the Jacobins prohibiting quarter to the English, with a reproof to those insane rulers-a protest in the face of the world-and a generous recommendation to our troops to abstain from retaliation? In truth, were the contrary maxims allowed, the smallest breach of the law of nations would ensure the immediate and total overthrow of the system, which has done more for the civility and peace of the world than conquerors or mobs have been able to effect against those inestimable blessings.

The doctrine here laid down, was no doubt broached by Sir W. Scott incidentally, in the course of an elaborate argument, of which it did not form the main drift ;-it was more of an obiter dictum than of a point ruled; and, unquestionably, it was not the principal point in the case. But the dicta of judges must not be taken like admissions of advocates in the course of argumentconcessions of one point in order to justify another. A judge rules more or less solemnly, on every point which he deliberately decides upon; and as he is not arguing to support a particular doctrine, all that he lays down for law in explaining and recommending that doctrine, must be taken to be law, as far as his authority can make it so.

What, then, it may be asked, is the one belligerent to do when the other violates the clear law of nations, by establishing a blockade unsupported by actual force? The principle now contended for, and on the great authorities referred to, would justify this answer, that the utmost extent of retaliation is to assist all neutrals in evading such an order of blockade. But if neutrals should be found willing to obey the order, it may seem fit that the retaliation should proceed a step further; and that England, for example, being declared in a state of blockade by France, should be authorised, in her turn, to declare France in a state of blockade with respect to whatever neutrals may acquiesce in the French declaration. This principle, however, must be taken with some limitations; because, if the French proclamation be a mere empty threat, a mere insult to the neutrals, incapable of really injuring either them or us, we shall not surely be justified in inflicting such a blockade as may utterly annihilate their intercourse with the enemy. The French decree says to AmericaYour ships shall not go to and from England;-it is a decree which France cannot execute: and if America refuses to go to war with her on account of it, what does she more, than despise a mere idle threat, or put up with an empty insult? This is no ground for retaliating on America. No one can pretend that England has a right to insist upon America accounting to her for all the insults she may endure; or to make that neutral state receive real injuries at her hands, because she has taken insults at the hands of her enemy. If, indeed, America not only refuses to

quarrel with France on this score, but ceases, in consequence of the French decree, to trade with England, it may be thought more reasonable that England should have the same right of preventing her from trading with France. Nevertheless, they who maintain this point, must be prepared to admit that neutra's have no longer a right to trade with whomsoever they please, and to give up a certain commercial intercourse at their own pleasure. The support of this doctrine of retaliation would lead to an acknowledgment, that a cessation of commercial intercourse is a just ground of war. However, we are not disposed to raise speculative questions, and argue on a state of facts which has never existed. America never did acquiesce in the French decrees; and she ceased to trade with England, only when England adopted a particular and strange modification of the new French princi ples of blockade. We shall take for granted the right of retaliating on the enemy at the expense of the neutral, and inquire how this right is limited, and whether it has been exercised under the fit limitations?

If any one were asked, what would be a proper retaliation of the blockade proclaimed against England? he would naturally answer a similar blockade proclaimed against France. The object of such a measure would be sufficiently intelligible. Whether attainable or not is another question, and one which belongs to the political view of the case-a view not now before us: but a blockade of France would have an intelligible reference to the blockade of England; and, while it only called upon neutrals to bear from us as much as they choose to bear from our enemy (the sole, though we fear no very triumphant justification of such a retaliating measure as relating to neutrals), it would offer some chance of compelling the enemy to alter his conduct -recur to the old established law of nations, and cease violating neutral commerce. England, however, by the first Orders in Council, inflicted no such retaliation upon France. She endeavoured, on the other hand, to monopolize, instead of retaliating. In answer to a decree which said, No one shall trade with England; she said, Every one shall trade with England, or give up all trading whatsoever,-instead of saying, as she ought to have done, No one shall trade with France. The blockade was thus affected to be retaliated; but it was in reality met,-not with a counter blockade, but with a monopoly ;-and this conduct was both contrary to the rule which it pretended to follow, and wholly incapable of either making the neutral cease to acquiesce in the enemy's illegal proceedings, or compelling the enemy to abandon those measures. For it neither prevented the neutral from trading as extensively as before, nor distressed the enemy by cutting off his intercourse with neutrals ;-it only ham.

pered, and insulted and harassed the trade of the former, and prescribed the way in which the latter should be traded withal. Both neutral and enemy might trade as largely as before, provided they choose to drive that traffic through the medium of British ports, and in such a way as somewhat, though very little, to assist the trade of those ports. It is therefore quite impossible to defend the Orders in Council of 1807 on the principle of retaliation. Their preamble states that principle-but only to abandon it, and adopt another of a perfectly different kind. The preamble says, we have a right to retaliate ;-but the order says, we will not do so useless and unprofitable a thing as to retaliate; we will endeavour to get a little good trade out of the fire. The substance of the proclamation is-whereas we have a right to retaliate by blockade; therefore we choose not to do so; but we prefer making a certain profit by monopoly.

