courts are bound to proceed according to the law of nations, undisturbed by any ordinances repugnant to them, is much too important to be rested here: I will therefore proceed to establish it by the highest judicial authorities of our own country, sanctioned by the most solemn declarations from His Majesty himself in council, in his transactions with other states. In pursuing this course, I shall begin with the decisions of the common law judges, who are frequently brought to the consideration of this subject, in the cases of policies of insurance.

Your Lordships no doubt know that when a ship is warranted neutral, it is not enough that she should have been built in the neutral state, or should be the property of, or navigated by, her subjects, but that she must also be navigated according to the law of nations, so as to emancipate her from just capture, and thereby secure to the underwriter the protection of the neutral flag; otherwise, the warranty being broken, he is discharged from the risk. This principle has brought many cases before the courts, when particular governments have taken upon them to make ordinances and regulations contrary to the law of nations, and without the consent of other states. If this

;

could be legally done by any particular state, our courts here would be bound to respect such ordinances as engrafted on the law of nations but the most solemn decisions run uniformly to the contrary. If a Court of Admiralty, indeed, condemns in general terms, pronouncing against the neutrality, the question cannot arise, because full faith must be given to the acts of courts of competent jurisdiction; but if (as very frequently has been the case) they condemn for the breach of an ordinance or regulation made by a particular state, not supported by the general law of nations, the courts uniformly pronounce such ordinances to be absolutely void.

My Lords, the cases are many in number, and I might cite them from memory, having been concerned as counsel in all of them, for more than the last twenty years, but I will content myself with a few which are directly in point, and when the most eminent judges have presided in our courts.

In the case of Mayne against Walter, where a ship, warranted Portuguese, was condemned in France, because she had an English supercargo on board, contrary to a French ordonnance, it was held that the sentence did not

falsify the warranty. Lord Mansfield saying, that "it was an arbitrary and oppressive regu"lation, contrary to the law of nations ;" and in a subsequent case, though the question was shut out by the generality of the sentence, Lord Mansfield said, "The law of nations is "founded in eternal principles of justice; "but Belligerent powers frequently make re"gulations for themselves, which, being no έσ part of, or, perhaps, repugnant to, the law of "nations, do not bind other States."

But the subsequent cases of Pollard and Bell, and Bird and Appleton, are so absolutely decisive, that they may finish your Lordships trouble upon this part of the subject.

In the first of these cases, a ship, being warranted Danish, was captured by the French, and condemned as prize, because the Captain was an enemy; so expressed on the face of the sentence: The court were unanimously of opinion, that it did not falsify the warranty. Lord Kenyon said, "this is one of "the numerous questions that have arisen in 66 consequence of the extraordinary sentences "of condemnation passed by the Courts of "Admiralty in France during this war, which "have proceeded in a system of plunder; but

H

66

still, until the legislature interferes, we, "sitting here in a court of law, must give "credit to the sentences of courts of compe"tent jurisdiction. If, therefore, in this "instance, the French courts had condemned

66

on the grounds that she was not Danish property, we should have been concluded, "and must, reluctantly, have decided: but "I concur with Lord Mansfield in opinion,

THAT IT IS NOT COMPETENT TO ANY INDI

66 VIDUAL STATE TO ADD TO THE LAW OF NA66 TIONS BY ITS OWN ARBITRARY ORDINANCES, 66 WITHOUT THE CONCURRENCE OF OTHER "STATES;" and he concludes thus-" On the "whole, therefore, I am of opinion, that, "though we should have been concluded by "the sentence, if the ship, contrary to justice,

had been condemned as not being Danish, 66 yet, as the court abroad has endeavoured to "give other supports to its judgment which do

not warrant it, and have stated, as the "foundation of the sentence of condemnation, 66 one of their own ordinances, which is not "binding on other nations, this sentence does "not prove that the ship in question was not a "neutral ship."

The language of that truly eminent judge,

Mr. Justice Lawrence, is no less remarkable; because, in agreeing with Lord Kenyon, he refers to the state paper in the Collectiana Juridica, signed by Sir George Lee, Doctor Paul, the King's Advocate, and Sir Dudley Ryder and Lord Mansfield, then Attorney and Solicitor General, which I shall presently have occasion to refer to, and which is absolutely conclusive upon the doctrine I am maintaining.

In the other case of Bird and Appleton, which is the last I shall refer to, and which followed in a few terms after the other, Lord Kenyon declared, that he adhered to the opinion he had before delivered, and maintained, as an indisputable proposition, "that "Courts of Admiralty are to proceed according "to the jus gentium, or on the treaties between "particular states; that even such treaties do "not alter the jus gentium, with respect to the "rest of the world; AND THAT ONE STATE " HAS NO AUTHORITY, BY ORDINANCES OF

66

66

ITS OWN, TO VARY THE GENERAL LAW OF NATIONS AS TO OTHER STATES.

Now, my Lords, unless there was a fixed, settled, and known law of. nations, which Judges, as learned men, could refer to, and by which they were bound to regulate their