楼主: 郭国汀

The theory of Human Right

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Onthe eve of the Revolution, in April of 1776,John Adams reflected
similar sentiments when he wrote of the needto "study the law of
nature," the histories of other people,and "the conduct of our own
British ancestors, who have defended for usthe inherent rights of
mankind against foreign and domestic tyrantsand usurpers.''[1]

[1] Adams, To the Inhabitants of the City and County of NewYork, Apr. 13, 177

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By June of 1776, some three weeks before the Declara-
tion of Independence, the new Constitution of Virginia proclaimed:
"That all men are by nature equally free and independent, and have
certain inherent rights, of which, when they enter into a state of soci-
ety, they cannot, by any compact, deprive or divest their posterity."[1]

Declaration of Independencewould soon be

penned with a fervent reference to the rightsof man that would be
revered for ages to come: "We hold thesetruths to be self-evident:
that all men are created equal; that they areendowed, by their Crea-
tor, with certain unalienable Rights; thatamong these are life, liberty,
and the pursuit of happiness."[2]

[1] VA. CONST., § 1 (1776), reprinted in R. Perry & J. Cooper, supra note 44, at 316. This was the first of the new state constitutions. See also infra note 71

[2] TheDeclaration of Independence (U.S. 1776).

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In Commonwealth v. Jennison,[1] the Supreme Court charged a jury considering a
criminal prosecution for the enslavement of a black person that per-
petual servitude could no longer be tolerated, the court noting that
"[sentiments more favorable to the natural rights of mankind... have
            prevailed since the glorious struggle for our rights began."

Massachusetts court further confirmed:
    these sentiments led the framers of our Constitution ... to declare -
    that all men are born free and equal; and that every subject is entitled to
    liberty, and to have it guarded by the laws.... In short, without resort-
    ing to implication in construing the Constitution, slavery is as effectively
    abolished as it can be by the granting of rights and privileges wholly
    incompatible and repugnant to its existence.

[1] (Harvard Law School Library, typescript), in W. NELSON, Americanization of the Common Law 102 (1975).

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"The end of all political as-
sociations is the preservation of the natural and imprescriptible rights
of man; and among these rights are liberty, property, security, and
resistance of oppression."[1]

[1] . see THE ESSENTIAL THOMAS PAINE 23, 67 (S. Hook ed. 1969

 楼主| 发表于 2/9/2018 22:33:10 | 显示全部楼层
Inthe 1810 case, in
Fletcher v. Peck, Chief Justice Marshall became the first Supreme
Court Justice to use the phrase "humanrights" while recognizing,
quite importantly, that our judicial tribunals"are established ... to
            decide on human rights."[1]

[1] 10 U.S. (6Cranch) 87, 133 (1810) (Marshall, C. J., opinion).

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      In 1884, 1889, and 1893, the U.S. Supreme Court quoted an article
  in an 1868 treaty between China and the United States which had rec-
  ognized "the inherent and inalienable right of man to change his home
  and allegiance" only to uphold a series of subsequent Congressional
             acts which denied such a right to persons of Chinese descent.[1]

the court holding that the Congressional
acts restricting the immigration of Chinese to the United States are not
applicable to a citizen of the United States born within the U.S. of
Chinese parents when such a citizen travels abroad and seeks reentry.[2]

