proceed against him on the footing of a traitor. The duke of Berwick was England born, and a natural son of James II. "The prince of Orange," says he, memoirs vol. 1. 117,

certainly had a design of sending me prisoner to England, where I should have been closely confined in the tower of London, though that would have been contrary to all the rules of war, though he pretended that I was his subject, and consequently a rebel."

But the lex loci of Britain considers a subject as the king's or the nation's property; and shall we be justifiable in harbouring a slave? I quote a case ad hominem, that of Somerset v. Stuart; Loft's reports, 1, Somerset, a native of Virginia, and a salve by the lex loci, but having been brought upon English ground, a habeas corpus from lord Mansfield issues, and he is pronounced free. Could he have been retaken by the owner, out of a British vessel on the high seas? The floating domicile would have protected him, as much as the clausum, or close on land. The power of the government would protect him where the municipal law could not reach.

Azuni has been quoted, as sanctioning the right of search; and that the right of search, implies a right to take the body of a man, when found upon the high seas. But this he does not say; nor can it be inferred from the role d' equipage, or muster roll of the crew being called for; for which he cites Hubner; for this is only for the purpose of ascertaining the character of the vessel, whether neutral, or belligerent. The ship, or cargo may be made prize of war; but, are the crew ever taken to be the subjects of an admiralty condemnation, or of sale? 2 Azuni, 213. N. York edition, 1806, translated from the French. There is no carrying in, for adjudication; or admiralty process to try, whemisfortunes." It may be on the same principle that citizens not thinking the present war just, or expedient, may be more pleased with our disasters than our victories. It is of moment therefore, that the right of expatriation, which is at the bottom of our contro versy, so far at least as respects the justice of the war, be explained; and it is with this view, that I have said any thing on the subject.

1

ther a person alleged to be a British subject, may not have been an American born.

It can be accounted for, only on the ground of prejudice, that such a violation of a right which Britain herself asserts against the world, the protecting her domicil, whether upon the water, or on terra firma, should not be considered a just cause of war. I say nothing of the expediency of putting ourselves in a situation, by our naturalization laws, to be under the necessity of suffering national dishonour, or protecting all whom we have naturalized. On this head I have already thrown out some ideas. For the right of an individual to expatriate, and any nation to naturalize, I may subjoin some authorities, and some reasonings in a proper place. I observe only here, that Britain would not surrender even a murderer from another power, that had taken refuge in her island. And can it be doubted, but that she would protect him on board a merchant ship, by her maritime law and power, as much as if at land by her municipal? In the one case a writ of habeas corpus would issue from the civil authority; and in the other, a demand would be made of the government trespassing; and the injury not being redressed, she would denounce war. She would consider the taking a single individual as a cause of war; not for the sake of the person, nor for the sake of the trespass, in the particular in stance, but for the sake of the principle which it involved.

NOTE to me of a learned jurist, to whom I put the question as to his idea of the universality of the acknowledgment of perpetual allegiance.

It is said that this doctrine extends all over Europe, but nothing is less true. In the first place the word ellegiance, though of French derivation, has obtained in England, and there alone, the sense in which we use it. In the French language the word itself is unknown, at least I never have read it in any book or found it in any dictionary. In its origin, it seems, it implied no more than the feudal relation between the lords and vassals of certain ficfs called fiefs tiges, in which the vassal swore fealty to his lord, by putting his hands into his, in token of bodily subjection, and saying the words, jea deviens vostre hume, I am or become your mua, alias your slave.-But all tenures were a ot of that description, and those

who held no feudal iands, were not bound to swear hommage lige, were not liege men, and did not owe of course allegiance, In process of time flattery, in England, applied the word allegiance !.. to the relation between king and subject.-It was at first a compliment, a word of course, but time-serving judges soon gave a legal sanction to its application, and the duty of allegiance as now understood in England became law. But the same was not done in any other country.

In France the legal effects of the relations between king and subject were left to the rules of the law of nations, and of the civil law, until the troublesome times of the revocation of the edict of Nantes, when the emigration of the protestants becoming considerable, tyrannical laws were made to check it. But those laws were always considered by the sensible men in France, as in England the treason laws of Henry 8.-And though a despotic government might sometimes use them as a rod, yet they were well understood to be the offspring of bad times.

