of congreas provides against the assumption tk 
federal jurisdictioB to be created by the assignment of promis- 
sory notes, or other choees in action, except foreign billfi of 
exchange. (2) This restriction applies to assignees by opera- 
tion of law,>> bnt it does not apply to notes payable to bearer ^ 
nor to salts by Indorsee t. Indorser, for that creates a new 
contract ;' nor to suits in < eqnity by a judgment creditor ;* 
nor to cases in which the United States are a party .f The 
circuit conrts have also appellate jurisdiction Irom all final 
decrees and jadgments in the district courts, where the mat- 
ter in dispute, exdusive of costs, exceeds fiAy dollars. If the 
remedy be on final decrees in the district conrts, in cases of 
admiralty and maritime jorisdictiou, and the matter in dis- 
pute exceeds three hundred dollars, it is by appeal ; and if 
on final judgments in civil actions, and the matter in dispute 
exceeds fifty dollars, it is by writ of error.r And if 
any suit be commenced *in a state conrt against an *SOS 
aUen, or by a citizen of the state in which the suit is 



^ PracM* of fonign atUeboMOt tmaoi b« iitatd hj tl» Circuit CourU of tlw 
ITiuted BUtei, where the dcfiudMit b dotmaled Kbrowl, or not fbuod withiD tl>« 
diitricL TbeOreuitOoDriiaBiuottamMpnMenbeyoitd tiMUnaiU of their dMriot^ 
•zoept lubpanu for witoMM* mkI execation* in two epedal euei. Tobnd t. 
Spngua, 13 PtTt, SOO. 

' Sere t, Rtot, OraHch, 88E. 

• BulEard t. Bell, 1 Jfuon, SSI. Bank of EwtiKkj' t. WisUr, S Petert, 318. 

• Tom^ T. Brjma, S Whtatan, Itt. 

• Beu T. Smith, 2 itatan, SSS. Dexter v. Smith, Jb. SOS. 

' Bank of UniUd SEaIm v. PUoteri' Buli of Qcorg^, t Whtaion, 004. 
t AeU <t/ OongTtu of SipUmbtr Mtk, ITSa.uc. II. !1, IS; March Sd. 180S. 
MO. 11, utd Itardk Sd, 1803, mo. S. 



t,ka 
Mer. TmI T. r^lDO, 11 ifiwoRf, IM 

(1) A debt eaeund bj m bood and moilgigg tea" elKM In tMcn,'' within 111* meuilBg of (be 
riaMM. BhddoD T. Sm, 8 »««. fi. 141. In lUi cue, Ibe qaMlaB m ralwd wbeUiar the ael 
of tamptm, imfint Uia aooita otlhe UaHed StalM JraMtattm in omm wkm nlia an bn^ 
iMc]ioa«laaett«i,inirf*ra«i!<roiMiM«amMim«nHi>iMit in Ua (a^vaawlihln tb* oonallla- 
aou] powm of nanma ; and Ihe ooort bald dial It wa«. Bee, alio, Bmilb •- KcnKMhen, t 
Aim. S. IBS. AllbOBth the uttHBm make lbs aMipimenI tx Ibe eiprea parpoae nf glTln( 
tlwU. &OiHu1ajBrladlatloii,lbef wm haTa JaiUdlcOoD, ulm Ika iMlgnoamB aluprtVTMt 



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SSS JTTSISPBUDraiOE OF [hit H 

iMTOaght against a citJEea of another state, or agaiiiBt a citizen 
of tlie same state claiming lands under a grant from another 
state, and the matter in dispute exceeds five hnndred dollars, 
exclnsive of costs, the defendant, on giving secnrity, may re- 
move the canae to the next Circait Court* The circuit courta 
hare also original cognizance in equity and at law of all suits 
arising under the revenue laws of the United States, or under 
any law of the United States relative to copyrights and patent 
rights growing out of inventiona and discoveries, and to pro- 
tect such rights by injunction.^ The jurisdiction in cases of 
copyrights applies, without regard to the character of the 
parties, or the amonnt in controTersy ; and with respect to 
the jurisdiction of the circait courta, it may be laid down as 
the settled doctrine, that they are courts of Umiied, though 
not of inferior jurisdiction ; and it is necessary, therefore, 
that there should appear upon the record of a circuit court, 
the &ct8 or circumstances which give jurisdiction, either ex- 
pressly or by necessary legal intendmeBt." 
M (3.) Hie district as well as the circuit courts are derived 
&om the power granted to congress by the constitution, of 
constituting tribunals inferior to the Supreme Court.^ The 
United States are at present divided into thirty-five districts, 
which generally consist of an entire state ; but in New-York, 
Famsylvania, Virginia, North Carolina, Boulh Carolina, 



* Act of Congren of Btpttmhtr, Utk, llStI, uc IS. Td BmeU t. Williuni, 4 
Peig^t Rep. 8S1, it wu declared, that llie amouot of Um original claim of Um 
pUintlf^ and not the amount ultinwtal; fDUod due, detemioed tbe jntudictioa of 
tiie Court of CbanMiyof Haw-Tork, wher«it wm limited to a certain lum. 

^ Ael of April illh, IBOO, c. £6, aec. S; at Ftbruary lilh, 1819, aec 1, and of 
/uZy4<A,ie3e,«.SeT,iee. 17. Act Uarditd,18S8, entitled >rtAffr to prtwKfe /or 
(A* eolttdian of dutiti on imporli, lec. 3. 

• Tarner T. Tbe "Btiok at Aiom(», 4 Didl.Rtp.l\. UeConnIck t. BnlliTaii, 10 
Whtattm,19i. B*e, ftlao, paaC, p. 8U. lbs Cirniit Conrta are not authoiiied to 
lame writa of mondnniM, oeept vbeo aeetmarj for 1^ extraaa of thmr acknow- 
Itdged juriadlctioo. M'lDt7re t. Wood, 1 Crmeh, E04. It will therefore lie to a 
DiMcict Conrt refiitiog to proceed to judgment in a caw luliject to the appellate 
jutMietioo at iht Cinwit OowL Bmith t. Jaclmoo, 1 P«im, IBS. II ia a general 
priDdple of Um common law, that whve a llmita<) aathoritf ia gfren, if the parly 
to whom it is giveo extend* fail jorit^etion to objects Dot within i^hii warrant will 
be DO protection to the otEcen who act under it Horrell v. Uartin, E Mantiinftt 
QraitgtT, B81, 

' Artl.ucS. 



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hto. XIT.] THE DKITBD 8TATK8. 888 

Teimeesee, Loniaiana, MisaisBippi and Alabama, there are 
more diatricte than one. • A court ia established in each dis- 
trict, with some exceptions, consisting of one judge, who holds 
annually, in most of them, four stated terms, and in some of 
them only three, or two, or one ; and he holda, also, special 
courts in his discretion. There are at present only twenty- 
nine district jadgee ; and it seems to be practically settled, 
since the act of 1801, that congress may, in their discretion, 
abolish the inferior courts, and create new ones under a dif- 
ferent oi^;anisation. 

"Rie district courts have, exdnalTe of the state courts, 
*cogai2aDce of all lesser crimes and offences cogniza- *304 
ble onder the authority of the United States, and com- 
mitted within their respectire districts, or upon the high seas, 
and which are pmiishable by fine not exceeding one hundred 
dollars, by imprisonment not exceeding six months, or when 
corporal punishment, not exceeding thirty stripes, is to be in- 
flicted.' They hare also exclusive original cognizance of all 
civil causes <^ admiralty and maritime jurisdiction, inclading 
all seizures under imposts, navigation or trade laws of the 
United States, where the seizures are made upon the high 
seas, or on waters within their districts navigable irom the 
sea with vessels of ten or more tons burthen ;b and also of all 
other seizures made under the laws of the United States ; and 
also of all suits for penalties and forfeitures incurred under 
those laws. They have also cognizance, concurrent with the 
circuit courts and the state courts, of causes where an alien 
sues for a tort committed in violation of the law of nations, or 
of a treaty of the United States ; and of all suits at common 
law, in which the United States are plaintifis, and the matter 



• By the act of ooof^eu ef Aaguit iSd, ISI!, & 1S8, and of August Btb, 1S4B, 
0. 98, tha Diitrict Courts vcre dedared to 1iaT« concuirent jurndiction vich ibe 
OircDltO(mrt»,uf all crimes and oSbocMkgnmattlie United StatM, t)ie ptmUlimmt 
of vhieb ia cot capital 

* Tbe txdtuivt origioal cognixaDce of all ciTtl caas«« of admiralty aod maritime 
jurbdictioD {> onderatood to b* exeiosiTe at betueen the Diitriel and Circmt Coiirtt, 
•nd that tbe jnriadietlon may be ooDcarrent vitb oourta of commoD lav. in cases in 
which a common taw remedy may b« adequate and proper, inasmuch aa the 
judiciary act ori1S9, mo. B, wfaen on this very point, "laves to mitort, ia all eases, 
the right of a oommoo lav remedy, where the commoD law b oompetent to 



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834 JUBISPBDDEITCE OF {Put H. 

in dispute amoimts, esclnsiTe of coets, to two hnndred dollan. 
They hare jnrisdictioii, HkewisejezolasiTeof theconrtsof the 
several states, of all Buits against consols or vice-consnls, ex- 
cept for offencee sbove the magoitade which has been men- 
tioned.> They have also cognizance of complaints by whom- 
Boever instituted, in cases of captures made within the waters 
of the United States, or within a marine league of its coast ;>> 
and to. repeal patents unduly obtained.*: 

The judges of the district courts have, also, in cases where 
the party has not had a reasonable time to apply to the 
Girooit Conrt, as fall power to grant writs of injunction to op- 
erate within their respective districts, as is exercised by the 
judges of the Supreme Ck>urt, and to continue until the 
*305 *next Circuit Court.* They may also grant injnnc- 
tions, in particular cases, under the act ^or the better 
orffontsation of the treasim/ department.' 

In addition to these general powera vested in the district 
courts, they have, in those cases where the districts are so 
Bituat«d as not to permit conveniently the presence of a judge 
of the Supreme Court, the powers of a circoitcourt superadded 
to their ordinary powers of a district court-^ 

To guard against the inconvenience of a difference of 
opinion between the circuit judge and the district judge, 
when holding together a circuit court, it is provided by law, 
that in all cases of appeal or error, from the District to the 
Oircnit Court, judgment is to be rendered in conformity to 
the opinion of the judge of the Supreme Conrt presiding in 
such Circuit Court And in all other cases of a disagreement 



■ Aet <•/ Congrm of Stpttaber Uti, )TB0, c. £0. mc 9. By ai 
August eUi, 181S,c. lOfi, tlieDutiict and Orcait Courts, And the c< 
take >ffid&vit9, ilic., hare juriadictiofi, u justjcos of the peace, igainrt oBtadtn 
•gainitUie Uaited State*, aod, on the appUeation of foreign oonmls and commerdal 
■geolo, to enforce their awtrda and decree* b; aireet and impriaoament, Ac 

• Ado/ April i0th,l6\8,tix.1. 

• Act of FrbTvary iin, 1T9S, c. It. Mc 10. By the act of Gor^reaa of Angtut 
2S4 ISIS, c. 1G3, the DUtrict Conrta, u conria of admualtf, and the Cirout Couita, 
u courts of equiij, ore to be deemed alwaya open for the purpoae of flling plead- 
inge and iuning proceeeet, and for interlocatory motiona and order*. 

' Aet of Februaiy'lZlh, "[801, ate \, 

• Atl of Congreu of ifay \tt\, ISSO, lec 4 nod S. 
t Aet of Ft&ruar!, Itlh, ISSl. 



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lae. XIV.] THE UNITED BTATBS. 385 

of opinion between the circnit and diBtrict judges, the point 
ma^be certified into the Supreme Court for its decision ; (1) but 
in no case shall imprisoDment be allowed, or ponishuient be 
inflicted, where the judges of ihe Circuit Court are divided in 
opinioD upoQ the qoeetion.* 

Hie superior courts of the several territories of the United 
States, in which no district court is established, have the 
enlarged jnriadiction of circuit courts, subject to revision bj 
writ of error and appeal' to the Supreme Court *> The district 
and territorial judges of the United States are required to 
reside within their reqtective jorisdictionfl ; and no fenderal 
judge can act as counsel, or be engaged in the practice of the 
law." 

*(4.) The state courts are, in some cases, invested, *306 DntiMTt 
bj acts of congress, with the cognizance of cases arising eouu. 

under the laws of the United States. By the acts of March 
8th, 1806, and April Slst, 1808, and March 3d, 1816, tiie 
county courts within or adjoining the revenue districts in 
certain parts of the states of New- York, Pennsylvania and 
Ohio, were authorized to take cognizance of prosecutions 
for fines, penalties and forfeitures, arising nnder the revenue 
laws of the United States ; and the state or county courts 
adjoining any collection district, in relation to taxes or inter- 
•nal duties which may, at any time hereafter, be assessed, have 
c<^mzance of all suits for taxes, duties, fines, penalties and 
forfeitures arising thereon,'' 

In attending to this general snrvey of the organization of 
the judiciary establishment of the United States, it will be 
perceived, that aU the great features of the system are to be 
found in the act of congress which was passed in September, 
1789, at the first session of tlie first congress under the present 
constitation. That act has stood die test of experience since 
that time, with very little alteration or improvement ; and 



■ Ati <^ April 190, laai, Mc s, t. 

^ Aelef Mvnk Zd, ISOC, «ec. 1. • Act of Dtctmbtr IS, 181 2, sec 1. 

' Pub in/ro, pp. 400— lOG. 



