stances of time, place, persons, &c. Such was the case of the Seven Bishops. They were charged, as has been before observed, with a libel, in presenting a petition to the king, conceived in terms of the most respectful loyalty. To petition the crown was the right of the subject, and as the petition carried not with it its own evidence of a guilty intent, or pernicious tendency, these were facts necessarily inquirable into by the jury. But is the case before us thus circumstanced? Will any one, uninfluenced by the strongest party prejudice, say, that a charge against the highest officer of our government, unpalliated by the shadow of lawful excuse, of employing a base assassin to stab the reputation of a man justly esteemed the pride and ornament of his country, does not carry with it conclusive evidence of a most malicious and seditious intention? I think it can admit of no doubt.

To the objection, that the judge ought to have declared the law to the jury, and submitted it to them, together with the fact, it is a sufficient answer, that the defendant thought proper to carry his cause before a tribunal constituted for the trial of issues of fact alone, where it is the invariable practice to reserve all doubtful pointsTM of law for a decision at bar. In the present instance, there was a peculiar propriety in adopting this course. For had a different one been pursued, and the defendant been acquitted, from the mistake of the judge in point of law, the error would have been irremediable, and the public justice defeated.

Had the examination I have given this subject, eventuated in a conviction that I had mistaken the law, I should, without hesitation, have renounced my error. The result being the reverse, and it being the duty of a

NEW-YORK,

1804.

The People

V.

Croswell.

1804.

NEW-YORK, judge to pronounce the law as he finds it, and to leave the alteration of it, when found inconvenient, to that The People body to whom the constitution has confided the power of legislation, I am constrained to declare, I think the defendant not entitled to a new trial on either of the grounds on which his motion is rested.

V.

Croswell.

The facts of this case may be learned from the fol- NEW-YORK, lowing decision.

Dicision of VAN NESS, J. The orders to hold the defendant to bail in these cases were granted on the exhibition of several affidavits, stating the defendant to be an American citizen, and to have been concerned, sometime in the year 1816, in fitting out and arming a brig, or vessel, called the Fourth of July, or El Patriota, within the limits of the United States; to have proceeded in her to sea, and, under the flag of the government of Buenos Ayres, to have cruized against the property of the subjects of the king of Spain, and to have captured merchandize to a large amount, belonging to the individuals in whose behalf these suits have been instituted by the Consul of his Catholic Majesty. At a subsequent day, the defendant, by his counsel, ap plied for, and obtained an order, directing the plaintiff to show cause why he should not be discharged from custody on filing common bail. The application was founded on and supported by the defendant's affidavit, stating, that he was born a subject of the king of Great Britain, but was now, and had ever since the year one thousand eight hundred and thirteen, been a naturalized citizen of the United Provinces of South America. support of this last fact he produced his certificate of naturalization. He farther stated, that at the time he took the command of the aforesaid vessel, he was, and still is, an officer in the naval service of that government, and verified that fact by the production of his commissions; one of which bears date so early as the year 1814. He denied also all participation in fitting out or arming the said vessel; and alleged, that in his public capacity, as an officer of the government of Buenos Ayres, he had

In

1818.

Stoughton

V.

Taylor.

1818.

Stoughton

V.

Taylor.

NEW-YORK, purchased, and contracted for the delivery of the said vessel, at some place beyond the limits of the United States. That she was accordingly delivered to him more than a marine league from the coast of the United States, and produced a bill of sale, dated at sea, to verify the fact. The counsel for the plaintiff strenuously opposed the reading of this affidavit, on the ground, that according to the practice of the Supreme Court of this state, where the debt is positively sworn to, no counter affidavit can be received. This, to be sure, appears to be the practice of our Supreme Court, derived from the King's Bench. In the Common Pleas of England it is not so. There, counter and contradictory affidavits are received, and the matter of bail held examinable in that way. But whatever may be the practice of these courts, this is a case to which the rule does not and cannot apply. This is not an action of debt, or of assumpsit: it is founded on an alleged trespass: the acts complained of are not denied, but justified; and whether the defendant is at all liable to arrest for having committed them, is purely a question of law-a question depending, not on the laws of any particular country, but on the public law of nations; and on which I think the party is entitled to a decision in this stage of the proceedings; the more so, because in this action bail is not a matter of course, and it lies with the plaintiff to show himself entitled to hold the defendant in custody. This affidavit being re ceived, farther time is asked, to show, by supplementary affidavits, that although the defendant, as he has stated, may be a native of the island of Bermuda, and may have been thus born a subject of the king of Great Britain, yet he is a citizen of the United States by naturalization. The time required to substantiate this fact hav

1818.

Stoughton

V

Taylor.

ing been allowed, farther affidavits have been produced NEW-YORK, by both sides in relation to this point. I shall not examine them minutely, because, on farther reflection, I do not consider the fact material. If the defendant was ever a citizen of these states, he is no longer so. If the right of expatriation was ever exercised by any individual, it certainly has been by him. If the exercise of that right can ever be effectual, it must be so in this

case.

The occasion will not permit me to go into a full examination of the principles of public law in reference to this right of expatriation. I think, however, that it can be maintained under the established law of nations, and even by the laws and the practice of those who have become the most strenuous advocates, for what may be termed the modern doctrine of perpetual allegiance-a doctrine which grew out of the feudal system, and was supported upon a principle which became imperative with the obligations on which it was founded.

In this country expatriation is conceived to be a fundamental right. As far as the principles maintained, and the practice adopted by the government of the United States is evidence of its existence, it is fully recognized. It is constantly exercised, and has never in any way been restrained.

The general evidence of expatriation is actual emigration, with other concurrent acts, showing a determination and intention to transfer his allegiance.

The evidence in this case is, emigration more than twelve years since-swearing allegiance to another government eight years ago-entering into its service, and continuing in it uniformly from that time to this. On this evidence, I cannot hesitate to say, that the deVOL. III. 49