Still those laws did not go so far as to establish the English doctrine of perpetual allegiance, they prohibited emigration without leave of the prince under certain penalties, one of which was that the emigrant should be considered as an alien, a proof that he was not thought to remain perpetually a subject. See Royal Edicts, August 1669, July 1682, August 1682, and July 1705, all made flagrante prosecutione protestantium.

In the year

Now see how these laws worked in practice. 1747, Gen. Ligonier, born a French subject, but then in the British service, was taken prisoner at the battle of Lawfeldt, and brought to Lewis XV. The monarch invited him to dine at his table. Less than two years before, several Scotch and Irish officers in the French service, taken prisoners by the English, had been hanged, embowelled, quartered, and suffered the horrid punishment of traitors.

I copy the relation of Voltaire on this subject in his own words:

"Cet officier general des troupes angloises (Ligonier) etoit ne "son sujet; il le fit manger a sa table; et des Ecossois officiers << au service de France, avoient peri par le dernier supplice en "angleterre, dans l'infortune du prince Charles Edouard."

Volt. Siecle de Louis XV. p. 226. Edit. Kehl.

The late Edicts of Bonaparte, I take to be a violation of the fundamental laws of France, an act of wanton tyranny, that will expire with his power.

I know of no similar law in any other country in Europe. The civilians are agreed that a subject may freely emigrate, except in certain cases, which are well understood. See Heinecrius, Grotius, Vattel, and all the host of publicists. Even Dr. Zouch, an Englishman, agrees with Grotius, that "extra hos casus (public danger and the like) credibile est ad liberam civium "discessionem populos consentire."-See Zouch, de jure inter gentes, part. 2 Chap. 12. See also SirLeoline Jenkins, who admits that natives of France, settled in a neutral country previous to a war, are to be considered by the British as neutrals. I copy his own words from his letter to the lords commissioners for prizes of the 17th Sept. 1666-in 1 Magens on Ins. 527.

"Among the Laders, my Lord, I found two names which I "guessed to be French, and the secretary who solicits this business "could not but acknowledge the persons (Du Prie and Heron) to "be Frenchmen born. But the salvo that he and the shipper gave "me upon oath, is that Du Prie had lived in Hamburg with his wife "and family for above these 20 years, and that the other had lived "there likewise these 8 years-which, regularly, is sufficient in law "to excuse him, as I humbly conceive, from being subjected to the "same reprisals with the rest of his countrymen.”

The case of Clark sentenced as a Spy, remarked upon.

Elijah Clark was convicted as a spy at a general court martial holden at the court-house in the village of Buffalo, on Wednesday 5th Aug. 1812, and continued by adjournment, from day to day, until Saturday 8th Aug. 1812.

The facts in evidence were, that he had, about 18 months. before, removed with his wife to Canada; and that having crossed the lines "did linger about the encampments and army of the United States, for the purpose of spying out our state and condition; and of reporting the same to our enemies; and for these reasons the court are of opinion that the said Elijah Clark is guilty of the crime whereof he stands charged; and falls under the 101 article of the act entitled "an act for establishing rules and articles for the government of the

armies of the United States," passed the 10th day of April,

1806.

And they do adjudge and sentence the said Elijah Clark, to be continued in the present place of his confinement until the 1st Friday of September next, and that he be at the hour of two o'clock in the afternoon of that day, taken from his said place of confinement, and hung by the neck until he be dead.

PHILETUS SWIFT, President.

GEO. HOSMER, Fudge advocate.

Head-Quarters, Manchester, Niagara frontiers,

August 13, 1812.

GENERAL ORDERS.

Major general Hall, having doubt how far the prisoner (Elijah Clark) within named, comes within the description of a spy, by reason that he is within the letter of the second section of the 101 article of the act, entitled "an act for establishing rules and articles for the government of the armies of the United States," which excepts thereout, “all persons not citizens of, or owing allegiance to the United States of America," is pleased to order, and doth hereby order a suspension of the execution of the within sentence, until the pleasure of the president of the United States can be known thereon.

SIR,

By order of the Major General,

GEO. HOSMER, A. D. C.

OPINION OF THE PRESIDENT.

War Department, Oct. 20, 1812.

The proceedings and sentence of the general court martial, which was had in the case of Elijah Clark, conformable to your orders of the first of August last, and which were by you transmitted to this department, have been received and laid before the president. I have the honour to inform you that the said Clark being considered a citizen of the United States, and not liable to be tried by a court martial as a py, the president is pleased to direct, that unless he should