Page images
PDF
EPUB

voy, 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. “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. “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 the written or statute law in Acts of Parliament, which are directory applications of the same principles to particular subjects, or positive regulations consistent with them, upon matters which would remain too much at large, if they were left to the imperfect information which the courts could extract from mere general speculations. What would be the duty of the individuals who preside in those courts, if required to enforce an Act of Parliament which contradicted those principles, is a question which I presume they would not entertain a priori; because they will not entertain a priori the supposition that any such will arise. In like manner, this court will not let itself loose into speculations as to what would be its duty under such an emergency; because it cannot without extreme indecency, presume that any such emergency will happen ; and it is the less disposed to entertain them, because its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law.’ p. 2, 3. Here there are two propositions mentioned, asserting two several duties which the court has to perform. One of these is very clearly described ;-the duty of listening to Orders in Council, and proclamations issued by one of the parties before the court;-the other, the duty of administering the Law of Nations, seems so little inconsistent with the former, that we naturally go back to the preceding passage of the judgment where a more particular mention is made of it. ‘This court,” says the learned Judge, “is bound to administer the Law of Nations to the subjects of other countries, in the different relations in which they may be placed towards this country and its government. This is what other countries have a right to demand for their subjects, and to complain if they receive it not. This is its unwritten law evidenced in the course of its decisions, and collected from the common usage of civilized states.” The faultless language of this statement all will readily confess and admire. The more judicial virtues of clearness and consistency may be more doubtful in the eyes of those who have been studying the Law of Nations under the same judge, when ruling the cases of the Flad Oyen and Swedish Convoy. It is with great reluctance that we enter upon any observations which may appear to question any thing stated by such accurate reporters as Dr. Edwards and Sir C. Robinson, to have been delivered in the High Court of Admiralty. But we have no choice left;—we must be content to make our election between the doctrines of 1799 and 1811, and to abandon one or the other. The reluctance which we feel is therefore materially diminished; for, if we venture to dispute the law recently laid down by the learned judge, it is upon his own authority in times but a little removed from the present point of date, and nowise differing from them in any other respect. How then can the court be said to administer the unwritten law of nations between contending states, if it allows that one government, within whose territories it ‘locally has its seat,’ to make alterations on that law at any moment of time: And by what stretch of ingenuity can we reconcile the position, that the court treats the English government and foreign claimants alike, determining the cause exactly as it would if sitting in the claimant's country, with the new position, that the English government possesses legislative powers over the court, and that its orders are in the law of nations what statutes are in the body of municipal law These are questions which, we believe, the combined skill and address of the whole Doctors of either law may safely be defied to answer. Again:—What analogy is there between the proclamations of one belligerent, as relating to points in the law of nations, and the enactments of statute, as regarding the common law of the land 2 Were there indeed any general council of civilized states —any congress such as that fancied in Henry IV.'s famous project for a perpetual peace—any amphyctyonic council for modern #. ; its decisions and edicts might bear to the established public law the same relation that statutes have to the municipal code; because they would be the enactments of a common head, binding on and acknowledged by the whole body. But the edicts of one state, in questions between that state and foreign powers —or between that state and the subjects of foreign powers—or between those who stand in the place of that state and foreign governments or individuals, much more nearly resemble the acts of a party to the cause, than the enactments of the law by which both parties are bound to abide. Mark the consequences of such loose doctrines—such feeble analogies. They resolve themselves into an immediate denial that any such thing as the law of nations exists, or that contending parties have any common court, to which all may resort for justice. There may be a court for French captors in France, and for English captors in England. To these tribunals such parties may respectively appeal in safety; for they derive their rights from edicts issued by the governments of the two countries severally; and those edicts are good law in the Prize courts of each. But, for the American claimaint, there is no law by which he may be redressed—no court to which he may resort. The edicts of his government are listened to in neither the French nor the English tribunals; and he is a prey to the orders VOL. VIIP, Qı

