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• notice of mankind in a new and unprecedented manner, that • I am on that account under the necessity of acknowledging • the eflicacy of such a novel institution, merely because general • theory might give it a degree of countenance, independent of • all practice, from the carliest history of mankind. The insti• tution must comform to the text law, and iikewise to the constant ! usage upon the matter. (1. Rob. 139. et seqq.)
When we bear in mind the utter novelty of the new principles of blockade,-their repugnance to constant usage, and to al} sound general principle, and apply to them the reasonings now cited, we may feel disposed to conclude this part of the argument in the words of the same high authority, while discussing the doctrines of the armed reutrality. It is high time that the legal merit of such a
pretension should be disposert of one way or other:- It has been • for some few years past preparing in Europe,—it is extremely
fit that it should be brought to the test of judicial decision ; • for a worse state of things cannot exist, than that of an unde? termined conflict between the ancient law of nations, as under• stood and practised for centuries by civilized nations, and a • modern project of innovation, utterly inconsistent with it;
and, in my appreitension, not more inconsistent with it than • with the amity of neighbouring states, and the personal safety • of their respective subjects.' (1. Rob. 377.)
Such were the sound, enlightened, and consistent doctrines promulgated by the learned Judge, in the years 1798 and 1799 -doctrines wholly unconnected with any • present purpose of • particular national interest ; '-uninfluenced by any preference or • distmction to independent states; '-delivered from a seat
of judicial authority locatiy here' indeed, but according to a law which has no locality, and by one whose duty it is to deter• mine the question exactly as he would determine the same question,
it sitting at Stockholm,'--asserting no pretensions, on the part (of Great Britain, which he would not allow to Sweden.' If a question had thon arisen on the legality of a seizure under the new law of blockacle, we can entertain but little doubt how this eminent Judge would have dealt with it; and, certainly, none whatever, as to the authority which he would have alloweck to the mere proclamation of the one belligerent, when cited in the manner, and with the force of statute law, to overrule the claim of a neutral. So, too, must neutral nations bave thought; and, satisfied with the sound and impartial principles which were so explicitly laid down in the cases of the Flad Oyen and Swedish convoy, they acquiesced in the particular application of them, hard though it happened to bear on their interests in those individual instances.
Twelve years have passed away since the period of those beautiful doctrines--an interval not marked by any general change of character among neutrals, or any new atrocities on the part of the belligerents distinguished by no pretensions which had not frequently before been set up by the different parties in ko the war, except that on both sides the right of unlimited blockade had been asserted. France complaining that England, in 1806, and previously, exercised this power, had declared England and her colonies in a state of blockade ; and England, in her turn, proclaimed all France, and her allies, blockaded. There were orders and decrees on both sides; and both parties acted upon them. The neutrals protested ; and, recollecting the sound and impartial principles of our Prize courts in 1798 and 1799, they appealed to that “ judicial authority which has • its seat locally here,' but is bound to enforce 6 a law that has « no locality,' and to determine in London exactly as it would * in Stockholm.' The question arose, whiether those orders and decrees of one belligerent justified the capture of a neutral tracer; and on this point we find Sir W. Scott delivering himself with his accustomed eloquence,--with a power of language, indeed, which never forsakes him,--and which might have convinced any person, except the suffering parties to whom it was addressed. – Case of the Fox, 30th May, 1811.
• It is strictly true, that by the constitution of this country, • the King in Council possesses legislative rights over this Court, • and has power to issue orders and instructions which it is • bound to obey and enforce; and these constitute the written • law of this Court. These two propositions, that the Court is • bound to administer the Law of Nations, and that it is bound
to enforce the King's Orders in Council, are not at all incon• sistent with each other; because these Orders and Instructions
are presumed to conform themselves, under the given circum• stances, to the principles of its unwritten law. They are either • directory applications of those principles to the cases indicated • in them-cases which, with all the facts and circumstances • belonging to them, and which constitute their legal character, • could be but imperfectly known to the Court itscif; or they • are positive Regulations, consistent with those principles, an• plying to matters which require more exact and definite rules • than those general principles are capable of furnishing.
• The constitution of this Court, relatively to the legislative power of the King in Council, is analogous to that of the Courts of Common Law relatively to that of the Parliament of this kingdom. Those Courts have their unwritten law, the approved principles of natural reason and justice ;---they have
• likewise the written or statute law in Acts of Parliament, which • are directory applications of the same principles to particular • subjects, or positive regulations consistent with them, upon • matters which would remain too much at large, if they were • left to the imperfect information which the Courts could ex. • tract from mere general speculations. What would be the
duty of the individuals who preside in those Courts, if re• quired to enforce an Act of Parliament which contradicted • those principles, is a question which I presume they would
not entertain a priori; because they will not entertain a priori • the supposition that any such will arise. In like manner, this « Court will not let itself loose into speculations as to what would • be its duty under such an emergency ; because it cannot, with• out extreme indecency, presume that any such emergency will • happen; and it is the less disposed to entertain them, because
its own observation and experience attest the general conformity • of such orders and instructions to its principles of unwritten • law.' p. 2, 3.