0) Thaqn«aoiinp(NivU<:h(hedLMgiHiii«ittikHpUoe,iiiialIwJf>M4laa;^ilal«iL Uh 
bM affldeDl to oaOtj, foianlij, Ui*I Ihe jadgi* dli^reed upon Ihe whato cat m to wtat 
jBdtaMol ihcisld tw nndand. Biddkr t. Hootv, T fino, S. Ml 



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386 JUBISPRUDEITOE OP [Put U. 

tills fact IB no small evidence of the wisdom of tlie plan, and 
of it8 adaptation to the interest and convenience of the eoun- 
tiy, Hie act of 1789 wae the -work of mnch profound reflec- 
tion, and of great legal knowledge ; and the system then 
formed and reduced to practice has been so succesefal and so 
beneficial in its operation, tJiat the administration of justice 
in the federal courts has keen constantlj^ rising in influence 
^ and reputation. 

The principal officers of the courts are attorneys and coan- 

sellors, clerks and marshals. 

AttonHjt (1.) Attorneys and counsel are regularly admitted by the 

several courts, to assist the parties in their pleadings, and in 

the conduct of dieir causes, inthoee cases in which the parties 

do not appear and manage their own causes person- 
*307 ally, *as they are expressly permitted to do,» This 

privilege conceded to parties, though reasonable in it- 
self, is, upon the whole, useless ; and the necessity of a dis- 
tinct profession, to render the application of the law easy and 
certain to every individual case, has always been felt in every • 
country under the government of written law. As properly 
becomes secure, and the arts are cultivated, and commerce 
floarishes, and when wealth and luxury are introduced, and 
create the infinite distinctions and refinements of civilized life, 
the law will gradually and necessarily assume the character 
* of acomplicated science, requiring for its application the skill 
and learning of a particular profession. After the publication 
of the twelve tables, suitors at Kome were obliged to resort to 
the assistance of their patrons, and judicial proceedings be- 
■ came the study and practice of a distinct and learned body of 
men.'' The division of advocates into attorneys and counsel 
has been adopted irom the prevwling usage in the English 
courts. The business of the former is to carry on the practi- 
cal and more mechanical parts of the suit, and of the latter to 
draw or review and correct the special pleadings, to manage 
the cause at the trial, and also during the whole course of the 
snit, to apply established principles of law to the exigencies 
of the case. In the Supreme Court of the United States, die 



> Act 0/ Caagreu of SiptembeT Mlh, llii.mic 3G. 
» ertuina, dtOrtutt Prog- •ffr-Oi¥. tacit, id. 



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L*o. XIV.] THE UHITED STATES. 88T 

two degrees of attorney and cotinBelare kept Beparate, and no 
peraon is permitted to practice both as attorney and conDsel- 
lorin thatconrt. This was by andeofthecomtinFebraary, 
1790; and when, afterwards, in Angast, 1801, the conrt de- 
clared that coonsellois might be admitted as attomeys, on 
taking the osnal oath, this did not mean or imply, that if a 
coonsellor was thus admitted as attorney, he could continae 
to act as connsellor. He must make his election between the 
two degreee. In all the other conrts of the United 
States, aawell as in the conrts of *New-York and the *808 
other states, the same person can be admitted to the 
two degrees of attorney and coausel, and exercise the powera 
of each.' 

Besides the ordinary attorneys, the statnte has directed^ 
that a meet person, learned in the law, be appointed to act 
aa attorney-general of the United States; and besides special 
and incidental duties, it is made generally his duty to prose- 
cute and conduct all suits in the Supreme Court in which the 
United States are concerned, and to gire his advice and 
opinion upon questions of law, when required by the President 
or the heads of the departments. Each judicial district has 
likewise a public officer to act as attorney for the United 
States in the district, and to prosecute all delinqneuts for 
crimes or offences cognizable under the authority of the Uni- 



■ In the coDT«ntIoQ whidi met b tba year 1B16 to raviM tbt cnutitndoo of 
Nev-York, there wu • atroog efbrt nude to nuuoTC all impedunents to the frM 
adminioQ of alt penoni to the courti of juatice to act as cooiuel and attonwja. 
Bat the characUr and utilitj of the profMuoD were taTtd, and the attempted 
imravatioa retuttcd in the cooatitatiaDal proTuioD, that " boj male dtiieu of the ag* 
of SI jean, of good manl character, aod who poueasea the lequiaite qualifieatioaa 
of learaing and ability, ahoold be eotitled to admuaioii to practice Id all the sonita 
□f thi« Btate." ^Hiu vu learing the rule lor adnuMOn to be eawntiallj as it be&>Ea 
ezuted, for it ma*t of oeceteitjt belong to the oonrta, io which the Mkuwiot) la 
applied Ibr, to judge of the aatisilutory (eet of the good moral dwcactei aod tlw 
lequieite leaniiag and ability of the caodidatea. 

"nkecourtaoagbt to be Tigilaat and thorough in th^ enmioation reapectiHg the 
alnlity, learning and character of candidates for admiuion h> pnctke u adTocatea 
in the courli. The iotereata of cUeota, the nfet; of tba conunonity, the pnri^, 
intelligence and integrity of the adminiatntion of jnsdM, anil, indeed, the jm- 
urratioQ of alt our conelitatioaal right* and liberties, are de«ply coDcemed in tb« 
elevated, moral and educational standard and character of the nenibera of the UgfH 

' Aet of Congnt ofBtptmbtr MfA, 1789, see. ftft. 
VOL.L 23 



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888 JUEIBPROOEKOB OF [FutlL 

ted States, and to proeecnte all civil actions within his district 
in which the TTnit«d States axe concerned.* 

(2.) Clerke are appointed by the several conrts, except that 
the dwk of the District Conit is «b c^xAo clerk of the Circuit 
Conrt; in each district. Tbey have the cnatody of the seal and 
records, and are bonnd to sign and seal all process, and to 
record the proceedings and jadgmeote of the conrts. And 
this is a tmst of so mach importance, that, in addition to &e 
ordinary oath of o£Boe, clerks are obliged to give security to 
the public for the faithfiil performance of their daty.** To 
gnard still farther against abuse of office, all moneys paid 
into the circuit or district coorte, or received by the officers 
in cases pending therein, are required to be immediately de- 
posited in bank ; and no money can be drawn out of the 
bank, except by an order of a^ judge, to be signed by him, 
and certified of record by the clerk, ^e clerks are likewise 
bound, at every regular session of the courts, to exhibit an 

account of all the moneys remaining in court.^ 
. *309 *(3.) Marshals are analogous to sheriffl at common 

law. Th&ir are appointed for each judicial district by 
the President and Senate, for the term of four years, bat are 
removable at pleasure ; and it is the duty of the marshal to 
attend the district and circuit conrta, and to execute, within 
the district, all lawful precepts directed to him, and to com- 
mand all requisite assistance in the execution of his da^. 
There are also various special duties assigned by statute to 
the marshals. The appointment of deputies is a power inci- 
dental to the office, and the marshal is responsible civiliter for 
their conduct, and they are removable not only at his plea- 



' Jbid. He act of coi^;reN of SitbM^j, 1SS0, uc. I.imtituteil Uie offiMof 
Sclieilar of IMt Trtatiay ; tnd it hia dnt; to direct and auptriDteDd alt ordon, suita 
or proceedingg in Uw or «quitj, for the recoverj of moDe;, diattele sod land*, io Uie 
Dame and Tor the oae of tlie United StUea, and to bare diarge <rt alt Undi tnl 
olber property coDTejcd to llie 0mtcit St&tes in pej^mcDt of debt*, and of all truatB 
created Ibr tbeir nee lo pajmeDt of debta due to tbtni, and to mU and dicpou of 
landt MaigDed to the Doited States, or vested in Ibem bj tnorlg^e id payineiit of 
debta; and to liutnettike dietrict Attoneji, manhale and clerks of the Circuit aad 
District Courtly In relation to suits m vbicb t!ie United State* are eoocerned. See 
tiia act aforesaid, in which hie powers aod duties are speci&esU; detailed. 

* J<l of Cofigrtn of Sepimter 2tlh, 1789, sea 7. 

• Alt '^ Mareh U, mr 



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Let. XIV.] THB UNITED STATES. ' 8S9 

gore, bnt they soQ also by etatate mada remorable at the 
pleasore of the district or circnit eourta.* The act says, that 
the marshal shall be remorable at pleasure, without saying by 
whom ; and on the first organization of the gOTemment, it 
was made a qaeation whether tho power of removal, in case 
of officers appointed to hold at pleasure, resided anywhere 
bat in the body which appointed, and of cooise whedier the 
consent of the Senate was not requisite to remove. - This was 
the construction giren to the constitution while it was pend- 
ing for ratification before the state couventiona, by the aath(» 
of the Federalist. " The consent of the Senate," the Federal- 
ist observes, >> " would be necessary to displace aa well as to 
appoint ;" and he goes on to observe, that " those who can 
best estimate the value of a steady adniinistration, will be 
most disposed to prize a provision which connects the official 
existence of public men with the approbation or disapproba- 
tion of that body, which, from the great permanency of its 
own composition, will, in all probability, be less subject to in- 
constancy than any other member of the goTemment" But 
the construction which was given to the constitntion by con- 
gresa, after great consideration and discussion, was 
different. la the act for establishing *die treasury *S10 
departm^it,': the secretary was contemplated as being 
removable from office by the President The words of the 
act are, " That wkenffoer ths SeoretcBry shall he renwvedfrom 
office hy the President of the United States, or in any other 
case of vacancy in the office, the assistuit shall act," &c. 
This amounted to a legislative construction of the constitution, 
and it has ever since been acquiesced in and acted upon, as 
of decisive authority in the case. ■ It ^plies equally to every 
other officer of government appointed by the President and 
8euat«, whose term of duration is not specially declared. It 
is supported by the weighty reason, that the subordinate of- 
ficers in the ezecative department ought to hold at the pleftr- 
sure of the head of that department, because he is invested 
generally with the executive authority, and every participa- 
tion in that authority by the Senate waa an exception to a 



' Ad of (hngrtm o/Btpttmher MA, 1189, sec ST. 
* No. 11. • SipUmber id, 1T8B, we. 7. 



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840 JUBffiPRUDENCE OF [Pkitn. 

general principle, and onght to be taken strictlj. The Presi- 
dent is the great responsible officer for the fbithfiil execntion 
of the law, and the power of removal was incidental to that 
dnty, and might often be reqnlBite to fulfil it. 

This question hfl£ never been made the snbject of jadicial 
discn^on ; and the construction given to the constitution in 
1789, has continaed to rest on this loose, incidental declara- 
tory opinion of congress, and the sense and practice of go- 
vernment since that time. It may now be considered as 
firmly and definitively settled, and there is good sense and 
practical utility in the constmction. It is, however, a striking 
Jitct in the constitational history of onr government, that a 
power so transcendent as that is, which places at the disposal 
of the President alone, the tennre of every eiecntive officer 
appointed by the President and Senate, should depend upon 
inference merely, and should have been gratoitoosly declared 
by the first congress, in opposition to that high an- 
*811 thority of the *i'«forflft*i; and should have been sup- 
ported or acqniesced in by some of those diatingnished 
men who questioned or denied the power of congress, even to 
incorporate a national bank.* 

The marshal is obliged to give secnrity to the United 
States in twenty thousand dollars, for the faithfiil perform- 
ance of the duties of his office by himself and his deputies, 
and, together vrith bis deputies, to take an oath of office.^ 
By the common law, the death of the principal is a virtual 
repeal of the anthority of the substitute or deputy ; but to 



ancMoftha ezctvlM oftbt powerof renioTklfi«m<Acal«Teb*<n 
1 bay md all fanDer ezunple, under Preddent Jukton'i ■dininiatimtkiD, 
tlie [noprielj ot tli« ooDceauoD of tha power itoelf; b; Uia fint congraaa, baa been 
atroDgl J queitioned. It ia in (be power of coogreaa, at an; time, aaja a bigb ao- 
dkoritf, to ooirect tbe ezt^uiTt operation of thia eieGutive poirer. by pladng tba 
ftppcnntmaot of in/trw oficm (and wbich would {odode zunetj-iUDe out of a 
bnndrad of tbe luenriira offlcea of tba govenunent) in other band*. S Stoty* 
Omm. 894— SSl. 

* Act of Cennrtu of BtpttnAtr lith, I78B, aec !7. By tba act of cra^reea of 
April lOtb, IBOe, e. £1, tbe nanbal'a bonds are to be filed and recorded in tba 
office of tbe derk of tbe Diitrict Court or Orcuit Coort uttii^ witbb tbe dutrict ; 
and auita br tba brcadi of tbe coodltioii of an j eucb bond maj be lnatiluted in Ikt 
nam* and for tbe aole qm of tbe peraon iojured by a breadi of tbe cooditiiHi of tba 
boDd,aDd jadgmentaon tbe bond (re to retnuiiM a aecoritj for tbe benefit of aoy 
pecaoQ injoied by tbe breaeb tbereoC 



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IM ZIT.] THB UNITBD STATR& 841 

, goard against any inconveiueDce vbich might arise ttom thfi 
operation of this principle, and to prevent the mischiefe of a 
vacancy in office, the act eetahlishing the judicial conrts has 
provided, that in case of the death of the marshal, his depa- 
ties shall continne in office, nnlesa otherwise especiallj re- 
moved, and shall ezecate the same in the name of the de- 
ceased marshal, until another marahal shall be appointed 
and sworn. Bo, a marshal, when removed from office, or his 
term of office expiree, may still exeeate all procesB in his 
hands, and he remains re^Ktnsihle for his prisoners nntil they 
are doly delivered over to his successor.' And with respect 
to the custody of the prisoners, onder the law of the United 
States, the marshal is directed to deliver his prisoners to the 
keeper of one of the jails of the state in which he ia marshal, 
in cases where the leg^latnre of the state, in conformity with 
the recommendation of congress, have made it the dnt^ of the 
j ailors to receive them ; hnt who^ they have not, the marshal, 
under the direction of the district judge, ie to provide his own 
place of security,'* 



■ Rid. MO. !S. 

