often excepted, when the enemies are besieged by our friends, or are otherwise pressed by famine. The law has very properly forbidden our supplying the enemy with any of those things; for it would be, as it were, making war against our friends. Therefore if we consider the belligerents merely as our friends, we may lawfully carry on trade with them, and carry to them any kind of merchandise, but if we consider them as the enemies of our friends, those merchandises must be excepted, by means of which they might injure those friends; and this reason is stronger than the former; for in whatever manner we may assist one against the other, we do interfere in the war, which is not consistent with the duties of neutrality. From these reasons may be seen which had the most justice on its side, the edict of the Spaniards of the 30th of March 1639, or that of the states-general of the 3d of March, 1640, of both of which I have spoken above." As respects contraband, Bynkershoek is very explicit and very reasonable. In truth, it is not his least merit, that, without seeming to concede any thing to either party, he mostly recommends that medium, which ought to be unobjectionable to both. "It is denied that the subject of an ally or confederate, trading with a common enemy, may be punished by us, or his property condemned; because it is said that every one is bound only to obey the laws of his own sovereign, and therefore that an ally can have no control over him. But reason, usage, and publick utility, are opposed to that decision." But the belligerent assertion, which by its enormity, has swallowed up all others, is that of blockade; a principle, in itself so plain, that two unprejudiced minds can hardly differ about it. Yet it is the construc tive extension of this principle, so clear when confined to its legitimate bounds, so clearly a wrong when exceeding them, that has unhinged the established laws and usages of nations and of ages. Bynkershoek, in the main, supports those sentiments, that are most prevalent on this point, for the theory is too plain for à cavil. "I have said in a former chapter, that by the usage of nations, and according to the principles of natural reason, it is not lawful to carry any thing to places that are blockaded or besieged. Grotius is of the same opinion; for he reprobates the carrying any thing to blockaded or besieged places, if it should impede the execution of the belligerent's lawful designs; and if the carriers might have known of the siege or blockade, as in the case of a town actually invested or a port closely blockaded, and when a surrender or a peace is already expected to take place." Indeed, it is sufficient that there be a siege or blockade to make it unlawful to carry any thing, whether contraband or not, to a place thus circumstanced; for those who are within may be compelled to surrender, not merely by the direct of provisions and other necessaries. If, application of force, but also by the want. therefore, it should be lawful to carry to them what they are in need of, the belligerent might thereby be compelled to raise the siege or blockade, which would would be unjust. And because it cannot be doing him an injury, and therefore be known what articles the besieged may want, the law forbids, in general terms, carrying any thing to them; otherwise disputses and altercations would arise to which there would be no end." * Si juris mei executionem rerum subvectio impedierit, idque scire potuerit qui advexit, VT SI oppidum obsessum tenebam, si portus clausos, & jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpá dato, ut qui debitorem carceri exemit, aut fugam ejus in meam fraudem instruxit; si damnum nondùm dederit, sed dare voluerit, jus erit rerum retentione eum cogere ut de futuro caveat, obsidibus, pignoribus, aut alio modo. If he (the carrier) should by his supplies impede the execution of any lawful designs; as if I kept a town besieged or a port closely blockaded, and I already expected a surrender or a peace; he will be liable to me for the damage occasioned by his fault, in like manner as he who should make my debtor escape out of prison, or aid him in his flight to defraud me of my right: and if he has not occasioned to me any actual damage, but has been willing to do it, in that case, it will be lawful by the detention of his goods, to compel him to give security for the future, by hostages, pledges, or in some other way. Grot. de J. B. ac. P. 1. 3. c. 1. § 5. n. 3. So much has been said and written on this subject of late, that we cannot presume to tax our readers with a renewal of the irksome discussion. Every one knows that a blockade, by law and common sense, must be actual and enforced: but every one likewise knows that overwhelming power, the intoxication of success, and desperation of disaster, have driven off what ought to be, and substituted what is, a system of paper, that enchains the world more effectually than cannons, fleets, and armies. Before we leave this class of chapters we must not forget to remark that Bynkershoek, in the 6th, quotes the answer of a Roman emperour to the king of Persia, in these words: Qui enim Dominus est ejus qui imperat, quomodo nec Dominus erit ejus quod ei subest? which Mr. Lee translates [page 98] "How is he master of him, who commands, when he is not to be master of that, which is subject to him?" which being exactly what the original does not mean, Mr. Duponceau