[1] See Fong Yue Ting United States v. Buntin, 10 F. 730, 739 (C.C.S.D. Ohio 1882) (appendix - reporter's note) (opinions of federal judges illustrate "substantial progress made towards broad and enlightened views of human rights and equality").v. United States, 149 U.S. 698, 716 (1893) (Gray, J., opinion); id. at 733 (Brewer, J., dissenting); id. at 752 (Field, J., dissenting); Chae Chan Ping (The Chinese Exclusion Case) v. United States, 130 U.S. 581, 592 (1889) (Field, J., opinion); Chew Heong v. United States, 112 U.S. 536, 541 (1884) (Harlan, J., opinion); id. at 566 (Field, J., dissenting); see also Lau Ow Bew v. United States, 144 U.S. 47, 49 (1892) (appeal-statement); supra notes 164-165. The Court in Fong Yue Ting, however, seemed to deny that there was any loss of right under the treaty, arguing: "it appears to be impossible to hold that a Chinese laborer acquired, under any of the treaties.... ,any right.., to be and remain in this country, except by the license, permission, and sufferance of congress .... " 149 U.S. at 723 (emphasis added). But see Article 2 of an 1880 treaty, quoted in Fong Yue Ting, 149 U.S. at 733-34 (those now in the U.S. "shall be 'allowed to go and come of their own free will and accord ... "). The same treaty language was  quoted earlier in three lower federal courts while upholding the rights of aliens under the treaty
  as against inconsistent state laws. See In re Parrott, 1 F. 481, 503 (C.C.D. Cal. 1880) (Sawyer,
  J.); Baker v. City of Portland, 2 F. Cas. 472, 473 (C.C.D. Or. 1879) (No. 777); In re Ah Fong, 1
  F. Cas. 213, 217 n.3, 218 (C.C.D. Cal. 1874) (No. 102) (Field, J., opinion). The treaty language
  was also quoted later in several federal cases. See, e.g,, In re Baldwin, 27 F. 187, 190 (C.C.D.
  Cal. 1886); In re Impaneling and Instructing the Grand Jury, 26 F. 749, 751 (D. Or. 1886); In re
  Ah Lung, 18 F. 28, 30 (C.C.D. Cal. 1883); United States v. Douglas, 17 F. 634, 635 (C.C.D.
  Mass. 1883). Judge Sawyer, in In re Parrott, also quoted Justice Swayne's language noted in note 264 supra. Id. at 506. He also recognized: "The right to labor is, of all others, after the right to live, the fundamental, inalienable right of man ... And this absolute, fundamental and natural  right was guaranteed.., under the treaty ... " Id. at 506-07. Six years later he quoted Justice  Swayne's use of "the rights of man" again. In re Tie Loy, 26 F. 611, 614 (C.C.D. Cal. 1886).  For general background and trends, see, e.g., Nafziger, The General Admission of Aliens Under  International Law, 77 AM. J. INT'L L. 804 (1983); infra note 279. Professor James Nafziger also  quotes an 1844 New York court concerning U.S. policy "to bestow the right of citizenship freely,  and with a liberality unknown to the old world." Nafziger, supra, at 815 (quoting Lynch v.  Clarke, 1 Sand. Ch. 583, 661 (N.Y. 1844)). Highly critical of Chae Chan Ping is a recent essay of Professor Louis Henkin. See Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 HARV. L. REV. 853 (1987).
[2] See In re Look Tin Sing, 21 F. 905, 907 (C.C.D. Cal. 1884) (Field, J., opinion).

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"From time immemorial despots have used real or imagined threats to
the public welfare as an excuse for needlessly abrogating human

one can find the Court seeking to protect
human rights and democratic values while recognizing that "each and
every citizen has an unalienable right to full and effective participation
            in the political processes."[2]

[1] Duncan v. Kahanamoku, 327 U.S. at 330; see also Laird v. Tatum, 408 U.S. at 20 ("no
call for a garrison state"); United States v. Ballard, 12 F. Supp. at 325 ("The fountain head of
dictatorship is at the convergence of legislative and executive power .... Whenever the legisla-
tive and executive coalesce, the rights of man dwindle in exact ratio to their adhesiveness."). On
the points mentioned, see also Paust, International Law, supra note 359.
[2] . Reynolds v. Sims, 377 U.S. at 565, quoted in Perkins v. City of West Helena, 675 F.2d
201, 216 n.18 (8th Cir. 1982); see also Taylor and Marshall v. Beckham, 178 U.S. at 599 (inalienable right to hold an office).

 楼主| 发表于 2/10/2018 00:56:02 | 显示全部楼层
"the right of suffrage is a fundamental matter in a free
and democratic society" and that such a matter "'touches a sensitive
and important area of human rights,' and 'involves one of the basic
             civil rights of man.[1]

the right of
effective participation in the political process 'is of the essence of a
democratic society, and any restrictions on that right strike at the
heart of representative government.' "[2]

Democracy government... is government premised upon individual human rights,"[3]
that under human rights law the "will of the people is the basis of
authority" of governments,[4]  

freedom of speech and association can be interrelated with the right to participate in
  political processes.