of each belligerent in succession. Perhaps it may be thought quite a sufficient hardship, without this aggravation, that even under the old and pure system laid down in 1798 and 1799, the neutral was forced to receive his sentence in a foreign court— always in the courts of the captor's country. But this undoubted rule of law, tempered by the just principles with which it was accompanied, appeared safe and harmless. For, though the court sat locally in the belligerent country, it disclaimed all allegiance to its government; and professed to decide exactly as it would have done sitting in the neutral territory. How is it now, when the court, sitting as before, has made so large a stride in allegiance, as to profess an implicit obedience to the orders of the belligerent government within whose dominion it acts : That a government should issue edicts repugnant to the Law of Nations, may be a supposition unwillingly admitted; but it is one not contrary to the fact; for all governments have done so —and England among the rest, according to the learned judge's own statement. Neither will it avail to say, that, to inquire into the probable conduct of the Prize courts in such circumstances, is to favour a supposition, which cannot be entertained “without extreme indecency;’ or to compare this with an inquiry into the probable conduct of municipal courts, in the event of a statute being passed repugnant to the principles of municipal law. The cases are quite dissimilar. The line of conduct for municipal courts in such an emergency, is clear. No one ever doubted that they must obey the law. The old law is abrogated, and they can only look to the new. But the courts of prize are to administer a law which cannot, according to Sir William Scott, (and, if we err, it is under the shelter of a grave authority), be altered by the practice of one nation, unless it be acquiesced in by the rest for a course of years; for he has laid down that the law, with which they are conversant, is to be gathered from gemeral principles, as exemplificq in the constant and common usage of all nations. Perhaps it may bring the present case somewhat nearer the feelings of the reader, if he figures to himself a war between America and France, in which England is neutral. At first, the English traders engross all the commerce which each belligerent sacrifices to his quarrel with his adversary. Speedily the two belligerents become jealous of England, and endeavour to draw her into their contest. They issue decrees against each other nominally, but, in effect, bearing hard on the English trade; and English vessels are carried by scores into the ports of America and of France. Here they appeal to the law of nations; but are told, at Paris, that this law admits of modifications, and that the French courts must be bound by the decrees of the Tuilleries; at New York, that American courts take the law of nations from Washington; and, in both tribunals, that it is impossible, “without extreme indecency, to suppose the case of any public act of state being done, which shall be an infringement on the law of nations. The argument may be long, and its windings intricate and subtle ; but the result is short, plain, and savouring of matter of fact; rather than matter of law :—All the English vessels carried into either country would be condemned as good and lawful prize to the captors.

Let us not inquire how short a time the spirit of our nation would endure such a state of public law, and how speedily the supposed case would cease to apply, by our flag ceasing to be neutral. But let us, on this account, learn to have some patience with a free and powerful people, quite independent of us, when we find them somewhat sore under the application of these new doctrines—these recent innovations on Sir William Scott's sound principles of law; and let us the more steadily bear in mind that great judge’s remark on another part of the subject. “If it were fit that such a state should be introduced, it is at least necessary that it should be introduced in an avowed and intelligible manner, and not in a way which, professing gravely to adhere to that system which has for centuries prevailed among civilized states, and urging at the same time a pretension utterly inconsistent with all its known principles, delivers over the whole matter at once to eternal controversy and conflict, at the expense of the constant hazard of the harmony of states, and of the lives and safeties of innocent individuals.’

[ocr errors]

Travels in the Island of Iceland, during the Summer of the year 1810. By Sir George Mackenzie, Bart, 4to. Constable & Co. Edinburgh. Longman & Co. &c. London. 1811.

ICELAND is perhaps the country in the whole world where civilization has proceeded the greatest length, considering the physical difficulties it has had to encounter. In a remote island, situate on the farthest verge of the habitable globe; encompassed by polar ice, and ravaged by volcanic fire; in a climate where a long winter, cold, dark and tempestuous, is succeeded by a short summer, so little genial that it is insufficient to ripen grain of any species:—In such a country, it is wonderful that the industry of man has been able to do more than to supply the most urgent of his wants. Yet, here, learning flourished at a very early period; poetry was cultivated; and here the mythology of the northern

« ՆախորդըՇարունակել »