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 ^UU^/f/<i^ 
 
 CASES AND 
 
 SUBMITTED TO EVEKY 
 
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 CITIZEN OF THE UNITED STATES, 
 
 AKD ESPECIALLT 
 
 tHE MEMBERS OF THE ADMINISTRATION 
 
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 BOTH HOUSES OF CONGRESS, 
 
 TO BE IMPARTIALLY CONSIDERED BY THEM. 
 
 
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 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. 
 
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 CASES AND QUERIES, 
 
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 FIRST CASE. 
 
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 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 
 
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 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. 
 
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 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 
 
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 i( 
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 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- 
 
 ('( 
 
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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