The daily Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1841-1845, 1842-11-24


country IL il did, intercourse Of civilized men be-
tween nation and nation must cease Marriages are
frequently celebrated in one country m manner not
awful or valid IN another; but did any body ever
doubt that marriages are valid all over the cNzeo
world if valid in the country IN which they took
place Did any one imagine that local la"
acted upon such marriages to annhiute their obliga
ton if the parties should VISIT country IN which
marriages must be celebrated In another form
IL NAV be said that, In such Instances, personal re-
latons are founded ia contract and therefore TO be
respected but that the relation OF master and slave
is not founded in contract and therefore is TO be
spected only by the law of the place which recognises
IL Whoever so reasons encounters the authority Of
the whole body of public law, from Grotius down
because there numerous instances in which the
law itself presumes or implies contracis and promi-
among these instances is the very relation which
now considering and which relation IS holden
by law To draw after IL mutually of oblIga alton
Is not the relation between father and his minor
children acknowledged, when they go abroad, And
what contract is this founded but a contract raised
by general principles of law from the relation of the
parties
Your lordship will please to bear in mind that the
proposition which am endeavorng to support is,
that by the comfy of the law of nations and the prac
tce OF modern mes merchant vessels entering open
ports Of other nations for the purpose of trade are
presumed to be allowed to bring with them, and TO
RETAIN for their protection and government, the jul
rsdction and laws of their own country. All
this, repeat, is presumed 10 be allowed because
the ports open, because trade is invited and be-
cause, under these circumstances such permission or
allowance is according TO general usage. Ii is not
denied that all this may be refused and this sug-
gests distinction, the disregard of which may per-
haps account for most of the difficulties arising in
cases of this sort that IS TO say the distinction be-
tween what State may do if it pleases, and what
it is presumed to do, not to do, in the absence of
any positive declaration Of its will. A State might
declare that all foreign marriages should be regarded
as null and void, within its territory; that foreign
father, arriving with infant son, should longer
have authority or control over him that, on the ar
rival OF foreign vessel its ports all shipping arii
cles and all ihdentures OF apprenticeship between
her crew and her owners masters, should TO
be binding. These, and many other things equally IT.
rational and absurd, sovereign State has doubtless
the power TO do. But they are to be presumed |
II is not to be taken for granted db ant that it is the
will OF the sovereign State thus 10 withdraw itself
from the circle Of civilized nations. II will be time
enough 10 believe this TO be its intention when ii
| formally announces that intention, by appropriate
enactments, edcts, or other declarations In regard
TO slavery within the British territories, there is a
well-known and clear promugatio of the will Of the
sovereign authority that is TO say there is we'll
known rule OF her law. As to England herself, that
law has long existed and recent acts of Parliament
establish the same law for the colonies. The usual
mode Of stating the rule Of English law is, that no
sooner does slave reach the shore of England than
he is free. This is true but it means no more than
that, when slave comes within the exclusive juris
dction Of England, he to be slave, because
the law Of England positively and VIGOROUSLY
prohibits and forbds the existence of such a re
lation between man and man. But it does not mean
that English authorities, with this rule Of Eng
lish law in their hands, may enter where the urisdic-
ton Of another nation is acknowledged to exist and
those destroy rights obligations, and interests law
fully existing under the authority Of such other ma
ton NO such construction, and no such effect can
be rightiuily gwen TO the British Law. II is true that
1T is competent TO the British Parliament by express
statute provision, to declare that foreign urisdic-
ton Of any kind should exist or over vessel af-
ter It's arrival voluntarily her ports. And so She
might close all her ports 10 the Ships of all nations
State may also declare, in the absence of treaty
spulaons, that foreigners shall not in her cour
nor travel In her territories carry funds or
goods received for debts We need not inquire what
would be the condition of country that should es-
tabsh such laws, nor in what relation they would
leave her towards the States of the civilized world
Her power to make such laws is unquestionabe; but
IN the absence of direct and positive enactments TO
that effect the presum ton is that the opposites of
these things exist While her ports open to for
e- trade 1t is to be presumed that she expects for
egn ships to enter them, bringing with them the u-
risdlction of their Government and the protec-
ton oil It's laws to the same extent that her ships
and the ships OF other commercial States carry with
them the jurisdiction of their respective Govern
ments into the open ports of the world Just as it is
esumed, while the contrary is not avowed that
strangers may travel in civilized country, in time
OF peace sue in lis courts, and bring away their
property.
A merchant vessel enters the port Of friendly
State and enjoys while there the protection of her
own laws, and is under the Jurisdiction of her own
Government, not In derogaon OF the gnty Of
the place, but by the presumed allowance permits
sion Of that sovereignty. This permission or allow
ance is founded on the comfy of nations, like the
other cases which have been mentioned and this
comfy Is part, and a most important and valuable
part, OF the law of nations, to which all nations are
presumed to assent until they make their dissent
known In the silence OF any positive rule, affirm
ing or denying or restraining the operation of foreign
laws their tacit adoption is presumed TO the usual
extent 1t IS upon this ground that courts of law ex
pound contracts according to the law of the place 10
which they made and instances almost nn,Imer
able exist, in which, by the general practice of civil
! lied countries, the laws of one will be recognised
and often executed in another This is the comfy Of
nations; and it is upon this IFS solid basis that the
intercourse of civilized States is maintained.
| But while that which has been said is under
stood to be the voluntary and adopted law of nations
in cases of tie voluntary entry Of merchant vessels
into the ports of other countries, is nevertheless
true that vessels in such ports only through an over
| ruling necessity may place their claim for exemp-
ton from interference on still higher principles that
is to say, principles held in sacred regard bv
the comfy the courtesy, indeed the common sense
! of justice of all civilized States.
| Even in regard to cases of necessity, however
there things of unfrendy and offensive cha
racter, which yet il may not be easy to say that ma
ton might not do. For example, nation might de-
clare her will TO be- and make it the law Of her do
minons that foreign vessels cast away on her shores
should be lost to their owners and subject to the am
clcnt law of wreck. Or neutral Site while shut
! ting her ports to the armed vessels of begerents as
she has right to do, might resolve seizng and
coniscatng vessels of that description which should
! be driven to take shelter in her harbors by the vio
lence OF the storms of the But laws of this
character, however within the absolute competence
of Governments, could only be passed, if passed at
all, under willingness IL meet the last responsibility
| to which nations subjected.
| The presumption is stronger, therefore, in reg I'd
10 xcssGls driven lDreinn rs,