which to found their measure; and we fervently trust, that so great a calamity may fall upon the country and the world, unattended by the additional and most needless aggravation of a ma-, nifesto, which outrages all the principles that hold either men or nations together, and stand between us and universal anarchy.

We have had occasion to speak of the legality, or illegality, of the Orders in Council, and the instructions connected with them, as a matter capable of being discussed and decided upon in judicatures actually existing. We have been supposing, that there are courts where redress may be obtained by individuals against acts of force, inconsistent with the law of nations; and we are willing to please ourselves with the idea, that the pernicious example of France has not shut up those fountains of justice, and left in their room some impure and uncertain channels, flowing at the command, or by the caprice, of politicians. The Prize courts are understood to be judicatures, which decide the questions coming before them according to the principles of the general law of nations, recognized all over the civilized world. This law is proverbially the same in every country, like that of nature: Non est alia Romæ, alia Athenis. Were it otherwise, indeed, there could be no such thing; and to speak of a law of nations would be a mockery. Two parties, then, come before such a court; the one demanding condemnation of a vessel or cargo, seized under a certain Order of Council, and the other resisting the demand, and claiming restitution. What questions do they thus raise for adjudication? First, whether the Order in Council was consistent with, or repugnant to the law of nations? Next, whether the seizure was made within the terms of the Order? The first of these questions is to the full as material as the second; because the court must decide according to the law of nations, and distribute equal justice between the government of the country where it happens to sit, and the governments or subjects of foreign states; and the Order being, in truth, a mere act of one of the two governments, its legality is a question for the court.

Such is the general doctrine, we apprehend, on this subjectbut it is laid down so much more clearly and forcibly by the celebrated Judge to whose opinions we have so often referred, that we must be excused for calling in his justly revered authority to our support. We allude to his beautiful judgment in the famous case of the Swedish convoy (The Maria, Paulsen, June 11, 1799.) This was a question, as our readers will recollect, respecting the right of search for contraband of war. The Swedish convoy had been met by an English cruizer; and, acting under the undisputed orders of their own govern

› VOL. XIX, No. 38.

X

ment,

ment, they had refused to be searched. For this refusal of the convoy ship, and for preparing to repel force by force, the merchant ships were seized and brought in for condemnation. Each party acted under the orders of their respective governments, who severally held the opposite opinions touching the right of search;-England maintaining it in proclamations, orders and manifestoes-Sweden, with the other Baltic powers, denying it, as they had done twenty years before; and embodying their denial in state papers and conventions. To determine this important and much disputed question between the two parties, was the delicate task which now devolved upon Sir William Scott-and which is universally admitted, we believe, to have been performed by him with the greatest justice and ability.

In forming my judgment, (says this distinguished Judge), L • trust that it has not escaped my anxious recollection for one ⚫ moment what it is that the duty of my station calls for from me; namely, to consider myself as stationed here, not to de-. • liver occasional and shifting opinions, to serve present purposes of particular national interest, but to administer, with indifference, that justice which the law of nations holds out, without distinction, to independent states, some happening to be "neutral, and some to be belligerent. The seat of judicial authority is indeed locally here in the belligerent country, according to the known law and practice of nations; but the law itself HAS no locality. It is the duty of the person who sits here, to determine this question exactly as he would determine the same question if sitting at Stockholm;-to assert no pre• tensions on the part of Great Britain which he would not ⚫ allow to Sweden in the same circumstances 5-and to impose no duties on Sweden as a neutral country which he would not ❝ admit to belong to Great Britain in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider as the universal law upon the question ;-a question regarding one of the most important rights of belligerent nations, relatively to neutrals.' (1. Rob. 350.)

He then inquires, whether the claim of England is supported by the principles of the law of nations, as collected from authority and from the general practice of states;-and, determining that it is consistent with those principles, he asks, whether the authority of the neutral sovereign, being interposed, can legally vary the rights of the belligerent-which he answers very clearly in the negative: and, in every part of his argument, where he appeals to the practice of nations, he will be satisfied with nothing short of uniform and constant usage ;-where he relies en pretensions, those pretensions must have been acquieseed in

by

by the world generally. Indeed, when he quotes the proclamation 1672, and the Order of Council 1664, he says, "I am aware, that in those orders and proclamations are to be found some articles not very consistent with the law of nations, as understood now, or indeed at that time, for they are expressly 'censured by Lord Clarendon.' 'But,' he adds, "the arti cle I refer to is not of those he reprehends; and it is observ• able, that Sir Robert Wiseman, then the king's advocate-general, who reported upon the articles in 1673, and expresses ⚫ a disapprobation of some of them as harsh and novel, does not mark this article with any observation of censure.' (ibid. 368.) In the same spirit we find the learned Judge ruling another great question, in the case of the Flad Oyen, Martenson, already referred to. Mentioning the pretension of the French government to condemn in neutral ports as an attempt made for the very first time in the world, in the year 1799,' he adds, In my opinion, if it could be shown that, regarding mere speculative general principles, such a condemnation ought to be deemed sufficient, that would not be enough ;-more must be proved: it must be shown that it is conformable to the usage and practice of nations.'-' A great part,' he continues, of 'the law of nations, stands on no other foundation. It is introduced, indeed, by general principles, but it travels with those general principles only to a certain extent; and if it stops there, you are not at liberty to go further, and to say that mere general speculations would bear you out in a farther progress. For instance, on mere general principles it is lawful to destroy your enemy; and mere general principles make no great difference as to the manner by which this is to be • effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some, and prohibits other modes of destruction; and a belli6 gerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles ⚫ and purposes.' We earnestly recommend this excellent passage to the attention of those who sent a brigade of blood-hounds to track and tear in pieces the Maroon negroes in Jamaica; and more recently endeavoured to deprive the enemy's hospitals of one of the most healing plants which providence has bestowed upon suffering mortals. To the authors of the same measures we would submit the following paragraph. It is my duty not to admit, that because one nation has thought proper to depart from the common usage of the world, and to meet the ⚫ notice

X 2

notice of mankind in a new and unprecedented manner, that I am on that account under the necessity of acknowledging the efficacy of such a novel institution, merely because general theory might give it a degree of countenance, independent of all practice, from the earliest history of mankind. The insti• tution must conform to the text law, and likewise 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 all 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 neutrality. It is high time that the legal merit of such a "pretension should be disposed 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 undetermined conflict between the ancient law of nations, as understood and practised for centuries by civilized nations, and a modern project of innovation, utterly inconsistent with it; and, in my apprehension, not more inconsistent with it than with the amity of neighbouring states, and the personal safety of their respective subjects.' (1. Rob. 377.)

6

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 distinction to independent states; '-delivered from a seat of judicial authority locally here' indeed, but according to a law which has no locality,' and by one whose duty it is to determine the question exactly as he would determine the same question, if sitting at Stockholm, asserting no pretensions, on the part of Great Britain, which he would not allow to Sweden.' If a question had then arisen on the legality of a seizure under the new law of blockade, 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 allowed 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 have 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 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 a law that has no locality,' and to determine in London exactly as it would in Stockholm.' The question arose, whether those orders and decrees of one belligerent justified the capture of a neutral trader; 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.

6

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 inconsistent with each other; because these Orders and Instructions are presumed to conform themselves, under the given circumstances, 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 itself; or they are positive Regulations, consistent with those principles, applying to matters which require more exact and definite rules than those general principles are capable of furnishing.

6

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