Jefferson had aptly noted the
danger to the "rights of man" posed by a creeping governmental in-
cursion into areas previously left free from governmental regulation
because of free speech and liberty interests at stake.[5] The notion that
"free communication of thoughts and opinions is one of the invaluable
rights of man"  

"arrest on mere suspicion collides violently with the basic human right
of liberty,"[6] but have also recognized the relation between human
rights, privacy and freedom from unreasonable searches and seizures
independent of liberty per se.[7]

[1] Reynolds v. Sims, 377 U.S. at 561-62, quoting in part Skinner v. Oklahoma, 316 U.S. at
536, 541; see also Benner v. Oswald, 592 F.2d 174, 182 (3d Cir. 1979); Citizens to Preserve
Overton Park v. Volpe, 432 F.2d 1307, 1315 (6th Cir. 1970) (Celebreeze, J., dissenting). On the
points mentioned see also Paust, Human Right to Revolution, supra note 4, at 550-55, 560-67, 580, and references cited therein; and Paust, Human Rights, supra note 4, at 241-44, 248-50, 252,
260-62, 266.
[2] See Citizens to Preserve Overton Park, supra note 399, at 1315 (Celebreeze, J., dissenting), quoting D.C. Fed'n of Civil Assocs. v. Volpe, 434 F.2d 436, 441 (D.C. Cir. 1970).
[3] See Barsky v. United States, 167 F.2d 241, 249 (D.C. Cir. 1948).
[4] See United States v. Vargas, 307 F. Supp. 908, 919 (D. P.R.), quoting art. 21(3) of the
Universal Declaration of Human Rights. On this point, see references cited supra notes 170, 399;
see also supra note 394.
[5] See Scales v. United States, 367 U.S. at 272.
[6] See Henry v. United States, 361 U.S. at 101; Draper v. United States, 358 U.S. at 321; Ortiz v. United States, 317 U.S. at 279; United States v. Majourau, 474 F.2d at 770; United States v. Ramey, 464 F.2d at 1242; Hee v. United States, 19 F.2d at 341; see also Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987) (prolonged arbitrary detention violates human rights), modified 694 F. Supp. 707 (N.D. Cal. 1988); infra notes 444, 448, 506..
[7] See Spinelli v. United States, 393 U.S. at 436 n.1; Abel v. United States, 362 U.S. at 243 n.2; Wolf v. Colorado, 338 U.S. at 27-28; Harris v. United States, 331 U.S. at 193; United States v. de Hernandez, 731 F.2d 1369, 1372 (9th Cir. 1984); id. at 1375 (Jameson, Dist. Judge, dissenting); see also Kawanee Oil Co. v. Bicron Corp., 416 U.S. at 483 (fundamental human right to privacy threatened when industrial espionage is condoned).

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in federal cases recognizing human rights with respect to the family relationship or rights to
a family. More specifically, human rights have been related to "the
liberty interest in family privacy,"[1] "the importance of the fam-
ily,"[2] "freedom to marry,"[3] "rights to conceive and raise one's
children,"[4] "the right to procreate,"[5] freedom from compulsory
sterilization and "the right to have offspring."[6] Additional mention
has been made of the interrelated right of unmarried persons to have
contraceptives,[7] and the relationship between human right precepts
and "maternity leave,"[8] "the responsibility of parenthood,"[9] "the
elemental human right of physical contact with one's family and
friends,"[10] "the children's right to remain with and be raised by their
natural parents,"[11] "rights of fatherhood,"[12] "the liberty ... to direct
the upbringing and education of children,"[13] and liberty rights
concerning the natural or adoptive family which do not pertain to "the
foster relationship."[14]

Article 8 of the authoritative Universal Declaration of Human
Rights expressly affirms that "[everyone has the right to an effective
remedy by the competent national tribunals for acts violating the fun-
           damental rights granted him by the constitution or by law."[15]  

Chief Justice Marshall, in his landmark opinion in
Marbury v. Madison,[16] affirmed more generally:
    The very essence of civil liberty certainly consists in the right of every
    individual to claim the protection of the laws, whenever he receives an
    injury. One of the first duties of government is to afford that protection
    ... [Blackstone] says, "it is a general and indisputable rule, that where
    there is a legal right, there is also a legal remedy by suit, or action at law,
    whenever that right is invaded."[17]

