Yale University Library 39002009423097 ' .,, 'f >Hn| '';'•' \M ¦1. , ) I PH 1 >(. ii, J. Aj! '( "<1 J ' J 1 ' / . , ... II -^ i /., YALE UNIVERSITY LIBRARY Gift of Henry W. Farnam m t;/ y \ .f -y 7///v/y// c '////A'//r// SOME ACCOUNT LIFE, Writings, and speeches OP WILLIAM PINKNEY. BY HENRY WHEATON. Ardebat cupiditate cic. utiu nuUo uoquam flagrantius studium rlderim. Erat iu ver- borum splendore elegans, compositione aptas, facultate copioaus: ia disserendo.mirs. expli catio . cum de jure cirili, cum de aequo et booo'disputaretur, ar^umentorum et eimiUtudi- num copia. Cic. Brutus. PHILADELPHIA: PUBLISHED BY CAREY & LEA. 1826. J, W. Palmer i' Co, Print — JVevi-York. cb^as^o Southern District of New-York, ss. BE IT REMKMBEBED, that on the 28th day of April, A. D, 1826, in the 50th year of the Independence of the United States of America, Henry Whcaton, of the,^aid District, hath deposited in thisoffic< the title of a book, the right whereof he clainas as proprietor, in the words following, to wit ; " Some Account of the Life Writings, and Speeches of William Pinkney." Bj Henry U heaton. Ardebat cupiditate sic, ut in nuUo unquam flagran- tius studium viderim. Erat in verborum splendore elegans, cbmpositione aptus; iacultate copiosus : in disserendo mira explicatio : cum de jure civili, cum de eequo et bono disputaretur, argumentorum et similitudiuum copia." In conformity to the Act of Congress of the United States, entitled " An Act for the encouragement of Learning, by securing the copies of Maps, Charts, and Books, to the authors and proprietors of such copies during the time therein mentioned." And also to an Act, entitled " An Act supplemen tary lo ^n Act, entitled an Act for the encouragement of Learning, by se curing ihe copies of iVtaps, Charts, and Books, to the authors nnd proprietors of such copies, during the times therein mentioned, and extending the bene fits thereof to the arts of designing, engraving, and etching historical and other prints." JAMES DILL, Clerk of the Southern District of JVew- York. CONTENTS. PART FIRST. Page Memoir. Private Correspondence, &c 5 PART SECOND. No. I. — Opinions delivered at the Board of Commissioners, under the 7th Article of the Treaty of 1794, between Ihe United States and Great Britain 193 No. II.— Memorial on the Rule of the War of 1756 372 No. HI. — Private Correspondence with Mr. Madison 397 No. IV. — Speech in the Case of the Nereide 465 No. V. — Speech in the House of Representatives on the Treaty-Making Power 517 No. VI. — Argument on the Right of the States to tax the National Bank 550 No.VII. — Speech on the Missouri Question 573 No. VIII. — Opinion in the Case of Cohens against the State of Vir ginia 612 ERFATA. P&ge 113, 1. 7 — for " matters," read masters. I. 15— for " unto,' read itt/o. Page 131, 1. 29— for " our," read an. DIRECTION TO THE BINDER. Portrait to face, title-page. Fac-simile to face Part II, page 193. SOME ACCOUNT OF THE LIFE, WRITINGS, AND SPEECHES OF WILLIAM PINKNEY. PART FIRST. William Pinkney was born at Annapolis, in Maryland, on the 17th of March, 1764. His father was a native of England, and adhered to the cause of the parent country, in our strug gle for independence, whilst the son avowed, even in early youth, his ardent attachment to the liberties of America. His early education was imperfect, but probably as good as could be obtained in this country during the war of the revolution. He was initiated in classical studies by a private teacher of the name of Brat- haud, who took great pains in instructing him, and of whom he always spoke with the warmest affection and gratitude. He commenced the study of medicine, but soon found that he had [6 ] mistaken his vocation, and resorted to that of the law under the late Mr. Justice Chace, then an eminent practitioner at the bar of Maryland. That province had been distinguished among the colonies by a succession of learned and accom plished lawyers. With such a guide and in such a school, his studies were of no superficial kind. He commenced his law studies in February, 1783, and was called to the bar in 1786. His very first efforts seem to have given him a com manding attitude in the eye of the public His attainments in the law of real property and the science of special pleading, then the two great foundations of legal distinction, were accurate and profound ; and he had disciplined his mind by the cultivation of that species of logic, which, if it does not lead to the brilliant results of in ductive philosophy, contributes essentially to in vigorate the reasoning faculty, and to enable it to detect those fallacies which are apt to impose upon the understanding in the warmth and hurry of forensic discussion. His style in speaking waa marked by an easy flow of natural eloquence and a happy choice of language. His voice was very melodious, and seemed a most winning accom paniment to his pure and effective diction. His elocution was calm and placid — the very contrast of that strenuous, vehement, and emphatic man ner, which he subsequently adopted. He removed to Harford county in 1786, for the purpose of pursuing the practice of his profes sion, and in April, 1788, was elected a delegate from that county to the Convention of the State [ 7 ] of Maryland which ratified the constitution of the United