cile to some part of the king's dominions? Is there any thing in the principle of domiciliation, which will enable them to say, that the first choice is final, and the character thereby acquired cannot be put off? Is there not as much efficacy in a second, a third, or any other subsequent choice of domicile? And do not such per sons becomes toties quoties successively British or American? And if not, why not?

If their notion is grounded on any principle, they should be able to explain to us, why the first choice of domicile precludes the advantage to be derived from any subsequent choice.

Such are the queries that may be put on this piece of exchequer law, confined only to the very peculiar case of navigation and of mariners. There still remains the principal query, why should such a construction on the navigation act, supported as it is there by the special circumstances of the case, be adopted, and made to govern in the general question of natural-born subject, where there is nothing similar to make the application of it fit or colourable? Certainly domiciliation, or residence, temporary or permanent, was never made a part of the consideration, whether a person is a natural-born subject; but simply this was the question, whether he was born within the king's allegiance? However, if domiciliation weighs any thing, the claimant, in this case, is resident here, and professes to make this kingdom his future residence. Perhaps the chief baron, upon a habeas corpus, would, in the case of this claimant, have deemed his present residence, and his determination declared to reside here in future, to be a sufficient choice of domicile within the principle of his exchequer decision; perhaps he might consider this case as standing on different grounds from the exchequer case, and to be decided on general principles, without regard to domiciliation.

We are so uninformed as to the extent of what the chief baron is supposed to have ruled at nisi prius, that it seems to afford no safe ground of reasoning. Jan. 21, 1809.

March 22, 1809.

I have been desired, by a great lawyer, to look at the statute de prerogativa regis, ch. 12. de terris Normannorum. I suppose, he meant this should prove to me, that on king John losing Normandy, the Normans became thereby aliens, and therefore the lands holden by them in England, escheated to the king; but the No. XXI.

I

statute does not import this, nor is it so understood by Staunforde. On the contrary, Staunforde understands, that the Normans still continued English subjects, and were ad fidem utriusque regis. The statute expressly speaks of those who were non ad fidem regis angliæ, which must be such as were born after the severance of the two countries; and the design of the statute is, to fix, that the escheats, in the case of such postnati, accrued to the king, and not to the lord; and that the king was to grant them to be holden of the lord, by the same services, as before.

This chapter, therefore, of the statute de prerogativa regis is an express authority, that the severance of Normandy from the English crown did not make the inhabitants there aliens, though their children, born after the severance, were aliens.

This authority becomes also an answer to another point maintained by the same great lawyer; he goes beyond the rest that I have had to contend with, except the civilian, and he holds with the civilian, that the inhabitants of a ceded colony become thereby aliens. Yet, in this, I cannot but allow there is consistency; for the principle appears to me to be the same: those who call the Americans aliens, ought to consider the inhabitants of Florida, ceded at the same time, in the same light; and those who consider the inhabitants of Florida as not deprived of their personal rights of Englishmen, ought to admit the American claim to continue natural-born subjects.

Mar. 22, 1809.

March 24, 1809.

Perhaps the objectors have never considered the persons to whom naturalization and denization are granted. In both cases, in the act of parliament, and in the patent, the party is alleged to be born out of the king's allegiance; and in applying for either, he must allege the same in his petition; but an American cannot do this with truth. What then is to be the conclusion on the peculiar circumstances and situation of this supposed alien? Is he to be deemed an alien beyond all other aliens, that is, irredeemably such? Assuredly he is not susceptible of denization or naturalization in the ordinary course, because he cannot bring himself within the description, which alone makes him the object of such favour; or may we conclude, that, not having the defect, which is to be supplied by such grant, he is already in possession of the character to be conferred by it; in other words, he is not an alien, but a natural-born subject?

