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The release of a territory from the dominion and sovereignty of the country, if that cession be the result of coercion or conquest, does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession. The annals of New-York furnish a strong illustration of this position. The territory composing the state of Vermont belonged to this state; and it separated from it, and erected itself into an independent state, without the consent,. and against the will of the government of New-York. The latter continued for many years to object to the separation, and to discover the strongest disposition to reclaim by force

conqueror plenum dominium et utile. A temporary right of possession and government is only acquired, unless the treaty of peace settles the question otherwise, or there be an absolute abandonment of the territory by the former sovereign, or an irretrievable subjection to the conqueror. United States v. Hayward, 2 Gallison, 486. Clark v. United States, 3 Wash. C. C. 104. The rule is different when a country is claimed by the right of discovery and occupancy, and not by right of conquest or cession. In the former case, the discoverers and new occupants carry with them all the general laws of the mother country applicable to their new situation as colonies, and they become, ipso facto, the law of the country. Such was the case with the United States, when they were first colonized by Great Britain, and this was the case, says Chancellor Walworth, with New-York, when conquered from the Dutch in 1664; for the English held it, though acquired by conquest from the Dutch, not by that title merely, but by the prior right of discovery. But if he was in error on that point, yet, when the English acquired possession of New-York by force, in 1664, the charter granted in that year to the duke of York contained an explicit declaration of the king's will, that the laws of England should be the established laws of the province, and this put an end to the operation of the Roman Dutch laws imported from Holland. The illustrations above alluded to, of the sovereign power of the conqueror over the laws of the conquered countries, appears in the case of the northern barbarians who overran the south of Europe during the 5th and 6th centuries. They neither adopted their own laws entirely, nor retained those of the conquered countries to their full extent. The Roman provincials were governed between themselves, as to their possessions and personal rights, by the Roman law; the Salian Franks, by the Salic law; the Franks of the Rhine, by the Ripuarian law; the Alemans and Swabians, by the Alemanic law, and the Lombards, by their own law. (Savigny's Hist. of the Roman Law, vol. i. and see infra, vol. iii. 491.) So the Mohamedan conquerors of Hindostan, introduced their own law so far only as it affected the followers of Mahomet, leaving the conquered Hindoos to enjoy their own laws as between themselves. There is therefore now in India one law for Europeans and their descendants, another for the Hindoos, and another for the Mohamedans; and these different laws have been adopted in India by the will of the English sovereign, without any parliamentary authority. The conquest of Gibraltar, Trinidad, Ceylon, the Cape of Good Hope, Louisiana, &c., all show that the old laws remain, or the laws of the conquering nation, in whole or in part, are substituted, at the mere will and pleasure of the conqueror.

the allegiance of the inhabitants of that state. But they were unable to do it; and it was a case of a revolution effected by force, analogous to that which was then in action between this country and Great Britain. And when New-York found itself under the necessity of acknowledging the independence of Vermont, a question arose before the legislature, whether they were bound in duty to make compensation to individual citizens whose property would be sacrificed by the event, because their titles to land lying within the jurisdiction of Vermont, and derived from New-York, would be disregarded by the government of that state. The claimants were heard at the bar of the house of assembly, by counsel, in 1787, and it was contended on their behalf, that the state was bound, upon the principles of the social compact, to protect and defend the rights and property of all its members; and that whenever it became necessary, upon grounds of public expediency and

policy, to withdraw the protection of government *179 *from the property of any of its citizens, without actu

ally making the utmost efforts to reclaim the jurisdiction of the country, the state was bound to make compensation for the loss. In answer to this argument, it was stated, that the independence of Vermont was an act of force beyond the power of this state to control, and equivalent to a conquest of that territory, and the state had not the competent ability to recover, by force of arms, their sovereignty over it, and it would have been folly and ruin to have attempted it. All pacific means had been tried without success; and as the state was compelled to yield to a case of necessity, it had discharged its duty; and it was not required, upon any of the doctrines of public law, or principles of political or moral obligation, to indemnify the sufferers. The cases in which compensation had been made for losses consequent upon revolutions in government, were peculiar and gratuitous, and rested entirely on benevolence, and were given from motives of policy, or as a reward for extraordinary acts of loyalty and exertion. No government can be supposed to be able, consistently with the welfare of the whole community, and it is, therefore, not required, to assume the burden of losses produced by conquest, or the violent dismemberment of the state. It would be incompatible with the fundamental principles of the social compact.

