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to pass under the dominion of another prince, it must be so likewise for him to seek the means of procuring an honest
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 Reports, 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 recognize. The only difference of opinion is, as to the proper manner of exercising this right.” Ibid. 162. Judge Gushing concurred in the general prin. ciple, that expatriation is lawful, and approved of the doctrine laid down on this subject by Heineccius, Elem. Jur. Nat. and Gent. I. 2. c. 10. “But," said he, “ the act of expatriation should be bona fide, and manifested at feast 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 Betsy, it was decided, that a citizen of the United States who has bona fide expatriated himself, is to be con. sidered 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 ob. jected 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 domicilę, and be er. empted 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 divest himself absolutely of that character, otherwise than in such manner as may be prescribed by our own laws, nor whetber his expatriation would be sufficient to rescae him from punishment, for a crime committed against the United States. 2 Cranch's Reports, 120.
And lastly, in the case of M'llvaine v. Coxe'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, had 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's Reports, vol. ii. p. 280. vol. iy. p. 209.
livelihood, and why may he not do it by entering into the land or sea service? In the United Provinces there is certainly no law to prevent it, and many Dutchmen, formerly, as well as within my own recollection, have served other sovereigns by sea as well as by land.
When I speak of other sovereigns, I only mean those who are in amity with us; for, it is not lawful to enter into the military service of an enemy, by land or sea, and the statesgeneral have prohibited it by several edicts. It may, indeed, be said, that several of the edicts which prohibit our citizens entering into the service of any foreign prince or state, as they speak in general terms, must be understood in the same manner, and not be exclusively applied to the service of an enemy. But, if those edicts are attentively examined, it will be found, that they are either occasional statutes, made in time of war, when the states-general were in want of men, or that they are expressly directed against those who then were or might afterwards have gone into the enemy's service, or against deserters from our own army or navy, who had enlisted themselves abroad. Once, a Dutch vessel was captured by a French privateer, having eighty men on board, all of them (except six Frenchmen) natives of Holland or Zealand; the states-general, justly exasperated, issued an edict, on the 28th of July 1674, by which it was decreed, that if any of our subjects should enter into the naval service of the enemy, they should be drowned. A similar edict was made on the 4th of April 1676. But those edicts only relate to such as serve the enemies of our country, and cannot be extended to those who enter into the service of a power in friendship or in alliance with us.
If, therefore, our subjects, whose assistance we do not want in time of war, and who are not prevented by any law from transferring their allegiance, may lawfully hire out their military services to a friendly prince, why may not also that friendly prince enlist soldiers in the territory of a friendly nation? Where it is lawful to let out to hire, it is lawful also to hire, and why should it not be equally so to contract for the hiring of soldiers in the territory of a friend, as to make
any other contract, and carry on any kind of trade. It will be objected, perhaps, that he who enlists the soldiers, may make use of them against a friend of the sovereign in whose country they have been hired, and perhaps also, against that sovereign himself; but these objections, in my opinion, are not of sufficient force.
As to the first supposition, that the soldiers may be employed to fight against a friend of their own sovereign, it must be observed, that neutrals are bound in war to consider both the belligerents as equally in the right. Such is the doctrine generally admitted as to the purchase and sale of warlike implements, which, indeed, we may not lawfully carry, but we may, in our own country, lawfully sell to either or both the belligerent parties, although we well know, that they intend to make use of them in war against each other.
To the second head of the objection, that the soldiers thus hired may possibly be employed against their own sovereign, I answer, that we are only to attend to the state of our country at the time, and ought not to look so far into futurity. Nor do I see any difference between enlisting men, and purchasing gun-powder, ammunition, arms and warlike stores, which may certainly be done by a friendly sovereign in our country, and which he may also use afterwards against us. I repeat it, the actual relations of our country are alone to be considered; otherwise, there must be an end to amity, friendship, and even alliances between princes.
I am of opinion, therefore, that the same law which obtains as to the purchase of implements of war, must apply in like manner to the enlistment of soldiers in the territory of a friendly nation, unless it should be expressly stipulated otherwise between the two sovereigns. Thus, in the treaty between the Romans and Antiochus the Great, king of Syria, the latter bound himself not to enlist soldiers within the limits of the Roman empire.* That treaty was not equal, otherwise he might lawfully have enlisted soldiers in the Roman dominions, nor could the senate have prohibited it without doing him an in
Liv. I. 38.-Polyb. Excerpt. Legat. c. 35. n. 4.
jury; for, while by the same treaty it was stipulated, on reciprocal terms, that neither of the contracting parties should supply the enemy of the other with provisions, to Antiochus alone it was forbidden to do that which otherwise
lawfully be done by every sovereign.
In the United Provinces, however, it appears to have been and is still prohibited by law, to enlist soldiers, without the permission of the states-general. There is an ancient edict upon this subject, of the 8th of January 1529. A similar edict was made on the 1st of August 1612, when the Danes, Swedes and Muscovites had made enlistments on the Dutch territory. Those nations were prohibited, by name, from doing the like, without having previously obtained the permission of the states-general in writing, and they were strictly forbidden to seduce the Dutch soldiers from the national service, under the penalty of death or some other discretionary punishment. There are a variety of subsequent edicts,* by which it is enacted, “that if any one shall seduce soldiers within the territory or jurisdiction of the United Netherlands, without the permission, in writing, of the statesgeneral or their counsellors, the offender shall be liable, not to a discretionary penalty only, but to the punishment of death, without remission or mitigation.”+ As those edicts agree en
Edicts of the states-general, of the 16th of December 1622—3d of March 1627—30th of March 1646_21st of July 1648—20th of January 1652, and 18th of March 1658–of the states of Holland, of the 27th of March 1652, and 16th of March 1656.
| By the act of congress of the 5th of June 1794, mentioned in one of the preceding notes, page 129, it is provided ($ 2.) “ that if any person shall, within the territory or jurisdiction of the United States, enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States, with intent to be enlisted or entered in the service of any foreign prince or state as a soldier, or as a marine or seamen on board of any vessel of war, letter of marque or privateer; every person so offending, shall be deemed guilty of a high misdemeanor, and be fined not exceeding one thousand dollars, and impri. soned not exceeding three years. Provided, that this shall not be construed to extend to any subject or citizen of a foreign prince or state, who shall transiently be within the United States, and shall, on board of any vessel of war, letter of marque or privateer, which, at the time of its arrival within
tirely with my opinion, I submit them to the reader, without observation or comment.
It may not be improper to notice here, a difference which took place in the year 1666, between the states-general, and the governor-general of the Spanish Netherlands. The states complained to him, that the bishop of Munster, with whom they were at war, had enlisted soldiers in the Spanish territories in the Low Countries. The governor answered, that he had not authorised him so to do, but that if he had, there was nothing to prevent him, as Spain was neutral in the war, and that the states-general might exercise the same right, if they pleased.* But, whether such a thing is lawful, without the consent of the sovereign, and whether the sovereign may, with propriety, refuse his permission, when applied to for it, is the very subject of our inquiry. Whether or not, the bishop of Munster had a right to enlist soldiers in the Spanish Netherlands, without the permission of the governor-general, the reader must determine for himself from what has been above stated.
the United States, was fitted and equipped as such, enlist or enter himself, or hire or retain another subject or citizen of the same foreign prince or state, who is transiently within the United States, to enlist or enter himself to serve such prince or state on board such vessel of war, letter of marque or privateer, if the United States shall then be at peace with such prince or state." 3 Laws U. S. 88.
T. * Aitz. I. 46.