Scott, and recognized the right of a neutral to carry his goods in an armed vessel of the enemy. And in the case of The Adeline,' it was decided, that the law of France denying restitution upon salvage after twenty-four hours possession by the enemy, the property of persons domiciled in France should be condemned as prize by our courts, on recaption, after being in possession of the enemy that length of time.

3

The volumes of Wheaton contain decisions, declaring the property of a citizen engaged in trade with the enemy liable to capture and confiscation as prize of war, under whatever circumstances it might be carried, whether between an enemy's ports and the United States or between such port and any foreign country; that the sailing under an enemy's license was sufficient of itself to subject to confiscation without regard to the object of the voyage or port of destination; that a citizen of the United States, who had acquired a domicile abroad, but had returned to the United States and become a redintegrated American citizen could not, flagrante bello, acquire a neutral domicile, by again emigrating to his adopted country; that the stipulation in a treaty, "free ships make free goods," although they should belong to enemies, contraband excepted, does not exempt the goods belonging to citizens of the captor's country engaged in trade with an enemy;5 that the property of a house of trade in an enemy's country is confiscable, notwithstanding the neutral domicile of one or more of the partners; that there can be no restitution, on payment of salvage to the original owner, where a vessel captured and condemned, was recaptured

6

1 Cranch's Rep. vol. ix. p. 244.

2 Wheaton's Rep. vol. i.

p. 74. The Rugen.

3 Ibid. p. 440. The Hiram. Ibid. vol. ii. p. 143. The Ariadne. Ibid. vol. iv.

p. 100. The Caledonia.

4 Ibid. vol. ii. p. 77.

The Dos Hermanos.

5 Ibid. p. 247. The Pizarro.

6 Ibid. vol. i. p. 169. The Antonia Johanna.

by an American privateer, the original title being extinguished by the condemnation.1

The Supreme Court also decided that it is the exclusive right of governments to acknowledge new States arising in the revolutions of the world, and until such recognition by our government, or that to which the new State belonged, courts of justice are bound to consider the ancient order of things as remaining unchanged; 2 that in case of the Spanish American governments, the government of the United States having recognized the existence of a civil war between Spain and her colonies, the courts of the United States were bound to consider as lawful those acts, which were authorized by the law of nations, and which the new governments may direct against their enemies, and their captures were to be regarded as other captures jure belli, the legality of which cannot be determined in the courts of a neutral country.3

The court likewise decided, in reference to the acts declaring the slave-trade piracy, passed by the United States and Great Britain, that the right of visitation and search did not exist in time of peace, and that a vessel engaged in the slave-trade, though it was prohibited by the country to which it belonged, could not

2 Ibid. p. 324. Gelston v. Hoyt. In the case of the Rhode Island controversy in 1842, the same rule was adopted in relation to conflicting claims to the government of a State of the Union. The Chief Justice (Taney) said: "No one, we believe, has ever doubted the proposition that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure, But, whether they have changed it or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it." Howard's Rep. vol. vii. p. 47. Luther v. Borden.

3 Ibid. vol. iv. p. 53. The Divina Pastora. Ibid. vol. vii. p. 377. The Santissima Trinidad.

be seized on the high seas and brought in for adjudication in the courts of another country.1

But, it is by the important adjudications, defining the limits of the federal and state jurisdictions, that the judicial administration of Marshall, who presided during the whole period, was distinguished. That the repeal or alteration, by a State, of the charter of a private corporation, which a college was declared to be, was a violation of the constitutional prohibition to pass any law impairing the obligations of contracts that it was competent for Congress to establish a national bank, which could not be taxed by any individual State3-and that no State could