States. But I have not been able to find any traces of the part he took in the delibera tions of that body ; and, in general, I have to re gret that my endeavours to discover those distinc tive traits of his earlier life, which mark the development of youthful character and talent, and which constitute one of the most pleasing portions of biography, have not been attended with success. Mr. Pinkney was elected in October, 1788, as a representative to the House of Delegates of Maryland from the county of Harford, which he continueid to represent until the year 1792, then he removed to Annapolis. In 1789, he was married, at Havre de Grace, to Miss Ann Maria Rodgers, daughter of John Rodgers, Esq. of that town, and sister to that distinguished officer, Commodore Rodgers, of the navy. In 1 790, he was elected a member of Congress, and his election was contested upon the ground that he did not reside in the District for which he was chosen, as required by the law of the State. But he was declared duly elected, and returned accordingly, by the Executive Council, upon the principle that the State Legislature had no autho rity to require other qualifications than those enu merated in the constitution of the United States ; and that the power of regulating the times, places, and manner of holding the elections, did not in clude that of superinducing the additional quali fication of residence within the District for which [ 8 ] the candidate was chosen. He made on the occasion, what was considered, a very powerful argument in support of his own claim to be re turned ; but declined on account of his profes sional pursuits, and the state of his private affairs, to accept the honour which had been conferred upon him. At the first Session of the Legislature of Ma ryland after his election as a member of the House of Delegates in 1788, fie made a speech upon the report of a committee appointed to consider the laws of that State, prohibiting the voluntary emancipation of slaves, which breathes all the fire of youth and a generous enthusiasm for the rights of human nature, although it may not perhaps be thought to give any pledge of those great powers of eloquence and reasoning which he afterwards displayed.* At the subse quent Session in 1789, he delivered the following speech on the same subject, which, as he himself said in a letter to a fiiend written at the time when his consistency was impeached for the part he took in the Missouri question, is " much bet ter than the first speech, and for a young man is well enough." " Mb. Speaker — As I have formerly had the honour of giving my sentiments to the House of Delegates, on the measures now un der their consideration, and the mortification too of seeing those sentiments disregarded, I should hardly think of lending them again the aid of my feeble exertions, if I was not too thoroughly persuaded of their importance, to imagine I had done my duty by giving them my approbation in silence. ' A part of this speech will be found in Cartjit Museum, vol. vi. p, 74. [9] " That I have every possible reason to be discouraged from the prosecution of regulations of this sort, it would be folly in me to doubt ; for I have more than once been sorry to find, that in a country which has set even distant Europe in a ferment, and lavished the blood of thousands in defence of its liberties, against the encroachments of an arrogant and abandoned govern ment, the cause of freedom was yet the most unpopular in which an advocate could appear. The alarms occasioned by mistaken ideas of interest, the deep-rooted prejudices which education has fostered and habit matured, the general hereditary contempt for those who are the objects of these provisions, the common dread of innovation, and, above all, a recent defeat, are obstacles which would seem sufficient to damp, if not entirely extinguish, the ardour of exertion. " But with me these difficulties only serve to rouse every fa culty of mind and body, which the occasion demands, and to call forth that spirit of perseverance, which no opposition can sub due, but that which affords me conviction of my error. " Sir — In my judgment, this is no common cause.- If ever there were cases which demanded parliamentary interference, such are now before you. For the honour of human nature, for the sake of justice, from a respect to the interest of the commu nity, they ought to receive the peculiar attention, the impartial, deliberate decision of the legislature. " But, while the illusions of pride and selfishness, or the clouds of early ill-founded opinions, blind us to the truth ; while we continue to be fettered by the clogs of predetermination, and obstinate, unbending prejudice ; while we struggle to resist the force of argument, and wilfully stifle conviction in the birth, we can at best pretend to no more than the mere mockery of in vestigation. " From this body, however, I presume this report will meet a better fate. They will weigh it as its importance merits ; they will trace it through every labyrinth of its consequences ; and while they guard the public welfare from the danger of ill-judged innovation, they will not forget that something is due to humani ty, and the great principles of moral justice. Under this im pression I shall once more venture to give my sentiments