* S4taiiaunu 0/ Om^nu, SiplniAar Ud, llSi, tai ManA Sd, 17S1. Sm, 
fim, Xba Att<^ (hngr*- 0/ Janaar}/ SO, 180(^ and 1 Pain*'* Btp. SSS. Hm 
manhat U faoond lo take from tbe pruoiMr, under United 8taW procet^ a bon^ 
tot the Umib^ a* intb« caae (or priaonen mider lUU procMt. 



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LEOTUEE XT. 

or ^aE CW-WSAL Aim appklults juusdiotioh ot the 

• aCPHEME OOUET. 

Hathiq t^en a general view of the great departmenta of 
the goTermnent of the TTnited States, I proceed to a more 
precise examination of its powers and dotiea, and of the de- 
gree of 8nbordiii,ation under which the state goTemments are 
confltitiitionally placed. 
B. The Constitntion of the United States is an. instmment con- 
taining the grant of specific powers, and the govermnent of 
the Union cannot claim anj powers bnt what are contdned 
in the grant, and gtvea either expresdj, or hj necessar;' im- 
plication. The powers vested in the state gov^Tunents bj 
^eir respective constitotionB, or lemaining with the people of 
the several states prior to the establishment of tiie Constitaticai 
■of the United States, continue unaltered and nnimpaired, ex- 
cept 80 far as they are granted to the United States. We are 
to ascertain the trae constmction of the constitution, and the 
precise extent of the residnaiy authorities of the several states, 
hj the declared sense and practice of tiie governments respec- 
tively, when there is no collision ; and in all other cases 
where the question is of a jadicial nature, we are to ascertain 
it by the decisions of the Snpreme Conrt of the United States ; 
and those decisions ought t« be stadied and universally nnder- 
«tood, in respect to all the leading questions of constitntional 
law.* The people of the United States have dedared 'the 
constitution to be Uie supreme law of tbe land, and it is enti- 
tiled to universal and implicit obedience. Every act of con- 
gress, and every act of the legislatures of the states, and every 
part of the constitntion of any state, which are repug- 



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ZiMxZV.] ftnUaPRDDEHO^ «a 843 

nant to the ConstitatioD *of the United States, are ne- *814 
cesaarily roid. HiIb is a dear and settled principle 
of constitntioiial jarisprndence. The jadlcial power of the 
Union is declared to extend to aU caaet in law and eqiiitj 
arising under the constitotion ; and to the judicial power it 
lielonga, whenever a case is judicially before it, to determine 
what is the law of the land. The determinaticnL of the Sn- 
preme Ooart of the United States, in every snch case, most 
he final and conclnsive, because the cODstitntion giTes to that 
tribunal the power to decide, and gives no appeal from the 
decision. 

"With respect to the judicial power, it, may be generally 
observed, as the Supreme Oonrt declared, in the case of 
Turner v. The Bavk of Norih ATnerioa,* that the disposal 
of the judicial power, except in a few specified cases, belongs 
to congress; and the courts cannot exercise jurisdiction in 
every case to which the judicial power extends, without the 
interven^on of congress, who are not bound to eidarge the 
jurisdiction of the federal courts to every subject which the 
constitntJon might warrant. So, again, it has been decided,^ 
that congress has not delegated the exercise of judicial power 
to the circuit courts, but in certain specific cases. Both the 
constitution and an act of congress mnat (xmcur in conferring 
power upon the circuit courts. A considerable portion of the 
judicial power, placed at the disposal of congress by the con- 
stitution, has been intentionally permitted to lie dormant, by 
not being called into action by law.* The 11th section of 
the judiciary act of 1789, giving jurisdiction to the circuit 
courts, has not covered the whole ground of the constitution, 
and those courts cannot, for instance, issue a Tntmdomus, but 
in those cases in which it may be necessary to the exercise of 
their jurisdiction.^ 

The original Jurisdiction of the Supreme Court is veiy cMgbuaji- 
limited, and it has been decided that congress has no power ou OBfna* 



• * Dallai. 8. • 

' H'lntjre t. Wood, 7 Oranch, 604. liringslon v. VaodoMr, I Patttt, 4B. 
TTnited SUt«a 7. Had«OD A Qoodwin, 7 Oratuh, 12. JJmUd SUtw v. B«vm% S 
Wk*at<m. 3SS. 

• Cimli:liii^$ TVntiu, 2d edit S8. 

4 Smith T. JMkaoD, 1 Pahu'i JUp. 468. 



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844 JURISFRDDENCB OF [Fwtlt 

to extend it.^ It is confined bj tiie constitDtion to thoee cases 
which affect amhasBsdors, other public ministera and con- 
suls, and to those iu which a state is a party ;*> and, 
*315 *it has been made a qaestioo, whether this original 
jurisdiction of the Supreme Court was intended by the 
constitution to be ezdnsiTe. The judiciary act of 1789 seems 
to have considered it to be competent for congreas to vest 
concurrent jurisdiction, in those specified cases, in other 
courts ; for it gave a concurrent jurisdiction, in some of those 
cases, to the circuit courts." In the case of The UnHad 
Statee v. Saoarat'^ this point arose in the Circuit Court for 
Pennsylvania district, and it was held that congress could 
vest a concurrent jurisdiction in other courts, of those very 
cases over which the Supreme Court had original jurisdic- 
tion ; and that the word original wss not to he taken to im< 
ply exclusive cognizance of the cases enumerated. But the 
opinion of the Supreme Court of the United States, in M(a^ 
hwry V. Madiaon* goes far towards establishing the principle 
of exclusive jurisdiction iu the Supreme Coort in all those 
cases of original jurisdiction. This last case was considered, 
in Permtyhsama v. Koalqff,^ as shaking the decision in the 
case of Mavara; and yet the question was still left in doubt 
by the Supreme Court, in the case of The UniUd States v. 
Ortega,! and a decision upon it was purposely waiTed.>> 

Admitting this original jurisdiction of the Supreme Court 
may be shared by other courts iu the discretion of congress, 
it has been decided, as we shall presently see, that this ori- 
ginal jurisdiction cannot be enlai^ed, and that the Supreme 
Court cannot he vested, even by congress, with any original 



■ Ifubor; t. UmEk^ 1 OoncA, 187. 
^ Art. 8. MO. I. 

* tD<JU*,t9'J. 

• 1 Orttndt, 1B7. 

' Berff. i EamU, GU. 

C It WM4alon,*i1, 

k iDUieoffleUlaidiiioiioftha AUonej-OeDcnlor tbeUnitodSUUt, ial79T, 
it wu held, that the Suprame Court of tba Uoited Stil«a had no ertminal jnra- 
fidion, nntil giveo bj itetnte, and tliat it wu opable of hmring h ccKiremd hj 
Uw in the cue of «mlMMular«, Ac, u in the csm of libeli,^ OpJiiinuo^lA* 



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IrW XT.] TER UNITED OTATBS. 34S 

jnriBdietioQ in other caaee tlkan those described in the consti- 
tattoo. It is the appellate jmifldiction of the Supreme Coart 
that clothes it with moat of its dignity and efficacy, and ren- 
ders it a constant object of attention and solicitnde on 
the *part of the gorommente and the people of the *316 
several states.* 

(1.) The Supreme Court has appellate jurisdiction, in cer- inMOM 
tain cases, over final decisions in tiie state courts, but it has^'*'*^'''^ 
no power to review its own decisions, either at law or in 
equity.'' 

We have seen" that, by the act of congress of the 24th of 
September, 1789, sec. 25, a final judgment or decree in any 
suit in the highest coort of law Or equity of a state, where is 
drawn in qu^tion the validity of a treaty, and the decision is 
against its validity ; or where is drawn in question the con- 
struction of a treaty, and the decision is against the title, right 
or privilege set up or claimed under it, may be re-examined, 
and reversed or affirmed in the Snpreme Coort of the United 
States, upon a writ of error ; and, upon reversal, the cause 
may be remanded for final decision, or the Supreme Court 
may, at their discretion, if the cause shall have been once re- 
manded before, proceed to a final decision of the same, and 
award execution. The •wotd^final, in the judiciary act, is un- 
derstood to apply to all judgments and decrees which deter- 
mine the partioular cofuesj and it is not to be confined to 
those judgments and decrees which are so final as to termi- 
nate all further or renewed litigation, in a new suit on the 
same right.^ (1) Under this appellate authority, it was de- 



* Tlie Imperial ChanbM' ud the Aniio OonDcil in tb« Otinunie coiMtitDticif^ 
vtn tribmi>liott^)p«lUt«JiiriidictioDODlj'. It wmUib njgitid Ia« of Ocmuuif , 
that DO mta ooold bs lued, except ic llig ttttt or proriDce to which ha balonged. 
1 BailoM <m llu MiHU Agit, >T1, SIS. 

* WutuDgtoD Bridga Compuij t. 8t«wwt, S H«*ari U. S. 41). 

* aipra.p.Sn. 

' Wectofl T. Citf Ooouca of OharlMton, 1 Pfri U. B. Rep. 4S4. Sm A4^ 
OtMilinjft n*alii tm tki OmrUoflht UmltdBtaUM, 3d edit p. !S, for adtstim 
of Ibe owe oa this point. Thii treatiee of the leaned jndgv u ooiHotu, acoural*^ 
and a retj melhl digeat Ibr the profeaaioa. The detaila of the practice of (lie 
oourt* of Um ndtad Statea, enppoited bj a full renew of the etatutea, Jodidal 
dadaioiia and nJea of the oourti, are exe«lleat. 

(DBmTmh't. OmmdiSAw.S.IOL PnlBam T. Obilidaii, /li tOft 



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846 JUBBPRtTDENCE OP [Piwtit 

cUred, in the case of Gierke t. Harwood,*^ that if the highest 
conrt in a state rereree the judgment of a Bnhordinate court, 
and, on appeal to the Supreme Conrt of the TTnited States, 
the judgment of the highest state court he in its turn reversed, 
it becomes a mere nullity, and the mandate for execution may 
issue to the inferior state court But, in the case of Fairfax 
V. Bfititer^ a -writ of error from the Supreme Conrt of the 

United States was awarded to the Court of Appeals of 
*317 Virginia, upon a judgment in *that court against the 

right claimed under a construction of the treaties made 
with Great Britain in 1783 and 1794, and the judgment of 
the Conrt of Appeals was reversed, and the cause remanded, 
and the Court of Appeals helow were required to cause the 
original judgment, which had been revepHed in that court, 
to be carried into due execution. The Court of Appeals, 
when the cause came back to them, resolved that the appel- 
late power of the Supreme Court of the United States did not 
extend to that conrt, and that bo much of the act of congress 
as extended the appellate jurisdiction of the Supreme Court 
to that conrt, was not warranted by the constitution ; and that 
tiie proceedings in the Supreme Court yrere coram non jiidice 
in relation to that conrt; and they consequently declined 
obedience to its mandate. A writ of error was awarded upon 
this rei\tBal, and the cause came np again before the Supreme 
Court of the United States, in a case in which the judgment 
of the conrt below drew in question, and denied the validity 
of the statute of the United States, authorizing an appeal 
from a state court." 

A graver question could scarcely have arisen in that court, 
or one involving considerations of higher importance and deli- 
cacy, or more deeply affecting the permanency and tranquilli- 
ty of the American Union, In the opinion which was deliv- 
ered, the court observed, that the constitntioQ unavoidably 
dealt in general language, and did not enter into a minnte 
specification of powers, or declare the means by which those 
powers were to be carried into execution. His would have 
been a perilous and difficult, if not an impracticable tadc ; 



■ ■ DaltM, 84S. * 1 Omith, BOB. 

• Hartio T. Hontar, I WJutUan, 804. 



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I«(!;XV.J THE UBITED STATES. 847 

and the constitntion left it to congress from time to time, to 
adopt its own means to efiectnate legitimate objects, and to 
mould and model the exercise of its powers, aa ita own wis- 
dom and the public interest should require. 

The judicial power of the United States is declared to ex- 
tend to all cases arising under treaties made nnder the 
•authority of the Umted States, It was an absolute *318 
grant of the jndicial power in that case, and it was 
competent for the people of this country to invest the general 
government with that, or with any other powers they might 
deem proper and necessary, and to prohibitthe states from the 
exercise of any powers which were, in their judgment, incom- 
patible with the objects of the general compact. Congress 
were bound, by the injunctions of the constitution, to create 
inferior courts, in which to vest all that judicial jurisdiction 
which was exclusively vested in the United £tates, and of 
which the Supreme Court cannot take any other than an ap- 
pellate cognizance. The whole jndicial power must be at all 
times vested, either in an original or appellate form, in some 
courts created nndertheaiiUiorityofthe United States. The 
grant of the jndicial power was absolute, and it was impera- 
tive upon congress to provide for the appellate jurisdiction of 
the federal courts, in all the cases in which judicial power 
was exclusively granted by the constitution, and not given, by 
way of original jurisdiction, to the Supreme Court 

The court, in their examination of the judicial power, sup- 
posed that the constitntion took a distinction between two 
classes of enumerated cases. It intended that the jndicial 
power, either in an original or appellate form, should extend 
absolutely to aU ca»es in law and equity arising tinder the 
constitution, the laws of the United States, and treaties made 
under their authority ; and to all cases affecting ambassadors, 
other public ministers and .consuls ; and to all cases of admi- 
ralty and maritime jurisdiction; because these cases were of 
vital importance to the sovereignty of the Union, and they 
entered into the national policy, and affected the national 
rights, and the law and comity of nations. The original or 
appellate jurisdiction ought, therefore, to be commensurate 
with the mischief intended to be remedied, and the policy in 
view. But In respect to another class of cases, the constitu- 
tion seemed, ex in^ustria, to drop the word all, and to 
extend the jurisdiction of the ^^udiciary, not to all 'SIS 



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81S JURISFSUDEBOE OF [Partll 

controTerues, bat to coutroTersies in which the United 
States were a parly, or between two or more states, or be- 
tween dtizeuB of different Btates, &q., and to leave it to con- 
gress to qnalif; the jurisdiction, original or appellate, in snch 
manner as public policy might dictate. But whateYer weight 
might be dne to that distinction, it was held to be manifest, 
that the judicial power was, unavoidably, in some cases, ez- 
clusiveof all state authority, and, in all others, might be made 
so at the election of congress. The judiciary act, throughout 
every part of it, and particolarly in the 9th, lltb and 13th 
sections, assumed, that in all cases to which the judicial 
powers of the United States extended, congress might right- 
fully Twt exclnsive jurisdiction in their own courts. The 
criminal, and the admiralty uid maritime jurisdiction, must be 
exclusive ; and it was only in those cases where, previous to 
the constitutioji, state tribunals possessed jurisdiction indepen- 
dent of national authority, that they couldnow constitutionally 
exercise a concurrent jurisdiction. 