Here there are two propositions mentioned, asserting two several duties which the Court has to perform. One of these is very clearly described ;-the duty of listening to Orders in Council, and proclamations issued by one of the parties before the Court ;-the other, the duty of administering the Law of Nations, seems so little consistent with the former, that we naturally go back to the preceding passage of the judgment where a znore particular mention is made of it. This court,' says the learned Judge, is bound to administer the Law of Nations to • the subjects of other countries, in the different relations in • which they may be placed towards this country and its go• vernment. This is what other countries have a right to de • mand for their subjects, and to complain if they receive it • not. This is its unwritten law evidenced in the course of its • decisions, and collected from the common usage of civilized states.
The faultless language of this statement all will readily confess and admire. The more judicial virtues of clearness and consistency may be more doubtful in the eyes of those who have been studying the Law of Nations under the same Judge, when ruling the cases of the Flad Oyen and Swedish Convoy. It is with great reluctance that we enter upon any observations which may appear to question' any thing stated by such accurate reporters as Dr Edwards and Sir C. Robinson, to have been delivered in the High Court of Admiralty. But we have no choice left; we must be content to make our election between the doctrines of 1799 and 1811, and to abandon one or the other. The re"Tuctance which we feel is therefore materially diminished; for, if we venture to dispute the law recently laid down by the learned Judge, it is upon his own authority in times but a little removed from the present in point of date, and nowise differing from then in any other respect.
How then can the Court be said to administer the unwritten/ law of nations between contending states, if it allows that one government, within whose territories it locally has its seat,' to make alterations on that law at any moment of time? And by what stretch of ingenuity can we reconcile the position, that the Court treats the English government and foreign claimants alike, determining the cause exactly as it would it sitting in the claimant's country, with the new position, that the English government possesses legislative powers over the Court, and that its orders are in the law of nations what statutes are in the body of municipal law? These are questions which, we believe, the combined skill and address of the whole Doctors of either law may safely be defied to answer.
Again:- What analogy is there between the proclamations of one belligerent, as relating to points in the law of nations, and the enactments of statute, as regarding the common law of the land ? Were there indeed any general council of civilized states--any congress such as that fancied in Henry IV.'s famous project for a perpetual peace—any amphyctyonic council for modern Europe; its decisions and edicts might bear to the e-stablished public law the same relation that statutes have to the municipal code; because they would be the enactments of a common head, binding on and acknowledged by the whole body. But the edicts of one state, in questions between that state and foreign powers--or between that state and the subjects of foreign powers-or between those who stand in the place of that state and foreign governments or individuals, much more nearly resemble the acts of a party to the cause, than the enactments of the law by which both parties are bound to abide.
Mark the consequences of such loose doctrines--such feeble analogies. They resolve themselves into an immediate denial that any such thing as the law of nations exists, or that contending parties have any common court, to which all may resort for justice. There may be a court for French captors in France, and for English captors in England. To these tribunals such parties may respectively appeal in safety; for they derive their rights from edicts issued by the governments of the two countries severally; and those edicts are good law in the Prize courts of each. But, for the American claimant, there is no law by atlich he may be reelsessel--no court to which lie may resort.
The cdicts of his government are listened to in neither the French nor the English tribunals; and tie is a prey to the orđers of each belligerent in succession. Perhaps it may be thought quite a sufficient hardship, without this aggravation, that even under the old and pure system laid down in 1798 and 1799, the neutral was forced to receive his sentence in a foreign court-- always in the courts of the captor's country. But this undoubted rule of law, tempered by the just principles with which it was accompanied, appeared safe and harmless. For, though the court sat locally in the belligerent country, it disclaimed all allegiance to its government; and professed to decide exactly as it would have done sitting in the neutral territory. How is it now, when the Court, sitting as before, has mnade so large a stride in allegiance, as to profess an implicit obedience to the orders of the belligerent government within whose dominions it acts ?
That a government should issue cdicts repugnant to the Law of Nations, may be a supposition unwillingly admitted; but it is one not contrary to the fact; for all governments have done $0--and England among the rest, according to the learned Judge's own statement. Neither will it avail to say, that, to inquire into the probable conduct of the Prize courts in such circumstances, is to favour a supposition, which cannot be entertained without catreme indecency ;' or to compare this with an inquiry into the probable conduct of municipal courts, in the event of a statute being passed repugnant to the principles of municipal law. The cases are quite dissimilar. The line of conduct for municipal courts in such an emergency, is clear. No one ever doubted that they must obey the law. The old law is abrogated, and they can only look to the new. But the courts of prize are to administer a law which cannot, according to Sir Williain Scott, (and, if we err, it is under the shelter of a grave authority), be altered by the practice of one nation, unless it be acquiesced in by the rest for a course of years ; for he has laid down that the law, with which they are conversant, is to be gathered from general principles, as exemplified in the constant and common usage of all nations.
Perhaps it may bring the present case somewhat nearer the feelings of the reader, if he figures to himself a war between Ainerica and France, in whichi England is neutral. At first, the English traders engross all the commerce which each belligerent sacrifices to his quarrel with his adversary. Speedily the two belligerents become jealous of England, and endeavour to draw her into their contest. They issue decrecs against each other Dominally, but, in effect, bearing hard on the English trade;