at large upon the propositions of the committee ; and I call upon [ 10 ] those who difibr from me, to watch every assertion and every argument I advance, and if tliey can refute the one, or contra dict the other, I yield the point for ever. " I snail not detain you, Sir, with any observations on those parts of the report which prohibit the fraudulent, or compulsory exportation of free blacks or mulattoes, or the exportation of slaves to the West India islands, &c. nor on that clause which recommends the remission of the penalties heretofore inflicted on certain offspring for the mt-re offence of the parents. " Who doubts on these points now, will, in all likelihood, doubt for ever. " I consider them as too evidently proper to need illustration. But there is another part of the report, which gentlemen either do, or affect to think less clear and obvious. This must be con sidered, because to be acceded to, it only requires to be under stood. " You are called upon to say. Sir, whether the owner of a slave shall be permitted to give him his liberty by a mode of conveyance which he may effectually use (and at a time when it is clearly lawful for him) to transfer the property of that slave to another. " By an existing law no slave can be manumitted by his mas ter during his last sickness, or at any time by last will and testa ment ; that is when liberty (the great birthright of every human creature) is to be restored to its plundered proprietor, you must be careful to make the restitution at a particular time, and in one specified manner, or your generous intentions shall be frustrated} but if you are desirous of passing any worthless goods and chat tels, you may perfect the transfer at any time, and almost in any way. " The door to freedom is fenced about with such barbarous caution, that a stranger would be naturally led to believe that our statesmen considered the existence of its opposite among us as the sine qua non of our prosperity ; or, at least, that they regarded it as an act of the most atrocious criminality to raise an hum ble bondsman from the dust, and place him on the stage of life on a level with their citizens. " To discover the grounds of their conduct would surelv be no easy task ; to show that, let them be what they may, an enlighten- [ 11 ] ed legislature should blush to own them, a school boy would have sufficient ability. " Sir, iniquitous, and most dishonourable to Maryland, is that dreary system of partial bondage, which her laws have hitherto supported with a solicitude worthy of a better object, and her citizens by their practice countenanced. " Founded in a disgraceful traffic, to which the parent country lent her fostering aid, from motives of interest, but which even she would have disdained to encourage, had England been the destined mart of such inhuman merchandise, its continuance is as shameful as its origin. " Eternal infamy await the abandoned miscreants, whose s'elf- ish souls could ever prompt them to rob unhappy Afric of her sons, and freight them hither by thousands, to poison the fair Eden of liberty with the rank weed of individual bondage ! Nor is it more to the credit of our ancestors, that they did not command these savage spoilers to bear their hateful cargo to another shore, where the shrine of freedom knew no votaries, and every pur chaser would at once be both a master and a slave. " In the dawn of time, when the rough feelings of barbarism had not experienced the softening touches of refinement, such an unprincipled prostration of the inherent rights of human nature would have needed the gloss of an apology ; but to the everlast ing reproach of Maryland be it said, that when her citizens ri valled the nation from whence they emigrated, in the knowledge of moral principles, and an enthusiasm in the cause of general freedom, they stooped to become the purchasers of their fellow- creatures, and to introduce an hereditary bondage in the bosom of their country, which should widen with every successive generation. " For ray own part, I would willingly draw the veil of obli vion over this disgusting scene of iniquity, but that the present abject state of those who are descended from these kidnapped sufferers, pf-rpetually brings it forward to the memory. " But wherefore should we confine the edge of censure to our ancestors, or those from whom they purchased ? Are not we equally guilty? They strewed around the seeds of slavery ; «7f cherish and sustain the growth. They introduced the system ; ¦we enlarge, invigorate, and confirm it. Yes, let it be handed down to posterity, that the people of Maryland, who could fly [ 12 1 to arms with the promptitude of Roman citizens, when the hand of oppression was lifted up against themselves ; who could be hold their country desolated and their citizens slaughtered ; who could brave with unshaken firmness every calamity of war be fore they would submit to the smallest infringement of their rights — that this very people could yet see thousands of their fel-: low-creatures, within the limits of their territory, bending be neath an unnatural yoke ; and, instead of being assiduous to de stroy their shackles, anxious to immortalize their duration, so that a nation of slaves might for ever exist in a country where freedom is its boast. " Sir, it is really