character to be conferred by it; in other words, he is not an alien, but a natural-born subject?

The latter appears to me the just conclusion; and I shall accordingly say, with confidence, that there is the authority of the lord-chancellor in cases of denization, and of the two houses of parliament in cases of naturalization, for the proposition, that birth out of the king's allegiance, is the only circumstance which constitutes an alien. We may be sure such forms would not have been settled and constantly acted upon, if they were not known to be required by the general law of the land. Indeed, it is nothing more than the definition of alien laid down in all the books, whether elementary or practical; the following examples are sufficient:

Natural-born subjects, are such as are born within the dominion of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the king; and aliens, such as are born out of it.-[Blackstone, 1 book. ch. 10.]

An alien is one, who is born out of the ligeance of the king.[Comyn's Digest. article, alien.]

An alien, is one born in a strange country.-[Bacon's Abridgement, article, alien.]

And thus I conclude this discussion, as I began it; relying upon established and known positions of law for maintaining juridical truth, against hypothesis and the speculations of political reason. ing.

March 24, 1809.

!

NEW YORK. DISTRICT COURT, U. S.

[Property belonging to an enemy, which is brought within the territory of the other belligerent, after the declaration of war, and in ignorance of the fact, is lawful prize;-though it be in a vessel, and under the flag of the captor; --what constitutes a domicil so as to avoid the character of an alien enemy.]

Charles Johnson, on behalf of himself, officers and crew of the private armed vessel the Tickler, vs. 21 bales, 28 cases of merchandise, and 2708 bars of iron, goods and merchandise, claimed by Robert Falconer, for and on behalf of John Richardson.

VAN NESS, f. This case will first be considered as it is disclosed by the ship's papers, and the preparatory examinations, and then will be examined the defence arising out of the further proof that was ordered and produced.

It appears by the papers, that the property in question was laden on board the ship Mary and Susan, at Liverpool, in England, some time in the month of July, 1812.

That the Mary and Susan is an American registered vessel, and that she sailed from Liverpool on the 16th July, 1812, on a voyage to New York, with these goods on board, and under a charter-party to John Richardson, styling himself an English merchant, residing in Liverpool.

That she had a license on board, obtained from the British government, to protect her against capture by British cruisers. That at the time of her departure information of the hostilities existing between the United States and Great Britain had not reached England.

That on the 3d September, 1812, she was captured as a prize by the privateer Tickler, and brought into the port of New York. The position in which she was taken is not ascertained with precision. It is differently stated in the preparatory examinations which have been read, varying from 18 to 30 miles south of the light-house.

It is also in evidence, that John Richardson, the person in whose behalf these goods are claimed, is a native subject of the king of Great Britain, but a naturalised citizen of the United States.

The national character of Mr. Richardson is the principal ground on which this cause must be decided; but before I proceed to consider that, to examine the effect of his naturalization here, and of his subsequent residence in England, with the explanation given of it, by the further proof which was ordered and produced, I wish to dispose of some other questions which were first raised as principal grounds of defence, in a preceding cause, and also relied on in this.

It has been insisted, that this property was confided to the faith of the government, because laden on board an American vessel before the commencement of hostilities, and proceeding to its destined port in ignorance of that event.

2d. That it was captured within the territorial waters of the United States; thus under the protection of the government, and not subject to be made prize.

3d. That it was exempt from capture, because proceeding in an American vessel, and under the American flag.

In examining the points which have been stated, it will be necessary to advert to some general principles of the law of nations. In doing this, it will not be requisite to notice particularly its divisions into necessary, voluntary, conventional, customary or positive. The law of nations, without defining or developing its divisions more minutely, may be stated to be the law of nature, rendered applicable to political societies, and modified, in progress of time, by the tacit or express consent, by the long established usages and written compacts of nations: usages and compacts become so general, that every civilized people ought to recognise and adopt their principles.