This was the doctrine which prevailed; and when the act of July 14th, 1789, was passed, authorizing commissioners to declare the consent of the state to the independence of Vermont, it was expressly declared, that the act was not to be construed to give any person claiming lands in Vermont, under title from this state, any right to any compensation whatsoever from New-York.

LECTURE IX.

OF OFFENCES AGAINST THE LAW OF NATIONS.

a

THE violation of a treaty of peace, or other national compact, is a violation of the law of nations, for it is a breach of public faith. Nor is it to be understood that the law of nations is a code of mere elementary speculation, without any efficient sanction. It has a real and propitious influence on the fortunes of the human race. It is a code of present, active, durable and binding obligation. As its great fundamental principles are founded in the maxims of eternal truth, in the immutable law of moral obligation, and in the suggestions of an enlightened public interest, they maintain a steady influence, notwithstanding the occasional violence by which that influence may be disturbed. The law of nations is placed under the protection of public opinion. It is enforced by the censures of the press, and by the moral influences of those great masters of public law, who are consulted by all nations as oracles of wisdom; and who have attained, by the mere force of written reason, the majestic character, and almost the authority, of universal lawgivers, controlling by their writings the conduct of rulers, and laying down precepts for the government of mankind. No nation can violate public law, without being subjected to the penal consequence of reproach and disgrace, and without incurring the hazard of punishment, to be inflicted

in open and solemn war by the injured party. The *182 law of *nations is likewise enforced by the sanctions of

municipal law. It is, says Blackstone, adopted in its full extent by the common law of England; and whenever any question arises which is properly the subject of its jurisdiction,

⚫ Vattel, b. 2. c. 15. sec. 221. Resolution of Congress of November 23d, 1781. b Comm. vol. iv. 67.

it is held to be a part of the law of the land. The offences which fall more immediately under its cognizance, and which are the most obvious, the most extensive, and most injurious in their effects, are the violations of safe conduct, infringements of the rights of ambassadors, and piracy. To these we may add the slave-trade, which may now be considered, not, indeed, as a piratical trade, absolutely unlawful by the law of nations, but as a trade condemned by the general principles of justice and humanity, openly professed and declared by the powers of Europe.

passports.

(1.) A safe conduct or passport contains a pledge of the Violation of public faith, that it shall be duly respected, and the observance of this duty is essential to the character of the government which grants it. The statute law of the United States has provided, in furtherance of the general sanction of public law, that if any person shall violate any safe conduct or passport, granted under the authority of the United States, he shall, on conviction, be imprisoned not exceeding three years, and fined at the discretion of the court.a

(2.) The same punishment is inflicted upon those persons who infringe the law of nations, by offering violence to the persons of ambassadors and other public ministers, or by being concerned in prosecuting or arresting them or their domestic servants. This is an offence highly injurious to a free and liberal communication between different governments, and mischievous in its consequences to the dignity and well-being of the nation. It tends to provoke the resentment of the sovereign whom the ambassador represents, and to bring upon the state the calamities of war. The English parliament, under an impression of the danger to the community from violation of the rights of embassy, and urged by the spur of a particular occasion, carried the provisions of the statute of 7 Anne, c. 12, to a dangerous extent. That statute prostrated all the *safeguards to life, liberty and property, which the *183 wisdom of the English common law had established.

Act of Congress, April 30th, 1790, sec. 27. A foreign minister (and an attaché to a foreign legation is such) cannot waive his privilege, for it belongs to his sovereign who sends him. U. S. v. Benner, 1 Baldwin's C. C. U. S. Rep. 234.

Act sup. sec. 25, 26.

Of ambassadors.

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