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be arraigned by the civil court for treason, or a minor crime, under the laws of the state of New York, he must be discharged.

Very respectfully,

I have the honour to be,

Sir, your obedient servant.

Major General A. Hall, Niagara.

GENERAL ORDERS.

W. EUSTIS.

Consequent on the opinion of the president.

The pleasure of his excellency the president of the United States of America, in relation to the case of Elijah Clark, who was tried and convicted of being a spy, under and by virtue of general orders of August 1st ultimo, and whose execution was suspended by general orders of August 13th ultimo, having this day been made known to the major general through the honourable the secretary at war, therefore, in conformity to the directions of his excellency the president, it is hereby ordered "that the said Clark being considered "a citizen of the United States, and not liable to be tried by "a court martial as a spy, therefore, unless he should "be arraigned by the civil courts for treason or some minor crime under the laws of the state of New York, he must "be discharged.”

All officers and military authorities whatever, in whose custody the said Clark shall or may happen to be, for the cause aforesaid, are hereby directed to release him from his said arrest as a spy.

Lieutenant colonel Philetus Swift is particularly charged with the execution of the order.

By order of Major General Hall,

GEO. HOSMER, A. D. C.

Bloomfield, December 2d, 1812.

Once a citizen, and always a citizen, until the contrary be shewn; so that it did not follow that because Clark had removed to Canada, &c. he had expatriated, and considered himself a subject of the king of England. It was incon

sistent with his safety to set up that plea; and therefore, it may be presumed, that he did not set it up. By his temporary allegiance he could commit treason against the king of England, even though he had not been naturalized, or had put off the United States. But he could not be considered a spy to the United States, in consequence of that temporary allegiance; and, in this, the court had erred in taking cognizance of his acts in that point of view. If he had set up the defence that he had become a subject of the British government in Canada, there would have been no difficulty: he might have been hanged at once. It was not because he could not have ceased to be a citizen; but, because he did not allege that he had expatriated, that the civil authority alone could interpose; and, to this, he was ordered to be delivered.

I see no evidence in this, of President Madison giving countenance to the idea of the exuere patriam; or of Clark not having been able to put off his condition, or character of a citizen of the United States. When he came before the civil tribunal, he might plead his expatriation, and if found for him, he could be remitted to the military jurisdiction to be hanged according to his sentence.

I can have no idea that president Madison would controvert the doctrine of feudal allegiance according to the law of England; but as to an American citizen not being able to put off his allegiance to his government, it is quite another But even in England as to the extent of the claim of perpetual allegiance to a subject who relinquishes his feud, I presume he would question it.

matter.

The feudalist cannot put off his ligeance to his lord by a law of the feudal system; but it is ratione tenure, that he cannot the feud is the vinculum. But if he ceases to claim the feud, what right has the lord to his homage? He owes services for the clod, while he claims the clod. But unless he

is adstrictus glebæ; or tied to the clod, like a serf, he can put it off. Must a man who has no clod, or is willing to relinquish it, be tied to the whole clod of the dominium, so that he cannot put it off?

That the feudalist cannot untie himself from his ligeance to the lord paramount the king, is a law of that system. But still, this is ratione tenure, and from his infeudation. That this principle should apply to such as have no feud, or are willing to shake off the clod, is contrary to the artificial reason of the system. Hence it is, that colonial emigration carries no such principle with it, that mere labourers, or persons merely merchants, or manufacturers, ought not to be considered as having any thing to do with it. Seamen, who plough the wave, what have they to do with a feud; or an adstriction to the clod of the kingdom? Their employment is not on terra firma; and it can only be by a fiction that they can be considered feudalists. Independent of an adstriction to the clod, the sovereign can claim them only so long as they are willing to stay on the land, or have contracted to stay. A contract cannot exist where their services have been impressed. The pride of an Englishman would be hurt, if he was told that he was a serf to his monarch; and what else can he be considered, if he cannot shake off his clog, but must be considered as tied to the island?