2

grant

1 Wheaton's Rep. vol. x. p. 67. The Antelope. In declaring the slave-trade piracy, it was the expectation of the United States that it would be ultimately so regarded under the law of nations. The act of 15th May, 1820, (United States Statutes at Large, vol. iii. p. 600,) declared guilty of piracy every citizen of the United States, on board of a foreign vessel, and every person, whether on board of a vessel owned in whole or in part by, or navigated on behalf of, a citizen of the United States, engaged in the slave-trade; and by a resolution of the House of Representatives, in 1823, the President was requested to enter into negotiations with the maritime powers of Europe and America for the ultimate denunciation of the slave-trade as piracy, under the law of nations, by the consent of the civilized world. President Monroe, in a message, in relation to the convention signed at London, on 13th March, 1824, (the ratification of which, though the treaty was assented to by England as originally proposed by us, failed in the Senate,) said that conventions for a mutual right of search had been resisted by the Executive, on two grounds: one, that the constitution of mixed tribunals was incompatible with our constitution; and the other, that the concession of the right of search in time of peace, for an offence not piratical, would be repugnant to the feelings of the nation. But, by making the crime piracy, the right of search attaches to the crime, and which, when adopted by all nations, will be common to all. In the meantime, the obvious course seemed to be, to carry into effect with every power such treaty as may be made by each in succession. In negotiating the treaty in question with the British government, it was made an indispensable condition, that the trade should be made piratical by act of Parliament, as it had been by act of Congress; but, instead, of subjecting the persons detected in the slavetrade to trial by the courts of the captors, as would be the case, if such trade was piracy by the law of nations, it was stipulated that, until that event, they should be tried by the courts of their own country only. Cong. Doc. 18 Cong. 2d Sess. Ibid. vol. iv. p. 518. Dartmouth College v. Woodward.

3 Ibid.

P.

316. M'Culloch v. The State of Maryland. Ibid. vol. ix. p. 738. Osborn v. The Bank of the United States.

d*

a right for the exclusive use of its navigable waters,1 nor pass a bankrupt or insolvent law, affecting preëxisting contracts, or contracts between citizens of different States,2 are among the decisions to be found in Wheaton's Reports; while,-what connects these adjudications immediately with the treatise to which these remarks are introductory,-the faith of international obligations was upheld, not only by establishing the appellate jurisdiction of the Supreme Court, in a case where the validity of a State law was called in question, as repugnant to a treaty of the United States, but by asserting, what is the distinguishing feature between our existing institutions and those of the old confederacy, the power to carry into full effect the judgment, without

the aid of the State Court.3

The character, which Mr. Wheaton at once acquired as a reporter, was unrivalled. He did not confine himself to a summary of the able arguments by which the cases were elucidated, but there is scarcely a proposition on any of the diversified subjects to which the jurisdiction of the court extends, that might give rise to serious doubts in the profession, that is not explained, not merely by a citation of the authorities. adduced by counsel, but copious notes present the views which the publicists and civilians have taken of the question. Not only are Pothier and the civil code constantly quoted, and their conclusions compared with those of the common law; but, on the introduction of a case from Louisiana, we have an explanation of the jurisprudence, which prevailed in that colony at the time of its annexation, showing how far the French and Spanish laws respectively, were in force.*

The value of some of the more extended notes, as well as the general character of the reports, we can have no better means

1 Wheaton's Rep. vol. ix. p. 1, Gibbons v. Ogden.

2 Ibid. vol. iv. p. 122, Sturges v. Crowninshield. Ibid. vol. xii. p. 213. Ogden v. Saunders.

of estimating than by the contemporaneous remarks, in reference to the first volume, of the learned Judge of the Court, to whose correspondence with the author we have already adverted. Judge Story says: "I received yesterday your obliging favor, accompanied with a copy of your reports. I have read the whole volume through hastily, but con amore. I am extremely pleased with the execution of the work. The arguments are reported with brevity, force, and accuracy; and the notes have all your clear, discriminating, and pointed learning. They are truly a most valuable addition to the text, and at once illustrate and improve it. I particularly admire those notes, which bring into view the civil and continental law, a path as yet but little explored by our lawyers, but full of excellent sense and judicial acuteness. In my judgment there is no more fair or honorable road to permanent fame than by the breathing over our municipal code the spirit of other ages. In my judgment your reports are the best in manner of any that have ever been published in our country, and I should be surprised, if the whole profession do not pay you this voluntary homage. Respecting the note on the rule of 1756, I have already written my opinion; it is the best comment that the rule has ever received. The kind notice of our friend, Dexter, in the preface, is delightful to us all; and on turning to the argument in Martin v. Hunter, I perceive the splendid paragraph preserved in its original brightness.”1 The work, also, received the approbation of all the other members of the e court, and among other commendations, from judicial authorities, of the manner in which Mr. Wheaton's task was performed we may refer to that of the great English admiralty judge, Sir William Scott.

very

Judge Story's letter renders unnecessary the insertion of the equally strong testimony of the merits of the reports by William Pinkney, whose note lies before us. Daniel Webster, to whom

1 Judge Story to Mr. Wheaton, Salem, January 8, 1817.