from his state. If his state is at war with ours his individual friendliness avails him nothing unless it enures to procure for him the special favour of license from the King. If his state is in amity with ours he is considered an alien ami even though his personal intentions are hostile. His individual hostility does not entitle him to the character of an alien enemy. He can be executed for high treason, and is not entitled to be considered as a prisoner of war. By parity of reason neither does his individual hostility disentitle him to the rights conferred by law upon an alien ami, once he has entered this realm with permission from the King.

The King, however, can refuse any alien admission to the realm. This was established by the decision of the Privy Council in Musgrove v. Chun Tecong Toy, [1891] A. C. 272; and that permission may in some respects be conditioned. Every state may, according to international law, make special laws regulating the acts and property of aliens within the realm. By the common law of England and Ireland an alien could not hold real estate, not even chattels real, for more than a short term. The droit d'aubaine existed in France till the Revolution. Most countries, including our own, have from time to time passed Alien Acts.

But an alien ami is never ex lex; he is never subject to the arbitrary dispositions of the King. His rights may be limited, but whatever rights he has he can enforce by law just as an ordinary subject can. That is, I believe, both international law and the law of this country. No trace of any other doctrine is to be found in the text books, or in decided cases. The alien ami, once he is resident within the realm, is given the same rights for the protection of his person and property as a natural born or naturalized subject. * *

*

From these propositions it would seem to follow that an alien ami complaining of a tort is in the position of an ordinary subject, and that no more against him than against any other subject can it be pleaded that the wrong complained of was, if a wrong, done by command of the King or was a so-called act of state.

From the moment of his entry into the country the alien owes allegiance to the King till he departs from it, and allegiance, subject to a possible qualification which I shall mention, draws with it protection, just as protection draws allegiance.

Then is there anything special in this case? The respondent has indeed no merits. On his own admission, he might have been tried, convicted and executed for high treason. His conduct shows evidence of much hostile feeling. He has since been expelled and rightly expelled from the country. But at the time when his money was taken from him, he was residing in the country, like any other alien, with the tacit permission of the King. He owed temporary allegiance to the King and for that reason could have been tried for high treason; but he was entitled till his trial to ordinary protection. * * *†

†The concurring opinions of Viscount Finley and Lords Atkinson and Sumner are omitted.

PART II

COMPULSIVE MEASURES OF REDRESS IN
TIME OF PEACE

CHAPTER I

NONINTERCOURSE

THE PATRIOT.

(Circuit Court of the United States, D. Virginia, 1820. 1 Brock. 407; Fed. Cas. No. 13,985.)

This was a libel against the schooner Patriot, a British vessel, and' her cargo, owned partly by a British subject, and partly by citizens of the United States, which arrived in the Chesapeake Bay, in June, 1812, three days after the declaration of war, between the United States and Great Britain, from the island of Guadaloupe, a British colony, contrary to the several acts of Congress, to interdict the commercial intercourse between the United States and Great Britain, her colonies and dependencies. The District Court of the United States at Norfolk, condemned the vessel and her cargo, and from this decree, the claimants appealed to this court.

The following opinion was delivered by

MARSHALL, C. J.1 The schooner Patriot, a British vessel, then lying in the port of Norfolk, was purchased in February, 1812, by Oswald Lawson, a British subject, then, and for some time before, a resident of the town of Norfolk. This purchase was made by Lawson, at the instance of Henry Thomson, and Robert Dixson, citizens of the United States, whose object was, a mercantile voyage to the West Indies, and who advanced the whole purchase money, and took a bottomry bond, as security for the repayment thereof. The schooner sailed for the West Indies in February, 1812, with a cargo owned by Thomson & Dixon, which was placed under the control of Oswald Lawson, as supercargo. He sold his cargo in the West Indies, and took on board at Guadaloupe, a return cargo, consisting of sugars, belonging chiefly to Thomson & Dixon, with which he sailed from Guadaloupe in May 1812, bound to Halifax, in Nova Scotia, but with 1 Parts of the opinion are omitted.

a determination to lie off the Capes of Virginia, until explicit instructions should be received from Thomson, one of the owners of the cargo, residing in Norfolk. She arrived off the Capes of Virginia in June, immediately after the declaration of war was known in Norfolk. Lawson, the supercargo and owner of the vessel, being ignorant of that event, despatched the mate with a letter of advice to Thomson, and determined to await the return of his messenger off the coast. In this interval, however, he entered the Capes, but sailed out of them again, without coming to anchor. The mate never returned, he being seized in Norfolk, as a prisoner of war. Two days after the mate had been landed, while the Patriot was lying off on the coast, about ten miles from land, and about forty south of the Capes, she fell in with a pilot boat, and took a pilot on board. The supercargo says, that he at first declined taking a pilot on board, as the vessel was not bound inward, but was persuaded by the pilot to do so, who represented the probability of an approaching storm from the coast. To avoid this storm, he determined to await within the Capes for instructions. The pilot taken on board, who was an apprentice of the owner of the boat, denies that such advice was given. The vessel was brought within the Capes, with the knowledge of Lawson, the owner and supercargo.

On its being known in Norfolk, that a British vessel was off the Capes, the revenue cutter was sent to take her, and fell in with her, about three miles within the Capes, in the road leading to Lynhaven Bay, and also to Hampton Roads. She was brought into Norfolk and libelled.

The first allegation of the libel is, that she was a British schooner, which had come within the limits and territories of the United States of America, having on board a cargo of the growth, etc., of a dependency of Great Britain, to wit, of the island of Guadaloupe.