has taken care [page 48] to set it right. CHAPTER XIII-XIV. To the advocates of neutral rights these chapters are peculiarly gratifying. They discuss the belligerent claims to neutral goods found on board enemies' ships, and enemies' goods found on board neutral ships; and after an analysis of the law, deduced from treaties, writers, and usage, and a luminous development of the abstract merits, conclude by an expression of the author's opinion, in both cases, against those unjust pretensions, which have been occasionally advanced by powerful belligerents, in moments of triumph or pressure; but upon the injustice of which all writers, at least, are agreed. The first has never been so much contested, as the second, the long agitated question whether free ships make free goods, about which so many swords and so many pens have been brandished, so much blood and ink have been spilt. The basis on which Bynkershoek leaves it is unexceptiona bly just, and should be universally satisfactory. But we especially rejoice at the unqualified and quasi territorial property of ships, which is established by the coincident opinions of Hubner and Byknershoek, as explained by Mr. Duponceau. "We will now proceed to consider the second question, whether the enemy's goods themselves, taken on board of a Some will wonder, perhaps, that any doubt neutral vessel, are liable to confiscation. should be entertained about it, as it is clearly lawful for a belligerent to take the property of his enemy. And yet, in all the treaties which I have cited in the prepress stipulation that enemy's goods, ceding chapter [p. 103] there is an exfound on board of neutral vessels, shall be free;' or (as we commonly express it) that free ships shall make free goods, except, however, contraband of war, when carrying to the enemy. And what will be thought treaties, there are four to which France is more astonishing, is, that among those a party, and, according to them, even enemy's goods, laden on board of neutral vessels, are not liable to confiscation; much less, therefore, ought the neutral vessel to be confiscated, on board of which they are shipped. So that it must be said, either that the principle of the old French law, which I have above mentioned, has been entirely abandoned, or, what is more probable, that those treaties are to be this may be, we are bound, in the discusconsidered as exceptions to it. However sion of general principles, to attend more to reason than to treaties. And on rational grounds, I cannot see why it should not be lawful to take enemy's goods, although found on board of a neutral ship; for in still the property of his enemy, and by the that case, what the belligerent takes is laws of war, belongs to the captor. "It will be said, perhaps, that a belligerent may not lawfully take his enemy's goods on board of a neutral vessel, unless he should first take the neutral vessel itself, that he cannot do this without committing an act of violence upon his friend, in order to come at the property of his enemy, and that it is quite as unlawful as if he were to attack that enemy in a neu. tral port, or to commit depredations in the territory of a friend. But it ought to be observed, that it is lawful to detain a neutral vessel, in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves which are on board, whether she is really neutral. If she appear to be such, then she is to be dismissed, otherwise, she may be captured. And if this is lawful, as on every principle it is, and as it is generally practised, it will be lawful, also, to examine the documents which concern the cargo, and from thence to learn, whether there are enemy's goods concealed on board, and if any should be found, why may they not be captured by the law of war? The Dutch lawyers, whose opinion I have already cited, and the Consolato del Mare, in the chapter above referred to [Consil. Belg, ubi supra] are equally clear upon this point. According to them, the neutral ship is to be released, but the enemy's goods are to be carried into a port of the captor, and there condemned." Here again we are obliged to expose Richard Lee, esq who ushers in the 14th chapter with the following formidable absurdity: Si navis amici [says B.] mei hostium res vehat, et capiatur, duplex erit inspectio; altera, an ipsa navis amica, altera an res hostiles recte publicentur ! "If the ship of a friend [says L.] carries the goods of an enemy, this occasions a double inspection-one whether the ship itself belongs to my friend, the other, whether the enemy's goods may be rightly condemned?" Without the aid of the original, this would be unintelligible: and with that aid it is plain Mr. Lee has totally mistaken and perverted his author. CHAPTER XV-XVI. The law of Postliminy, explained in this chapter, is mostly of municipal regulations. CHAPTER XVII-XVIII XIX-XX. These chapters are fraught with useful learning on subjects of every day's occurrence in all maritime countries; learning, which is more applicable now in Great Britain and the United States, than it was in Holland at the time of publication; because of the vast progress of maritime adventure since then They treat of pirates and privateers, of the forum for the punishment of the first, and of the relative rights and liabilities of the latter, their owners and associates; altogether of municipal cognizance, and therefore not to our present purpose. CHAPTER XXI. Ensurance of enemy's