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SARGEANT, ^ Na 39 WaU-ftrect" t 1809. ' '' fijt'rv"^*'*"*' ^ .«», ^ ^ #■■ ^^Mk .*^ <C!i 0^ THERE is no treaty or other convention between us and Great-Britain j and, as it respects France, the follozving Cases, and the reasonings from them, are as supposing there is none between us and her, defining or declaring what shall be deemed the rule, in the respective cases, relative to the mutual rights and duties between a bellige- rant and a neutral. ^ X ~%.-.c:m-.- •-#- *!■■:■, Wi" ' *»(|,''' -■';;.■" •■*' wmmmn ""7^'t*5S^W-" ■i- >■ ^:> '•*, ,..An . '•"•f ~.i^ • • I < ■. \'\.. \r:^^ l,« ». -sir. ,*':*■ i >■ , 1 t U >•> ■' 'iuu if ..i.!.; • . \ .»/!■* • CASES AND QUERIES, ■"fj ■; I,: . t' JiJJUii Ifc. • ; I- . « ! ( i ; ■ ^■ ■^^»ii ^ FIRST CASE. ["^JL ■r'r V ! f J' »■ \\t.. Neither France or Great Britain had ev«, er, prior to the French decree of Berlin, claim- td it tiB the rule or law, between belligeraats and nentralfl, that the vcisel of the neutral be- ing bound tea port oione, is, t^ itself, sufficient tause of capture, tc the oilier, of the bell^ge- rant parties*— France has by the above decr^^e dakned^ or asfuaied, such to be the rule, and has accordingly captured our vessdb, and con- demned them, with their cargoes, when bound to a British port; and we having submitted to the claim, or (and which is the same things) we having iMdkr^AV/^i/, by arms, the exercise of \ ■ .1 v/ • -!*,> . \ d CASES AND QUERIES. it. Great Britain, while she admits that no such 7'ide exists, at the same time, claims, that we having submitted to it when claimed by France, she is thereby, and as against us, entitled also to avail herself of it, and accordingly captures and condemns our vessels, with their cargoes, when bound to a French port. SECOND CASE. ■/ lil.il i. . > •■ , » ,. }i ;* I As to the right to capture the goods of an enemy on the seas ., Great Britain claims the rule to be, that free ships do not make free goods. Supposing France to admit the contrary to be the rule, that free ships da make free goods, then Great Britain would capture and con- demn French property on board our vessels; whereas, France, according to the rule, as ad- mitted by her, must let British property on board our ships, pass, sls free; and supposing us to submit to the rule, as claimed by Cre^ CASES AND QUERIES. 7 Britain j then Query : would we be entitled to hold France to the rule, as admitted by her, or would she not, as against us, be entitled to avail herself of it, as claimed by Great Britain. ? •i. I 'i -. ' . . -ri THIRD CASE. ' I': ii* •» I As to the rule concerning articles contraband of ivar — ^Suppose France to claim provisions to be within the rule, and Great Britain to admit them to be 7iot within it ; in that case France would capture and condemn provisions on board our vessels, bound to a British port, whereas Great Britain, according to the rule as admitted by her, must let the provisions on board our vessels, bound to a French port, pass, as inno- cent. Here therefore again, only changing the places of the two belligerant parties, the like question occurs : — If then, in the second case, France would have a right to capture British property found on board our vessels, and if in CASES AND QUERIES. the third case, Great Britain would have aright to capture provisions on board our vessels bound to a French port, does it not Ibllow that she ha» now, in consequence of the French decree, au' thorizing the capture of our vessels when bound to a British port, and our submission to it, a right to capture onr vessels when bound to a French port ? or, are not the first case and the second and third cases the same in principle, as it respects the right of a belligerant, when its opposite belligerant has assumed a rule of cap- ture against neutrals, and a neutral has submit- ted to it, also to assume against the neutral so submitting^ the like rule ? and does it not then further follow, that the right of Great Britain to capture our vessels when bound to a French port, rests wholly on the rule or law that neu- trality must not only be impartial, as free from collusion, but also equal, between the neutral and both the beIHgerants, so that the neutral is not to submit to the enjoyment of a right against her by one, and resist the exercise or enjoyment CASES AND QUEHIES. 9 of it by the ol/ter. Neither of tliem is to be, as it were, the more favoured party with the neu- tral. It is a rule of universal law, that '* equity iseqiioUtyt' and it is convertibky a want q{ equal- ity is a want of f 7m//j/ ; and is it not essential to equality between us and Great Britain, that as long as we submit to the rule priorly assumed by France, to capture our vessels when bound to a British port, we are not entitled to resist Great Britain when she subsequently assumes the like rule, and captures our vessels when bound to a French port? Is not Great Britain entitled to tell us, that although we would have been jus- tifiable in considering the decree as an act of hostility ^ and instantly made reprisals, and if so, that a state of war would now exist between us