The second allegation is, that the cargo was imported into the United States, contrary to the true intent and meaning of the acts of Congress.

The third charge alleges, that the cargo was taken on board, for the purpose of being imported into the United States, with the knowledge of the owner. * * *

The forfeiture of the vessel and cargo, is claimed under the third section of the act "to interdict the commercial intercourse between the United States, and Great Britain, and France, and for other purposes," which was passed on the 1st of March, 1809, and was reenacted "against Great Britain, her colonies and dependencies," on the 2d of March, 1811.2

By the third section of the act of 1809, the entrance into the harbours and waters of the United States is interdicted to all ships or other vessels, sailing under the flag of Great Britain, or France, or

22 Story's L. U. S. c. 91, § 3, p. 1115, and Id. c. 96, p. 1187.

owned, in whole or in part, by any subject or citizen of either. And if any such vessel shall "arrive, either with or without a cargo, within the limits of the United States, or of the territories thereof, such ship or vessel, together with the cargo, if any, which shall be found on board, shall be forfeited," etc.

Under this section the Patriot, which was a British vessel, and her cargo, part of which belonged to citizens of the United States, were condemned in the District Court.

The claimants have appeared, and contend that this sentence is erroneous; because,

1st. The Patriot had not arrived within the limits of the United States, at the time when she was seized by the revenue cutter.

The term "arrival," when applied to a vessel, is said to be equivalent to the term "importation," when applied to goods; and a vessel cannot be properly said to have arrived, within the meaning of the act, whose cargo might not, with equal propriety, be said to be imported.

Without denying or affirming that, in the laws of Congress, the term "importation," when applied to a cargo, is precisely equivalent to the term "arrival," when applied to a vessel, I will inquire, whether the meaning of the word itself be in any manner ambiguous. "To arrive" is a neuter verb, which, when applied to an object moving from place to place, designates the fact of "coming to" or "reaching one place from another, or of coming to or reaching a place by travelling, or moving towards it. If the place be designated, then the object which reaches that place has arrived at it. A person who is coming to Richmond, has arrived when he enters the city. But it is not necessary to the correctness of this term, that the place at which the traveller arrives should be his ultimate destination, or the end of his journey. A person going from Richmond to Norfolk, by water, arrives within Hampton Roads, when he reaches that place; or, if he diverges from the direct course, he arrives in Petersburg, when he enters that town. This is, I believe, the universal understanding of the term. Thus, the duty law requires, that the master of every vessel bound to Bermuda Hundred, or City Point, shall, on his arrival in Hampton Roads, or at Sewall's Point, deposit his manifest with the collector of Norfolk, or of Hampton. It also requires, that the master of any vessel, bound to any port of the United States, shall, on his arrival within four leagues of the coast, upon demand, produce his manifest, in writing, to any officer of the customs who shall first come on board. No person can doubt, that in the first case, the vessel bound to City Point, has arrived in Hampton Roads, when she enters the Roads; and that a vessel bound to any port of the United States, say to Boston, has arrived within four leagues of the coast, when she comes within that distance of land. It would be useless to multiply quotations on this point. The literal sense of the word seems

too plain for controversy. When the law enacts, that a British vessel, which arrives within the limits of the United States shall be forfeited, the forfeiture attaches, according to its letter, the instant that a vessel comes, voluntarily, within those limits. Now, whatever doubt may exist respecting the application of this term to any part of the open sea, no doubt. I believe has ever been suggested respecting the Chesapeake Bay. That bay is clearly within the limits of the United States; and the forfeiture, under the letter of the act, is as complete as if it had attached, by the words, on her arrival within the Chesapeake Bay.

Is the spirit of the law more favourable to the claim than its letter? By the spirit of the law, I understand, the intention of the legislature, to be collected from the general language of the act, the scope of its provisions, and the objects to be attained.

The object of this section cannot be doubted. It is to exclude all vessels owned by British subjects, from the waters of the United States. Its language conveys this intention, and is obviously calculated to carry it into full effect. The other sections of the law, which are designed to prohibit all intercourse with Great Britain, and to exclude all British goods, show a rigorous determination on this whole subject, which forbids the suspicion that the intention of the legislature, or in other words, the spirit of the law, is more favourable to the claimants than its letter.

If this be the object of the act, can we doubt that it would have been completely defeated by allowing British vessels to come unmolested within the Chesapeake, and the other bays of the United States? If the Patriot might enter the Chesapeake with impunity, where is the line drawn, or who has drawn it, which she might not pass? Might she not pass the mouth of the James, the York, the Rappahannock, or the Potomac? Are any of these points more certainly within the limits of the United States, than this middle ground within the Capes? And if British vessels, laden with British goods, might with impunity lie within the Chesapeake, and the other bays of the United States, what would become of the Nonintercourse Act?

The Patriot being completely within the enacting clause, it is scarcely necessary to say that she has not brought herself within the exception. She was not "forced in by distress, or by the dangers of the sea." The only allegation which looks towards this subject is, that the owner was advised to take a pilot on board, because a storm might be expected. No storm had commenced. All was fair. But the pilot said one might be expected. Even this is denied by the pilot who was put on board. But, admitting the allegation to be true in its utmost extent, can this imagined fear, this apprehension of uncertain danger, satisfy the words, "forced in by the dangers of the sea"? If they may, language seems to have lost its use, and I am persuaded that nonintercourse laws would do very little good or harm.