vessel be legally deemed a piracy, inferring as it must do, if it be so, all the pains and penalties of piracy? I must remember, that in discussing the question, I must consider it, not according to any private moral apprehensions of my own (if I entertained them ever so sincerely) but as the law considers it; and, looking at the question in that direction, I think it requires no labour of proof to shew that such an occupation cannot be deemed a legal piracy. The very statute lately passed which makes it a transportable offence in any British subject to be concerned in this trade, affords a decisive proof that it was not liable to be considered as a piracy, and a capital offence, as it would be in foreigners as well as British subjects, if it was a piracy at all. In truth it wants some of the distinguishing features of that offence. It is not the act of freebooters, enemies of the human race, renouncing every country, and ravaging every country in its coasts and vessels indiscriminately, and thereby creating an universal terror and alarm; but of persons confining their transactions (reprehensible as they may be) to particular countries, without exciting the slightest apprehension in others. It is not the act of persons insulting and assaulting coasts and vessels against the will of the governments and the course of their laws, but of persons resorting thither to carry on a traffic (as it is there most unfortunately deemed, not only recognized but invited by the institutions of those barbarous communities. But it is unnecessary to pursue this topic further. It has not been contended in argument, that the common case of dealing in slaves could be deemed a piracy in law. In all the fervor of opinion which the agitation of all questions relating to this practice has excited in the minds of many intelligent persons in this country, no attempt has ever been thought of, at least. with any visible effect, to submit any such question to the judg ment of the law by such a prosecution of any form instituted in any court; and no lawyer, I presume, could be found hardy enough. to maintain, that one indictment for piracy could be supported by the mere evidence of a trading in slaves. Be the malignity of the practice what it may, it is not that of piracy in legal consideration.***

"If I felt it necessary to press the consideration further, it would be by stating the gigantic mischief which such a claim is likely to produce. It is no secret, particularly in this place, that the right of search in time of war, though unquestionable, is not submitted to without complaints, loud and bitter, in spite of all the modifications that can be applied to it. If this right of war is imported into peace by convention it will be for the prudence of states to regulate by that convention the exercise of the right with all the softenings of which it is capable.

"Treaties, however, it must be remembered, are perishable things, and their obligations are dissipated by the first hostility. The covenants, however solemn, for the abolition of the trade, or for the exercise of modes of prevention, co-exist only with the relations of amity among the confederate states. At the same time it may be hoped, that so long as the treaties do exist, and their obligations are sincerely and reciprocally respected, the exercise of a right, which pro tanto converts a state of peace into a state of war, may be so conducted as not to excite just irritation. But if it be assumed by force, and left at large to operate reciprocally upon the ships of every state (for it must be a right of all against all), without any other limits as to time, place, or mode of inquiry than such as the prudence of particular states, or their individual subjects, may impose, I leave the tragedy contained in this case to illustrate the effects that are likely to arise in the very first stages of the process, without adding to the account what must be considered as a most awful part of it, the perpetual irritation and the universal hostility which are likely to ensue." (For other cases upon the subject of the slave trade, see The Amédie, 1 Acton's Adm. Rep., 240; The Fortuna, 1 Dodson, 81; The Diana, 1 Dodson, 95; Madrazo v. Willes, 3 Barnwell & Alderson, 353; The Antelope, 10 Wheaton, 66. See, also, Dana's Wheaton, pp. 203-213.)

CHAPTER IV.

NATIONALITY.

SECTION 22.-INDELIBLE ALLEGIANCE-EXPATRIATION.

OPINION OF COCKBURN.

(Cockburn's Nationality, 6-14.)

"Nationality by birth or origin depends, according to the law of some nations, on the place of birth; according to that of others on the nationality of the parents. In many countries both elements exist, one or other, however, predominating. Thus, by the law of England, the status of a subject depends generally on the place of birth: nevertheless, the descendants, of a natural-born subject, for two generations, though born out of the dominions of the Crown, are, to all intents and purposes, subjects. In like manner, by the law of France, though, generally speaking, it is necessary to be born of French parents to be a Frenchman, an exception is made in favour of the child of a foreigner, if born in France, subject only to the condition of the French nationality, being claimed within a prescribed period.

