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upon the law of nations committed by its adversary, was compel. led, by a necessity which it laments, to resort to measures which
otherwis. condemns, it pledged itself to the revocation of those measures as soon as the necessity ceatis. And till the state revokes them, this court is bound to presume that the receflity continues to exist; it cannot, without extreme indecency, fuppofe that they would continue a moment longer than the neceflity which produce ed them, or that the notification that fuch measures were revoked, would be lefs public and formal than their first establithment. Incir ttablishment was doubtless a great and signal departure fronte ordinary adininiftration of justice in the ordinary state of tie exercise of public hoftility, but wa justified by that extraordinary deviation from the common exercise of hostility in the conduct of the enemy. It would not have been within the competancy oi the court jifelf to have applied originally such rules, because it was hardly pollible for this court to poil fs that diftinct and certain information of the facts to which alone fuch extraorCinary rules were justiy applicable. It waited therefore for the communication of the facts: It waited likewise for the promulga. tion of the rules that were to be practically applied. For the state might not have thought fit to act up to the extremity of its rights on this extraordinary occasion : It inight, from motives of forbear. ance, or even policy unmixed with any injustice to other states, have adopted a more indulgent rule than the law of nations would authorize, though it is not at liberty ever to apply a harsher rule than that law warrants. In the case of the Swedish convcy, which has been alluded to, no order or instruction whatever was issued, and the court therefore was left to find its way to that legal conclusion which its judgment of the principles of ile law led it to adopt. But certainly, if the state had iffued an order that a rule of less severity Thould be applied, this court would not have considered it as any departure from its duty to act upon the milder rule, which the prudence of the state was content to substitute in support of its own rights. In the present case, 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 these orders are revoked in consequence of a change in the conduel of the enemy.
The edícts of the enemy themfelves, obscure and ambiguous in their usual language, and most notoriously and frequently con. tradicted by his practice, would hardly afford it a fatisfactory evidence of any fuch change having actually and sincerely taken place. This state has pledged itself to make such a notification when the fact happens ; it is pledged so to dlo by its public decla. rations—by its acknowledged interpretations of law of nationsby every act which can excite an universal expectation and demand, that it shall redeem fuch a pledge. Is such an expectation peculiar to this court ? most unquestionably not. It is universal. ly felt and universally expressed. What are the expectations sig.
nified by the American government, in the public correspondence reterred to not that these orders would become filently extinct under the interpretations of this court, but that the state would refcind and revoke them. What is the expectation expressed in the numerous private letters exhibited to the court amongst the papers found on board this class of vessels ? 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 myself to anni. hilate them by interpretation, I should act in opposition to the apprehension and judgment of all parties concerned of the individ. vals whose property is in question, and of the American government itself, which is bound to protect them.
Allusion has been made to two or three cafes, in which this court is said to have exercised a power of qualifying and inoderating the general terms of an order in council, as in the case of the Lucy, Taylor, in which the general terms of the order subjected to confiscation all thips transferred by the enemy to neutrals during the war, and yet this court held that these general terms did not extend to prize ships 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 express 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 such rule to prize ships, but specially exempted them, it would have pronounced in direct contradicion to the avowed principle of the order itself, if it had not followed the enemy in this acknowledged distinction. It has likewise been urged that cafes may be found in which the court has presumed a revocation, though no such revocation has been promulged. And it is certainly true that where an essential change in the circumitances that occasioned the order has, in ef. fict, extinguithed its fubject matter, and that change of circumstances has bcen publicly declared by the state, the court has not thought it neceffary to wait for a formal revocation itfelf. In the case of the Baltic order, hy which, in compliance with the wish. es of its allies in the war, the government of this country granted an immunity from the molestation of capture in that fea; the court held that order to be revoked when the fate had declared, that most of thofs ilates to whose applications, os allies, that in. dulgence had been granted, had changed the character of allies for that of enemies. It was quite unneceffary to wait for such fpecial revocation, when, by the general declaration of war, all hoftilities had been authorized againit them.
Admitting, however, that there may be cases of prefumed rev. ocation, does it follow that this is, with any propriety, to be considered as one of thole cases? The novelty of these orders in council, the magnitude, the complexity, the extraordinary na. ture 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 state and accepted by other states, all disqualify this court from taking upon itself to apply a presumed révocation in any such case.