The latter appears to me the just conclusion; and I shall accordingly say, with confidence, that there is the authority of the lord-chancellor in cases of denization, and of the two houses of parliament in cases of naturalization, for the proposition, that birth out of the king's allegiance, is the only circumstance which constitutes an alien. We may be sure such forms would not have been settled and constantly acted upon, if they were not known to be required by the general law of the land. Indeed, it is nothing more than the definition of alien laid down in all the books, whether elementary or practical; the following examples are sufficient:

Natural-born subjects, are such as are born within the dominion of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the king; and aliens, such as are born out of it. - [Blackstone, 1 book. ch. 10.]

An alien is one, who is born out of the ligeance of the king.[Comyn's Digest. article, alien.]

An alien, is one born in a strange country.-[Bacon's Abridgement, article, alien.]

And thus I conclude this discussion, as I began it; relying upon established and known positions of law for maintaining juridical truth, against hypothesis and the speculations of political reasoning.

March 24, 1809.

NEW YORK. DISTRICT COURT, U. S.

[Property belonging to an enemy, which is brought within the territory of the other belligerent, after the declaration of war, and in ignorance of the fact, is lawful prize;-though it be in a vessel, and under the flag of the captor; -what constitutes a domicil so as to avoid the character of an alien enemy.]

Charles Johnson, on behalf of himself, officers and crew of the private armed vessel the Tickler, vs. 21 bales, 28 cases of merchandise, and 2708 bars of iron, goods and merchandise, claimed by Robert Falconer, for and on behalf of John Richardson.

VAN NESS, J. This case will first be considered as it is disclosed by the ship's papers, and the preparatory examinations, and then will be examined the defence arising out of the further proof that was ordered and produced.

It appears by the papers, that the property in question was laden on board the ship Mary and Susan, at Liverpool, in England, some time in the month of July, 1812.

That the Mary and Susan is an American registered vessel, and that she sailed from Liverpool on the 16th July, 1812, on a voyage to New York, with these goods on board, and under a charter-party to John Richardson, styling himself an English merchant, residing in Liverpool.

That she had a license on board, obtained from the British government, to protect her against capture by British cruisers. That at the time of her departure information of the hostilities existing between the United States and Great Britain had not reached England.

That on the 3d September, 1812, she was captured as a prize by the privateer Tickler, and brought into the port of New York. The position in which she was taken is not ascertained with precision. It is differently stated in the preparatory examinations which have been read, varying from 18 to 30 miles south of the light-house.

It is also in evidence, that John Richardson, the person in whose behalf these goods are claimed, is a native subject of the king of Great Britain, but a naturalised citizen of the United

States.

The national character of Mr. Richardson is the principal ground on which this cause must be decided; but before I proceed to consider that, to examine the effect of his naturalization here, and of his subsequent residence in England, with the explanation given of it, by the further proof which was ordered and produced, I wish to dispose of some other questions which were first raised as principal grounds of defence, in a preceding cause, and also relied on in this.

It has been insisted, that this property was confided to the faith of the government, because laden on board an American vessel before the commencement of hostilities, and proceeding to its destined port in ignorance of that event.

2d. That it was captured within the territorial waters of the United States; thus under the protection of the government, and not subject to be made prize.

3d. That it was exempt from capture, because proceeding in an American vessel, and under the American flag.

In examining the points which have been stated, it will be necessary to advert to some general principles of the law of nations. In doing this, it will not be requisite to notice particularly its divisions into necessary, voluntary, conventional, customary or positive. The law of nations, without defining or developing its divisions more minutely, may be stated to be the law of nature, rendered applicable to political societies, and modified, in progress of time, by the tacit or express consent, by the long established usages and written compacts of nations: usages and compacts become so general, that every civilized people ought to recognise and adopt their principles.

A principle which is deducible from natural reason, and firmly established by the primitive law of war, the general law of nations, in which is not embraced, the conventional or customary law, is,

That as soon as war is declared, all the property of the enemy or his subjects, wherever found, whether on the land or on the water, is lawful prize. This position, it is presumed, will not be contested. It is laid down in terms thus broad by all the