The ultima ratio must now determine the question as, between the United States, and the British empire. It is brought to the test between the two governments, by ordering to England for trial, individuals taken in arms, and alleged to be the subjects of that power. The retaliation by a taking in withernam, as the common law terms it, individuals of that government, must bring it to the test; and I may therefore consider it, a little more fully. There can be no doubt, but that it has come to be considered their law, that a subject cannot put off his allegiance. In the charter of privileges, extorted from king John, liceat de cetero, unicuique de regno nostro exire, salva fide nostra, nisi tempore guerre, &c. Fealty, to the king, and the going in time of war, is the exception; the putting off the allegiance of the sovereign, makes no part of the privilege of going abroad; and this involves the not putting off subjection to the government. Being so, it is but the cant of poets, and orators, to say that an Englishman is free-born. Nevertheless, Daniel de Foe, in his poem, stiled, the true Englishman, though poetical licence might allow it, does not ven

ture to say the free Englishman. The truth is, in strictness, the Englishman is not free-born. When we come to the

lawyers, they will tell you, of a general restraint, under the charter; and a particular restraint by the writ Ne exeat regno. An English subject, is therefore confined to the prisonbounds of the island. I say island, because, that is the homestead of the government. A British subject is in legal strictness, as much confined to those limits of subjection, as the convicts at Castle William, on Governor's island, in Boston harbour. Tufts and Burroughs had the privilege of the island; but they were restrained from leaving it.

But do the British take subjects belonging to other countries? They are no slouches at this. But do they keep them too? Ay, defend them against all the world. They would think themselves degraded to give up even a murderer, a fugitive from justice from another country who had taken sanctuary with them. Does not this operate as an estoppel, which is a term of their own law, to say, that other people shall not have the same right? Will they admit that the United States have a right to reclaim a citizen expatriated, and take him out of a vessel at sea; or a port on land, and hang him? John Bull would roar like a mad bull, if this pretension was set up. I admit, that whether derived from the German, or, more immediately imposed by the Norman, the ne liceat exire, nisi salva fide, to the prince, is a law of their island. But when it comes to be a matter with the right of another nation, their own practice may be set up. But if it were not their own practice, there is another right to be consulted, that of another nation. This must be determined, by an appeal to the law of nature, and the law of nations.

The law of nature, does not acknowledge the prohibition to expatriate. The Roman law gave a right to the parent to put to death his offspring, either by exposing, or by capital punishment, when the child offended. Did this take away the right of a Sabine, a Volscian or a Samnite to protect the child, when he came amongst them? The Roman republic, even in the plenitude of her arrogance, when she came to her full majesty, did not affect this. We hear nothing of it, even in the times of the Cæsars, as a cause of war.

Extract of two notes of Mr. Duponceau, under the head of allegiance, from the American edition of the Edinburgh Encyclopædia; 506 and 508.

"The word allegiance is of modern date. In the ancient books and statutes it is written legeance; and, from thence, has been framed the barbarous latin word ligeantia. The generally admitted derivation of these words, from the latin ligare, or alligare, as expressive of the bond, or connection subsisting between the lord and his vassal, has always appeared to us to be a forced etymology; because few of the genuine terms of the feudal law have been borrowed from the latin language; but their origin is rather to be sought for in the idioms of the northern conquerors, who introduced that system into the provinces of the Roman empire.

Doctor Johnson very properly derives allegare from the French word lige, which was itself the denomination of a particular species of feud called fief lige.

The French and particularly the Angivins and Normans said, homme liege, vassal liege, hommage liege, fief liege; and out of the adjective, liege, formed the substantive ligence; from which the English made ligeance, and ligeantia, and afterwards allegiance.

The French as well as the English etymologists derive. the word liege from the latin ligare; but we cannot agree with them in this opinion, and are inclined to trace that term to another and more legitimate source.

The fief liege is defined by the French feudists to be a species of fief, the tenure of which is called ligence; by which the vassal is bound, not only to fealty, but to personal service, which distinguishes it from the fief simple (fee simple) which binds the tenant to fealty only. Hence the fief lige, is, by the French jurists, also denominated fief de corps, in allusion to the corporal service which the vassal is bound to perform; and the corporal oaths which he takes on doing homage, by holding both his hands, between those of his sovereign. Ferriere Dict. de droit verbo fief lige. Dennisart. Collect, de jurisprudens. eod. verbo. The difference

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