The exercise of appellate jurisdiction was not limited by 
the constitution to the Snpreme Court Congress might 
create a succession of inferior tribunals, in each of which it 
might Teat appellate, as well as original jurisdiction. The 
appellate jurisdiction of the Supreme Court, in cases where 
it had not original jurisdiction, was declared to be subject to 
such exertions and regulations as congress might prescribe. 
It remained, therefore, entirely in the discretion of congress, 
to cause the judicial power to be exercised in every variety 
of form of appellate jurisdiction, and the appellate power was 
not limited to cases pending in the courts of the United States. 
If ithad been limited to cases in those courts, it would necessa- 
rily follow, that the jurisdiction of the federal courts must have 
been exclusive of state courts, in all the cases enumerated in 
the constitution. If the judicial power of the United States 
extends to all cases arising under the constitution, laws and 
treaties of the Union, and to all cases of admiralty and 
*320 maritime jurisdiction, *the state courts could not, con- 
sistently with the express grant in the constitution^ 
entertain any jurisdiction in those cases, without the right of 
appeaL If tiie state courts might entertain concurrent joris- 
diction over any of those cases without control, then the ap- 
pellate jurisdiction of the United States, as to such cases, 
would have no existence, which would be contrary to the 



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Lte. XT.] THE UNITED STATES. 849 

manifest intent of Uie couatitution. The appellate power of 
Qie federal conrts mnet extend to the state conrts, so long as 
the state conrts entertain any concoirentj^uriBdictioii over the 
cases which the constitntiofflias declared shalTfall within the 
cognizance of the judicial power. It is rerj plain, that the 
constitution did contemplate that cases within the judicial 
cognizance of the United States would arise in the state courts, 
in the exercise of their ordinary jurisdiction: and that the 
state courts would incidentally take cognizance of the cases 
arising under the constitution, the laf^and the treaties of the 
United States ; and as the judicial power of the United States 
extended to ail such cases, by the very terms of the constittt- 
tion, it followed, as a necessary consequence, that the appel- 
late jurisdiction of the courts of the United States must and 
did extend to the state tribunals, and attech npon every caqe 
within the cognizance of the judicial power. 

All the enumerated cases of federal cognizance are those 
which touch the safety, peace and sovereignly of the nation, 
or which presume that state attachments, state prejudices, 
state jealonaiee and state interests, might sometimes obstruct 
or control the regular administration of justice. Ihe appel- 
late power, in all these cases, is founded on the clearest prin- 
ciples of policy and wisdom, and is deemed requisite to fulfil 
effectually the great and beneficent ends of the constitution. ~ 
It is likewise necessary, in order to preserve uniformity of 
decision throughout the United Stetes, upon all subjects within 
the purview of the constitution ; and the mischief of oppc»ite 
constructions and contradictory decisions in the different 
states, on aU these points of general concern, would be de- 
plorable. 

■"The right of removal of a canse from a state court *821 
by a defendant, who is entitled to try his rights and 
assert his privileges in the national forum, is also Ihe exei^ 
cise of appellate jurisdiction; and the right of removal of a 
cause may exist before or after judgment, in the discretion of 
congress. The Supreme Court, hy a train of reasoning which 
ai^eara to be unanswerable and conclusive, came to the de- 
cision, that the appellate power of the United States did 
extend to cases pending in the state courts, and that the 25th 
Bection of the judiciary act of 1789, authorizing the exercise 
of this jurisdiction in the specified cases by a writ of error, 
was supported by the letter and spirit of the constitution. 



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SSO JtTHISFItUDENCE OF [F*it IL 

The judgment of the Court of Appeals in Yir^nia, rendered 
on the mandate in the cause, and denying the appellate jo- 
risdiction of the Supreme Court, was conseqaentJy reversed, 
and the judgment of the District Court in Virginia, -which 
the Court of Appeals in Virginia had reversed, -was affirmed. 
Whether the Supreme Court had authority to iesue the 
compulsory process of ■numdamms to the state courts, to en- 
force the judgment of reversal, was a question which the 
court did not think it necessaiy to discuss or decide ; and one of 
the judges, in the separate opinion which he gave in the 
cause, seemed to think that the Supreme Court, in the exer- 
cise of its appellate jurisdiction, was supreme over the parties 
and over the case, but that it had no compnlsoiy control over 
the state tribunals. The court itself gave no intimation of an 
opinion whether it could or could not lawfully resort to com- 
pulsory or restrictive process, operating infersowimh upon the 
state tribunals ; and it was no doubt deemed discreet not to 
assert more authority constitutionally vested in the court, 
than was necessary for the occasion. If the appellate juris- 
diction be fonnded, as it no doubt was in that case, on a solid 
basis, it would seem to carry with it, as of course, all the co- 
ercive powerincident to every such jurisdiction, and requisite 

to support it 
rf*322 *(2,) Another qaestion which was largely discussed 

and profoundly considered by the Supreme Court, was 
touching its authority to issue a m(WM^cw?i««, when not arising 
in a case under its appellate jurisdiction, and when not re- 
quired in the exercise of its original jurisdiction. In the case 
of Mwi^ry v. Madieon,*^ the plaintiff had been nominated by 
the President, and, by and with the advice and consent of 
the Senate, had been appointed a justice of the peace for the 
District of Columbia, and the appointment had been made 
complete and absolute by the President's signature to the 
commission, and the commission had been made complete by 
a^xing to it the seal of the United States. The secretary of 
state, after all this, withheld the commission, and the with- 
holding of it was adjudged to be a violation of a vested legal 
right, for which the plaintiff was entitled to a remedy by 



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Lee. XT.] THE TmrrBO STATES. 3M 

maoidam'ua / and the only qaestion waa, whether the maaida- 
mus could coDstitationally issue from the Supreme Court.' 

The judiciary act, sec. 13, authorized the Supreme Court to 
issue writs of mandamus in cases warranted by the principles 
and usages of law, to any courts ^pointed, or persons holding 
office^ under the authority of the United States. There was 
no doubt that the act applied to the case, and gave the power, 
if the law was constitutional; but the court was of opinion 
that the act, in this respect, was not warranted by the consti- 
tution, because the issuing of a mandamus in this case would 
be an exercise of ongiual jurisdiction not within the constitu- 
tion, and congress had not power to give original jurisdiction 
to the Supreme Court in other cases than those described in 
the constitution. It had not authority to give to the Supreme 
Court appellate jurisdiction, where the constitution bad de- 
clared that its jurisdiction should be original, nor original ju- 
lisdiction where the constitution had declared it should be 
appellate. To enable the court to issue a mandamus, 
it must be shown to be an exercise, or *necessary to an *323 
exercise, of appellate jurisdiction. 

The Supreme Court may accordingly issue a mandartius to 
a Circuit Court of the United States, commanding it to sign a 
bill of exceptions, for this is an exercise of power warranted 
by the principles and usages of law.'' 



k In the «we at Kendall t. The TTDited States IS PHtn, B24, it wu decided, 
that the Circuit Court for the Diitriet of Oolambia had ftDthorit; ta it 
enforce obedience to ■ tniindimue, requiriiig the perfbnoance of a mere m 
act b; the poatiDUter-geoeTsl, and irbieh nuther he nor the Preeident hnd uij 
anthorit; to denj or coctrol ; for the poRtmaster-general is not subject to the di- 
reelioD and control of the Pre^dent, vith respect to the etecution of dntiee im- . 
posed npoD Um by lair.(l) The PreeideDthu no diapennng poireT over the 1st, 
Dol vill a monifianti* lie to ooirect the en-ooeous judgment of an inferiorcotlrt. It 
is not the process to reTiew judicial errors of an; liiod. Ex parte Hojt^ '\%Pttttt, 
S79. Ee parte Wbitnej, Ih. 404. This is a settled principle in Englieh and 
American law. The King t. JuetioMof Homnanlhehhe, 7 Dovi. dt Si/L SS4. 
Judges of Oneida t. The People, 18 WeiuUl, 19. The P«ople t. Judge* of 
Dutchess C. P. SO. lb. SG& 

^ Ex parte Crane and another, 6 PeUrif U. S. Btp. 190. In the com otBarrs 

(1) AmaiitfainMSgtfiMibeBecTetUToribeIInTiriniui(Ila,al 
wlmeUMpajnwDlofUsiBlUT. Tke dalles <^ ~ 
•ut mecelj miolslerlsl, tralare oOeiil ind U ■Dme 
meotbasnopoireilolnlerftnirllblbslrdlsdMise. Bnwbear t. Uuon, t iTixc. £. M. 



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853 JDEISPEITDEKCE OF [P«t IL 

■ffkeoB (3.) The conatitation gives to the Supreme Court original 
tj. jumdictioQ Id those cases in which a stat« shall be a pattjr ; 

and in F&wler v. Jjmdaey,^ the quefition aroee, when a state 
was to be considered a party. The parties in that suit claimed 
title to lands under grants from different states. The plaintiff 
brought his ejectment in tie Circuit Court of Connecticut, 
claiming title under a grant irom that state, and under a claim 
that the lands lay within the jnrisdictioa of that state. The 
deffludaut claimed title under a grant from Kew-York, and on 
the ground that the lands lay vithia the rightful as well as 
actual jurisdiction of New- York. The court laid down this 
rule on the subject of the jurisdiction of the Supreme Court, 
on account of tjie interest that a state has in the controveray, 
that it must be a case in which a state is either nominally or 
Bubstantdally the party ; and that it is not sufficient that the 
state may be consequentially affected, as being bound to make 
retribution to her grantee upon the event of eviction. Tliongh 
there may be a controversy relative to soil or jurisdiction be- 
tween two states, yet if that controveray occurs in a suit be- 
tween two individuals, to which neither of the states is a party 
upon the record, it is not a case within the original jurisdiction 
of the Supreme Court, because the states may cout^t the right 
of soil in the Supreme Court at any time, notwithstanding a 
decision in the suit between the individuals. Kor will a de- 
cision as to the right of soil between individuals affect 
*324 the right of the state asto ^jurisdictioQ; and that juris- 
diction may remain unimpaired, though the state may 
have parted with the right of soil. In such a case the Supreme 
Court would not allow an injunctdon, on a bill filed by the 
state of New- York against the state of Connecticut, to stay 
proceedings in the ejectment suit between individuals, though 
a general claim of soil and jurisdiction was involved in the 
private suit, because the state of New- York was not a party 

T. Mtreein, in the Saprtmc Oourt of tti« TJnited Statc^ at Woibington, Jumuy, 
1B17, it nu kdjadged tliat % writ of «tTor would not Ua to tbe Supreine Court, 
Dpnn the judgmeat ot& (Srouit Oooit, nfiuillg to grmnt & writof Aoiea* eorj»a, id 
• CBM of A fBther clB[iniDg from the moUier hia mtazA dmnghter. The csm did not 
come wilLiu the pr>)vi«0D of tlie ZSd aectioD of the judidarj act of 17B9. The 
cue was Dot wiUiia the Limita aaaigned bj the act of oongreM to the appellate jn- 
riidktion of the Supreme Court 
■ 8 Dnilai, 411. 



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Lm. XT.] THE tTNITBD STATES. 368 

to the suit in the Circuit Court, nor intereeted in the deci- 
sion." 

(4.) The appellate jarisdictiou of the Supreme Court ^^^^i^Pff^i^ 
only in those esses in which it is affirmatirely given. In the pemn « 
case of Wisca/rt t. Davchy,^ the Supreme Conrt considered 
that ita whole appellate jurisdiction depended npon the regn- 
lations of congreaa, as that jariBdiction was given bj the con- 
stitation in a qnalified manner. The Supreme Conrt was to 
bare appellate jnrisdiction, " with snch ezceptiona and onder 
snch regnlattons as congress ahonld make ;" and if congress 
had not provided any mle to regulate the proceedings on 
appeal, the conrt could not exercise an appellate jurisdictioa; 
and if a rule he provided, the court could not depart from it. 
In pursuance of this principle, the court decided, in Clark v. 
Baaodotiey' that a writ of error did not lie to that court from 
a court of the United States' territory northwest of the Ohio, 
because the act of congress had not authorized an appeal or 
writ of error frvm such a conrt It was nrged, that the judicial 
power extended to all cases arising under the constitntion, and 
that where a Supreme Conrt had not original, it had appellate 
jurisdiction, with snch exceptdons and under such regulations 
as congress ahonld make ; and that tiie appellate power was 
derived from the constitntion, and must he full and complete, 
in all cases appertaining to the federal judiciary, 
*where congreas had not by law interfered and control- *326 
led it, by ezceptiona and regolations. The court, how- 
ever, atUiered to the doctrine which they had before laid down, 
and proceeded npon the principle, that though the appellate 
powers of the court were given by the constitution, they were 
limited entirely by the judiciarystatntes, which are to be un- 
derstood as making exceptions to the appellate jurisdiction of 
the court, and to imply a negative on the exercise of such a 
power, in every case but those in which it is affirmatively 
given and described by statute. This was the principle also 



> Nair-York t. CoDOMlaciit, 4 DaOn, 8. In the com ot Um ttkta ot Bbod* 
Uand T. The SUta of Manachiuetta, 12 Ptlen, BET, it wu decided, after k rtrj 
ekbonte ducoaiioii, llut tha Supreme Court had jtuimlktioa to Mcerttuo ud 
ut^bluh baunduies betveen two itate^ and to reatore and eonfiim righta of 
•overeigntj Mid juriadictioo. 