In April 1809, these orders were repealed; and another set substituted in their place. The principle now resorted to was a blockade of a limited extent, comprehending the coasts of France, Holland, part of Germany, and the north of Italy;-and as this blockade was absolute, admitting of no exceptions, and no evasion, by touching at British ports, it wears on the face of it an appearance of more strict retaliation than the measure to which it succeeded. Yet, how has it been followed up in practice? By a series of Orders in Council, adapted to particular cases, authorising thousands of exceptions in a year to the blockade originally imposed, or pretended to be imposed, the breach of the blockade has now become the rule, instead of the exception: And, while we affect to prevent France from trading with any other country, in order to starve her into a compliance with the law of nations ;-while we tell America that we are reduced, by the state of the war and the conduct of the enemy, to the disagreeable necessity of preventing all commerce with France,-while we express our unfeigned regret, that the course of hostilities should fall heavy upon American trade, and protest, that nothing could reconcile us to such an act of apparent harshness towards neutral rights, but the absolute impossibility of permitting the enemy of all order, to trade in any degree whatever with any nation in the world (for our case is this, or it is nothing): We at the same time encourage our own clandestine traffic with that same enemy as much as we can, and allow all neutrals who will submit to certain indignities, and to conditions beneficial to ourselves, as ample a trade with blockaded France as they ever before enjoyed: So that the principle of the original orders of 1807 is revived underhand, and in detail; and the blockade of 1809, when interpreted by the licenses, is found to mean, like that of 1807, only a monopoly, under the imposing disguise of such a

measure as might press hard on the enemy, and oblige neutrals to resist his encroachments, while it forced him to observe the public law of Europe.

In what light such measures are viewed in our Prize courts, we may easily see, by consulting their latest decisions: for, till lately, they would allow of no illegal proceedings, even when strictly retaliatory. But, now that they have relaxed the ancient rules, and allowed one belligerent to break the law, in order to punish another for a breach of it, we shall still find them confining within much narrower bounds than the government is disposed to walk by, this right of retaliation. The case of the Fox, recently decided by Sir William Scott, is on many accounts of peculiar authority in the present discussion; but chiefly for this reason, that no former judgment of our Prize tribunals ever showed such difference to the municipal legislation of the country, and such disposition to mix it up with the public law in regulating their decisions. In the outset, Sir William Scott declares our Orders in Council to be purely retaliatory. They are so declared in their own language, and in the uniform language of the government which has established them. I have no hesitation in saying, that they would cease to be just if they ceased to be retaliatory; and they would cease to be retaliatory, from the moment the enemy retracts, in a sincere manner, those measures of his, which they were intended to retaliate.' p. 4.

It having been objected by Dr. Herbert, one of the counsel for the claimant, that the Orders in Council are not retaliatory, inasmuch as they are accompanied with the License trade, the learned Judge thus proceeds to comment on that objection. "It is incumbent upon me, I think, to take notice of an objection of Dr. Herbert'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 the same time permits any access to those ports to the subjects of the State which imposes it, is irregular, illegal, and null. And I agree to the position, that a blockade, imposed for the purpose 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.' (p. 10). He then endeavours to show that the License trade is not so extensive as to come, or to bring the measure of which it forms a part, within the scope of this observation. The fact, however, it now appears, is otherwise; a very large trade having been carried on under license be tween this country and the coast pretended to be blockaded by our Orders in Council. He further remarks, that the License trade is chiefly in the hand of foreigners: But surely it signifies

nothing to the principle, whether we, underhand, violate our own blockade by our own or by foreign vessels, so long as we prohibit neutrals from trading with France directly. The ast answer which he gives to the objection amounts to this, that the French decrees, conferring on us a right to blockade France rigorously, it is not for other countries to inquire how far this country may be able to relieve itself further from the aggressions of the enemy. But why is it not? and how does this agree with the large admission, that a blockade, which ends in commercial monopoly, is illegal and void, on the very principle upon which it is founded?" Is not this relaxation of the blockade, take it in whatever light we may, a relaxation, in our own favour, of the pressure which we pretend must needs be inflicted upon the enemy, and which we vindicate in regard to its effects upon neutrals, only on the ground of its absolute necessity to the subjugation of that enemy? Has not then the neutral a full right to complain of our conduct, in pretending to destroy his trade, for the better management of the war, and the more speedy attainment of peace, when all that we do, in reality, is to transfer it out of his hands into our own, for the more profitable carrying on of business, and the more speedy acquisition of wealth?-Have we, who do such things, any right to abuse the Dutch who blockaded a city, and secretly sold it provisions and stores-determined, it should seem, to make the most of their war, and, if they could not take the place, to turn its resistance to a good account?

The principle, then, of the new system-new at least in our Prize courts, and repugnant to the rules laid down by our most eminent Judges heretofore, is profit and monopoly, and not retaliation or self-defence. But, more recently, it has been recommended on such grounds, in a manner still more avowed and unblushing. His majesty's ministers are said to have lately declared, that the defence of their measures rested, not so much on their forcing the enemy to retract-for this ground it was necessary to abandon in the face of the notorious facts-but on their tendency to protect our trade from injurious competition. (See Reports of the Debate on Lord Lauderdale's and Mr. Brougham's Motions upon the Orders in Council.) It was contended, that if the Orders were withdrawn, there would be nothing to prevent the manufactures of the Continent from getting into other markets, as that of South America, possibly at peace freights, under cover of the American flag; and that we should be undersold, or at any rate lose the exclusive possession of those markets. It was inferred, that to the new measures we owed our present trade in a great degree; and that, to protect that trade, those measures must at all events be persevered in. We shall here wave all dispute about the matter of fact, on which this portentous doctrine