matter of astonishment to me, that the people of Maryland do not blush at the very name of Freedom. I ad mire that modesty does not keep them silent in her cause. That they who have, by the deliberate acts of their legislature, treated her most obvious dictates with contempt ; who have exhibited, for a long series of years, a spectacle of slavery which they still are solicitous to perpetuate ; who, not content with exposing to the world for near a century, a speaking picture of abominable oppression, are still ingenious to prevent the hand of generosity from robbing it of half its horrors ; that they should step for ward as the zealous partizans of freedom, cannot but astonish a person who is not casuist enough to reconcile antipathies. " For shame, Sir ! let us throw off the mask, 'tis a cobweb one at best, and the world will see through it. It will not do thus to talk like philosophers, and act like unrelenting tyrants ; to be per petually sermonizing it with liberty for our text, and actual op pression for our commentary. " But, Sir, is it impossible that this body should feel for the re putation of Maryland ? Is national honour unworthy of consi deration ? Is the censure of an enlightened universe insufficient to alarm us? It may proceed from the ardour of youth perhaps, but the character of my country among the nations of the world is as dear to me as that country itself. What a motley appear ance must Maryland at this moment make in the eyes of those who view her with deliberation ! Is she not at once the fair temple of freedom, and the abominable nursery of slaves- the school for patriots, and the foster-mother of petty despots • the assertor of human rights, and the patron of wanton oppression ? Hera have emigrants from a land of tyranny found an asylum £ 13 J from persecution, and here also have those who came as right fully free as the winds of heaven, found an eternal grave for the liberties of themselves and their posterity ! " In the name of God, should we not attempt to wipe away this stigma, as far as the impressions of the times will allow ? If we dare not strain legislative authority so as to root up the evil at once, let us do all we dare, and lop the exuberance of its branches, I would sooner temporize than do nothing. At least we should show our wishes by it. " But lest character should have no more than its usual weight with us, let us examine into the policy of thus perpetuating slave ry among us, and also consider this regulation in particular, with the objections applicable to each. That the result will be fa vourable to us I have no doubt. " That the dangerous consequences of this system of bondage have not as yet been felt, does not prove they never will be. At least the experiment has not been sufficiently made to preclude speculation and conjecture. To me. Sir, nothing for which I have not the evidence of my senses is more clear, than that it will one day destroy that reverence for liberty which is the vital principle of a republic. " While a majority of your citizens are accustomed to rule ' with the authority of despots, within particular limits ; while your youth are reared in the habits of thinking that the great rights of human nature are not so sacred but they may with in nocence be trampled on, can it be expected that the public mind should glow with that generous ardour in the cause of freedom, which can alone save a government like ours from the lurking dsemon of usurpation ? Do you not dread the contamination of principle ? Have you no alarms for the continuance of that spirit which once conducted us to victory and independence, when Xhx talons of power were unclasped for our destruction ? Have you no apprehensions left, that when the votaries of freedom sacrifice also at the gloomy altars of slavery, they will at length become apostates from the former ? For my own part, I have no hope that the stream of general liberty will flow for ever, unpolluted, through the foul mire of partial bondage, or that they who have been ha bituated to lord it over others, will not jn time be base enough to [ 14 ] let others lord it over them. If they resist, it will be the struggle oi pride and selfishness, not o( principle. " There is no maxim in politics more evidently just, than that laws should be relative to the principle of government. But is the encouragement of civil slavery, by legislative acts, correspond ent with the principle of a democracy ? Call that principle what you will, the love of equality, as defined by some ; of liberty, as understood by others ; such conduct is manifestly in violation of it. " To leave the principle of a government to its own operation, without attempting either to favour or undeimine it, is often dan gerous ; but to make such direct attacks upon it by striking at the very root, is the perfection of crooked policy Hear what has been said on this point, by the noblest instructor that ever in formed a statesman. " ' In despotic countries,' says Montesquieu, ' where they are ' already in a state of political slavery, civil slavery is more to- ' lerable than in other governments. Every one ought there to be ' contented with necessaries and with life. Hence the con- ' dition of a slave is hardly more burthensome than that of a sub- 'ject. But in a monarchical government, where