* 8 Dalliu, S21. • 1 Omu*, IIS. 

TOL.L 28 



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854 JCTRISPRUDEITOB OF [Put IL 

explicitly declared in the case of The United States t. More,^ 
aud in the case of Ihtrouasea/u r. TAe Untied StaieaJ^ In the 
first of those cases, the rule of constmction vbb carried to the 
extent of holding that no appeal or writ of error lay in a crimi- 
nal case from the Circuit Court of' the District of Columbia, 
hecanse the appellate jurisdiction, as to that district, applied, 
by the terms of the statute, to civil cases only. The rule was 
afterwards, in ea parte Keaimeyf'> laid down generally, that 
the Supreme Court had no appellate jurisdiction from circuit 
courts in criminal cases confided to it by the laws of the Uni- 
ted States. (1) Nor has it any appellate jurisdiction over a 
judgment of the circuit courts, in cases brought before it by 
v»it of error from a district court, though it has over judgments 
and decrees of the circuit courts, in suits brought before them 
by appeal from the district courts.^ 
Judu&i (6.) The constitution says, that the judicial power shall 
bwd tocuM extend to all cases arising under the constitution, laws and 
ib« oouiud- treaties of the United States; and it has been made a ques- 
uduwi. tion, as to what was a case arising under a treaty. In 

*326 *0wing8 t. Ifonoood,* there was an ejectment between 
two citizens of Karyland, for lands in that state ; and 
the defendant set up an outstanding title in a Bri^sh subject, 
which he contoided was protected by the British treaty of 
1794. The Court of Appeals decided against the title thus 
set up ; and the Supreme Court of the United States held 
that not to be a case within the appellate jurisdiction of the 

• S Orandi, ISS. 
^ e Craneh, 80T. 

• 7 Whtatoii, S8, Ez parte Wkftim, 1 Ptitti R. 198. T Ptteri U. 8. R*p. 

see, s. p. 

• Umted States v. Goodwin, 1 OnncK, 109. United StBl«i v. QordoD, Aid. 
287. Bot Me mpra, p. 199, aotr altered b; act of congrcaa Mr. JmtJce Storf, 
in tbe CMe Ex pait« Chtut;, 8 Hoxiard, 29a. 817, etoted that do appeal vae preo 
or lieifrom tbe judgmeDlj either of the District or (Sicoit Ooort* in crimioal casea. 
So it was adjodged that the Supreme Conit lia» do power of appeal from the da- 
creea of the Dietiict Court utting in banlmiptcj, nw no power to iwue a probibi- 
lion, except vhen (he Dlatrict Court ii proceediiig aa a ooart of admirallf and 
nutritime juri^ictioD. Bee, also, mfta, p. 888. 

• i Ormch, B44. 

'(1) The f.&£u^a»>rihuiiapoweTDfreTUoa(if IheJadgmentorilieDlalTlcttiidClTailt 
OomH, In erlmlo*) cuo, sicapt Id ooki Iq whleh ftae oplnloiu onbejadget la Ibe Rbcrdliiata 
trlbDnali are oppOMd. VnnjOt t. The Unlled Blatai, t, Batt, B. BTL 



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Lee. XV-l TH8 UNITED BTATE8. SJg 

court, bec&nse it was not a case arising under the treaty. 
The treaty iteelf was not drawn in c^aeation, either directly 
or incidentally. The title in question did not grow out of 
the treaty, and as the claim was not under the treaty, the 
title was not protected by it ; and whether the treaty was an 
obstacle to the recovery, was then a question exclusively for 
the state eourt.» 

(6.) The judiciary act of 1789 required, on error or appeal Appdkia 
from a state court, that the error assigned appear on the face Dooinsd lo 
of the record, and immediately respect eome question affect- noocd. 
ing die validity or construction of the constitntion, treaties, 
statutes or authorities of the Union. Under this act, it is not 
necessary that the record should state in terms the miscon- 
struction of the authority of the Union, or that it was drawn 
in question ; but it must show some act of congress applicable 
to the case, to give to the Supreme Court appellate jurisdic- 
tion. It will be safficient, if it be apparent that the case, in 
point of law, involved one of the questions on which the 
appellate jurisdiction is made to depend by the 25th section 
of the judiciary act of 1789, and that the' state court most 
have virtually passed upon it.ti But the court has been so 
precise upon this point, that in Miller v. J^ic/tala," notwith- 
standing it was believed that an act of congress, giving the 
United States priority in cases of insolvency, bad been 
disregarded, yet, as the fact of insolvency *did not *S27 



■ A caBe,iii tbaieiisaortIiecooititutioii,ui7i Ur.Jiudee Stciy, ((Antntflilari*! 
on tia Oonitituiion, ToL in. p. SOl,) U » aoit io Iftw or equity, and krisee when 
some aubject, tonchiog the eooatitation, Uwa or trutjea of Uie UDitod Sutes, it 
Bubmitted to tlie oouite hj a partj, vho uierta bii rigbla in the form prescribed 
bp lav. See. also, 9 W/uaton, Bla, aad B Peltri, !24. 

* Craig T. State of Hiaaouri, * Pelir^ U. S. Rep. 410. In Crowel! y. Randell, 
10 Ptlert, SflB, tli« SapTema Court renewed all tlie casei aa the appellate juiia- 
diclioD of the court from tha state coutte ; and it vm decided, tl»t to gaa Iha 
court appellate jurisdiction, two Uiiiigs must bave oDctured, and be appareut in 
tbe record, or by necessary icfereoce from it ; (1.) that some ooe of the queadooi 
elated in the 2filli section of the judicial; act of I7BE), did ariu in the court below, 
and (S.) that a dedaioD vaa actually made thereon by the eame eourt ia the man- 
ner required by the eedion. If both of these do not appear on the record, the 
appellate jnrisdicttOD bile. 13 Piltri, EOT, 8. P. Ocean Ins, Co. r. Polleja,,18 
Ptttn, 1B7, 8. P. Cooni t. Oalloger, IS Ptlert IT. E Rep. 18, S. P. See, alsa, 
Omkling'* JVeatiu, Sd edit S6. 

• 4 WAtatan,sn. 



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8S6 JURISPRtTDEKOB 07 [Fwt II 

appear npcm record, the court decided that thej could 
not take jnrkdictioQ of the case. In the exercise of thoir 
appellate jurisdiction, the Supremo Comt can onlj take notice 
of qneBtions arising on matt^t <^/act appearing v^pon the 
record; and in all cases where jnriBdiction depends on the 
party, it is the party named in the record.^ 
It axii^ (7.) The appellate jnriBdiction may exist, thongh a state be 
mte to a a party, and it extends to a final judgment in a etate court, 
on a case arising under the au^ority of tiie Union. The 
appellate powers of the federal judiciary otct the state 
tribunals was again, and very largely discussed, in the caae 
of Cohens T. Yirgmia;^ and the constitational authority of 
the appellate jurisdiction of the Supreme Court was vindicated 
with great strength of argument and cleameas of illustration, 
l^e question arose under an act of congreea institating a 
lottery in the District of Columbia, and the defendant below 
was criminally prosecuted for selling tickets in that lottery, 
contrary to an act of the legislature of YJrginia. Judgment 
was rendered against him, in the highest court of the state 
in which the cause was cognizable, though he claimed the 
protection of the act of congroas. A writ of error was brought 
upon that judgment into the Supreme Court of the United 
States, on the ground that the prosecution drew in question 
the validity of the statute in yi^;inia, as being repugnant to 
a law of the United States, and that the decision was in 
favour of' the state law. It was made a great point in the 
case, whether the Supreme Court had any jurisdiction. 

Tile court decided, that its appellate jurisdiction was not 
excluded by the charter of the parties, one of them being a 
state, and the other a citizen of the state. Jurisdiction was 

^ven to the conrts of the Union in two classes of 
*328 cases. *In the first, their jurisdiction depended on 

the character of the cause, whoever might be the 
parties ; and, in the second, it depended entirely on the 
character of the parties, and it was unimportant what might 
be the subject of controversy. The general government, 



■ Oorenior of Oaoigia T, Midrano, 1 Ptlert' U.S. Rep. 110. Hkkie r. Btarke, 
an. 9B. H^er t. Cocker«Il, G Ihid. 24B. 
k 6 IfAratois SS4. 



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Lte. XT.] THB tmiTKD STATES. 357 

thongh limited as to its objects, was supreme with respect 
to those objects. It was supreme in all cases in which it 
was empowered to act. A case arising nnder the constita- 
tion and laws of the Union, was cognisable in the courts of 
tilie Union, whoever might he the parties to that case. The 
sovereignty of the states was limited or surrendered, in 
many cases, where there was no other power conferred on 
congress than a constructive power to maintain the principles 
established in the constitution. One of the instruments by 
which that duty might be peacefully performed, was the - 
judicial department. It was authorized to decide allcoies of 
every description, arising under the constitution, laws and 
treaties of the Union ; and from this general grant of jurisdic- 
tion, no exception is made of those cases in which a state 
miay be a party. It was likewise a political axiom, that the 
judicial power of every well constituted government must be 
coextensive with the legislative power, and must be capable 
of deciding every judicial question which grows out of the 
constatntion and laws. 'Die meet mischievous consequences 
would follow, from the absence of appellate jurisdiction over 
a state conrt, where a state was a party, for it would prostrate 
the government and laws of the Union at the feet of eveiy 
state, the powers of the government could not be executed 
by its own means, in any state disposed to resist its execution 
by a courae of legislation. If the courts of the Union could 
not correct the j udgments of the state courts, inflicting penal- 
ties under state laws, upon individoals executing the laws of 
the Union, each member of the confederacy would possess a 
veto on the will of the whole. No government ought to be so 
defective in its organization, as not to contain witihin itself the 
means of securing the execution of its own laws. If 
*each state was left at liberty to put its own construe- *32d 
tion upon the constitutional powers of congress, and to 
legislate in conformity to its own opinion, and enforce its 
opinion by penalti^, and to resist or defeat, in the form of 
law, the le^timate measures of the Union, it would destroy 
the constitution, or reduce it to the imbecility of the old con- 
federation. To prevent such mischief and ruin, the Constitn- 
tion of the United States, most wisely and most clearly, 
conferred on the judicial department the power of construing 
the constitution and laws in eveiy case, and of preserving 



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868 JURISPEUDEirCE OF [Put U. 

them &otn all violatioti from evety quarter, bo far as judicial 
decisions conld preserve them. 

The case before the court was one in which joriadiction 
depended cpon the character of the cause, as it was a caae 
arieiDg under the law of the TTnioo. It was not an ordinary- 
case of a controversy between a state and one of its citizens, 
for there the jurisdiction wonld depend npon the character of 
the parties. The court concluded, that the appellate power 
did extend to the case, though a state was a party, because 
. it was a case touching the validity of an act of congreae, 
and thedeciBion of the state court was against its validity ; 
and in all cases arising under the constitation, laws and 
treaties of the Union, the jurisdiction of the court may be 
exercised in an appellate form, though a state be a party. 

The court observed, diat the amendment to the constitation, 
declaring that the judicial power was not to be construed to 
extend to any suit in law or equity commenced or prosecuted 
against a state by individuals, did not apply to a writ of 
error, which was not a suit against a state, within the meaning 
of the constitution; and the jurisdictioQ of the Supreme 
Court, in cases arising under the constitation, laws and 
treaties of the Union, may be exercised by a writ of error 
brought upon the judgment of a state court The United 
States are one nation and one people, as to all cases and 
powers given by the constitution, and the judicial 
*330 power *maBt be competent not only to decide on the 
validity of the constitution or law of a state, if it he 
repugnant to the constitution or to a law of the United States, 
but also to decide on the judgment of a state tribmial enforc- 
ing such unconstitational law. The federal courts must either 
possess exclusive jurisdiction in all cases affecting the consti- 
tution, and laws and treaties of the Union, or they mast have 
power to revise the jadgments rendered on them by the state 
tribunals. If the several state courts had final jurisdiction 
over the same cases, arising upon the same laws, it would be 
a hydra in govermnent, from which nothing but contradiction 
and confusion conld proceed. Nothing can be plainer than 
the proposition, that the Supreme Court of the nation most 
have power to revise the decisions of local tribunals on 
questions which affect the nation, or the most important ends 
of the government might be defeated, and we should be no 



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Lm. XV.] THE UNITED STATES. 359 

loDger one natioQ for any efficient pnrpoBe. The doctrine 
woold go to destroj the great fundamental principles on 
which the fabric of the Union stands.* 

"We have now finished the reyiew of the most important 
points that have arisen in the jorispmdence of the United 
States, on the subject of the original and appellate jurisdiction 
of the Supreme Court So &r as the powers of that conrt, 
nnder the constitution, and under the 2dth section of the 
judiciary act of 1789, have been drawn in question, they have 
been maintaitied with great success, and with an equal 
display of dignifr^ and discretion. 



■ Id WilliMna t. Norris, and Hootgoiner; r. HenuuMleE, 12 WJuatoit, 111. 12B, 
Qodet tha SStli s«ctiMi of the ja&htf BOt of 1789, c iO, it wu li«ld, ttuit th* 
Supreme Ooort bai do ftppelkte jnriidietioD, nnleaB tin d«d«MO la the ftato comt 
be offoiiul tba right i» tit)* «et op bf tike putj nndtt the eonatitDtioD or (tatute 
of the Uuited States uid the title depended thereon; or unlew the deeUioD be in 
fawmr of a atste Ut, when its Tsliditj was qaeatioDAd, ae repogiuuit to tba 
CooetJtutiaD of th« Udted States, tmd the right of the par^ dspuided apon the 
■tatehtv. 