property and the conclusiveness of foreign sentences, which are the subjects of this chapter, are also without the scope of our design. We will therefore content ourselves with expressing our unfeigned joy that these once sturdily asserted doctrines are now nearly exploded, and on the high road to overthrow and obilvion, consummation of justice to which the authority of Bynkershoek availed much in England, and we will add, the labours of Mr. Duponceau have not been in vain in America. It is worthy of observation, that our author, while he supports the belligerent principle, on the long agitated question, whether free ships "do or do not make free goods," tacitly admits that neutral vessels are entitled to be considered as neutral territory, a prop sition which Mr. Hubner thought so self-evident, that he did not think it worth while (though he professedly wrote in favour of the neutral doctrine) to devote a single page of his work to its proof and development. Hubn. de la Saisie, &c. vol. 1. p 211. This principle being admitted, the question is reduced o the single point: "Whether the right of taking enemy's property on board of neutral vessels, necessarily follows as a consequence of the right of search, for the purpose of ascertaining their neutral character." On this point alone, the whole of our author's argument turns, and he maintains the affirmative; but like Hubner, he takes his proposition for granted, without taking any pains to demonstrate it. On the whole, he must be considered as having made a very important concession in favour of neutrals; and having greatly narrowed for them the field of that celebrated controversy. T. We ask leave here for a transient deviation from our plan, merely to insert a note of Mr. Duponceau's in which, with a national pride we heartily reciprocate, he notices the decided superiority of the reason given by judge Johnson, of the Supreme Court of the United States, over that given by lord Ellenborough, for the capture of a neutral for having violated his neutrality. "According to the above decisions, the capture of neutral vessels by the cruisers of Great Britain or her co belligerents, is considered as a prohibited risk, because, says lord Ellenborough, it is repugnant to the interest of the state, and has a tendency to render the British operations by sea ineffectual. Kellner v. Le Mesurier, 4 East, 402. This is certainly correct, on the ground of state policy; but, another reason, founded on the broad basis of the law of nations, is afforded by our own judge Johnson (one of the judges of the supreme court of the United States, and presiding judge of the courts which compose the 6th federal circuit) a neutral,' says he, who is captured for having violated his neutrality, is considered by the belligerent as an enemy waging an individual war against his nation, and is abandoned by his own government as such.' Rose v. Himely, Bee's Admiralty Reports, 322 It follows, from this principle, that all risks of capture, by the armed vessels of the nation to which the ensurer belongs, may be properly classed within the gene. ral prohibition against ensuring enemy's property. And, indeed, according to the formula which is used at present by the courts of admiralty of Great Britain, what ever may be, in point of fact, the specifick ground of condemnation of a neutral vessel or cargo, no other reason is assigned in the decree, but that it belonged, at the time of capture, to the enemies of that country.-Horne's Compend. 148." • CHAPTER XXII. The United States have been no less disturbed, than, as we are informed by Bynkershoek, many of the European states formerly were, by disputes concerning the expatriation of citizens, and extradition of deserters, which, together with the right of enlisting men in foreign countries, are the subjects of this 22d chapter. Of all the points in controversy between Great Britain and the United States, this is the one least susceptible of any settletlement, and most liable to vexatious difficulties, of perpetual recurrence. in all his views of this particular, we As Bynkershoek is very satisfactory abstain from any comment, and leave him to the reader. "I enter upon the discussion of a question which has been, and is still, the cause of much disturbance in many of the kingdoms and states of Europe: Whether it is lawful to enlist men in the territory of friendly sovereign: Let it not be imagined, that I mean to contend, that it is lawful to entice away soldiers, by bribes or solicitations, from the service of another prince, in order to enlist them into our own. I know too well, that those who promote desertion, are not less guilty, and do not deserve a less punishment than the deserters themselves; and, indeed, among some nations, that crime has even been construed into high treason. The question which I am about to investigate, is of a quite different nature. It is, whether a prince may, in the territory of a friendly sovereign, enlist private individuals who are not soldiers, and make use of them in war against his own enemies? It is certain, that if a prince prohibits his subjects from transferring their allegiance and en †The important question respecting the delivering up, or as it is called, the extradition of deserters from one country to another, has been the subject of much controversy in America as well as in Europe, and is not yet at rest. It has been but slightly touched upon by some of the writers on the law of nations, and by others not at all. Vattel says nothing upon it. Hubner lays it down as a general principle, that "a neutral sovereign may receive in his dominions, and even among the number of his subjects, deserters from either of the belligerent armies, unless he is obliged to deliver them up by a special convention, called a cartel. 