States; that he caused such equipment to be made, or was knowingly concerned in it. And lastly, that the intent of the equipment was to commit hostilities on nations with whom the United States are at peace. The evidence must be disclosed in court before a jury of the country who are to be his judges. The sentence of the general Laveaux would not be admissible in our courts, inasmuch as he was not a party in the proceeding, and because according to our law it would be the highest iniquity to bind a man by a sentence which he had not the opportunity to controvert; besides it passed on a different question. On that trial there was no question as to the infraction of a civil law of this country. The same evidence which would be sufficient for the conviction of the owner would be enough to convict Americans concerned with him.

Baltimore, Jan. 16, 1796.

J. WINCHESTER.

Question. Is the owner of the ship Unicorn responsible for the piracies and robberies exercised by his captain upon neutral vessels? Are there any laws of the United States which sanction that responsibility, and can he be prosecuted on those grounds?

Answer. Under the particular circumstances of this case, I am inclined to think that the owner of the Unicorn cannot be prosecuted criminally as for piracy and robbery. As a French citizen, transiently within the United States, he owed nothing but obedience to the laws of order and good government within the nation. He remained a French citizen, and although there may have been flagrant outrages committed on neutral vessels, they could only be considered as civil trespasses resulting from acts which were to them unlawful, as being an excess of the authority under which they acted.

There is no particular law of the United States on the subject. The only responsibility which exists is to answer in damages for the injury sustained. These can only be recovered by actions to be commenced by the individuals whose property was attacked and injured.

February 12, 1796.

J. WINCHESTER.

Opinion on a Question of Alienage,

By A. MACDONALD, Attorney-General and afterwards Lord Chief Baron of the Exchequer.

Q

UESTION 1. Is a person, born before the declaration

of American independence, (a minor on the 4th of July 1776), born within the British dominions in America, now territory belonging to the United States, who has exercised [not official] civil functions as a citizen [not as an officer] of said states, and resided occasionally in England and in those states since the peace, an alien to the British crown, and liable to the regulations of the late alien bill.

Question 2. A native of the late British dominions in America, born before the declaration of the independence of the United States, has resided in England for three years past. During a part of that time his wife, a natural born subject of this realm before the date of American independence, and a native of the now United States, resided with him in England till May 1790. In that month she went to America. In July last she returned hither to her husband. Are they aliens? Is either liable to the operation of the alien act?

The opinion of Mr. Macdonald, (now chief baron of the exchequer), signed 18th January 1793.

The considerations involved in these questions are of such great extent and magnitude, I do not pretend to be capable of offering an opinion upon them in the course of so short a time (ten days) as has been allowed me, that can be satisfactory even to myself. My present opinion however is, that whatever may be the case with some persons born in the American states before the separation, yet that all such persons are not to be deemed aliens. Some authorities countenance the opinion that none are aliens, as may be seen Co. Reports 7. fol. 27. § 2.

Vaughan 273, at least in the case of kingdoms separated by descent. It is however difficult to conceive, that after a solemn compact of separation in the case of hostilities between two countries so circumstanced, persons born before the separation should be considered as traitors, which would be a consequence of their being considered natural born subjects.

From what passed in the court of the exchequer in a recent case, where it was necessary to ascertain what part of a ship's company were to be deemed Americans and what English, it seemed to be the opinion of the court that it was to be inferred from evidence of the whole conduct of the party and the circumstances attending his continuing to reside in the United States after the separation, whether he were to be deemed to be English or American,(i) and that the jury was to determine it as a point of fact, and that evidence of the mere fact of continuing to reside in America without taking the oath to that government (k) would not of itself be conclusive evidence that a natural born subject had elected (1) to become a subject of America, as that might be for reasons not inconsistent with an intention to continue his former allegiance. Whether any Americans of the United States, born before the separation, are aliens or not, has not been directly determined on, nor decided by any of our courts. It was however considered, in the case above alluded to, that some are not. It would require therefore a very minute description of all the circumstances attending the residence of the persons mentioned in the questions, as well in the United States, as those attending their coming into and residence in this country, to determine whether they had respectively placed themselves under the American government or meant to continue their former allegiance. Upon the facts stated, I am of opinion that, “supposing an election to accede to the American government to be necessarily attended with becoming aliens here, there is not sufficient evidence that

(i) This is a high and formal sanction of the doctrine of election. (*) Here the king of Great Britain's attorney-general expressly recognised in 1793 the doctrine of election to be found in English law.

(7) All naturalized seamen take the oath to the United States, and if any man has never taken the oath he is not deemed a citizen.

they have so done, and therefore that they are not proper objects of the late act of parliament."

This opinion of the attorney-general was to affect persons who, if foreign, would claim the protection of their government. On this important opinion some interesting observations arise. The English alien law partakes of the character of a penal statute. The oath of abjuration of the king of Britain would certainly have determined Mr. M'Donald; for he seems to have no doubt about the right of election. This oath all naturalized seamen take. The oath of allegiance to the United States would have produced the same effect on his judgment. This also the naturalization laws require. Both these oaths are much more than exercising civil functions. They give to the fact of election the utmost substance. These oaths are avowals before God and man, with the ceremonies of religion in due form of law, that the person naturalized intentionally elects to put off one allegiance and to take upon him another. It is matter of record and official certificate. The avowal of becoming and being an American subject is not only a real election, but it is the most deliberate, the most formal, the most solemn, the most binding, and the most effectual election.

DUELLING.

Court of King's Bench.

[There are some parts of this Christian country, where the following excellent sentence pronounced by a judge in Ireland should be read with shame and confusion of face. When the laws of the United States against this crying sin of the land, shall be as well executed as it seems they are in that country, we may hope to see a check put to a practice which degrades us below the rank of savages. After a few duellists shall have been hanged, the sense of honour which leads bullies to blood will be blunted, and we shall find less of the manners of the cutthroat and more of the gentleman and the christian.]

DUBLIN, February 13, 1809.

The King at the prosecution of Colonel H. Browne, against Manus Blake, esq.

THE

HE defendant being brought up for judgment, Mr. justice Day addressed him to the following effect:

“Mr. Manus Blake! You have been tried and found guilty upon an information granted against you for challenging colonel Henry Browne to fight a duel with you, and for endeavouring by opprobrious and insulting language to provoke that gentleman to send you a challenge; and you now stand at the bar a convicted criminal, awaiting the judgment of the law. From the report of the learned judge, who tried this information at the last assizes of Galway, it appears, that on the 9th of April, armed with a sword, you met and stopped colonel Browne in the public street of Eyrecourt, and addressed him VOL. III.

2 B