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We ask leave here for a transient

CHAPTER XXII. deviation from our plan, merely to insert a note of Mr. Duponceau's in

The United States have been no which, with a national pride we hear.

less disturbed, than, as we are intily reciprocate, he notices the de.

formed by Bynkershoek, many of the cided superiority of the reason given

European states formerly were, by by judge Johnson, of the Supreme

disputes concerning the expatriaCourt of the United States, over that

tion of citizens, and extradition of given by lord Ellenborough, for the

deserters, which, together with the capture of a neutral for having vio

right of enlisting men in foreign

countries, are the subjects of this lated his neutrality.

22d chapter. Of all the points in “According to the above decisions, the

controversy between Great Britain capture of neutral vessels br the cruisers of Great Britain or her co belligerents, is

and the United States, this is the considered as a prohibited risk, because,' one least susceptible of any settlesays lord Ellenborough, “it is repugnant to tlement, and most liable to vexatious the interest of the state, and has a tendency difficulties, of perpetual recurrence. to render the British operations by sea As Bynkershoek is very satisfactory ineffectual.' Kellner v. Le Mesurier, 4

in all his views of this particular, we Easi, 402. This is certainly correct, on the ground of state policy; but, another rea. abstain from any comment, and son, founded on the broad basis of the leave him to the reader. law of nations, is afforded by our own judge Johnson (one of the judges of the “I enter upon the discussion of a ques. supreme court of the United States, and tion which has been, and is still, the cause presiding judge of the courts which com. of much disturbance in many of the king. pose the 6th federal circuit) a neutral,' doms and states of Europe: Whether it is says he, who is captured for having vio. lawful to enlist men in the territory of a lated his neutrality, is considered by the friendly sovereign : Let it not he imagined belligerent as an enemy waging an indivi- that I mean to contend, that it is lawful to dual war against his nation, and is aban- entice away soldiers, by bribes or solicitadoned by his own government as such. tions, from the service of another prince, in Rose v. Himely, Bee's Admiralty Reports, order to enlist them into our own. I know $22 It follows, from this principle, that too well, that those who promote deserall risks of capture, by the armed vessels tion, are not less guilty, and do not deof the nation to which the ensurer belongs, serve a less punishment than the deserters may be properly classed within the gene themselves;t and, indeed, among some ral prohibition against ensuring enemy's nations, that crime has even been conproperty. And, indeed, according to the strued into high treason. The question formula which is used at present by the which I am about to investigate, is of a courts of admiralty of Great Britain, what. quite different nature. It is, whether a ever may be, in point of fact, the speci. prince may, in the territory of a friendly fick ground of condemnation of a neutral sovereign, enlist private individuals who vessel or cargo, no other reason is assigned are not soldiers, and make use of them in in the decree, but that it belonged, at the war against his own enemies? It is certime of capture, to the enemies of that tain, that if a prince prohibits his subjects country.-Horne's Compend. 148."

from transferring their allegiance and en

* The important question respecting the delivering up, or as it is called, the extra. dition 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 Gali. ani distinguishes and contends, that if the army from which the soldiers desert is on the neutral territory at the time when the desertior 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 consi. dered as a violation of the laws of hospitality-Galiani, De' doveri, &c. d. 1. c. 8. 94. T. tering into the army or navy of another means of procuring an honest livelihood. sovereign, such sovereign cannot, with and why may he not do it by entering into propriety, enlist them into his service; the land or sea service? In the United but, where no such prohibition exists (as Provinces there is certainly no law to preis the case in most of the countries of Eu vent it, and many Dutchmen, formerly, rope) it is lawful, in my opinion, for the as well as within my own recollection, subject to abandon his country, migrate have served other sovereigns by sea as into another, and there serve his new so. well as by land.” vereign in a military capacity “ It is lawful, I repeat it, if there is no

Thus with fidelity and impartia. law that prohibits it, for a subject to lity, the utmost merits to which we change his condition, and transfer his al. aspire, we have reviewed this translegiance from one sovereign to another. lation, which well deserves to be The writers on publick law are all of this entitled a treatise, chapter by chapopinion; nor does Grocius dissent from

ter, exhibiting such prominent feathem; but he adds, that expatriation is not lawful among the Muscovites; and

tures as in our opinion, deserved to we know, that it is unlawful also among be displayed; and extolling those the English and Chinese. We know like. principles of international law, which wise, that Louis XIV. king of France,* it appears to have been the obiect declared, by an edict of the 13th of August of both the author and translator to 1669, that those of his subjects who

inculcate, and which we conceive it should, without the permission of the go. yernment, emigrate from his dominions, both the interest and honour of this with the intention never to return, should country to defend and maintain. We be punished with the forfeiture of life and should not have been so patriotick, if goods. Before that period, it was lawful the intrinsick worth of those princito emigrate from France, and it is so ples were not as clear, as is their wherever the country is not a prison.t And if it is lawful for a subject to pass

