Where part of a judgment can be reversed, and the rest remain, it is competent for this court to set it right. The error here being in matter of law, there can be no costs on the writ of error.

Parsons, C. J. The report having been accepted by the court below, they ought to have pursued it in rendering their judgment, unless this part of the report can be rejected as surplusage. But if, by the terms of the submission, the referees had jurisdiction of the question of costs, their award concerning them is not to be rejected. This practice is of so long standing that it cannot now be shaken, if we were so disposed. But the practice may be considered as beneficial. There may be reasons, respecting the allowance of costs, which in the minds of referees would very properly have weight, although they could not be admitted in a court of law. It may appear to them, that a creditor has unduly harassed his debtor for a trifling demand or has brought his action before the cause of action had accrued. Many other reasons may be conceived. It was therefore both legal and expedient that these referees should take the subject of costs into their consideration, and make their award concerning them. The court having accepted the report were bound by it, and ought to have followed it in rendering their judgment. There is no doubt then that their judgment is erroneous. As the error extends to part of the judgment only, it must be reversed for that part, and will remain good for the rest.

Let the judgment be reversed for three quarters of the costs: and as the error was of law, and not of fact, the plaintiff in error is not entitled

to costs.

ARTICLE II.

THE HONEST POLITICIAN,

PART I.

Containing the first eight numbers; together with a publication under the signature of Vindex, relative to the same subject. Addressed to the president, and published in the district of Columbia about the middle of February last. Baltimore, 1808, pp. 65. twenty-five cents.

A S this pamphlet contains a discussion of some points in the

law of nations, as involved in the capture of the Chesapeake, which are particularly interesting to the United States at this juncture of our affairs, it is fairly included within the objects of the Law Journal. With what are called the politics of the day, that is to say as the word is vulgarly understood, whe

ther general Washington was a peculator and Mr. Adams acted under the influence of British gold, as is asserted by one party, or whether their successor, Mr. Jefferson, be the tool of Bonaparte, and would be willing to add this country to the ample chart of his possessions, are questions which cannot be discussed in these pages. But whether the ships of war of one country are justifiable in searching those of another, what are the duties which good faith requires from a neutral nation towards a belligerent, and how far it is consistent with the obligations of national honour and individual honesty to afford protection to the seamen of our neighbours, may surely be investigated without affecting the sensibility of those who fear that this is to be a party work. The pamphlet under consideration is ascribed to the pen of a gentleman, who has long occupied a conspicuous place in the front rank of the legal characters of this country. This is the place of his birth, and he is united to it by the most intimate ties of interest and affection. He therefore can have no other object in this discussion than to obtain a fair decision. He informs us that he is a native American and that his intention in writing was to prove" that the affair between the Leopard and Chesapeake, which has been seized upon with avidity by our administration to widen the differences between us and Great Britain, and which he sacredly believes was planned for that purpose, originated in the misconduct of our government, and that in truth our government was the aggressor."

Our naturalization laws seem to regard man as in a state of nature, with a perfect right to violate the contract of obedience which he has entered into with his government in consideration of protection being afforded to him in his life, liberty and property. Hence the outcasts of other countries, the very sweepings of their jails are welcomed to this asylum of oppressed humanity. They are immediately enfranchised with the rights of citizenship, and they quickly convince us of the value of the acquisition, which we have made, by opposition to our government and hatred to that which they have deserted. On the affair of the Chesapeake it has been contended that

no government is bound to deliver to another those fugitives from justice which have taken refuge within its jurisdiction. If this doctrine should be carried into execution crimes may be committed with impunity and laws may be enacted in vain. But it is a doctrine so pregnant with pernicious consequences, so radically vicious, that the good sense of the individual and the policy of the nation alike revolt against its dangerous influence. In the constitution of our government we have recognized the necessity of delivering up fugitives from justice;* and if the doctrine be correctly applicable to states why should it not be extended to nations, according to the civil law sub mutuæ vicissitudinis obtentu et in juris subsidium? The Honest Politician says that he who harbours a robber participates in his guilt, and, by a parity of reasoning, he contends that a nation which protects a criminal, makes the crime its own. In answer to the 27th article of the convention between this country and Great Britain, commonly called Jay's treaty, he says, that articles in treaties are frequently inserted in cases which had been amply provided for by the law of nations; and that, therefore, although that article, by which the nations were bound to deliver up fugitives to each other, has expired, still the general law is in force. He continues,