1 Hubn. De la Saisie, &c. p. 39. But Galiani distinguishes and contends, that if the army from which the soldiers desert is on the neutral territory at the time when the desertion takes place, as for instance, if it has been allowed the right of passage, the neutral sovereign is bound to deliver up those who have deserted their colours within his dominions; otherwise, it will be considered as a violation of the laws of hospitality.—Galiani, De' doveri, &c. l. 1. c. 8. § 4. T. tering into the army or navy of another sovereign, such sovereign cannot, with propriety, enlist them into his service; but, where no such prohibition exists (as is the case in most of the countries of Europe) it is lawful, in my opinion, for the subject to abandon his country, migrate into another, and there serve his new sovereign in a military capacity "It is lawful, I repeat it, if there is no law that prohibits it, for a subject to change his condition, and transfer his allegiance from one sovereign to another. The writers on publick law are all of this opinion; nor does Grotius dissent from them; but he adds, that expatriation is not lawful among the Muscovites; and we know, that it is unlawful also among the English and Chinese. We know like wise, that Louis XIV. king of France,' declared, by an edict of the 13th of August 1669, that those of his subjects who should, without the permission of the government, emigrate from his dominions, with the intention never to return, should be punished with the forfeiture of life and goods. Before that period, it was lawful to emigrate from France, and it is so wherever the country is not a prison.† And if it is lawful for a subject to pass under the dominion of another prince, it must be so likewise for him to seek the means of procuring an honest livelihood, and why may he not do it by entering into the land or sea service? In the United Provinces there is certainly no law to prevent it, and many Dutchmen, formerly, as well as within my own recollection, have served other sovereigns by sea as well as by land." Thus with fidelity and impartiality, the utmost merits to which we aspire, we have reviewed this translation, which well deserves to be entitled a treatise, chapter by chapter, exhibiting such prominent features as in our opinion, deserved to be displayed; and extolling those principles of international law, which it appears to have been the object of both the author and translator to inculcate, and which we conceive it both the interest and honour of this country to defend and maintain. We should not have been so patriotick, if the intrinsick worth of those principles were not as clear, as is their identity with the neutral policy of the United States: and we are certainly rather the warmer in our eu * This edict was made with a view to the Protestants. It was in the same year that * Louis the XIV. began to violate the edict of Nantz, by abolishing the chambres miparties, tribunals consisting of judges of both religions, which that edict had established-Hénault, Abregé de l'Hist. de Fr. sub anno 1669. He foresaw the immense emigration which its final repeal would produce, and thus vainly endeavoured to prevent it. T. By the first constitution of Pennsylvania, made on the 28th of September, 1776, it was declared, [c. 1. § 15] "that all men have a natural, inherent right to emigrate from one state to another that will receive them." 1 Dallas's Laws of Penn. Appen. p. 54. The present constitution merely provides [art. 9. § 25] "that emigration from the state shall not be prohibited." 3 Dallas's Laws of Penn. p. xxii. The question, "whether it is lawful for a citizen to expatriate himself," has been brought several times, and in various shapes, before the Supreme Court of the United States. It was made a point, incidentally, in the case of Talbot v. Jansen, mentioned above. [p. 136] In that case, it appeared to be the opinion of the court, that expatriation is lawful, provided it is effected at such time, in such manner, and under such circumstances as not to endanger the peace or safety of the United States. "The cause of removal," said judge Patterson, "must be lawful, otherwise, the emigrant acts contrary to his duty, and is justly charged with a crime. Can that emigration be legal and justifiable, which commits or endangers the neutrality, peace, or safety of the nation of which the emigrant is a member?" 3 Dallas's Reports, 153.-"That a man," said judge Iredell, "ought not to be a slave; that he should not be confined against his will to a particular spot, because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere; much less where he must starve in one country, and may live comfortably in another; are positions which I hold as strongly as any man, and they are such as most nations of the world appear clearly to recognise. The only difference of opinion is, as to the proper manner of exercising this right." Ibid. 162. Judge Cushing concurred in the general principle, that expatriation is lawful, and approved of the doctrine laid down on this subject by Heineccius, |