and France, yet, that we having elected to con- sider it as an act done under colour of a right, and if so, that until discussion and disagree- ment between us and France, we persisting to deny, and she to assert and exercise the right, and the disagreement followed up by resistance 10 CASES AND QUERIES. on our part, a state of peace still continues be- tween us and France, she (Great Britain) is Content, as between her and us, formallij to (iffinn the French decree as an act done under coloin' of right, and accordingly, that she is entitled to have the captures by her of our vessels bound to a French port, considered by us as acts un- der the like right? It must, however, be at the same time stated, that if she insists on the aflfir- mative of this question from us, it will follow, that the instant we elect to consider the decree as an act of hostility, by resisting it as such, even perhaps if the resistance should be only a con- voy of our vessels bound to British ports, she has no longer a right to capture our vessels bound to a French port — that this right in her depending on our submission to the French de- cree as its cause, the instant the cause ceases, the right, as its effect, then also ceases — that she has then no longer reason to complain of ine- quality : she has no longer, as it were, an equity from us to be satisjied — and that if she should CASES AND QUERIES. 11 then continue to capture and condemn our ves- sels, with their cargoes, bound to French port^ it must be on some other ground, than as being entitled to an equaUti/ of right, against us, with France — as, for instance, for supposed hi^eack of blockade. The question of blockade, however, or whether a belligerant has, under any circum- stances, a right by mere proclamation, or any other act to the effect of a proclamation, or in any manner without an flc^2/fl/ competent force, a right to constitute a blockade, and so to cap- ture and condemn the vessel of a neutral at^ tempting to enter the declared blockaded port ? not having any necessary relation to the other questions intended to be examined, is therefore passed by. Great Britain will also, probably, as under her supposed rule, known as the ruU^ of '56, continue to capture our vessels when found in the French colonial, as being to us an unaccustomed, trade. This rule will be so far no- ticed, as to test it with the rule or principle of equality. CASES AND QUERIES. To return to the intended subject of inquiry i, j^^tTii6^on\y many among us^ but even the British ministry themselves, endeavour to justify the claim of Great Britain to assume the like rule, priorly assumed by France, or the British orders in council, the acts exercising or enforcing the claim, l)y considering them as acts of retaliation on France. If the above reasoning is correct, then to place the claim on the ground of ixtalia- ^/(??^ is certainly a mistake. This, however, will make no difference, as it respects our conduct to Great Britain, in reference to the claim. The question between us and her is, whether the claim is, or is not just in itself? and not, wheth- er the true ground of it has been un perceived ? There may be an act of reprisal by one nation against another, till then at peace, as a mean to obtain reparation for an injury, but I'etaliation supposes a then already state of xvar, and not thereby to be repaired for injury, but to punish for cruelty. As between the belligerants them- selves, their rights are in one sense imlitnited, CASES AND QUERIES. 13 «illier of them may, for its own preservation, pursue the other to destruction : but still thote rights are, in another sense, limited by certain temperaments J as the jurists express themselves, or 7nitigations of the rights, acknowledged and observed by civilized nations j and every exer- cise of a right beyond the due temperament, ac- cording to the circumstances of the case, \scru' city. A helligerant has a right to the life of his enemy -, but he may not take it away in cold blood, as it is phrased ; according to a due tem- perament, or mitigation of the right, it is cruelty in him ; and it is for acts of this nature that one belligerant retaliates on the other. Indeed, ^having ^ready the greater Vight to the life, or jyerson of the enemy, and consequently the lesser right to his property when captured, there is nothing, as a distinct, ov farther subject, left, on which an v^ci oi retaliation, viewed as an act by one belligerant, to obtain reparation for da?nage arising from an act by the other belligerant, considered as an itijury, can operate. Retalia- 14 CASES AND QUERIES. tion can therefore be only punitive, or with in- tent only either to amend or deter ; and there- fore, must necessarily be inflicted immediatebj on the guilty party: and if it affects a third, or innocent party, it must be only consequentially, or casually so ; but in the present case. Great Britain captures and condemns our vessels and cargoes, we being the third or innocent party, France having no interest in them, not to be gain- er by their safe arrival^ nor a loser by the capture and condemnation of them by Great Britain; and this capturing our vessels and cargoes by Great Britain, is with intent thereby to prevent France from the benefit she might otherwise have from the trade carried on between her and us in our 01V71 vessels, and on our own account, and so to affect her, in its consequences to her detriment, and thereby to coerce, or induce her to revoke her decree. Surely this sort of retaliation is in- verting the very nature and order of things ! but it ought to suffice to shew the futility of the notion of retaliation, as applicable to the CASES AND QUERIES. 