upon the law of nations committed by its adverfary, was compel led, by a neceffity which it laments, to refort to meafures which

therwif condemns, it pledged iifelf to the revocation of those measures as foon as the neceffity ceafes. And till the ftate revokes them, this court is bound to prefume that the neceffity continues to exift; it cannot, without extreme indecency, fuppofe that they would continue a moment longer than the neceffity which produced them, or that the notification that fuch meafures were revoked, would be lefs public and formal than their firft eftablifhment.Their cftablishment was doubtlefs a great and fignal departure from the ordinary adininiftration of juftice in the ordinary state of the exercife of public hoftility, but wa- juftified by that extrabrdinary deviation from the common exercife of hoftility in the conduct of the enemy. It would not have been within the competency of the court itfelf to have applied originally fach rules, becaufe it was hardly poffible for this court to poff fs that diftinct and certain information of the facts to which alone fuch extraordinary rules were juftiy applicable. It waited therefore for the communication of the facts: It waited likewife for the promulgation of the rules that were to be practically applied. For the ftate might not have thought fit to act up to the extremity of its rights on this extraordinary occafion: It inight, from motives of forbearance, or even policy unmixed with any injuftice to other ftates, have adopted a more indulgent rule than the law of nations would authorize, though it is not at liberty ever to apply a harfher rule than that law warrants. In the cafe of the Swedish convoy, which has been alluded to,. no order or inftruction whatever was iffued, and the court therefore was left to find its way to that legal conclufion which its judgment of the principles of the law led it to adopt. But certainly, if the ftate had iffued an order that a rule of lefs feverity fhould be applied, this court would not have confidered it as any departure from its duty to act upon the milder rule, which the prudence of the state was content to fubftitute in fupport of its own rights. In the prefent cafe, it waited for the communication of the fact and the promulgation of the rule. It is its duty in like manner to wait for the notification of the fact that thefe orders are revoked in confequence of a change in the conduct of the enemy.

The edicts of the enemy themfelves, obfcure and ambiguous in their ufual language, and mcft notorioufly and frequently contradicted by his practice, would hardly afford it a fatisfactory evidence of any fuch change having actually and fincerely taken place. This ftate has pledged itself to make fuch a notification when the fact happens; it is pledged fo to do by its public decla rations by its acknowledged interpretations of law of nationsby every act which can excite an univerfal expectation and demand, that it fhall redeem fuch a pledge. Is fuch an expectation peculiar to this court? moft unquestionably not. It is univerfal ly felt and univerfally expreffed. What are the expectations fig

nified by the American government, in the public correspondence referred to? not that thefe orders would become filently extinct under the interpretations of this court, but that the flate would refcind and revoke them. What is the expectation expreffed in the numerous private letters exhibited to the court amongst the papers found on board this clafs of veffels? not that the British or. ders had expired of themfelves, but that they would be removed and repealed by public authority. If I took upon myfelf to annihilate them by interpretation, I thould act in oppofition to the apprehenfion and judgment of all parties concerned-of the individuals whofe property is in queftion, and of the American government itfelf, which is bound to protect them.

Allufion has been made to two or three cafes, in which this court is faid to have exercised a power of qualifying and moderating the general terms of an order in council, as in the cafe of the Lucy, Taylor, in which the general terms of the order fubjected to confifcation all fhips transferred by the enemy to neutrals during the war, and yet this court held that thefe general terms did not extend to prize fhips fo transferred by the enemy. But what was the ground of that interpretation? It is this: The rule itself was adopted from the rule of the enemy, and upon a principle of exact retaliation; for it was declared in the exprefs terms of the preamble of the order, that it was just to apply the same rule to the enemy which he was in the habit of applying to this country. And when the court found, upon fatisfactory evidence, that the enemy did not apply any fuch rule to prize fhips, but fpecially exempted them, it would have pronounced in direct contradiction to the avowed principle of the order itself, if it had not followed the enemy in this acknowledged diftinction. It has likewife been urged that cafes may be found in which the court has prefumed a revocation, though no fuch revocation has been promulged. And it is certainly true that where an effential change in the circumftances that occasioned the order has, in ef fect, extinguifhed its fubject matter, and that change of circumftances has been publicly declared by the ftate, the court has not thought it neceffary to wait for a formal revocation itself. In the cafe of the Baltic order, by which, in compliance with the wifhes of its allies in the war, the government of this country granted an immunity from the moleftation of capture in that fea; the court held that order to be revoked when the ftate had declared, that moft of thofe flates to whofe applications, as allies, that indulgence had been granted, had changed the character of allies for that of enemies. It was quite unneceffary to wait for fuch fpecial revocation, when, by the general declaration of war, all hoftilities had been authorized against them.