it is of the ut- ' most consequence that human nature should not be debased or ' dispirited ; there ought to be no slavery. In democracies, where ' they are all upon an equality, and in aristocracies, where the ' laws ought to endeavour to make them so, as far as the nature of ' the government will permit, slavery is contrary to the spirit of ' the constitution ; it only contributes to give a power and luxury ' to the citizens which they ought not to possess.' " Such must have been the idea in England, when the general voice of the nation demanded the repeal of the statute of Edward VI. two years after its passage, by which their rogues and vaga bonds were to be enslaved for their punishment. It could not have been compassion for the culprits that excited this aversion to the law, for they deserved none. But the spirit of the people could not brook the idea of bondage, even as a penalty judici ally inflicted. They dreaded its consequences ; they abhorred the example : in a word, they reverenced public liberty and hence detested every species of slavery. " Sir, the thing is impolitic in another respect. Never will your country be productive ; never will its agriculture, its commerce [ 15 1 or its manufactures flourish, so long as they depend on reluctant bondsmen for their progress. " ' Even the very earth itself,' (says the same celebrated author) ' which teems profusion under the cultivating hand of the free- ' born labourer, shrinks into barrenness from the contaminating ' sweat of a slave.' This sentiment is not more figuratively beau tiful than substantially just. " Survey the countries. Sir, where the hand of freedom con ducts the ploughshare, and compare their produce with yours. Your granaries in this view appear like the store-houses of em mets, though not supplied with equal industry. To trace the cause of this disparity between the fruits of a freeman's volun tary labours, animated by the hope of profit, and the slow-paced efforts of a slave, who acts from compulsion only ; who has no incitement to exertion but fear ; no prospect of remuneration to encourage, would be insulting the understanding. The cause and the effect are too obvious to escape observation. " Hence, JVlr. Speaker, instead of throwing obstacles and dis couragements in the way of manumissions, prudence and policy dictate that no opportunity should be lost of multiplying them, with the consent of the owner. " But objections have heretofore been made, and I suppose will be reiterated now, against the doctrine I am contending for. " I will consider them. It has been said ' that freed-men are ' the convenient tools of usurpation ;' and I have heard allusions made to history for the confirmation of this opinion. Let, how ever, the records of ancient and modern events be scrutinized, and I will venture my belief, that no instance can be found to give sanction to any such idea. " In Rome it was clearly otherwise. We have the evidence of Tiberius Gracchus, confirmed by Cicero, and approved by Mon tesquieu, that the incorporation of the freed-men into the city tribes, re-aniraated the drooping spirit of democracy in that re public, and checked the career of Patrician influence. " So far, therefore, were properly-made emancipations from contributing to the downfal of Rome, that they clearly served to procrastinate her existence, by restoring that equipoise in the con stitution which an ambitious aristocracy were perpetually labour ing to destroy. [ 16 ] " How much more rational, Mr. Speaker, would it be to argue that slaves are the fit machines by which an usurper might effect his purposes ! and there is, therefore, nothing which a free go vernment ought more to dread than a diffusive private bondage within its territory. « A promise of manumission might rouse every bondsman to arms, under the conduct of an aspiring leader ; and invited by the fascinating prospect of freedom, they might rabe such a storm in Maryland as it would be difficult to appease. Survey the conduct of the slaves who fought against Hannibal in the second Punic war. Relying on the assurances of the Senate, who had embodied them with the Roman legions, that conquest should give them liberty, not a man disgraced himself by ffight ; but though new, perhaps, to the field of battle, they contended with the resolution of veterans. With the same promptitude and intrepidity would they have turned their arms against the Se nate themselves, if the same assurances had been given them by enterprising citizens, who sought their destruction from motives of ambition or revenge. The love of liberty is inherent in hu man nature. To stifle or annihilate it, though not impossible, is yet difficult to be accomplished. Easy to be wrought upon, as well as powerful and active in its exertions, wherever it is not gratified there is danger. Gratify it, and you ensure your safety. Thus did Sylla think, who, before he abdicated the dictatorship, gave freedom to ten thousand slaves, and lands to a number of legions. By these means was he enabled, notwithstanding all his preceding enormities, to live unmolested as a private citizen in the bosom of that very country where he had acted the most hateful deeds of cruelty and usurpation. For, by manumitting these slaves, the usurper secured their fidelity and