[1] Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. at 846;

Duchesne v. Sugarman, 546 F.2d 817, 824-25 (2d Cir. 1977).
[2] Vlandis v. Kline, 412 U.S. at 461; Stanley v. Illinois, 405 U.S. at 651; Lehman v.
Lycoming County Children's Servs. Agency, 648 F.2d 135, 164 n.ll, 168 n.18 (3d Cir. 1981);
Duchesne v. Sugarman, 546 F.2d at 825.
[3] City of Cleburne, Texas v. Cleburne Living Center, 105 S.Ct. at 3267; Zablocki v.
Redhail, 434 U.S. at 383, 398; Loving v. Virginia, 388 U.S. at 12; Skinner v. Oklahoma, 316 U.S. at 541; Wise v. Bravo, 666 F.2d 1328, 1336 (10th Cir. 1981); Drummond v. Fulton County Dep't. of Family and Children's Servs., 547 F.2d 835, 851 (5th Cir. 1977); Bradbury v. Wain- wright, 538 F. Supp. 377, 378 (M.D. Fla. 1982).
[4] Weinberger v. Salfi, 422 U.S. at 771; Stanley v. Illinois, 405 U.S. at 651; Griswold v. Connecticut, 381 U.S. at 502; Logan v. Hollier, 711 F.2d 690, 691 (5th Cir. 1983); Lehman v. Lycoming County Children's Servs. Agency, 648 F.2d at 164 n. 11; Coleman v. Darden, 595 F.2d 533, 537 (10th Cir. 1979); Duchesne v. Sugarman, 546 F.2d at 825.
[5] City of Cleburne v. Cleburne Living Center, 105 S.Ct. at 3267; Maher v. Roe, 432 U.S. at 472 n.7; Skinner v. Oklahoma, 316 U.S. at 541; Andrade v. City of Phoenix, 692 F.2d 557, 564 (9th Cir. 1982) (Wallace, J., concurring); Bradbury v. Wainwright, 538 F. Supp. at 378.
[6] Skinner v. Oklahoma, 316 U.S. at 536, 541; Murillo v. Bambrick, 681 F.2d 898, 902 (3d
Cir. 1982); Dike v. School Bd. of Orange County Florida, 650 F.2d 783, 786 n. I (5th Cir. 1981).
[7] . Eisenstadt v. Baird, 405 U.S. at 452, quoting Baird v. Eisenstadt, 429 F.2d 1398, 1402
(1st Cir. 1970).
[8] Cleveland Bd. of Educ. v. LaFleur, 414 U.S. at 640; Jacobs v. Martin Sweets Co., Inc.,
550 F.2d 364, 370 (6th Cir. 1977).
[9] In re Dobric, 189 F. Supp at 640.
[10] Campbell v. McGruder, 580 F.2d 521, 548 n.57 (D.C. Cir. 1978).
[11] Lehman v. Lycoming County Children's Serns. Agency, 648 F.2d at 164.
[12] Vlandis v. Kline, 412 U.S. at 461.
[13] Griswold v. Connecticut, 381 U.S. at 502.
[14] Drummond v. Fulton County Dep't. of Family and Children's Servs., 563 F.2d 1200,
1207 (5th Cir. 1977).
[15] The fundamental right to an effective remedy, and thus to a "cause of action" to
obtain a remedy, is now a customary standard with respect to nonimmunity recognized
under international law; see also U.N. CHARTER, art. 103.
[16] 5 U.S. (1 Cranch) 137 (1803); see also United States v. Cruikshank, 92 U.S. at 553
(reproduced in text accompanying note 267 supra.).

