Imagens das páginas
PDF
ePub

princes of Europe how can they deny each other a thing which even the barbarous states of Africa allow to those who make treaties with them?

172. In order to procure all possible security in time of war to maritime commerce, the increase of which constitutes at present one of the most important objects to all states bordering on the sea, it would be a great advantage for all the states of Europe, and a work well worthy of their sovereigns to have a general code composed of the law of war and marine, wherein the rights of belligerents towards neutral merchant vessels should be punctually determined, and just limits fixed to their too extensive pretensions. The universal law of nations not authorizing any thing of all that belligerents undertake against the merchant vessels of neutral nations, under pretext of the law of nations, namely the seizure and confiscation of contraband and enemy goods in neutral vessels, and neutral goods in enemy vessels, it would be no more than just to restore to neutral merchants the natural rights which have been banished from them by an unjust usurpation. The consent of the maritime powers of the first rank would be in this the principal affair. But might it be hoped from their generosity and humanity that they would prefer yielding to evident equity, to sustaining a right unjust to be sure, but of which they have been in possession for some ages? If unfortunately this hope prove vain it would be necessary to be contented with stipulating that the ancient usage so inconvenient to traders, to stop neutral vessels at sea, to examine them on presumption of their being laden with enemies' goods, and finally to seize them, be abrogated, and that the new principle according to which free ships make free goods, should on the contrary be every where received, and by all European states. Thus the avidity of cruisers would be restrained. They could not require of neutral vessels but the exhibition of their passports and sea-letters, and they would have no pretext for seizing them, nor sending them into port for judicial examination. The subjects of trading neutral states would from this obtain the great advantage of being

able to continue their course by sea without interruption, and without being involved in tedious and expensive proceedings before the belligerent tribunals, where they have nothing to expect but a certain and very considerable loss. Above all such a new regulation would be advantageous to the commercial cities of the empire of Germany, and to others which suffer most in time of wars, their sovereigns having no maritime forces for their protection.

173. Although the belligerent parties by this change of principles and usages would have to lose their pretensions on enemies' effects on board of neutrals, this loss is compen- sated by the seizure permitted of neutral goods on board enemy vessels: and besides that they retain the right to seize the munitions of war which they should find in neutral vessels destined for enemies' countries and ports. The universal law of nations not permitting either the one or the other, it is a great condescension for neutrals to acquiesce in this, and to regard it as a sacrifice to the necessity in which they find themselves to choose the least of two inevitable evils. In fact it is extremely mortifying for neutral states to be obliged to acknowledge laws so hard and so prejudicial to their rights of sovereignty and to the maritime commerce of their subjects; which on the other hand is very advantageous for belligerents having thus acquired possession of rights to which otherwise they would have no pretence. They may content themselves with these advantages, the more as commonly they compose only the smallest part of the European states, whereas the neutrals compose the greatest. It is more agreeable to equity and reason that the true and incontestable rights of the greater number should precede the ill-founded and problematical pretensions of the lesser; especially in consideration of this that the former lose a great deal by the restriction of their rights, and the latter gain a great deal by the extension of their pretensions. The cause of those who strive only to shun damage is always more favourable than that of those who covet very great and extraordinary advan tages, to the prejudice of another.

THE JUDICIARY OF CONNECTICUT.

HAVING recently made an arrangement with Mr. Day, of Connecticut, in consequence of which a portion of his reports will be published in this Journal, it is deemed proper, by the Editor, to give a brief view of the most important part of the judiciary establishment of that state.

The present organization of the Supreme Court of Errors of the State of Connecticut was established by the legislature of that state, in May, 1816. This court consists of all the judges of the Superior Court.

The superior court consists of one chief judge and eight assistant judges, who annually divide themselves into three branches; and the several counties in the state being divided into three circuits, one branch is assigned to each circuit. In all the counties a circuit court is held twice a year. This court has civil, criminal and chancery jurisdiction, and, in its several capacities, determines, by the aid of a jury, auditors, referees, or commissioners, when necessary or proper, all issues in law and in fact.

There are two terms of the supreme court in a year, which are held, in the months of June and November, at Hartford and New Haven alternately. In technical strictness, this court has cognizance only of writs of error, brought to revise the judgments of the superior court; but as all the individuals composing the former are judges of the latter, a convenient opportunity is afforded, while they are thus assembled, for hearing argument on motions for new trials and cases stated. These, of course, occupy a considerable portion of the term. The opinions of the judges upon them are given, by way of advice, to that branch of the superior court before which the cases are respectively pending; but this advice is always followed, and is considered as settling the law.

The judges for the years 1811, 1812 and 1813 were, the hon. Stephen Mix Mitchell, chief judge, and Tapping Reeve, Zephaniah Swift, John Trumbull, William Edmond, Nathaniel Smith, Jeremiah G. Brainard, Simeon Baldwin, Jonathan Ingersoll, judges.

CONNECTICUT.

SUPERIOR COURT, JUNE, 1811.

Robert Peck against Isaac Lockwood.

The right to take shell-fish on the land of an individual, between high and low-water mark, is a common right.

THIS was an action of trespass, quare clausum fregit.

The declaration stated, that the defendant entered upon the plaintiff's land, dug up the soil, and destroyed the sedge, herbage, &c. growing thereon, and took therefrom great quantities of oysters, clams, and other shell-fish.

The land described in the declaration, consisted of a tract of upland, and about seven acres of sedge flats contiguous thereto, which were overflowed at high water, but which were above low-water mark, so as to be entirely overgrown with sedge.

On the trial of the cause, it appeared that the defendant, at the time mentioned in the declaration, entered upon such flats, at a place where clams are usually taken, for the purpose of digging clams, and dug and carried away about half a bushel; in doing which he necessarily dug up a part of the sedge there growing, after having been expressly forbidden by the plaintiff.

The plaintiff, in proof of his title to the land mentioned in the declaration, exhibited two deeds; one executed to him, in

1784, by Jabez Ferris, and the other in 1789, by Titus and Charles Knapp. The description of the land conveyed by the first deed, being a part only of the premises, is in the following words, viz. "bounded east by Timothy Knapp's land, south by the water, west by said Peck's own land, north by Joseph Sacket's land." The description in the second deed is in these words, viz. "bounded north by the Reeds' meadow, so called, easterly and southerly by the cove, so called, and westerly by said Peck's land, in part, and partly by Sacket's land."

It was admitted that the grantors of the plaintiff owned all the land included in these deeds; but it was contended, on the part of the defendant, that the words "southerly by the water," in the first deed, and the words "easterly and southerly by the cove," in the second, could not legally be so construed as to include the sedge flats. The plaintiff also proved that he, and those under whom he claimed, had, for more than forty years before the bringing of the suit, annually, and exclusively of all others, cut and taken off the sedge growing on such flats. To rebut the presumption arising from this fact, of a title in the plaintiff, by possession, and to establish the right of the defendant to take the clams in question, the defendant proved, that the inhabitants of the town of Greenwich, and other places, had, without molestation, from the first settlement of the country, at proper seasons, entered upon such sedge flats, and dug and carried away the shell-fish, and had also removed so much of the sedge as was necessary for the purpose of taking such shell-fish.

The plaintiff then offered to prove, that such persons, in going to the flats before mentioned, and other parts of the sea-coast, for the purpose of taking shell-fish, proceeded either by water, or upon the land mentioned in the declaration, and other lands of the plaintiff, and of other persons. This evidence was rejected by the court as immaterial; it being agreed, that the defendant was not guilty of any other tres

« AnteriorContinuar »