15 case, that the effect of the British orders in council has happened to be the very reverse of punitive; for if the French decree has produced the British orders, and if they have produced our embargo, then the decree has eventually produced a consummation^ than which it is not possible to conceive one more devoutly io have been wished for by the individual possessing the sovereignty of France : that very enemy on whom it would seem even Great Britain herself imagines she is rf/a//fl//w^ for it. Now briefly to notice the British rule of '56. It is requisite previously to state, that a duty from a neutral to a belligerant, involves a cor- respondent or correlative right in the bellige- rant, to require the observance of it; and in the converse, a right in the neutral involves a corres- pondent duty in the belligerant . —that rights and duties are founded equally between na- tions as between individuals, in morality — that a breach of duty being immoral, a claim of a 16 CASES AND QUERIES. right by either one of the parties not involving or necessarily supposing a correspondent duty in the other, to allow the exercise or enjoyment of it,f*s an immoral act — that acts^y one bellig- erant occasioning loss or damage, and immedi- ately affecting a neutral, are to be distinguished between those done as from necessitijy and those done as under a belligerant right, a right aris- ing from the relation or condition the parties stand in to each other, the one, the belligerant, being at war with another nation, and the other, the neutral, being at peace with both — that, as to acts of the former class, necessity having no law, all perhaps that is requisite to justify them, is that they be not done rashly, that they be done in good faith, as from necessity, and not under pretence of it, and that recompense be made for them ; hence a belligerant may, for his safety or preservation, capture the vessel and cargo of a neutral, and detain them till the necessity ceases, or use them as if taken by impress, but be must always make recompense i and that as to CASES AND QUEllIES. ly the acts of the latter class, and in reference to the right of capture on the seas, the subject of the present inquiry, the right to capture, in- cludes, or draws after it, as a consequence, a right to condemn or cunfiscatCi and which can only be for a fault or wrong in the neutral, con- sisting in a non-observance or breath of his dufi/ of neutrality. ' ■: ■': ','■.'<■;.• I -f •*;.•.■' ..i » .• These matters being premised, it is now to be stated, that what has been advanced to prove equality to be the only foundation of rights be- tween belligerants and neutrals, may be reduced to these two propositions— First, that a bellige- rant cannot lfgally claim any thing as a right against the neutral, which the other bel- ligerant may not also legally claim : and second- ly, that where one belligerant has claimed and exercised a right, and the neutral has submitted to it, the other belligerant may LEGALLY exer* cise it also. If these propositions are true, then the question presents itself— -Is the Brit- C 18 CASES AND QUERIES. isli rule of '56 just? and this is a question sug- gested to the present judge of the British admi- ralty, to be reviezved by him, and impart i ally, be- tween us and Great Britain — is he not pledged, that when called upon, he will ? — Hear him, in deciding between Great Britain and Sweden, in the case of the Swedish convoy, and it deserves to be written in letters of gold. " In forming " my judgment, I trust that it has not escaped " my anxious recollection for one moment, what " it is that the duty of my station calls from me; " namely, to consider myself as stationed here '* not to deliver occasional and shifting opinions " to serve present purposes of particular nation- " al interest, bat to administer with indifference *' ih^i justice which the law of natiom holds out, " zvithout distinction, to independent states, some " happening to be neutral, and some to be bcl- " ligcrant. The seat of judicial authority is iu- " deed locally here, in the belligerant country, " according to the known law and practice of " nations : but the laxv itself has n& locality. It CASES AND QUERIES. 