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LECTUEE XVI. 

OF THE JUBJEDIOnOIT OF THS FEDSOAJ. OOCB19 HI BEBFECT TO 
. THE OatOtOS LAW, AND IH SE8PE0T TO FABTIES. 

(1.) It has been a enbject of much diBeaauon whether the 
coTirts of the United States have a common law jurisdictioD, 
and, if any, to what extent 
ThatF.B, In the case of the Vmted States v. TTorraW,* in the Circuit 
o ttumnoB Coort at Philadelphia, the defendant was indicted and con- 
M Coli^Ticted of an attempt to bribe the commiBsioner of the revenue ; 
and it was contended, on the motion in arrest of judgment, 
that the court had no jurisdiction of the case, hecanse all the 
jndicial authority of the federal conrts was derived, either from 
the constitution, or the acts of conferees made in porsuance 
of it, and an attempt to bribe the commissioner of the revenue 
was not a violation of any constitutional or legislative prohi- 
bition. Whenever congress shall think any proviBion by law 
necessaiy to carry into efToct the constitntional powers of the 
government, it was said, they may establish it, and then a 
violation of its sanctions will come within the jurisdiction of 
the circuit courts, which have exclusive cognizance of all 
crimes and offences cognizable under the authority of the 
United States. Congress had provided by law for the pnnish- 
ment of varioos crimes, and even for the punishment of 
bribery itself, in the case of a judge, an officer of the customs, 
or an officer of the excise ; but in the case of the 
*333 commissioner of the revenue, *the act of congrees did 
not create or declare the offence. The question then 
fairly and directly presented itself, what was there to render 
it an offence arising under the constitution or laws of the 
United States, and cognizable under their authoritj' ? A case 



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Lm. XVL] JUKfSP&VDVSOE, to. 861 

arising nnder a lav, moBt mean a case depeading on the 
expoation of the law, in respeet to Homething which the law 
prohibits or enjoins ; and if it were sufficient, in order to veflt 
a jorisdiction to by a crime or anstain an action, that a 
federal officer was concerned and affected b7 the act, a source 
of jurisdiction wonld be opened, which would destroy all the 
barriers between thejndicial anthoriti^ of the states and the 
general government. Though an attempt to bribe a public 
officer be an offence at common law, the Constitution of the 
United States contains no reference to a common law authority. 
Every power in the constitntion was matter of definite and 
positive grant, and the very powers that were granted could 
not take effect until they were exercised through the medium 
of a law. Thou^ congress had the power to make a law 
which would render it criminal to offer a bribe to the com- 
missioner of the revenue, they had not done it, and the crime 
was not recognised either by the legislative or constitutional 
code of the Union, 

In answer to this view of the subject, it was observed, that 
Hie offence was within the terms of the constitution, for it 
arose nnder the law of the United States, and was an attempt 
by bribery to obstruct or prevent the execution of the iaws of 
the Union. If the commissioner of the revenue had accepted 
the bribe, he would have been indictable in the courts of the 
United States ; and, upon principles of analogy, the offence 
of the person who tempted it most be equally cognizable in 
those courts. The proeecation against Qenfield, for serving 
on board a French privateer against the Dutch, was the exer- 
cise of a common law power, applied to an offence against 
the law of nations, and a breach of a treaty, which provided 
no specific penalty for such a case. . 

The court w«*e divided in opinion on this question. In 
the opinion of the circuit jadge, an indictment at 
common *law could not be sustained in the Circuit *333 
Court It was admitted, that congrees were authoi^ 
ized to define and punish the crime of bribery ; but as the 
act charged as an offence in the indictment had not been de- 
clared by law to be criminal, the courts of the United States 
could not sustain a criminal prosecution for it. The United 
States, in their national capacity, have no common law, and 
their courts have not any common law jurisdiction in criminal 



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863 JUEBPR0DENOE OF [Futlt 

cases, and congress have not provided hy law for the offence 
contained in the indictment ; and until the; defined the 
offence, and prescribed the poniahment, he thought the court 
had not jurisdiction of it 

The dietrict judge was of a different opinion, and he held 
that the United States were constitutionally possessed of s 
common law power to punish misdemesnors, and the power 
might have been exercised by congress in the form of a law, 
or it might be enforced in a course of judicial proceeding. 
The offence in question was one against the well-being of the 
United States, and from its very nature cognizable under 
their authority. 

This case settied nothing, as the court were divided ; but it 
contained some of the principal arguments on each side of 
this nice and intereetang constitatioual qneation. 

Li the case of the Umted States v. Burr, which arose in 
the CSrcuit Court of Virginia, in 1807, the Chief Justice of 
Hie United States declared,* that the laws of the several states 
could not be r^^rded as rules of decision in trials for offences 
against the United States, because no man could be con- 
demned or prosecuted in the federal courts on a state law. 
The expression, tridU at oommon law, used in the 84th sec- 
tion of the judiciary act, was not applicable to prosecatious 
for crimes. It applied to civil suits, as contradistinguished 
from criminal prosecutions, and to suits at common law, as 
contradistrnguished from those which came before 
*834 *the court sitting as a court of equity and admiralty. 
He admitted, however, that when the judiciary act, 
sec. 14, authorized the courts to issue writs not specially pro- 
vided for by statute, but which were agreeable to tfuprm- 
ciplea and utagea ofUsw, it referred to that generally recog- 
nised and long established law, which formed the svhatra6am 
of the laws of every state. 

The case of The United Statea v. Hudson cfe Good/toin,^ 
brought this great question in our national jurisprudence for 
the first time before the Supreme Court of the United States. 
The qnestion there was, whether the Circuit Court of the 



• OpimoD ddivend SApteBOier M, 180T, tfiA reporttd hj Mr. XUdiit. 

* 1 Crmei,Si, 



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Lee. XVL] THE UNITED STATES. 363 

United States had a commoii law jurisdiction in casea of libel. 
The defendants had been indicted in the Circuit Court in 
Gonnecticnt, for a libel on the Fresident of the United States, 
and the court waa divided on the point of juriadietion. A 
inajoTit7 of the Supreme Court decided, that the circuit 
courts could not exercise a common law jurisdiction in crim- 
inal cases." Of all the conrta which the United 8tBt«8, an- 
der their general powers, might constitute, the Supreme 
Court was the only one that possessed jurisdiction derived 
immediately from the constitution. All other courts created 
by the general gOTemment poesesBed no jorisdiction bat 
what was ^ven them by the power that created them, and 
could be vested with none but what the power ceded to the 
general govemment would authorize them te confer ; and the 
jurisdiction claimed in that case has not been conferred by 
any legislative act "When a court is created, and its opera- 
tions confined to certain specific objects, it conld not assume 
a more extended jurisdiction. Certain implied powers moat, 
necessarily result to the courts of justice from the nature of 
their institution, but jorisdiction of crimes against the 
state waa not one of them. *To fine for contempt, to *335 
imprison for contumacy, to enforce the observance of 
orders, are powers necessary to the exercise of all other pow- 
ers, and incident to the courts, without the authority of a eta- 
tQt& But to exercise criminal jurisdiction in common law 
cases, was not within their implied powera, and it was neces- 
sary for congress to make the act a crime, to affix a punishment 
to it, and to declare the court which should have jorisdiction. 
The general question was afterwards brought into renewed 
discussion, in the Circuit Court pf the United States for Mas- 
sachusetts, in the case of Tlu Umied State» v. CodUdg6> 
Notwithstanding the decision in the case of The XJj^ied 
i^aie^ V. Hudson <& Ooodiami, the court in Maesachosetts 
thought the question, in consequence of its vast importance, 



' S. p. Infra, p. S«l. Uiiittd SbitM T. B«tuu, p. 8S2. United SlatM t. 
Wiltber^r. tita infra, p. SS4, and Uoitod Stat«« t. Hickemie A QanMTOort. 
Dbliitt Court, Tfav-Tork, Juiiuij lllb, IMS. Id the itstes of Ohio and Loniu- 
ww,it iinnderatood to be held, that there ii im oomoMD law bdictaUe (Aenoe, and 
that ere?; indietkble oCfeMe moat b* groaoded apon (oine etiriate. 

* 1 OaUimtH, 488. 



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861 . jnaSP&TJDBITCB OF [pMt n. 

entitled to be reviewed and again diecossed, especially aa die 
case in the Supreme Court had been decided ■withont argu- 
ment, and hj a majority only of the court. Li this case, the 
defendant was indicted for an offence committed on the high 
seas, in forcibly rescuing a prize, which had been captnred 
hj an American craiser. The simple qneetdon was, whether 
tie Circnit Comrt had jtmadiction to punish offences against 
the United Stat«e, which had not been prerionsly defined, 
and a specific punishment affixed by statute, l^e judge who 
presided in that court did not think it necessary to consider 
the broad question, whether the United States, as a sovereign 
power, had entirely adopted the common law. He admitted 
that the courts of the United States were courts of limited ju- 
risdiction, and could not exercise any authorities not confided 
to them by the constitution and lawa made in pursuance of iL 
But he insisted that when an authority was once lawfully 
given, the nature and extent of that authority, and the mode 
in which it should be exercised, must be r^ulated by die 
mlM of the common law, and that if this distinction was kept 
in eight, it would dissipate the whole difficulty and obscurity 

of the subject. 
•336 *It waa not to be doubted that the constitntion and 

laws of the United States were made in reference to 
Hie existence of the common law, whatever doubts might be 
entertained as to the question, whether the common law of 
England, in its broadest sense, including equity and admiralty 
aa well as legal doctrines, was the common law of the United 
States. In many cases, the language of the constitution and 
laws would be inexplicable without reference to the comm(m 
law ; and the existence of the common law is not only sup- 
posed by the constitution, but it is appealed to for the construc- 
tion and interpretation of its powers. 

It was competent for congress to confide to the wrcnit courts 
jurisdiction of aU offences against the United States ; and they 
have given to it exclusive cognizance of moat crimes and 
offences cognizable under the authori^ of the United States. 
The words of the 11th section of the judiciary act of 1789 
were, that the circnit cotirts should have " exclusive cogni- 
zance of all the crimes and offences cognizable under the aa- 
thority of the United States, except whwethis act otherwise 
provides, or the laws of the United States shall otherwise di- 



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Lw. XVL] THE DHITBD STATES. 365 

rect" This means all crimes and ofTences to which, by the 
Constitution of the United States, the judicial power extends, 
and the jurisdiction could not be given in more broad and 
comprehensive terms. To ascertain what are crimes and 
offences against the United States, reconise most be had to 
die principles of the common law, taken in connection with 
the constitution.* Thus, congress had provided for the punish- 
ment of murder, manslanghter and perjury, under certain cir- 
cumstances, but had not defined thc«e crimes. The 
explanation of them must be sought in and*exclu8ively *337 
governed by the common law; and upon any other 
supposition, the judicial power of the United States would bo 
left in its exercise to arbitrary discretion. In a great varie^ 
of cases, arising under the laws of the United States, the will 
of the le^latm^ cannot be executed unless by tbe adoption 
of the common law. The interpretation and exercise of the 
vested jurisdiction of the courts of the United States, as, for 
instance, in suits in equity and in causes of admiratly and 
maritime jurisdiction, and in very many other cases, must, in 
the absence of positive law, be governed exclusively by the 
common law. 

There are many crimes and offences, such as offences against 
the sovereignty, the public rights, the public justice, the pub- 
lic peace, and the public police of the United States, which 
are cognizable under ita authority ; and in the exercise of the 
jurisdiction of the United Stfites over them, the principles of 
the common law mnst be applied, in the absence of statute 
regulations. Treason, conspiracies to commit treason, embes- 
zlement of public records, bribery, resistance to judicial pro- 
cess, riots and misdemeanors on the high seas, irauds and ob- 
structions of the public laws of trade, and robbery and em- 
bezzlement of the mail of the United States, are offen<;es at 
common law, and when directed against the United States, 
tbey are offences against the United States, and, being offences, 
the circuit courts have cognizance of them, and can try and 
punish them npon the principles of the common law. The 



• Jndge WilaoD, tnhu charga tongrand jur;!!] tlie Circnit Court of tlM UnitAd 
States, ID Virgiaia, in 1791, obMrred, that ire must recur to the commoD kw for 
Uie definition uid deacriptiuQ of dudj mmea aguiMt th« United States. 8m 
WUion-i Worlct, ToL iiL pp. 871—877. 



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866 JURISPBUDENOE OP [Rrt H 

pnnishment must be fine and imprisonment, for it ia a settled 
principle, that where an offence exists to which no specific 
punishment is affixed bj statute, fine and imprisonment is the 
pnnishment. The common law is then to be referred to, not 
only as the mle of decision in criminal trials in tho conrts of 
the United States, but in the judgment or punishment; and 
by common law he meant the word in its largest sense, as in- 

dnding the whole system of English jurisprudence. 
*338 *It was accordingly concluded, that the circuit courts 
had cognizance of fdl offences against the United States, 
and what those offences were, depended upon the common law 
applied to the powers confided to the United States, and that 
the circuit conrts, having such cognizance, might punish by fine 
and imprisonment, where no punishment was specially pro- 
vided by statute. The admiralty was a court of extensive 
criminal, as well as civil jurisdiction ; and offences of admiralty 
jurisdiction were exclusively cognizable by the United States, 
and were offences against the United States, and punishable 
by fine and imprisonment, where no other pnnishment was spe- 
cially prescribed. 

This case was brought np to the Supreme Court, but it was 
not argued. A difference of opinion still existed among the 
members of the court, and, under the circumstances, the court 
merely said, that they did not choose to review their former de- 
cision in the case of The United States v. Hudson tfe Goodwin, 
or draw it in doubt." The decision was for the defendant, 
and, consequently, against the claim to any common law 
jurisdiction in criminal cases. (1) 

These jarring opinions and decisions of the federal courts, 
have not settled the general question as to the application 
and infiueuce of the common law, upon clear and definite 
principles ; and it may still be considered, in civil cases, as 
open for iurther consideration. Theea^oi Hudson A Goodwin 
decided that the United States courts had no jurisdiction given 
them by the' constitution or by statute, over libels ; imd the 



al FnaclranU T. WhceUnc Oix 18 Eaward, Sl>. 