[17] Id. at 163; see also id. at 146 (argument of counsel) ("It is a settled and invariable
principle, that every right, when withheld, must have a remedy, and every injury its proper
redress. 3 BI. com. 109."); United Mine Workers of Am. v. Coronado Coal Co., 259 U.S. 344,
380 (1922) (argument of counsel) ("the rule that where there is a right there is a remedy"); In re
Metro. Ry. Receivership, 208 U.S. 90, 100 (1908) (argument of counsel) ("There are two funda-
mentals of the common law, which are essentials of that due process of law which is guaranteed
by the Constitution. Where there is a right there is a remedy. Ashby v. White, I Salkeld, 19, 21
(1703) (Holt, C.J., dissenting)]. No person can be denied a hearing before he is prevented from
asserting a claim of right."). In one British report of Ashby it was stated: "it is a vain thing to
imagine that there should be a right without a remedy; want of right and want of remedy are
termini convertibiles." Michaelmas Term, 2 Queen Anne. in B.R., 87 Eng. Rep. 810, 815, 6 Mod. Cases 45, 53. Chief Justice Holt was also reported to have declared: "if the plaintiff has a right, he must in consequence have a remedy to vindicate that right; for want of right and want of remedy is the same thing. If a statute gives a right, the common law will give a remedy to maintain that right, a fortiori where the common law gives a right, it gives a remedy to assert it." I Salkeld at 21. On British remedies for violations of international law, see also infra note 502.
    Later, Chief Justice Marshall would declare: "The right of coercion is necessarily surrendered to government, and this surrender imposes on government the correlative duty of furnishing a remedy." Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 346-47 (1827) (Marshall, C.J.). The Chief Justice made the same point about "the duty on the government to furnish adequate remedies" in Bank of Hamilton v. Dudley's Lessee, 27 U.S. at 517; see also Mahon v. Justice, 127 U.S. 700, 717 (1888) (Bradley, J., dissenting) ("There must be some remedy for such a wrong. It cannot be that the states, in surrendering their right of obtaining redress by military force and reprisals, have no remedy whatever."); infra notes 473-475. On the implied right to a remedy at common law and the maxim Ubijus ibi remedium, see, e.g., Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 39-40 (1916), also citing 3 W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 123 (1765); Riggs v. Martin, 5 Ark. 506, 508 (1844) ("It is a maxim of universal justice pervading the whole system of the common and civil law that wherever a party has a legal right he is entitled to a legal remedy to enforce it").
    Of further interest is the recognition of the Court in 1848: "It is in close conformity to, and
congenial with, the seventh amendment of the Constitution, and with the saving in the Judiciary
Act of the right to a remedy at common law, [that] wherever the common law should be compe-
tent to give it (such right is reserved and secured]." See New Jersey Steam Navigation Co. v.
Merchants' Bank of Boston, 47 U.S. (6 How.) 344, 409 (1848) (Daniel, J., concurring); see also
Steamboat Co. v. Chase, 83 U.S. (16 Wall.) 522, 533 (1872) (Clifford, J., opinion) (adding: "the
right to such a remedy is reserved and secured to suitors by the saving clause contained in the
ninth section of the Judiciary Act"); Leon v. Galceran, 78 U.S. (11 Wall.) 185, 188 (1870) (Clif-
ford, J., opinion) (same).

 楼主| 发表于 2/10/2018 01:36:37 | 显示全部楼层
the right "to free access to courts of justice" is one of the "natural rights" guaranteed by the
Constitution,[1] that there is an "inherent right of resort to the
courts,"[2] and that the right "to institute and maintain actions of any
kind in the courts" is one of the "fundamental privileges and immuni-
ties which belong essentially to the citizens of every free

The right of access to the courts and the concomitant right to an effec-
tive remedy are thus recognized as fundamental human rights having
a basis in customary international law.[4]

[1] Downes v. Bidwell, 182 U.S. at 282-83 (1901) (Brown, J., opinion); see also City of Dallas v. Mitchell, 245 S.W. 944, 946 (Tex. Civ. App. 1922) ("when legislative encroachment by the nation, state, or municipality invade these original and permanent [natural] rights, it is the duty of the courts to so declare, and to afford the necessary relief"); and supra text accompanying notes 257-258.

[2] Morgan's La. & Tex. R.R. & S.S. v. Texas Cent. Ry., 137 U.S. at 192 (Fuller, C.J.,
opinion); see also Miller v. Cornwall R.R., 168 U.S. at 134 (" 'inherent and indefeasible rights',"
including right to have courts open so" 'every man, for an injury done.. ., shall have remedy'"
by due course of law), quoting Constitutions of Pennsylvania: 1709, art. IX, secs. 1, 11; 1838,
art. IX, secs. 1, 11; 1873, art. I, secs. 1, 11.