19 V4 (C i( (( i( is the duly of the person who sits here to de- termine this question exactly as he would de- termine the same question if sitting at Stock- holm s to assert no pretensions on the part of Great Britain, which he ivoiild not allow to Sweden in the same circumstances, and to im- pose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same chai^acter'*, rfi, iiil ii.iO '\\''hat the rule, alluded to, was IN *56, is dil'i iicult, perhaps impossible, now to af^ertftiu, it not being any where to be found|j(;z te?'ms, and, there not being reports of condemnations, if any, under it during the succeeding period of the then war, and. so to be considered as cotempera- neous expositions of it. From a reference to it by Lord Mansfield, in 1761, it would seem as if it was intended to apply only to a neutral vessel trading to a belligerant colony, with all the pri- vileges of ,a belligerant vessel, and consequently to be deemed such, and therefore liable to cap- q6 CASES AND QUERIES. ture and condemnation. His^ordsare — " the '* rule is, that ifufieutral ship trades to a French " coloni/ with all the privileges of a French ship, " and is thu.f adopted and naturalized, it must " be looked tipon as a French ship, and is liable " to be taken." The present judge of the Brit- ish admiralty, in 1799> understands, or explains. Of expounds the rule, when exempliiied between Great Britain and France as the belligerants, to be, in substance, that it is not competent for a neutral to accept from France, during the present war^ a permission to carry on a trade with her coloniesj which the neutral was not ac- •I ' customed to have in time o^ peace ^ ** because, as he expresses himself, Great Britain having, by her superiority/ at sea, brought France un- '* der an entire inability to supply her colonies, '* and export their produets^ the permission to '* neutrals to trade with her colonies does not '* proceed from her loill, but her necessity ; it is a " measure not of French cduncils but «f British '* force ; and that ihh predominance of the Brit- ('( (( CASES AND QUERIES. *< ish force at sea is the true FOUNDATION of the ** principle.** Hence it follows, that Great Britain not being reduced to this state of inabilihj, it would be morally right in us to accept involv- ing that it would be morally right in Great Bri- tain to grant i a permission to carry On a trade with her colonies, beyond what we were accus* tomed to carry on with them in titne of peace t and if so, thenit would be morally wrong in France to capture our vessels and cargoes, and condemn them, for carrying on such unaccustomed trade^ inasmuch as she is not in conditiofi, she wants, as it Were the requisite qualijications, to entitle herself to the rule j she is not superior or domi- ?iant at ^efl— Great Britain practised on the rule as so understood, or on the supposed difference of condition between her and France, when in 1794 she offered us a trade with her colonies. Suppos- ing then Great Britain to capture our vessels when found in the French colonial trades and sup- posing France, if we had accepted from Great Britain the offer referred to, had captured our . '■7ii-Mi:'«J.'^it2rawj'>L'6-lStsli A CASES AND QUERIES. vessels when found in the 'British colonial trade, would Great Britain be lentitled to require from us to resist France ? Undoubtedly in orle*" to be consistent with herself she must >^a ' vH'm* cd herself to be so entitled, and mus* a*^ >rding- \y have arf/«///frf that whenever i'-ance becomes snperior at sea, she wtll ilien have the right to capture our vessels when found in the British col6nial trade, and that then the right of Great Britain to capture our vessels, when found in the French colonial trade ceases until she again becomes superior: in short, that the right as it were opens and shuts according as the superioriftfy ,of the one or the other nation, shall from time to time happen to exist ; — that she having now the superiority the right has opened to her and is shut against France thnt xvhen France shall acquire the superior itr it w.fi ;nen bv. xhut against her and open to Frances and it is in this way that the equdlity, as to the right or the enjoyment of it, is to take place between her and France. f.'ti.i r i ! i;. CASES AND QUFRIES. e.S f ask, and I ask it in the name of reasojt, what kind oi equality is this? J ask what kind of a rule must it be, which, when analyzed i solves itself into the conclusion, that the right t abel- ligerant to capture the vessel of a neutral n an 7in accustomed trade with his enemy, dt/ id on the fact, whether the belligerant, or hi enethy, is for the time supc rior at sea ? — Such however i virtually adjudged ')y the judge of the h admiralty to be the FOUNDATION of the . Great Britain is now predominant on the oct n ; but it behoves her to bear in mind, that Frai e may be permitted to bt come predominant th' in turn, and to be the instrument to scourge her from which, however, may all-gracious heaven forbear! for surely every friend to truth, justice, knowledge, religion, anu whatever hath aught of moral or intellectual worth or excellence, must have an anxious distressing concern for her fate, and that she may be spared from the iyidig- nation; there being much reason to dread that ^^ti!--^ ■■m- 'i4 CASES AND aUEItlES. i k if she perishes, it will all perish with her, and that universal bondage, debasement, ignorance and gloom will ensue. m -^" N'ox atra caput tristi circumvolai uinhvaj' \ i lMPARTIAr>. VlNll?. W