continued, in opposition to popular prejudice, excited against him on account of the disastrous affair of Washington, to support and sustain him, as "entitled to the gratitude of the nation, for having put out of the way the superannuated generals, and for bringing forward a set of generals, (Brown and Scott,) who rescued our country from eternal disgrace."

In May, 1815, Mr. Wheaton left the National Advocate, on being appointed one of the Justices of the Marine Court,—a tribunal of limited jurisdiction, and which is now shorn of much of its former consideration; though in presiding over it, some of those, who were afterwards distinguished as the most eminent at the bar, passed a portion of their professional novitiate. Whilst occupying a seat in this court, which he continued to fill till July, 1819, he had occasion to vindicate the paramount treaty-making power of the Federal Government. The case arose in 1816, under the commercial convention with Great Britain of the preceding year, and the question was, whether the reciprocity provision extended to the exemption of British vessels from the discriminating charges imposed by a local law of the State on foreign vessels.

In 1815, under the modest title of a "Digest of the Law of Maritime Captures or Prizes," Mr. Wheaton published his first systematic treatise. This was a subject to which he appears to have directed his attention from the period when, by the declaration of war by the United States against England, the admiralty jurisdiction became a matter of serious attention to the members of the legal profession, resident in the seaports. But, though its preparation was induced by the want of a work, for the daily reference of the practising lawyer, its utility was far from being limited to the circumstances out of which it arose. The "Digest" is not a mere index, but presents an exposition of the law of nations, as then understood and administered; and though the language of the original authorities, to insure accuracy, is properly employed in preference to his own, no position is stated, the full effect of which is not appreciated by the writer.

Intended as a practical treatise, Mr. Wheaton gives a full analysis of the adjudications of the tribunals of different countries, and especially of England and the United States, on questions of prize, and which necessarily involved a review of all those debateable points of maritime law, which had been the subjects of our diplomatic discussions. The opinions on which the reputation of Sir William Scott (Lord Stowell) is based, had already been promulgated, with his views of the influence which the instructions of his government ought to have even over tribunals professedly acting as the exponents of the law of nations. And if any important additions have since been made to the authorities, on which reposes the law, deduced from the decisions of Admiralty Courts, as it was understood prior to the commencement of the present war, it is mainly in the reports of that tribunal, with which Mr. Wheaton's name is indissolubly connected, that they are to be found.

In reference to this work, Judge Story wrote to the author, on 13th of December, 1815:-"You have honorably discharged that duty, which every man owes to his profession, and I am persuaded that your labors will ultimately obtain the rewards which learning and talents cannot fail to secure." At the same time, the Attorney-General of the United States, Mr. Rush, who was subsequently Minister, at different periods, to England and France, informed him that he had made his book the basis of a work on the state of American jurisprudence.

Thirty years after its publication, an English writer, a high authority on international law, declared the work on captures to be, "in point of learning and methodical arrangement, very superior to any treatise on this department of the law, which had previously appeared in the English language." Nor has it been superseded by the other books of Mr. Wheaton. embraces a department of public law not discussed, or at most only incidentally touched on, in the more general treatises with

1

It

1 Reddie's Researches, Historical and Critical, in Maritime International Law.

which he has enriched the science of international jurisprudence. Though intended as an exposition of the existing state of prize law, as administered in our tribunals, nowhere else can so clear and accurate a view of the English and French edicts against neutral commerce be found; and in no other publication are they so ably brought to the test of the universal law of nations.

Mr. Wheaton also prepared, in 1815, a bankrupt law, and endeavored to procure its passage through Congress. This measure was, at that time, deemed the more important, as the constitutionality of the State Insolvent Laws began to be questioned, and it was believed that the power delegated to the General Government could alone meet the provisions on this subject, supposed to be required in a commercial community.