"Besides, that article only extended to persons who are charged with murder or forgery. Was it therefore in existence, it would not extend to mutineers or deserters. As to these, the expiration or continuance of that treaty cannot alter the case. The right of a government to claim these, must depend on other ground than the treaty. And here, before I end this essay, let me just observe, that the right to claim criminals, whether it be a perfect or an imperfect right; whether sanctioned by the law of nations, or dependent only on the comity of governments, yet it belongs to a state of peace. It is the same, though every nation in the universe were in the utmost

In the case of Mr. John Montgomery, now of this state, who was demanded by the governor of Pennsylvania from the executive of this state, the requisition, as I understand, was rendered nugatory by a disagreement between the two governors, as to the spot, where the one should deliver and the other receive him.

harmony and good will with each other. It grows not out of a state of war. It has nothing to do with that set of rights or duties, which, in a state of war, arise and exist between the belligerent and the neutral powers."

Having thus proved that one nation cannot refuse to deliver criminals to the nation whose laws have been violated, the author proceeds to his second number, in which he endeavours to show that a neutral power, in time of war, ought to deliver to each of the belligerent powers the deserters from their respective armies or navies. This obligation results, as he contends, not merely from the principle of their being criminals, but because a refusal to do so, would be a violation of the duties of neutrality.

"The moment war takes place between two nations, all thosc states, which choose to be considered neutral, become deprived of many rights, which they enjoy in peace. I need not multiply exampeace, ples: One or two will be as good as a thousand. In time of any nation may send military stores to another. In time of war, a neutral nation cannot send such stores to either of the belligerent nations. In time of peace, a nation may send its vessels with provisions or necessaries to any port of any nation, which will admit them. In time of war, no nation has a right to send their vessels with provisions or necessaries, to any belligerent port which is blockaded. In time of peace, any nation may permit the armed force of another to march through its territory, for the purpose of establishing or relieving garrisons. In time of war, to permit this to either of the belligerent powers, would be a violation of neutrality.

"A nation, which would wish to enjoy the benefits of neutrality, ought, when war breaks out between other powers, to act strictly impartially to both; and not to do, or suffer to be done, as far as relates to itself or its citizens, any thing that would benefit the one to the prejudice of the other. Neutrality will not permit an act of succour to be given to one of the belligerent powers, even though the same is given to the other; because such may be the relative situation of the two, that the same act might be less beneficial to the one than to the other. Need I give an example? A city is besieged, and the garrison reduced to the last rations of provisions, while the besieging army has abundance; the neutral nation sends a large

supply of provisions to each, the city is thereby saved from the necessity of capitulation. Or, reverse the case; suppose the city to be well furnished with provisions, the invading army reduced to their last ration; the consequences of such conduct on the part of a neutral power, would be that the seige, which otherwise must have been raised, would be continued.

"Having thus stated what neutrality requires, I will now examine the particular question before us.

"When war takes place between two nations, what are the means by which one attacks and the other defends? or, in other words, by which they endeavour to terminate the dispute between them, of whatever nature that dispute may be? Surely no person will say, that these means merely consist in muskets, bayonets, swords, pistols, blunderbusses, cannon-ball, grapeshot, gunpowder, horses, ships, &c. These, of themselves, would be as unoperative as the same quantity of brick dust. No; it is by the men who compose their armies; it is by the men who man their fleets, and by them only, that the one attacks and the other defends. It is by their hurling their powder and their ball, in thunder against each other. It is by the rushing, in the open field, with fixed bayonets, in iron order, upon each other. And is there a man so lost to every correct sentiment, that he will dare hazard the position, that though a neutral nation cannot legally increase to a belligerent nation the quantity of arms and ammunition, which of themselves would be perfectly harmless, yet the neutral may increase or decrease, at their pleasure, in favour of the one or the other of the belligerents, the men employed by, and sacredly bound to, the belligerent nation to use those arms and ammunition; and on whose fidelity in that use the safety of that belligerent nation to whom they belong, depends? Doth not every officer, every soldier, whether belonging to the army or the navy, by deserting, weaken the power in whose service he was, and render it less capable of offending its enemy and defending itself?"

In the third number he investigates the evidence of the citizenship of the deserters and shows incontestibly that not a single one of them was proved to be American citizens, and that two them were clearly proved not to have been entitled to that character.