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CORRESPONDENCE OF MR. JOHN SPEAR SMITH. Extract of a Letter from J. S. Smith, Esq. to the Secre
tary of State. London, May 25, 1811. “I HAD yesterday for the first time, an interview with lord Wellesley, and presented to him the letters of introduction that Mr. Pinkney had given me, and he received me in the most polite manner.”
Mr. J. S. Smilh to Marquis Wellesley. London, May
27, 1811. MY LORD,-I have the honour to inform your lordsbip (from official information, this day received by me from Paris, that all the American vessels which have voluntarily arrived in France, since the first of November, have been admitted. This (if any additional evidence of the repeal of the Berlin and Milan decrees were wanting,) will sufficiently establish the fact of their revocation, as most of the vessels now admitted, would otherwise have been subject to their operation. Į have the honour to be, &c.
J. S. SMITH. The Most Noble the Marquis Wellesley, &c.
Extract of a Letter from Mr. John S. Smith to the Sec- .
retary of State. London, June 8, 1811. “Enclosed is the copy of a letter which I addressed to lord Wellesley on the 5th instant. I had delayed making tbis communication in the hope that I should do it at the interview which he had promised me, and wbich I again requested on the 3d instant. I did not consider it necessary to enter at length into a subject which has been so often and so ably discussed, and on which nothing bas been left to add. I shall, however, enter into any explanations that may be necessary when I again see his lord
Mr. J. S. Smith to Lord Wellesley. Bentinck Street,
June 5, 1811. MY LORD,~I have the honour to communicate to your lordship the copy of an act passed during the last session of Congress, which, though it renews certain parts of the pon-intercourse law against this country, yet it carefully gives to the President the authority to repeal it " when Great Britain sball so revoke or modify her edicts as that they sball cease to violate the neutral commerce of the United States.” In this, as well as in the other provisions of the act, his majesty's government cannot fail to observe the invariable disposition of the United States to preserve harmony with Great Britain, and to re-establish that happy intercourse between the two nations, which it is so much the interest of both to cultivate ; and the President confidently expects that his majesty will not hesitate to abandou a system, always urged to be merely retaliatory, now that its causes have ceased to exist.
I have the honour to inform your lordsbip that the gentleman who will be the bearer of my despatches to the United States, in the John Adams, will leave town on Friday evening, and that I shall be happy to forward by the same occasion any despatches that your lordship may wish to send to the United States. I have the bonour to be, &c.
J. S. SMITH. The Most Noble the Marquis Wellesley.
Mr. Smith, Charge d'Affaires at London, lo the Secrelary
of State of the United States. London, June 6, 1811.
Sir, I have the honour to inclose a report of the trial of the Fox and oibers.
The Jobn Adams will leave Cowes this week; the messenger goes down to-morrow evening. I have the honour to be, &c.
J. S. SMITH, The Honourable the Secretary of State, &c.
COURT OF ADMIRALTY, TUURSDAY, MAY 30, 1811.
FOX AND OTHERS.
JUDGMENT. Sir William Scott.—This was the case of an American vessel which was taken on the 15th of November, 1810, on a voyage from Boston to Cherbourg. It is contended on the part of the captors, that, under the order in council of the 26th April, 1809, this ship and cargo, being destined to a port of France, are liable to confiscation. On the part of the claimants it has been replied, that the ship and cargo are not confiscable under the orders in council ; first, because these orders have in fact become extinct, being professedly founded upon measures which the enemy had retracted ; and secondly, that if the orders in council are to be considered as existing, there are circumstances of equity in the present case, and in the others that follow, whicb ought to induce the court to hold them exonerated from the penal effect of these orders.
In the course of the discussion a question has been started, what would be the duty of the court under orders in council that were repugnant to the law of nations ? It has been contended on one side, that the court would at all events be bound to enforce the orders in council : on the other, that the court would be bound to apply the rule of the law of nations applying to the particular case, in disregard of the orders in council. I bare not observed, however, that these orders in council, in their retaliatory character, have been described in the argument as at all repugnant to the law of nations, however liable to be so described if merely original and abstract; and therefore it is rather to correct possible misapprehension on the subject than from the sense of any obligation which the present discussion imposes upon me, that I observe that this court 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. At the same time 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 circumsiances, 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 priociples, 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 be 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, npon 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 wbich 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 10 its principles of unwritten law. In the particular case of the orders and instructions which give rise to the present question, the court bas not beard it at all maintained in argument, that as retaliatory orders they are not conformable to such principles-for reialiaiory orders they are.—They are so declared in their own language, and in the uniform language of the gorernment which has esta. blished them. I have no hesitation in saying, that they would cease to be just if they ceased to le retaliatory ; and they would cease to be retaliatory, from the moment the enemy retracts in a sincere manner i lose ceasures of bis which they were intended to retaliate.
The first question is, what is the proper evidence for this court to receive, under all the circumstances that belong to the case, in proof of the fact that he has made a bona fide retractation of those measures. Upon that point it appears to me that the proper evidence for the court to receive, is the declaration of ihe siate itsell, which issued these retaliatory orders, that it revokes them in con. sequence of such a change having iaken place in the conduct of the enemy. When the state, in consequence of gross outrages upon the law of nations committed by its ad. versary, was compelled, by a necessity which it laments, to resort to measures which it otherwise condemos, it pledged itself to the revocation of those measures as 9000 as the necessity ceases. And till the state revokes them, this court is bound to presume that the necessity continues to exist; it cannot, without extreme indecency, suppose that they would continue a mo:nent longer than ihe necessity which produced them, or that the notification that such measures were revoked, would be less publick and formal than their first establishment. Their establishment was doubtless a great and signal departure from the ordiwary administration of justice in the ordinary state of the exercise of publick bostility, but was justified by that estraordinary deviation froin the common exercise of hostili. ty in the conduct of the enemy. It would not have been within the competency of the court itself to have applied originally such rules, because it was hardly possible for this court to possess that distinct and certain information of the facts to which alone such extraordinary rules were justiy applicable. It waited therefore for the communication of the facts: it waited likewise for the promulgation of ihic rules that were to be practically applied. For the