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vested in the judiciary. As to the prerogative of the executive, the history of the last administration affords ample and lamentable proof that it was easy to be found when it was wanted. As to the silence of our laws on the subject, it is no argument. Where is the law to authorise me to recover on a bond for money lent? What authorises the arrest and trial of a thief? How can a conspiracy to raise wages be punished? In the trial of judge Chase, Mr. Rodney, the present attorney. general of the United States, supposed the case of a judge ordering a trial by eleven jurors instead of twelve, and said "he knew of no law which would be violated.”(f) And yet no one even supposed that such a law did not exist because Mr. Rodney was ignorant of it.

That the practice of nations is not as stated by the secretary of state, will fully appear by reference to the notes on those parts of Grotius which we have cited, and the text we take as better evidence of what is the law of nations than the opinion of Mr. Madison.

We therefore conclude that the policy of nations, and the rights of hospitality, require the surrender of deserters. Such a law is a natural consequence of the constitution of civil society, and a fair application of the law of nature to that constitution. And they should be surrendered by the judiciary. A consul has no right to apprehend a deserter in another country. No man can be arrested but by a legal warrant, and no warrant can be legal unless it be issued by a judicial tribunal.

September 8th, 1809. The prisoners were brought before John Scott, esq. chief justice of the court of oyer and terminer, at 9 o'clock, A. M. on a habeas corpus ad subjiciendum. The sheriff returned that they were detained by virtue of a written order to that effect from William Wood, esq. the British consul, stating that they were deserters from his Britannic majesty's armed vessel L'Africaine. The deserters were arrested on the night of the 7th inst. Mr. Wood was requested to attend the chief justice the next morning.

(f} Chase's Trial, p. 245.

When he appeared, he named two gentlemen of the bar whom he wished to consult; but the counsel for the prisoners insisted upon their immediate discharge. They urged that, even admitting the prisoners to be deserters from a British vessel and British subjects, they could not be legally arrested and detained. But the chief justice sent for the gentlemen named, and one of them, Mr. W. Dorsey, shortly after appeared in court. He stated that this was the first intimation he had received; that the case was novel and of great importance, and that being then engaged in a cause in the district court, he begged the counsel for the consul might be heard in the afternoon. He added that the habeas corpus had been granted without any affidavit of the legal confinement of the prisoners, and that he understood objections were made to the legality of the order under which the arrest had been made: and that as the judge had full power to inquire into the case and discharge entirely or upon bail, or recommit the persons, he hoped a short delay might be granted, in order that the case might be investigated.

But the chief justice said the writ and return were now before him, and he must decide on the sufficiency of the latter.

In giving his opinion, he“ stated it was bottomed on an act of congress passed 20th July, 1790, ch. 29, which makes it lawful for any justice of the peace within the United States to issue his warrant to apprehend any deserter who had signed a contract at any port or place, within the United States, to perform a voyage, but no other deserter, and that he was strengthened in this opinion by a letter of the late secretary of state,(s) and that he had no power to apprehend any other de

(8) I do not know whether this letter has ever been published. The judge referred to the National Intelligencer of 29th Fuly 1807, in which the editor has inserted the following note to a statement of the correspondence of the hon. Mr. Erskine and the secretary of state, respecting the surrender of the deserters from the Chesapeake.

“ This answer was written January 7, 1807. It was produced by an application for the surrender to their allegiance of certain British seamen, who having united with American seamen left on board a vessel ordered to Hali.

serter, than one who had thus signed shipping articles. The judge stated at the same time that the British consul had a right to take up any person deserting from a British vessel, and that he never would interfere to prevent it, unless it should be proved to him that the person deserting was an impressed American seaman.

We have received this additional information from the judge himself, as to the reasons which influenced his decision. We shall only remark for the present that the deserters were apprehended under the authority and by a written order from the British consul. The sheriff who took them up did not lodge them in gaol, as though he was authorised so to do by the judges of the court of oyer and terminer, or any other court, but merely for safe keeping. The court by discharging them virtually decided that they could not be arrested and held under the written order of the British consul. The men have been released, and it is useless now to attempt to apprehend them. They would be rescued by a mob; acting under the impression that the law was on their side.”(h)

fax as a prize, brought her into the United States, and were charged with mutiny, piracy, and an attempt to murder their officers. The answer stated, that not only no prerogative for the purpose in question is vested in the ex. ecutive of the United States, but that neither the law nor the practice of nations imposes on them an obligation to provide for the surrender of fugitives from the jurisdiction of other powers. The obligation can result only from special and mutual stipulations, which do not exist between the United States and Great Britain, and which, indeed, as limited in the expired articles of the treaty of 1794, do not comprehend any other offences than those of actual murder and forgery.”

(A) Federal Republican, 14th September, 1809.


JUNE, 1806.

Thompson versus Millie.

[Seamen's Wages. Wages are due to a mariner during the time

that the vessel is detained in a foreign port by an embargo. The reader will find a case precisely similar to this, very fully

argued, in 3 Bos. & Pul. 432.]

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ROBERT THOMPSON was hired to perform a voyage to

Russia and back again, on board the Resolution, belonging to David Millie, at a certain rate per month. The ship having finished her voyage out, was lying in the harbour of Petersburgh, when the emperor Paul, taking umbrage at an alleged delay of Great Britain in the execution of a treaty, published a proclamation (7th of November, 1800) which declares that “his imperial majesty being determined to defend his rights, has been pleased to command that an embargo shall be laid on all English ships in the ports of his empire till the abovementioned convention shall be fulfilled.”

The sailors were marched into the interior of the country, under a Russian guard, and there detained as prisoners. Commissioners were appointed for the disposing of the British effects which had been sequestered, and for receiving the balances of all accounts.

A hostile confederacy was formed between Russia, Sweden, and Denmark, which was dissolved by the battle of Copenhagen, April 2d, 180, and the death of the emperor Paul. In the month of May the British seamen were marched back to the coast, and, along with their vessels and cargoes, were Vol. III.


liberated; but no indemnification was made by the Russian government, either to the proprietors of the ships, for the loss they had sustained on account of the detention of their ships and cargoes; nor to their sailors on account of their captivity.

Millie refused to pay the wages for the time during which the vessel had been detained, as during that time Thompson had not been aboard the ship, nor employed on the service.

Thompson, therefore, brought an action against him before the judge admiral, concluding for “the sum of 311. 138. 4d. of wages, for the purser's service on board the ship Resolution, from the 8th of November 1800, to the 30th of May 1801.”

The judge admiral, 8th June 1804, decided against the defendant.

The case having been brought before the court, the Lord Ordinary, (6th of June 1806) repelled the reasons of suspensions and reduction.

Millie reclaimed, and

Pleaded-It is admitted, that if the seizure of the ship by the Russians be considered as a capture, that there can be no claim for wages to the mariners during the period of detention. Now, this truly was a hostile seizure, both from the treatment which the seamen received and by the measures which were adopted in regard to the ship and cargo. All connexion between the sailors and the ships on board which they sailed, were dissolved. They were no longer in the service of their owners; they were actually prisoners. There was a complete interruption of the service, and consequently of the contract. An embargo is, where an order is given to prevent ships from sailing from particular ports, or to any particular country for a certain definitive space of time. The ship in that case remains the property of the owners, in every respect, and the sailors remain to their service. But the proceeding in this instance was totally different; and the measures adopted by the British government as reprisals, on account of the Russian embargo, have been held to partake as much of the nature of hostility, as to discharge the contract of charter-party between the subjects of those powers and Great Britain, and to put an end to the lien which the master has over the cargo for his

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