attachment for ever, and disposed them to support and revenge his cause at every possible hazard. Rome knew this, and therefore Sylla was secure in his retirement. " This example shows that slaves are the proper, natural im plements of usurpation, and therefore a serious and alarming evil in every free community. With much to hope for by a change and nothing to lose, tliey have no fears of consequences. De spoiled of their rights by the acts of government and its citizens they have no checks of pity or of conscience, but are stimulated by the desire of revenge, to spread wide the horrors of desolation [ 17 ] and to subvert tlie foundations of that liberty of which thqy have never participated, and which they have only been permitted. to envy in others. " But where slaves are manumitted by government, or in con sequence of its provisions, the same motives which have attach ed them to tyrants, when the act of emancipation has flowed from them, would then attach them to government. They are then no longer the creatures of despotism. They are bound by gratitude, as well as by interest, to seek the welfare of that coun try from which they have derived the restoration of their plun dered rights, and with whose prosperity their own is insepara bly involved. An apostacy from these principles, which form the good citizen, would, under such circumstances, be next to im possible. When we see freed-men scrupulously faithful to a law- less, abandoned villain, from whom they have received their liberty, can we suppose that they will reward the like bounty of a free government with the turbulence of faction, or the seditious plots of treason ? He who best knows the value of a blessing, is generally the most assiduous in its preservation ; and no man is so competent to judge of that value, as he from whom the blessing has been detained. Hence the man that has felt the yoke of bon dage must for ever prove the assertor of freedom, if he is fairly admitted to the equal enjoyment of its benefits. " To show, Sir, that my idea of the danger arising from the number of slaves in a free government is no novelty in politics, permit me once more to read a passage from Montesquieu. " ' The multitude of slaves is no grievance in a despotic state, ' where the political slavery of the whole body takes away the ' sense of civil slavery. But in moderate states it is a point of the * highest importance that there should not be a great number of ' slaves. The political liberty of these states adds to the value of ' civil liberty, and he who is deprived of the latter is also de- ' prived of the former. He sees the happiness of a society of * which he is not so much as a member ; he Sees the security of ' others fenced by laws, himself without any protection. He sees ' his master has a soul that can enlarge itself, while his own is ' constrained to submit to a continual depression. Nothing more ' assimilates a man to a beast than living among freemen, him- ' self a slave. Such people as these are the natural enemies of •' society, and their numbers must be dangerous.' [ 18 ] " Not gradual emancipations, therefore, but the extension of civil slavery, ought to alarm us ; and in truth we are the only na tion upon earth that ever considered the first as a ground of ap prehension, or the last as a political desideratum. " In England, while bondage existed among that enlightened people, enfranchisements were always encouraged by ParUament, and those who were entrusted with the administration of justice ; and throughout all Europe indeed, after the introduction of Chris tianity, the gloom of civil slavery gradually receded, as their horizon was enlightened by the dawn of political Uberty. Even in India, where climate and the nature of the country have of necessity established a political despotism, their slaves are manu mitted without difficulty. No legislative restrictions to observe! No tyrannic clogs to struggle with ! These were reserved for that unhallowed sera when the rulers, in a republic produced by the perfection of human reason, should forget the principles of their constitution, of that religion they profess, of the eternal laws of nature, nay, the suggestions of common prudence. When Eastern despots surpass us in humanity, when India affords an evidence of justice which Maryland hesitates to exhibit, who does not lament the corruption of that generous spirit whose ex ertions so lately attracted the attention of an admiring universe ! " But it has also been said (and who knows but the same opi nion may still have its advocates !) " that nature has black-balled these wretches out of society." " Gracious God ! can it be supposed that thy almighty Provi dence intended to proscribe these victims of fraud and power from the pale of society, because thou hast denied them the deli cacy of an European complexion ! Is this colour the mark of divine vengeance, or is it only the flimsy pretext upon which we attempt to justify our treatment of them ? Arrogant and pre sumptuous is it thus to make the dispensations of Providence subservient to the purposes of iniquity, and every slight diversity in the works of nature the apology for oppression. Thus acts the' intemperate bigot in religion. He persecutes every dissenter from his creed in the name of God, and even rears the