"By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning in the country, was an English subject; save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality. * * *

"The law of the United States of America agrees with our own. The law of England as to the effect of the place of birth in the matter of nationality became the law of America as part of the law of the mother country, which the original settlers carried with them. *

"By the law of France, anterior to the revolution, a child born on French soil, though of foreign parents, was a Frenchman, as it was termed, jure soli; a child born of French parents out of French territory, was a Frenchman jure sanguinis. The framers of the Code Napoleon, adopting a sounder principle, excluded the place of birth as the source of nationality in itself; but compromising, as it were, with the old rule, they allowed the place of birth to have effect so far as to give to the offspring of an alien the right of claiming French nationality on attaining full age. The example set by the framers of the French Code has been followed by the nations by which that Code has been adopted, as also by others in remodelling their Constitutions or Codes. The result has been that, throughout the European States generally, descent, and not the place of birth, has been adopted as the primary criterion of nationality, though with a reservation in some, of a right to persons born within the territory to claim nationality within a fixed period. Thus, while in some of these countries nationality is derived from parentage alone, in others the right becomes complicated by reason that in addition to parentage, birth within the dominions of the particular country confers citizenship on the offspring of alien parentsin some absolutely-though subject to the right of the individual. concerned to reject it at majority-in others on the right being claimed on certain specified conditions."

MACDONALD'S CASE, 1745.

(Cockburn's Nationality, 64, note.)

Held, that it was not in the power of a private person (subject of Great Britain) to shake off his allegiance and to transfer it to a foreign prince.

"In the case of Eneas Macdonald, who was tried for high treason, for having borne arms in the rebellion of 1745, it appeared that the prisoner had been born in England, brought up from his early infancy in France, had in his riper years been employed in that country, and that he held a commission from the French King.

"After a faint attempt to make out that the prisoner had been born in France, his counsel, despairing of establishing that fact, addressed the jury on the great hardship of such a prosecution against a person so circumstanced, and speaking of the doctrine of natural allegiance, represented it as a slavish principle, derogating from the principles of the Revolution. But the Court interposed, and said it never was doubted that a subject-born, taking a commission from

a foreign Prince and committing high treason, may be punished as a subject for such treason, notwithstanding his foreign commission; that it was not in the power of any private person to shake off his allegiance and to transfer it to a foreign prince nor was it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the Crown. And the Lord Chief Justice Lee, in charg ing the jury, told them that, the overt acts laid in the indictment having been proved against the prisoner, and admitted by him, the only fact to be tried by them, was whether he was a subject of Great Britain; as in that case he must be found guilty.

"The prisoner was accordingly found guilty, but received a pardon on condition of banishment." 1

1 In the case of Isaac Williams, 1799, Wharton's State Trials, 652, ELLSWORTH, C. J., said:

"The common law of this country remains the same as it was before the Revolution. The present question is to be decided by two great principles; one is, that all the members of a civil community are bound to each other by compact. The other is, that one of the parties to this compact cannot dissolve it by his own act. The compact between our community and its members is, that the community will protect its members; and on the part of the members, that they will at all times be obedient to the laws of the community and faithful in its defence. This compact distinguishes our government from those which are founded in violence and fraud. It necessarily results, that the members cannot dissolve this compact, without the consent or default of the community. There has been here

no

consent-no default. Default is not pretended. Express consent is not claime 1; but it has been argued, that the consent of the community is implied by its policy-its conditions, and its acts. *** Consent has been argued from the acts of our government, permitting the naturalization of foreigners." But in the opinion of the Chief Justice no such inference could be drawn from this fact. When foreigners became naturalized in the United States, the question of their right to renounce their native allegiance was one between them and their native country, with which we were not concerned.

66

Proclamation of the Prince Regent, July 24, 1814, Cockburn's Nationality, 77:A proclamation by the Prince Regent, of the 24th July, especially directed against America, after prohibiting all natural-born subjects of His Majesty from serving in the ships and armies of the United States, and charging all such persons at once to quit such service, proceeds as follows:

"And whereas it has been further represented to us that divers of our naturalborn subjects as aforesaid have been induced to accept Letters of Naturalization or Certificates of Citizenship from the said United States of America, vainly supposing that by such Letters or Certificates they are discharged from that duty and allegiance which, as our natural-born subjects, they owe to us: Now we do hereby warn all such our natural-born subjects, that no such Letters of Naturalization or Certificates of Citizenship do, or can, in any manner discharge our natural-born subjects of the allegiance, or in any degree alter the duty which they owe to us, their natural Sovereign. ***

"Moreover, that all such, our subjects, as aforesaid, who have voluntarily en