identity with the neutral policy of under the dominion of another prince, it the United States: and we are cermust be so likewise for him to seek the tainly 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 esta. blished-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 Reporis, 153.-" That a man,” said judge Iredell, “ought not to be a slave; that he should not be confined against his will to a particular spot, because he happened to draw his first breath upon it; that he should not be compelled to continue in a society to which he is accidentally attached, when he can better his situation elsewhere; much less where he must starve in one country, and may live comfortably in another; are positions which I hold as strongly as any man, and they are such as most nations of the world appear clearly to recognise. The only difference of opinion is, as to the proper manner of exercising this right.” Ibid. 162. Judge Cushing concurred in the general principle, that expatri. ation is lawful, and approved of the doctrine laid down on this subject by Heineccius, logium, because a sense of propri- of the original, by enlarging his ety and the spirit of patriotism hap- notes, and indulging himself in any pen exactly to coincide. We will such transposition or phraseology, as now briefly notice such demerits as will make the style and even the appeared in the retrospect. There are work his own. in the book itfelf some assertions, to In the 4th chapter the Latin word which we cannot subscribe; but as mores is given by the English word their authority is imposing, and to manners; a meaning, which howecontradict them would have opened ver it may sometimes be proper, too long a discussion, they were not does not belong to it in this place. noticed. But with the tiunslation we Bynkershoek's expressionis « in ipso may be more free. In the first place Belgio Federato leges moresquc rethen we will observe that though pugnare, abunde persuadebunt, quæ fidelity is indispensable, we would hoc et sequenti capite proxime di. have been better pleased if in this centur," which is thus translated by instance it had been less adhered to, Mr. Duponceau, " what I shall say because Mr. Duponceau has great in this and the next chapter will funds of his own, and need not abundantly prove that this custom is have feared to draw on then. We repugnant to the laws and manners trust that the reception of this work of the United Provinces.” In the will be such as to induce him to fa- beginning of the 5th chapter 6 mo. vour us with others of the same ribus gentium obsolevisse" is again character. And if a future opportu. translated “ have become obsolete nity should offer for improving this, by the gradual change of manners." we respectfully suggest that it might In both these instances the English be done, by not only, as he almost term should be usage or practice. apologises for doing, shortening The Latin root mos, and the French Bynkerhoek's Ciceronian periods; word maurs branch, in English, into dividing his paragraphs; and ad- two distinct terms, morals and man. justing his phrases to our idiom; ners, perfectly distinguishable in but, provided he preserve the spirit our acceptation. In the beginning of

Elem. Jur. Nat. et Gent. I. 2. c. 10. “But,” said he, “the act of expatriation should be bona fide, and manifested at least by the emigrant's actual removal, with his family and effects, into another country.” Ibid. 169. In the case then before the court, no such removal had taken place.

In that of Murray v. The Charming Betsey, it was decided, that a citizen of the United States who has bona fide expatriated himself, is to be considered as an alien for commercial purposes. One Shattuck, a natural born citizen of the United States, had, for many years, resided with his family, and had been naturalized in the Danish island of St. Thomas. It was objected to him, that he had traded from that island with the French colonies, in fraud of an act of congress, by which all trade was interdicted to the citizens of the United States, with the dominions of France. But the court were of opinion, " that an American citizen may acquire, in a foreign country, the commercial privileges attached to his domicile, and be exempted from the operation of the general prohibitory laws of his native country.” The court did not, however, determine, whether a citizen of the United States can devest himself absolutely of that character, otherwise than in such manner as may be prescribed by our own laws, nor whether his expatriation would be sufficient to rescue him from punishment, for a crime committed against the United States. 2 Cranch's Reports, 120.

And lastly, in the case of M'Ilvaine v Cox's lessee, it was determined that a citizen of New Jersey, who had gone over to the enemy during the revolutionary war, and had, since that time, remained in England, enjoying the privileges of a British subject, bad not ceased to be a citizen of New Jersey, and was entitled to claim lands by descent, in that state, because several laws had been made by its legislature, some before and others after his emigration, by which emigrants of that description were declared to be fugitive citizens and traitors, punishable as such, but were not considered as aliens. Cranch'. Reports, vol. ii. p. 280. vol. iv. p. 209.

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the 5th chapter “ quam in rem," is read neither; to the statesman and translated whereupon," concern. the politician, the lawyer and the ing which" we suggest as prefera- jurist, the merchant and the man of ble. In the 8th chapter “edicti de leisure, we recommend this work, criminibus" is translated “criminal as containing, in a convenient space, edict;" an expression, which excites more useful knowledge of the laws an ambiguous idea, and for which of war and peace, that is to say of might be substituted penal edict, or the laws of nations-a more satisedict concerning crimes.

factory exposition of those principles, But upon the whole the transla. which however for the moment drition, though somewhat too precise, ven out of view, must reappear, is very correct--the style as flowing grow with the growth of reason and easy, as a jurisprudential style and good sense, and particularly well can be, and the entire execution strengthen with the strength of the of the performance such as to com- United States of America, certainly mand full approbation. We strong than any other in the English lanly recommend every man who has guage, and probably in any language read Lee, as soon as possible to whatever. read Duponceau. To such as have

FROM THE EDINBURGH REVIEW.