A principle which is deducible from natural reason, and firmly established by the primitive law of war, the general law of nations, in which is not embraced, the conventional or customary law, is,

That as soon as war is declared, all the property of the enemy or his subjects, wherever found, whether on the land or on the water, is lawful prize. This position, it is presumed, will not be contested. It is laid down in terms thus broad by all the

late as well as the early publicists. By Grotius, lib. 3, ch. 8 and 5. Puffendorf, ch. 8. Bynkershoeck ch. 2. Vattel, ch. 5. lib. 3. Martens, lib. 8, ch. 2.

If then, enemy property under any circumstances be exempt from the rigorous operation of this principle, the exemption must be found in the conventional or customary law. That the rigour of this, fundamental law has been relaxed by the express agreement of some nations, the tacit acquiescence and consequent customs of others is freely admitted. The severity of the laws of war, and the stern exercise of many belligerent rights, have been gradually modified and ameliorated as civilization and refinement diffused their influence over the nations of the earth; national humanity has kept pace with the progress of science and religion, which gradually infused the benignity of their principles into the whole system of national intercourse. The enlarged views and intellectual improvements resulting from the one, gave efficacy to the precepts of the other, which taught all people that public, like municipal laws, were to be administered, not only in justice, but in mercy.

It was about the middle of the 17th century, that these enlightened views, were matured into a decisive and practical influence on the conduct of belligerent powers: that the ferocious and sanguinary spirit, which had uniformly distinguished national conflicts began to abate: that war became more a contest between governments, than nations, between monarchs contending for political supremacy, with objects more direct and definite, than individual calamity. The petty pillage of a town and the oppression of individuals, whom accident or the pursuit of fortune, had placed within his power, ceased to add to the laurels of the prince, or the splendor of his throne; and this new view of national honor and magnanimity, this revolution in moral feeling, produced a correspondent revolution in the practice, if not in the laws of war.

This, too, was an important epoch in the history of European commerce. Ever since the reign of Elizabeth, England had taken a conspicuous part in the politics of Europe. That active princess entered with spirit into the affairs of the continent, for the express purpose of extending the trade and commercial connexions of her kingdom. The impulse generated by her measures, continued and extended its influence through the whole of

the 17th century-and it was soon perceived, that a more liberal policy, towards each others' subjects, at the commencement of hostilities, was necessary to the safety and convenience of commercial enterprise. To all the views and feelings, therefore, resulting from the increased wisdom and refinement of the times, were added the powerful motives of direct and evident interest. That commerce might be beneficial, not only to individuals, but to the revenues of the state, it was necessary that those engaged in it should pass freely from one country to another, and dwell with safety wherever their pursuits might lead them. If, in times when princes were as capricious, when wars were as frequent quite, and undertaken for causes as trivial as at present, these excursions were to have been attended with captivity and confiscation, it is easy to perceive the evils that would inevitably interrupt the progress of the commercial system then contemplated and began.

In the progress of social improvement, therefore, we find the source of the desire to remedy these commercial embarrassments, and in that desire the proximate cause of the practice which now generally prevails among belligerents, of exempting from seizure the persons, and from confiscation, the effects of each others' subjects, within their respective territories, immediately on the commencement of hostilities. The form in which it first appeared, was that of giving notice to alien enemies to depart with their goods, and stipulations to this effect are first found in treaties made soon after that of Munster in 1647-8. During the violent and complicated wars, terminated by that convention, the property of hostile individuals, as usual, had been confiscated; but by the 24th article, restitution was agreed upon. And in the treaty made seven years afterwards between Cromwell and Lewis XIV, it was agreed, that in case of war, the merchants of the contracting powers should have six months to depart with their effects. This is the first stipulation of the kind I have found in a treaty.

I am aware that in England, some regulations favourable to the freedom of commercial pursuits had been adopted at an earlier period, as appears by the 30th chapter of Magna Charta, and a statute passed in the reign of Edward III. But these were local and municipal regulations, and failed to produce an immediate or decisive effect on the customs of Europe, although