[3] . See Butcher's Union Co. v. Crescent City Co., 111 U.S. at 764 (1884) (Bradley, J., concurring) (referring also to Justice Washington for this view; see Corfield v. Coryell, 6 F. Cas. 546 (C.C.R. Wash. 1825) (No. 3230) (Washington, J.)); see also supra text accompanying note 257; Bounds v. Smith, 430 U.S. 817, 821-25, 827-28 (1977) ("fundamental constitutional right of access to the courts"); Wolff v. McDonnell, 418 U.S. 539, 577-80 (1974) ("right of access to the courts . . . assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights" such as those recognized in the Civil Rights Act of 1871); Johnson v. Avery, 393 U.S. 483, 485 (1969); Bank of Augusta v. Earle, 38 U.S. at 592 (Taney, C. J., opinion) ("We think it is well settled that by the law of comity among nations, a corporation created by one sovereignty is permitted to make contracts in another, and to sue in its courts"); cf J. NOWAK, R. ROTUNDA & J. YOUNG, CONsTrrU- TIONAL LAW 579-81 (2d ed. 1983) (right of access limited more recently to cases involving fundamental rights - which would cover human rights claims - or freedom from arbitrary denial and denials otherwise violative of equal protection or due process). Each of these last citations, however, makes no mention of the cases cited in notes 471-473 supra or Butcher's Union Co., supra. An interesting state court decision is Smith v. Moody, 26 Ind. 299, 302 (1866). On the interrelationship between privileges and immunities guaranteed by the Constitution and human rights or "treaties," see supra note 390.
[4] See M. McDOUOAL, H. LASSWELL & L. CHEN, supra note 166, at 739-40, and references cited therein; George, supra note 468; supra notes 471, 473-475, 477, 479 and infra 494-495. Circuit Judge Edwards has recently confirmed this point, at least in part: "Under the law of nations, states are obliged to make civil courts of justice accessible for claims of foreign subjects against individuals within the state's territory." Tel-Oren v. Libyan Arab Republic, 726 F.2d at 783, citing 1 L. OPPENHEIM, INTERNATIONAL LAW § 165a, at 366 (H. Lauterpacht 8th ed. 1955). On the fundamental nature of such a right, see also supra notes 475, 479.
     Similarly it had been recognized early that "by the law of nations" a private person has the
right to "pursue and recover" property taken in violation of international law. See Miller v. The
Ship Resolution, 2 U.S. (2 Dall.) 1, 4 (1781); infra note 491. Counsel had also argued before the
Court in 1839 that "under the law of nations" an individual deprived of a right under the law of
nations "is entitled to redress." See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 536 (1839)
(argument of counsel). And in several early cases it was recognized that when ships and/or
cargo were taken in violation of the "law of nations," one can obtain restitution, damages and/or
costs. See, e.g., The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 348-49 (1822); The Josefa
Segunda, 18 U.S. (5 Wheat.) 338, 344, 347-48 (1820) (argument of counsel); The Anna Maria, 15 U.S. (2 Wheat.) 327, 335 & appendix, note 1, at 70 (1817); The Venus, 12 U.S (8 Cranch) 253, 289 (1814); Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 76, 105, 107-08, 112, 115 (1804) (argument of counsel); id. at 117, 124-26; Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 11, 16, 25 (1801) (argument of counsel); Talbot v. Jansen, 3 U.S. (3 Dall.) 133, 157-58 (1795) (Patterson, J.); id. at 160 (Iredell, J.); id. at 169 (Rutledge, C.J.); Glass v. The Sloop Betsey, 3 U.S. (3 Dall.) 6, 9, 15 (1794) (argument of counsel); id. at 16 (order of the Court); Talbot v. The Commanders and Owners of Three Brigs, 1 U.S. (1 Dali.) 95, 98, 108 (1784); cf La Amistad, 18 U.S. (5 Wheat.) 385, 389-91 (1820) (restitution only, because of strong public policy to remain neutral vis-a-vis belligerents).

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