Remarks on the System of Education in Publick Schonls, 8vo. London, 1809.

THERE is a set of well dressed, In arguing any large or general prosperous gentlemen, who assem- question, it is of infinite importance ble daily at Mr. Hatchard's shop; to attend to the first feelings which clean, civil personages; well in with the mention of the topick has a tenthe people in power; delighted with dency to excite; and the name of a every existing institution; and al- publick school brings with it imme. most with every existing circum- diately the idea of brilliant classical stance; and, every now and then, attainments. But, upon the impor. one of these personages writes a lit- tance of these studies, we are not tie book; and the rest praise that now offering any opinion. The only little book, expecting to be praised, points for consideration are, whether in their turn, for their own little boys are put in the way of becoming books; and, of these little books, good and wise men by these schools; thus written by these clean, civil and whether they actually gather, personages, so expecting to be prai. there, those attainments which it sed, the pamphlet before us appears pleases mankind, for the time being, to be one.

to consider as valuable, and to de. The subject of it is the advan- corate by the name of learning. tage of publick schools; and the au. By a publick school, we mean an thor, very creditably to hiniself, ri. endowed place of education, of old dicules the absurd clainour, first set standing, to which the sons of gen. on foot by Dr. Renuel, of the irre. tlemen resort in considerable numligious tendency of publick schools. bers, and where they continue to He then proceeds to an investiga reside, from eight or nine, to eightion of the effects which publick teen years of age. We do not give schools may produce upon the moral this as a definition which would have character; and here the subject be- satisfied Porphyry or Duns-Scotus; comes more difficult, and the pam• but as one sufficiently accurate for phlet worse.

our purpose. The characteristick fea.

tures of these schools are, their anti. · hereafter, nor does it bear any relaquity, the numbers, and the ages of tion to it. He will never again be the young people who are 'educated 'subjected to so much insolence and at them. We beg leave, however, to caprice; nor ever, in all human propremise, that we have not the slight- bability, called upon to make so est intention of insinuating any thing many sacrifices. The servile obedi. to the disparagement of the present ence which it teachres, might be usediscipline or present rulers of these ful to a menial domestick; or the ha. schools, as compared with other : bits of enterprise which it encoutimes and other men. We have no rages, prove of importance to a reason whatever to doubt that they military partisan; but we cannot see are as ably governed at this, as they what bearing it has upon the calm, have been at any preceding period. regular, civil life, which the sons of - Whatever objections we may have gentlemen, destined to opulent idleto these institutions, they are to ness, or to any of the three learned faults, not depending upon present professions, are destined to lead. administration, but upon original Such a system makes many boys construction.

very miserable; and produces those At a publick school (for such is the bad effects upon the temper and dissystem established by immemorial position, which unjust suffering alcustom) every boy is alternately tye ways does produce; but what good it rant and slave. The power which does we are much at a loss to conceive. the elder part of these communities Reasonable obedience is extremely exercises over the younger, is ex. useful informing the disposition. ceedingly great, very difficult to be Submission to tyranny lays the founcontrolled, and accompanied, not dation of hatred, suspicion, cunning, unfrequently, with cruelty and ca. and a variety of odious passions. price. It is the common law of the We are convinced that those young place, that the young should be im- people will turn out to be the best plicitly obedient to the elder boys; men, who have been guarded most and this obedience resembles more effectually, in their childhood, from the submission of a slave to his mas- every species of useless vexation; ter, or of a sailor to his captain, and experienced, in the greatest dethan the common and natural defer- gree, the blessings of a wise and ence which would always be shown rational indulgence. But even if by one boy to another a few years these effects upon future character older than himself. Now, this sys. are not produced, still, four or five tem we cannot help considering as years in childhood make a very conan evil, because it inflicts upon boys, siderable period of human exist. for two or three years of their lives, ence; and it is by no means a trimany painful hardships, and much fling consideration whether they are unpleasant servitude. These suffer- passed happily or unhappily. The ings might, perhaps, be of some use wretchedness of school tyranny is in military schools; but, to give to trifling enough to a man who only a boy the habit of enduring priva. contemplates it, in ease of body and tions to which he will never again tranquillity of mind, through the be called upon to submit, to inure medium of twenty intervening years; him to pains which he will never but it is quite as real, and quite as again feel, and to subject him to the acute, while it lasts, as any of the privation of comforts, with which he sufferings of mature life: and the will always in future abound, is utility of these sufferings, or the surely not a very useful and valuable price paid in compensation for them, severity in education. It is not the should be clearly made out to a conlife in miniature which he is to lead

VOL. V.

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