Admitting, however, that there may be cafes of prefumed revocation, does it follow that this is, with any propriety, to be confidered as one of thofe cafes? The novelty of thefe orders in council, the magnitude, the complexity, the extraordinary nature of the facts to which they owe their origin, the attention

which they called for and excited both at home and abroad, the pledges given by this ftate and accepted by other states, all difqualify this court from taking upon itfelf to apply a prefumed revocation in any fuch cafe.

Suppofing, however, that the court felt itfelf at liberty to ac cept as fatisfactory other evidence of a fincere retraction of the French decrees, what is the amount of the evidence offered? No ediét, no public declaration of repeal, no reference to cafes in which the courts of that country have acted upon any fuch revocation. The only cafe mentioned was that of the New-Orleans Packet, and it was brought forward in fuch a way, fo void of all authenticity, and of all accurate detail of particulars, as to make it hardly poffible for me to allude to it with any propriety, and much less with any legal effect. What the circumftances of that cafe were, in what form, and under what authority, and on what account releafed, did not at all appear: whether at all applicable to the prefent queftion, whether a mere irregularity, or what was its real character, the court could not icarn. This however is matter of notoriety, that these decrees are pronounced fundamental laws of the French empire; that they were declared fo in their original formation, and that they have been fince fo declared repeatedly and recently, long fince the date of the prefent tranfaction. The declaration of the perfon ftyling himfelf duke de Cadore imports no revocation; for that declaration. imports only a conditional retractation, and this upon conditions known to be impoffible to be complied with. It has been urged that the American government has confidered it otherwife, and has fo declared it for the regulation of the conduct of the people of that country. If fuch is the fact, it is not for me to lofe fight of that refpect which is due to the acts of a foreign government, fo far as to queftion the propriety of any interpretation which they may have given to fuch an inftrument. But when the effect of fuch an inftrument is preffed upon me for the purpofe of calling for my decifion, I must be allowed to interpret it for myself, and to act upon that interpretation, And to me it ap pears, that the declaration, clogged as it is with ftipulations known to be beyond the reach of all rational hope of any poffible compliance, is in effect a renunciation of any ferious purpose of repealing thofe decrees. I think I might invoke the authority of the government of the United States for denying to this French declaration the effect of an abfolute repeal, when I obferve that the period which they have allowed to the British government for revoking our orders in council extends to the 2d of February; an allowance which could hardly have been made if the revocation on the part of France had really taken place at the time to which that declaration purports to refer.

In the absence of any declaration of the British government to fuch an effect, there is a total failure of all other evidence, (if the court were at liberty to accept other evidence as fatisfactory) that the French decrees had been revoked. If I were driven to de

cide upon that evidence, independent of all evidence, to be regularly furnished by the government under whofe authority I fit, I think I am bound to pronounce that no fuch revocation has taken place, and therefore that the orders in council fubfift in perfect juftice as well as in complete authority.