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Left IVL] THE UNITBD STATES. , 367 

case of WorraJl decided that they had no jtmBdiddon in the 
caae of an attempt to bribe a conuniBsioner of the revenue. 
If that were eo, the common law certainly could not give them 
any. The cases were therefore very correctly decided upon 
the principle assumed by the court. But the subeec^uent case 
of Coolidge did not fall within that principle, because 
the offence there charged *w8B clearly a case of ad- *339 
miralty jurisdiction, and the courts of the UnitedStatea 
would seem to have bad general and exclusive jnriedictioii 
over the case. Mr. Du Ponceau, in his " Dissertation on the 
nature and eztentoftbejnrisdiction of the courts of the United 
States," has ably examined the subject, and shed strong light 
OQ this intricate and perplexed branch of the national juris- 
prudence. He pursue^ the distinction originally taken in the 
Circuit Court in Massachusetts, and maintwis, that we have 
not, under oar federal government, any common law, con- 
sidered as a source <jf jurUdictUm.,' while, on the other 
hand, the common law, considered naerely as the mean« or 
itutrutnent of exercising the jurisdiction conferred by the 
constitution and laws of the Union, does exist, and forms a safe 
and beneficial system of national jurisprudence. The eonrts 
cannot derive their rig/U to act &om the common law. They 
must look for that right to the constitution and law of the 
United States. But when the general jurisdiction and au- 
thority is given, ae in cases of admiralty and maritime juris- 
diction, tAe rules of action under that jurisdiction, if not pre- 
scribed by statute, may and must be taken &om the common 
law, when they are applicable, because they are necessary to 
pve effect to the jurisdiction." 

Hie principle assumed by the courts in the cases of Wor- 
roll and of Hudson (£ Qoodimn, is considered to be a safe 
and sound principle. The mere circumstance that the party 
injured by the offence under prosecution was an officer of the 
government of the United States, does not give jurisdiction ; 
for neither the constitution, nor the judicial acts founded upon 
it, gave the federal courts a general jurisdiction in criminal 
c^ea, affecting the officers of govenmient, as fhey have in 



■ Old jutitdulit iota tU,taqiioqiitevi»ei*ianmiiiiaa»r,tiaiquibviiJTiri»dkU» 
ttplieari noi^ foUt. Dig.i.1,2. 



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868 JUBISPRUDENOB OF [Put IL 

caees affecting pablic ministers and consnla. Because 
*340 an officer wa^ appointed under tbo conatitation, *that 

would not (^ Ute^ render all cases in whicK they 
were concerned, or might be affected, cases arising nnder 
the conatitation and laws, and cognizable by the jadiciary. 
finch a wide construction would be transfeiring legislative 
power to the judiciary, and vest it with almost nnliimted 
jurisdiction ; for where is the act that might not, in some dis- 
tant manner, be connected with the constitution or laws of 
the United States? It rests alone in the discretion of con- 
gress, to throw over the persons and character of the officers 
of the government, acting in their official stations, a higher 
protection than that afforded by the laws of the states ; and 
when laws are made for that purpose, t^e federal conrta will 
be charged with the duty of executing tiiem. 

This appears to be sound doctrine, and to be deduced from 
the cases which have been mentioned. There ia mndi weight 
nndoubtedly due to the argument of tlie Circuit Court in Mae- 
sachnsetts ; and an attempt to bribe an officer of the govern- 
ment, or to libel an officer of the government, in relation 
to his official acts, would soom to be an offence agwnst 
that government. They tend directiy to weaken or pervert 
the administration of it ; and if it once be admitted that 
such acts amount to an (^enoeagamit the United States, they 
must of course be cognizable under its authority, and belong 
to the jurisdiction of the circuit courts. The great difficulty 
and the danger is, in leaving it to the court* to say what ia 
an qffm.<x against the UnMed States, when the law has not 
specifically defined it The safer course nndoabtedly ia, to 
confine the jurisdiction in criminal cases to statute offences 
doly defined, and to cases within the etepresB juriBdiction 
given by the constitution. The admiralty jurisdiction of the 
federal courts is derived expressly from the constitution; and 
criminal cases belonging to that jurisdiction by the common 
law, and by the law of nations, might well have been sup- 
posed to be cognizable in the admiralty courts, without any 

statute authority. If the common law be a rule of de- 
*341 cision in the exercise of tiie *lawful jurisdiction of the 

federal courts, why ought it not to apply to criminal 
as well as to civil cases, and upon the same principle, when 
jurisdiction is clearly vested) If congress should, by law, 



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Iw. XTL] THS USITSD 8TAT3S. S69 

anthorize the district or circuit courts to take . cognizance of 
attempts to bribe an officer t^ the govermnent in tbe exercise 
of bis official trnst, and shonld make no farther proviuon, tbe 
ooortB would, of course, in the deecription, definition, prose- 
cntion and punishment of tbe offence, be bound to follow 
^oee general principles and usages which are not repugnant 
to tbe constitation and laws of die United States, and which 
constitute the common law of tbe land, and form the basis of 
all American jorisprndence. Though the judiciary power of 
the United States cannot take cognizance of offences at com- 
mon law, unless they have jurisdiction over the person or 
subject matter given them by the constitution or laws made 
in pursuance of it; yet, wbentbejurisdictioiiiB once granted, 
die common law, under tbe correction of tbe constitution and 
statute law of the United States, would seem to be a necessary 
and a safe guide, in all cases, civil and criminal, arising under 
the exercise of that jurisdiction, and not specially provided 
for by statute. Without such a gnide, the courts would be 
left to a dangerous discretion, and to roam at large in the 
trackless field of their own imagiuationB.' 



■ MiXitary and nawal ermia and o^meti, commitMd «Mte tbe part^ u kttacbad 
to, twd under the imnMdiato anlhorit; of tbe umf or utj of tli* Uoitad States 
kod ID actual Krrk^ are not coguiiable under the eomnoii km juiiadictioi] of tlM 
courts of the UoiCed SCatM. "Die; are Dot ioduded Id tbe judidarj act of 34tb 
September, I7BEI. Hey are cognkaUe id the miliUry and nand eonrta-mMtial 
ioititutvd nnder the acti of ooDgrau. Tb« Circuit and Diatrict Coorb of tbe 
Uiuted Blatca have do erimioal jorbdictioa bat what a ezpreidf conferred opoa 
tbem b; itatute. United Statu t. EadsoD, T OowA, Si. Unit«d State* t. 
BeraD^ B W/imIoh, BS6. WaahiDgtoo, J, in HouitoD t. Hoore, fi Whiaton, i9. 
SerjeanCt CinutUitlioiul Zaw, ISl, (let edit.) nib nipni, p. SE4, aDd if/fa, pp. 
Ses, S68, 804. It aeemed, boverer, to be left ae so nDMltled queation, in tbe 
caae of the Uoited States t. McKeniie^ '^fia, p. 8S3, whether tbe military aod 
naval ourte of tlie Uoited State*, and the oourti of civil juriediction, had aiiiciirrmi 
povrera ia queetiona of tbe above naturi^ oDder the acta of congreaa If they liad, 
BO acquittal by a conrtmarlkl vonld be a bar to aoy criminal proceeding In any 
other court, lor do peram is to be put in jeopardy twice for the tame offaiee. The 
better opinion io that case woold also be, that a proMCDllon, instituted and pend- 
ing before a naval tribunal, would be a good plea in ataimatl of any prosecatjoa 
subsequently Itutitutcd in a national dvil court of erimioal jurisdiction; for it 
VDuld be unjust, abaord and impracticable, to have a trial for the same crime goin|[ 
on at the same time in two diatinet co-ordinate trilxuiala, ooder tbe aame govein- 
meaL The one that flnt take* cogninuM* of the ««■«, attaobea to itaelt of conrM^ 
'exclusive jnrisdictioa See ia/Vo, vol. u. ISS — lit. The soonder doctrine, bov- 
ever, i^ that the act of ooogresi of April itd, 1800, a.8t,erMliDt;ai>avBlc<>de«f 

Vol. I. 24 



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/ 



870 jmuspunsBiraE of [Put n. 

AnjUMODB The Bnpreme Court of the United States, in Bdbmton v. 

in» uinS Omn^fbdl,' went &r tovards the adminion of the existence 

and application of the common law to civil cases in the fede- 

ralcourta. Tbejndiciaiy actof 17S&liad declared,'' that the 



martial Ut for tlia trial of oiniM lod offniow aomiiutt«d in tlM unl wnic*, 
wttbdrev tbt MgiuaDM of Crimea m Um oaTkl aerriM frmi oouita of dT3 jnria- 
dietioD, tod placed tlioii trchahtly in oonria-martial, acting inidw a dittinct atid 
ptonllar code, and which Lord Htnafiald Unnad "aaeanulitarjaodaiWUdi Iba 
wiidom of agea had fbnned." Tliat act of congnaa q>adfied psitieolar ofaoM 
oogniaaUe bf naral oomta-maitial, and alw d«eUr«d, that all oimea cotmniUed by 
penoDa bdoDging to the navj, and not therein ipecifitd, aboold b« ptmisbtd 'so- 
conStjg to the lava and cuitoiai In nicfa caaei at «e»." IlieapinioDaof LordMana- 
Aald and Lord Longtiborm^ in Jduutona t. Snttoo, 1 lirm IL MS, contain 
[oiDciplea which go laz, by th^ maatcri; atrength, to estaliliah the neoenity and 
jnatioa of the eidiuive Joriadictioa of the military tribuoali, b caati of Crimea 
committadia tbenaral aerrica; for it ia in that aerrice that eommanden moat act 
* DpOD deticate auapidona — npon tb« eridenoe of their own ejej — that they moat 
glTo deeparate oommanda ; — that they moat reqoir* inatmtMiaotu obadlMKa ; — and 
a militaiy (ribona] ia capable of fading all theaa dromnataneeai* He further 
obwrrea, that ** where a man ia barged witt on c^mce agajnat the artide^ cr, 
vhere the artidea are ailent, againat the naagea of the navy, be can only be tried 
by a ooDrt-martiaL" Tbt 4tb aection of the act of oongreaa of ManJi Sd, 192S, c 
SIS, commonly called the ciimea act, at ami to be eaaentially a ropetitiaa of the 8th 
aeetiini of the act of Mngreee of April lOlli, lion, e. 86, and that proridoa did not 
apply to the navy of the United States, tor it withheld that txprtu JuritJicliim to 
the coorta of the Uinted State* which the eases already dt«d wonld aeem to re- 
qalraL We wonM bare expected eom« ezpreaajmiadictiongiTCD to the dTJloonrta 
orer oimeaataeain the Uoited States' DaTy,»lt«r the enactment of the naval code 
«f IBOO.aod tbaepedfiGpniTinoaa therebfor the pooidmieiit of crimes oommitted 
in die naTy, by naval oourta-nurtial, if inch had been the policy and inttotioo of 
file law. Not only a aoaad oooetnietkiii of tbe statute law, bat the ^adpline and 
effideocy of the naTal military serrice, etrongly auatain thia coikdnnon. It ia not 
a question nweeptible of doubly that congrcas may, mider the oonatitotion, oonfer 
npon conrts-martial in tbe army and navy the trial and pnniahment of crimes, capi- 
tal and atbarwise, Ibr they are authoriied "ta make rules for tbe goTcmment and 
regnlatioQ of the land and naval forces ;' and casta ' ariung in the laud and naval 
fbrcea" are excepted from the provision, that ' no pcnoo sball be held to aoawer 
for a eaptal or olberwise iofamons crime, nnlcaa od a prescntmeDt or indictment of 
a grand jmy.' Jft/ilory law is a system of regnlationa for tbe government of the 
armies ia tbe eWviea of tbe United Btatcs, authorized by tbe act of congrees of 
April 10th, 1804, and known aa tbe arfidu ofttar. And navel law is a similar 
aystoD for tbe govermnent of the navy, noder the act of congret* of April SSd, 
ISOOv Bnt martM law Is quite • distinct tbii^, and a fbonded on paramount 
neeesdly, and proclaimed t^ a mflitary diieC In the case of Captain HcEemie, 

■ S Wifton, S19. ID AidL 169, S. P. 
k Art !4tb SeptMnber, 1189, c SO. sac. t(. 



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Im.XTL] the nSITBD OTATEB. 871 

laws of the general Btatea, except where the conatitntton, trea- 
ties or statntes of the Union otherwise required, should be 
regarded as rales of decision m trialt at common law in the 
conrta of the United States, in cases where they applied.' 
The Bubseqaent act of May 8th, 1793, for regulating pro- 
cesses in the courts of the United States,'' confirmed. 
*" the forms of writs, executions uid other processes, *84S 
except their style, and the forms and modes of pro- 
ceeding then used in suits at common law in tiie federal 
courts, and declared that the modes <^ proceeding in suits in 
eqaitr should be according to the principlea and usages ot 
courts of equity." But all these forma and modes were to be 
" subject to such alterations and additions as the said courts 
respectively shonld, in their discretion, deem expedient, or to 
auch regulations as the Supreme Court of the United States 
should thiuk proper from time to time to prescribe to any 
drcoit or district court concerning the Bame.*'o Under those 



aboT* «tlud«d Ut, the Mib)«<t of jari 
boUiuf the Ciretdt Oomt of tbt UiuKmI Stataa u NrvToA, HiidiSOdk, IBM; 
(U. S. T. UcEmwK 1 a; K ZvoJ OiMiiMr, STl i) wd, aaw a povofiil dhtnaioa, 
b« iiHtroctad and timgti tki gnml jwy, tbat tb* jmUiMloD of tit* na**l cooit- 
martial wu axdoaTt, (ad tt»i die dvil tribonala had do jiaivlMtian in tb« «aM «f 
Oaptaio UoKeui^ tiua oo trial id Uw harbaw of Ifvir-Yark, before a naral aomt- 
KMutiol, aa a cbaig* of mmler od the hi^ laa^ on board A* United State* tloop 
of war Somen, b; hanging tiirea of the cnw lor motu^. (1) 

• Till* proriuoa WMJni^lfcaMa Lo.thei>nK<M(ofUi*natkiDaleoiiit^aDdoid;r 
fanudieaarule togniile theminthefiinnaliDDof th^jodgmeot*. Id theeate^ 
SwiftT. TjBaD,Sap.0oDrtU.ai«/>4<<r^ Ji.l,itTaBd*dd«),tb«t the itaMa 
<«ily extended to the atatntei and pennaoeDt local iwigw of a etate, and Ih* ei 

itructiou ibereof adopted bj tba local b 

eetate*, and tu other tn 
chaiacter. It did n 

' Ch.3e.Mc3. 