He also published, after the peace of Ghent, "An Essay on the Means of Maintaining the Commercial and Naval Interests of the United States." He advocated, as called for by the restrictive policy then existing in Europe, a navigation act, giving special advantages to our vessels, and excluding all foreign sailors from our merchant marine. The former measure has been rendered inapplicable, in a great degree, in consequence of the arrangements since made with most maritime States by our reciprocity treaties, or by means of the acts of Congress, proffering to all nations a mutual abrogation of the discriminating duties on the tonnage of their respective vessels, and on the produce, manufactures, and merchandise imported in them.1

The exclusion of alien seamen was repeatedly proposed by by the Executive, not, however, on politico-economical considerations, but in connection with an arrangement with the British government on the impressment question, but without result. Though we cannot distinguish between native citizens

1 See act March 3, 1815, United States Statutes at Large, vol. iii. p. 224; act January 7, 1824, Ibid. vol. iv. p. 2; May 24, 1828, Ibid. p. 308; May 31, 1830, Ibid. p. 425; July 13, 1832, Ibid. p. 579.

and those who are already entitled by naturalization to the same rights, save in the exceptional cases expressed in the Constitution; yet it was supposed that the Act of 1813, requiring a continuous residence during the probationary term, which is wholly incompatible with the nature of the sea-faring life, might have been received by England, as a practical exclusion from the commercial service of all foreign-born seamen. That provision was repealed in 1848;1 and the Act of March 27, 1804, denationalizing any American vessel, the owner of which, in whole or in part, if a naturalized citizen, shall reside more than a year in the country from which he originated, or more than two years in any foreign country, which still remains in force,2 would seem to be the only discrimination now known to our laws between native and naturalized citizens.

In 1816, Mr. Wheaton became Reporter of the Supreme Court of the United States, in which capacity he continued till 1827. Twelve volumes of Reports, containing, as it is well termed in a German notice of our author, "the golden book of American law," permanently connect his name with the jurisprudence of the Union. Already familiar with the languages and literature of Europe, and with her legal systems, he was called on to record the application of every branch of public and municipal law to the diversified objects of international and federal relations, as well as of private rights. It was his fortune to be associated with that high tribunal during the period when the Prize Code, which he had already traced, as far as it was then established, was completed by the subsequent adjudications of the cases growing out of the recent war. In his time, also, the power intrusted to the Court, and which is peculiar to institutions like ours, of bringing to the test of the Constitution the validity of all the proceedings of Congress and of the State legislatures, was exercised to such an extent, as to leave little room for the further interpretation of our organic law.

1 See Part II. ch. 2, § 10, p. 164, note a.

2 United States Statutes at Large, vol. ii. p. 296.

In a review by Mr. Wheaton of one of the volumes of the Reports of Judge Story's Circuit decisions, and which includes many prize cases, he thus gives a history of prize law to the time of the late war: "Among the leading principles of law, developed and settled during the war of the Revolution, and which have ever since been recognized as a part of the prize code of this country, are the following: - The exclusive jurisdiction of the Court of Admiralty over all the incidents of prize and its right to entertain a supplemental libel for distribution of the prize proceeds after condemnation. That an ally is bound by the capitulation made by another ally with the inhabitants of a conquered country, by which their property is exempted from capture. But that an ally is not bound by a mere voluntary suspension of the rights of war against a part of the enemy's dominions, by a co-belligerent, not growing out of a capitulation. The distinction between a perfect war and an imperfect war, or partial hostilities. That in a perfect war nothing but a treaty of peace can restore the neutral character of any of the belligerent parties; and consequently that the British proclamation of 1781, exempting from capture all Dutch ships carrying the produce of Dominica according to the capitulation by which that island had surrendered to the French, did not restore back to a Dutch ship her original neutral character, so as to protect her cargo from capture by American cruisers under the ordinance of Congress of April 1, 1781, by which the United States temporarily adopted the principles of the armed neutrality, which had been formed in Europe the preceding year. That the rule recognized by this ordinance of free ships free goods, did not extend to the case of a fraudulent attempt by neutrals, to combine with British subjects to