It is incumbent upon me, I think, to take notice of an objection of Dr. Herbert's, to the exiftence of the orders in council, namely, that British fubjects are, notwithstanding, permitted to trade with France, and that a blockade which excludes the fubjects of all other countries from trading with ports of the enemy, and at the fame time permits any accefs to thofe ports to the fub. jects of the ftate which impofes it, is irregular, illegal, and null. And I agree to the pofition, that a blockade, impofed for the purpofe of obtaining a commercial monopoly for the private advantage of the ftate which lays on fuch blockade, is illegal and void on the very principle upon which it is founded. But, in the firft place, (although that is matter of inferior confideration) I am not aware that any fuch trade between the fubjects of this country and France is generally permitted Licenses have been granted certainly in no inconfi lerable numbers; but it never has been argued that particular licenses would vitiate a blockade. If it were material in the prefent cafe, it might be observed, that many more of these licences had been granted to foreign fhips than to Britifh fhips, to go from this country to France and to return here from thence with cargoes. But, fecondly, what ftill more clearly and generally takes this matter out of the reach of the objection, is the particular nature and character of this blockade of France, if it is fo to be characterized. It is not an original, independent act of blockade, to be governed by the common rules that belong fimply to that operation of war. It is in this inftance a counteracting reflex meafure, compelled by the act of the enemy, and as fuch fubject to other confiderations arif. ing out of its peculiarly diftinctive character. France declared that the fubjects of other ftates fhould have no accefs to England; England, on that account, declared that the fubjects of the other ftates fhould have no accefs to France. So far this retaliatory blockade (if blockade it is to be called) is co-extenfive with the principle: neutrals are prohibited to trade with France, because they are prohibited by France from trading with England. England acquires the right, which it would not otherwise poffefs, to prohibit that intercourfe, by virtue of the act of France. Having so acquired it, it exercifes it to its full extent, with entire competence of legal authority; and having fo done, it is not for other countries to enquire how far this country may be able to relieve itfelf further from the aggreffions of that enemy. The cafe is fettled between them and itfelf by the principle on which the intercourfe is prohibited. If the convenience of this country before this prohibition, required fome occafional intercourfe with the enemy, no juftice that is doe to other countries requires that fuch an intercourfe fhould be fufpended on account of any pro.

hibition imposed upon them on a ground fo totally unconnected with the ordinary principles of a common meafure of blockade, from which it is thus diftinguished by its retaliatory character.

The laft queftion is, are thefe any circumftances addreffed to oquitable confideration, that can relieve the claimants from the penal effects of thefe orders? Certainly, if any could be urged that arofe from the conduct of the British government itself, they might be urged with a powerful and even irresistible effect; but if they found themselves in the fraud of the enemy, or in the mifapprehenfions of the American government induced by the fraud of the enemy, they found no claim on the Britifh government or on British tribunals. In the one cafe they muft refort for redress to a quarter where, I fear, it is not to be found-to the government of the enemy: in the other, where I prefume it is to be found-to the government of their own country.

Upon the declaration of the American government, I have already faid as much as confifts with the refpect which I am bound to pay to the declaration of a foreign government, profeffedly neutral. The custom-houfes of that country, fay the claimants, cleared us out for France publicly, and without referve. They did fo; but they left the claimants to purfue all requifite measures for their own fecurity, in expectation, I prefume, that they would inform themselves, by legal inquiry, whether the blockade continued to exift, if its continuance was uncertain. That it was perfectly uncertain in their own apprehenfions, is clear from the tenor of these letters of inftructions to the different mafters of thefe veffels. In these letters, which are numerous, all is problematical between hope and fear; a contest between the defire of getting first to a tempting market on the one fide, and the poffible hazard of British capture on the other; and it is to be regretted that the eagernefs of mercantile fpeculation has prevailed over the fenfe of danger. In fuch a ftate of mind, acting upon circumftances, the party muft understand that he takes the chance of events-of advantage, if the event which he hopes for has taken place, and of lofs if it has not. It is his own adventure, and he muft take profit or lofs as the event may throw it upon. He cannot take the advantage without the hazard of lofs, unless by reforting to British ports in the channel, where certain information may be obtained, on the truth of which all profpects of lofs or prof. it may fafely be fufpended. On the Britith government no refponfibility can be charged. They were bound to revoke as foon as they were fatisfied of the fincere revocation of the French decrees. Such fatisfaction they have not fignified; and I am bound to prefume, that no fuch fatisfaction is felt. With respect to the demand of warning, the orders themfelves are full warning. They are the most formal admonitions that could be given; and being given and unrevoked, they require no fubfidiary notice.

On the grounds of the prefent evidence, I therefore lee no reafon to hold the claimants difcharged; but I do not proceed to an ultimate decifion upon their interefts, till I fee the effect of that