• TheaetofooivreMofUarlBtl^lSM.e.SB.Kndercdthefbimaofmeaiepetf 
eeea, except the itjla and the fnmi and nudee of prooeecUiig ia the fadwal eonrta 
in thoM itatea adnuttad into Iha Uuod anoa Bepteniber SKh. 1199, oonfcmabla 
to the Baprema Doort* of law artd equit; in tboao statea-, ud declared tint viili 
of execution, aad other final prootM in the fedeiBl oourte, ehonid, taetft ai ti> 
■tjis, be the lame in ea^ Mate ai vera then (May, lets) need in the ooorta of aodi 



(t) Tmpui BUT l" nuloleliKd tn Ute elate oaaiM *|aliHl a wrel oDau' ta fflepUj imnH 
tnf eod tmpriKaieg one of Ui rabardliulai, Ihoaih Ika aelni dom 00 Ibe hlgb MMi and sate 
HMOokworaaTaldlMlpllne. Wnwa t. MaafceaHe, T gBTt J. JB. 



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JURISPRVDrarOE OF 



piovisioDB, the conrt declared, in the case last referred to, dut 
the remediea in the federal coorts, at common law and in 
equity, were to be, not according to the practice of state 



ibttw, and wttb pwer in tha federal ooiuto, in tbeir diMnluoi, to klter thdr fioil 
proeeM m br m to txa&mi it to Uu fatnre cbai^M io tbit proeaM in the atata 
eoDit*. The practice of die eapreme court* of tha lUta in uuJK&pfentifr.nsS, 
waa adopted, aatgect to altcntioiia, bj the federal ooocta. 1 Fain^i Sep. 428, itt, 
Wajmaii t, Sontlianl, 10 Wheaton, 1. SI, 82. Bl. Bank of Uiiited SlatM t. Hal- 
riMd. 10 Wtualim, Bl. 1 PrUr^ ar. Sep. 1. Bean t. HaogtiteD, S P«(«rV K fi. 
£<p. 8S9. BBS — S61. lluaa modea and Ibniu of pmoee&ig retnaiii mufleetad bf 
■uUaquent itolf trgtdaliont on tbe aobjact, for tlM act of coogreai did not adi^ 
proepectivelj lucb alteratioiia as the >tal«« might «ft«^ard« make. I«oe t. Town- 
tend, Wan'* Rrp. iBS. Springer t. FoM«r, 1 Blarjfi R. 601. Socb putaoDlyof 
tha laviof aitata m are applicable to the coortaof the TTuitad States, art adopted 
bj thaprocaaaactofcaDgreM. A jMuIty ii Na< ailo^«( being one given agMiiat 
a iheriff b de&ult. Qwjd t. &cedkiTe, S EotKrd U. B. Etp. SB. Mr. Jottke 
Stoiy doubted wbether eoDgreaa poaaeaaed coDatitational authcoily to adopt, jrr»- 
tpietivdy, atata l^iiUtion od on; gifeo antgect S Bvkiut, S6E>. When, tfaera- 
ftva, the elate of Taonaaaaa, by ac^ b IStO, allowed landa lold mi execution to ba 
redaamad en eertain tarma, it wai held that landi thereafter aold an execution under 
ftdanl pfnrflM. ware not redeemable under tbe ptorioona of tbe atatute, for atate 
Iffpalatioa caniiDt ktarfera wilh the poeeaa of the fMeral courts Folk r. Dong- 
Um, 4 r<nyn-, t09. Boaar.DuTal, 18 Pat«rt,U,aP. The feder^oourta follow 
IhedaoinoiiBof the atate coorts DU tha eoDitnictian of rtateUwiS unless they ootne 
in eoofliet with the oooatitotini or laws of (he United Statn. 10 Whtatim, IfiB. 
1 PvtUi Btp. 664. Thar (oUow, alao, thoaa aUtutea of tha aareral state* wbidi 
prescribe mlaa ofeTidoice in ciTil caaea, in trial* at oommoD law. M'Ndi t. Hol- 
brook, 18 FtUrt, 64. Tb« atate laws which are mad* mice of dedmon in tha 
ftdaral oomts, ar* tboas which apply to r^h^ of penon and proper^. Vuted 
Btate* T. Vonwo, 1 OoU, 18. Hayar t. Ponllmd, 4 W*A. dr. Btp. 84S. 8m, 
alao, tfi/Va, voL ir. ST8, note. State law* limtftn^ acticoa and exaeotioiisoo jod^^ 
ment* are nlaa of property, and baoom* rule* of deduon b tbe federal conrta. 
BoasT.DnTBl, UPa«n,ifi. ^ act of coogreaa of August !8, 184!,c.l88,Ib« 
Bnprem* Oonrt ha* power to praacribe, ngnlat* and alter the forma of proceaa b 
tha District and CSronit Ooorta, tbe fonna of pleading b aoita at common law, or ia 
admintty, or m eqni^, and of taking taatimonj and of eotviug decree^ and 
genetally to regulate the whole pnctioe of the courts. The mla of praetiiit b 
admiral^ oaan, on tha inetanoa dde of the District Oonrt, were eetabliiiied b pnr- 
■oanca of the act of ISd August, 1641, c 188. flea tho*e rtilea ioSif.T. Ligii 
Obtntr, SK. With raapact to the common kwaa a part of federal jariaprudeoee^ 
the Supreme Oonrt dedared, b Wbaaton *. Donaldsoo, 8 Peters' A. SES, that there 
could not be a comnun law oflha United States. Eadi of the atatea hat its local 
usages, custom* and eommon law. Tlere was no principle whidi perradet tbe 
Umim, and bat Ih* anthoriCy of law, that ia not amboiSed b the constitutkn and 
lava of the Union. The eommon law could bemade a part of our federal system 
imly by legislatiTe adoption, and vben a eommoti law right it aaaerteil the conrta 
look to the state b which the controTersy originated. 



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Jm, ZTI] THE XTRITED 8TATBS. fftZ 

courts, <* but according to the principles of common law and 
equity, as distiiigniBhed and defined in Uiat country, from 
which we derived onr knowledge of those principles."' 

In this view of the snbject, the common law may be cnlti- 
vated as part of the jnrisprndence of the United States. In 
its improved condition in England, and especially in its imr 
proved and varied condition in this comitry, under the beni^ 
inflaence of an expanded commerce,of enlightened justice, of 
republican principles, and of sound philosophy, the common 
law has become a code of matured ethics and enlarged civil 
wisdom, admirably adapted to promote and secure the free- 
dom and happiness of social life. It has proved to be a sys- 
tem replete with vigorous and healthy principles, eminently 
conducive to the growth of civil liberty ; and it is in no in- 
stance disgraced by such a slavish political maxim as that 
with which the Institutes of Justinian are introduced.^ It is 
the common jurisprudence of t^e United States, and 
was brought with them as "colonists front England, *848 
and established here, so far as it was adapted to onr 
institutions and circumstancea. It was claimed by the con- 
gress of the United Colonies, in 1774, as a branch of those 
" indubitable rights and liberties to which the respective colo- 
nies are entitled."" It fills up every interstice, and occupies 
every wide space which the statute law cannot occupy. Its 
principles may be compared to the influence of the liberal 
arts and sciences ; adveraia perfuffium ao talaiium prabent , 
ddeotani dotm, non impediwU /oris ; pemoeiant noHsoum, 
pereyrinantw, mstieantur. To use the words of the learned 



> Hkh^ tbsn ba no aqnitr sUU OMirti, tl«t doM Dot {MTwt Ot* cundM of 
•qoity JorudietioD Id tha oanrti of Um 0iiit«] SUtcai thqr adopt and IbtlDW the 
«qiutf JuiupnuleoM exutiiig in Boglaiid. lie Diibict Oonrt of LuiUHaa* bu 
wonxlbgly «quitj powen, and it Ii bonod to procaed in (qdtj owm* Hcordiiig to 
the prinnplee, mlel aod uagM trbkh Iwloiig to Uie omrte of aqnl^, H conti*di»- 
liiigutdMd from oonrte of eaaaaao k«. Qaine* t. V££, IS PffW U.&B^t. 
Lonnan t. Cluka, a JTcXms'i A SflB. fill. (1) 

' Quad prindpipUaml, legit habttvi^mrft. JWlL I, S. & 

' DnUrati^Hof RiflkU^ OetcitrHlKlll*- JovmtU »/ Qh^"^ ^"^^ 
p. SB. 



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871 JVRE3PKUDBN0E OF [PntIL 

Jurist, to wKom I have already allnded,* "welivein the midst 
of the commtui law, we inhale it at every breath, imbibe it at 
every pore ; we meet with it when we wake and when we lay 
dowD to sleep, when we travel and when we stay at home ; 
and it is interwoven with the very idiom that we speak ; and 
we cannot leatn another system of laws, withont learning, at 
tibe same timd, another langua^." 

n. ^e jorisdlction of the federal conrta rations persona- 
rum, and depending on the relative oharacter of the litigant 
parties, has been, the anbject of much jndioial discnseion. 
Th« oonstitstioii gives jniisdiction to the federal oonrts of all 
Baits between aliens and citizaiB, and between resident citi- 
zens of different states, >> and we have a series of judicial de- 
cisions on that snbject. If Uie case arises nnder the eonstitn- 
tion, laws or treaties of the Union, it is immaterial who may 
be parties, for the sabject matter gives jurisdiction; and if it 
arises betweui aliens and citizens, or between citieens of dif- 
ferent states, H is immaterial what may be the nature of the 
controversy, fdrlbe character of the parties gives jnrisdiction. 

In Singhaitn v. C<Aot,o the Supreme Conrt held, that it 
was neceesary to. set forth tite citizenship of the re- 
*844 speetive ^parties, or the alienage, vriien a foreigner was 
concerned, bypositive averments, in order to bring the 
case within the jorisdiction of the Oircmt Coort ; and that if 
tliere was not a snfficient allegation for that purpose on re- 
cord, no jurisdiction of the enit would be sustained. He 
same doctrine was maintained in Twn«r v. £kimUe,^ and in 
Tamer v. T?u Sank of North America}' and it was de- 
clared, that tiie Circuit Conrt was a court of limited jurisdic- 
tion, and had cognizance only of a few cases specially cir- 



* i>ui>DN«M«MJiin«iMiois]).Sl. So^ rIm, 1 Aory*' Onnt. <M fib CbiuK- 
fHtloi^ 140, 141. ToLlLp{i.sa4— SflB. Hia loaned eommtntabir, in th« toIohm 
hat dtsd, aUj, uid, b nj apaaaa, MtU&etorily eoDtcodi tint the oomnoii l««, 
Id tlMibMOMof potilhr* rtatatalaw, NgiiUlM^tiitMpreUHidoonlToliUw powcn 
and dotie* of Uie Oooit of InpcadimcDU nndv tlw CnutilatioD of iIm Umt«d 
8tatM; aod dioagfa Um oomoioa hw tamot be tba fcooiUtioD ofa jnriidklkio not 
girto b]r tb* eouititatioa and ]air%thatJariti&tiaii,vlicaglTeD,BUBcbeB, aod la to 
ba eunbad aacxmliiig to ttte nilea of dia oommon law. "Wtn it otbenriaa, there 
mold bemttdng toerempt naftomanabaidDtedsapatiMnofopinlMaod praetloe. 

* Laaiaa of Brtlar t. yamaworth. 4 IKwk. Rr. Atp. 101. 

* Bi)aIIw,SBI. < 4i>aUa^l • iAidlS. 



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Lm. ZVI] THB TTNITXU ffTATXS. 07K 

eomBtanced, and tliat tKe fair preaiimptioQ was, that a canaa 
VB8 wiUioiU its joiisdictioii till thecontrary appeared. Upoa 
that principle the mle vaa founded, makiDg it ueceBsBi7 to 
Bet forth, np<ni tliia record of the Circnit Ooart, the i*«t8 or 
oircumstaiicea which gave jariBdietion> either exprewly or in 
aoch manner to render them certain by legal intendment 
It is necessary, therefore, TPher« the def^daot appeai* to be a 
citizen of one itate, to show, by averment, that ^e plaintiff is 
a citizen of some other state, or an alien ; or, If .the rait be 
upon a promissoiy note, by tiie aidorsee, to show that the 
ori^nal payee was so ; fi)r it ia his deeotiption, as well as that 
of the ^doraee, which gives the jarisdictlon, . Bat an alien 
cannot sae a <atizen in tbeOironit Ooort of the United States, 
if Ihe latter be at the tame a resident in a fiireign . coniUry, 
notwithstanding he has. property in the distridt which mi^ 
be attached. No oompnlsory proceaB, under the judiciary act 
of 1780, lies against a person who is not at .the time an in- 
babhant o^ or is not fbond in the cGstidGt in which the pro* 
eesB issues. This goes to exolode frcon the federal cooria the 
proceeding by foreign attachment under the local laws of Uie 
states.' 

The jodiciary act of 1788, sec. 11, g