Supposing, however, that the court felt itself at liberty to accepi as fatisfactory over i vidence of a fincere retraction of the French decrecs, what is the amount of the evidence offered ? No ediet, no public declaration of repeal, no reference to cafes in which the courts of that country have acted upon any such revo. cation. The only cafe mentioned was that of the New Orleans Packet, and it was brought forward in such a way, so void of all authenticity, and of all accurate detail of particulars, as to make it hardly pollible for me to ailude to it with any propriety, and much less with any kcal effect. What the circumstances of that case were, in what form, and under what authority, and on what account released, did not at all appear : whether at all applicable to the prefent quesio!), whether a mere irregularity, or what was its real characier, the court couid not ivarn. This however is matter of notoriety, that these decrees are pronounced fundamental laws of the French empire; that they were declared so in their original formation, and that they have been since fo declared repeatedly and recently, long since the date of the present transaction. The declaration of the perfor styling him. felf duke de Cadore imports no ne vocation ; for that 'declaration imports only a conditional retractation, and this upon condi. tions known to be impossible to be complied with. It has been urged that the American governinent has considered it otherwise, and has so declared it for the regulation of the conduct of the people of that country. If such is the fact, it is not for me to lose fight of that respect which is due to the acts of a foreign government, so far as to question the propriety of any interpretation which they may have given to fuch an instrument. But when the effect of fuch an instrument is prcfled upon me for the purpose of calling for my decision, 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 possible compliance, is in effect a renunciation of any ferious purpofe of repealing those 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 absolute repeal, when I observe 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 such 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. side upon that evidence, independent of all evidence, to be reg. ularly furnished by the government under whose authoritv I fit, I think I ain bound to pronounce that no such revocation has taken place, and therefore that the orders in council fubfilt in perfeet justice as well as in complete authority. hibition imposed upon them on a ground fo totally unconnected with the ordinary principles of a common measure of blockade, from which it is thus distinguished by its retaliatory character.
It is incumbent upon me, I think, to take notice of an objection of Dr. Hierbert's, to the existence of the orders in council, namely, that British subjects are, notwithstanding, permitted to trade with France, and that a blockade which excludes the subjects of all other countries from trading with ports of the enemy, and at tlie same time permits any access to those ports to the subjeéts of the state which imposes it, is irregular, illegal, and null. And I agree to the position, that a blockade, imposed for the pur. pose of obtaining a commercial monopoly for the private advantage of the state which lays on such blockade, is illegal and void on the very principle upon which it is founded. But, in the first place, (although that is matter of inferior consideration) I am not aware that any such trade between the subjects of this coun. try and France is generally permitted Licenses have been granted certainly in no inconlilerable numbers; but it never has been argued that particular licenses would vitiate a blockade. If it were material in the prefent case, it might be observed, that ma. ny more of these licences had been granted to foreigo ships than to British ships, to go from this country to France and to re. turn here froin thence with cargoes. But, fecondly, what still more clearly and generally takes this matter out of the reach of the cbjection, 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 com. mon rules that belong simply to that operation of war. It is in this instance a counteracting reflex measure, compelled by the act of the enemy, and as fuch subject to other confiderations aris. ing out of its peculiarly distinctive character. France declared that the fubjeels of other states should have no access to England; England, on that account, declared that the subjects of the other states thould bave no access to France. So far this retaliatory blockade (if blockade it is to be called) is co-extensive 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 intercourle, by virtu: of the act of France. Having so acquired it, it exercises it to its full extent, with entire competence of legal authority, and having fo done, it is not for other countries to enguire how far this country may be able to relieve idfuf further from the aggressions of that enemy. The cale is fettled between them and itself by the principle on which the intercourse is prohibited. If the convenience of this country before this prohibition, required fome occasional intercourse with the enemy, no justice that is doe to other countries requires that such an intercourse should be suspended on account of any pro.
The last question is, are these any circumstances addressed to oquitable consideration, that can relieve the claimants from the penal effects of these orders ? Certainly, if any could be urged that arose from the conduct of the British government itself, they might be urged wit! a powerful and even irresistible effect ; but if they found themselves in the fraud of the enemy, or in the misapprehensions of the American government induced by the fraud of the enemy, they found no claim on the British government or on British tribunals. In the one case they must 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 presume it is to be found to the government of their own country.
Upon the declaration of the American government, I have al. ready faid as much as consists with the respect which I am bound to pay to the declaration of a foreign government, professedly neutrai. The custom houses of that country, say the claimants,cleared us out for France publicly, and without reserve. They did fo; but they left the claimants to pursue all requisite measures for their own security, in expectation, I presume, that they would inform themselves, by legal inquiry, whether the blockade con. tinued to exist, if its continuance was uncertain. That it was perteally uncertain in their own apprehensions, is clear from the tenor of these letters of instructions to the different masters of these vefsels. In these letters, which are numerous, all is problemat. ical between l'ope and fear ; a contest between the desire of get. ting lidt to a tempting market on the one side, and the possible hazard of British capture on the other; and it is to be regretted that the eagerness of mercantile speculation has prevailed over the sepse of danger. In such a state of mind, acting upon circumftances, the party must understand that lie 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 must take profit or loss as the event may throw it upon. He can. not take the advantage without the hazard of loss, unless by re. forting to British ports in the channel, where certain information may be obtained, on the truth of which all prospects of loss or prof. it may safely be suspended. On the British government no re. sponsibility can be charged. They were bound to revoke as soon as they were satisfied of the fincere revocation of the French decrees. Such fatisfaction they have not signified; and I am bound to presume, that no such fašisfaction 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 subsidiary notice.
On the grounds of the present evidence, I therefore fee no reafon to hold the claimants discharged; but I do not proceed to an ultimate decision upon their interests, till I see the effect of that