hon'id fabric of an inquisition upon heavenly foundations. " I Uke not these holy arguments. They are as'convenient for the tyrant, as the patriot; the enemy, as the friend of mankind. Contemplate this subject through the calm medium of philosophy [19 ] and then to know that these shackled wretches are men as well as we are, sprung from the same common parent, and endued with equal faculties of mind and body, is to know enough to make us disdain to turn casuists on their complexions, to the destruction of their rights. The beauty of a complexion is mere matter of taste, and varies in different countries, nay, even in the same ; and shall we dare to set up this vague, indeterminate standard, as the criterion by which shall be decided on what com plexion the rights of human nature are conferred, and to what they are denied by the great ordinances of the Deity ? As if the Ruler of the universe had made the darkness of a skin, the flatness of a nose, or the wideness of a mouth, which are only deformities or beauties, as the undulating tribunal of taste shall determine, the indicia of his wrath. " Sir, it is pitiable to reflect on the mistaken light in which this unfortunate generation are viewed by the people in general. Hardly do they deign to rank them in the order of beings above the mere animal that grazes the field of its owner. That an humble, dusky, unlettered wretch that drags the chain of bondage through the weary round of life, with no other privilege but that of existing for another's benefit, should have been intended by heaven for their equal, they will not believe. But let me appeal to the intelligent mind, and ask in what respect are they our inferiors ? Though they have never been taught to tread the paths of science, or embellish human life by literary acquire ments ; though they cannot soar into the regions of taste and sen timent, or explore the scenes of philosophical research, is it to be inferred that they want the power, if the yoke of slavery did not check each aspiring effort, and clog the springs of action ? Let the kind hand of an assiduous care mature their powers, let the genius of freedom excite to manly thought and liberal investiga tion, we should not then be found to monopolize the vigour of fancy, the delicacy of taste, or the solidity of scientific endow ments. Born with hearts as susceptible of virtuous impressions a§ our own, and with minds as capable of benefiting by improve ment, they are in all respects our equals by nature ; and he who thinks otherwise has never reflected, that talents, however great, may perish unnoticed and unknown, unless auspicious circum stances conspire to draw them forth, and animate their exertions in the round of knowledge. As well might you expect to see the [ 20 ] bubbling fountain gush from the burning sands of Arabia, as that the inspiration of genius or the enthusiastic glow of sentiment should rouse the mind which has yielded its elasticity to habitual subjection. Thus the ignorance and the vices of these wretches are solely the result of situation, and therefore no evidence of their inferiority. Like the flower whose culmre has been ne glected, and perishes amidst permitted weeds ere it opens its blossoms to the spring, they only prove the imbecility of human nature unassisted and oppressed. Well has Cowper said, " ' Tis liberty alone which gives the flower " ' of fleeting life Its lustre and perfume, *' ' And we are weeds without it.' •• Again, it has been urged, ' that manumitted slaves will be, ¦ as in many instances they have been, nuisances in the commu- ' nity.' I know not of instances of this kind in number suffi cient to justify a general interference to the prejudice df the blacks : but even if they exist, the argument has no weight, for it is founded on what is not peculiar to those people, but, from an imperfect administration of criminal justice, is equally applica ble to their whiter neighbours. Will any one pretend that they alone merit this imputation ? Extend it to your white citizens in the same proportion, and you will not censure uncharitably. I would not give a straw to choose between them. That many of them will be idle, and roguishly inclined, is certain, but they will be kept in countenance. That the majority will be honest and industrious is as probable as the contrary. I would trust them as soon as the great body of your people ; in general, sooner ; because the plain, simple method of life to which they have been accustomed, supersedes the necessity of much, and the little they want, their habits of labour will render it easy to supply ; and be cause the terror of the law operates stronger upon their minds than on the minds of those who have been long hackneyed in the world. They have also the same inducement to industry with others, and I see no reason for supposing they will be lazier. " Thus have I anticipated and answered such objections as have come to my knowledge, against manumission in general. A variety have also been started to this particular mode. These loo shall be examined. [21 ] " As to such as respect superannuated slaves, and the injury to creditors, the bill may contain the remedy. Let the bequest be considered in the nature of a specific legacy, to depend on the fact of assets ; and let all manumissions of slaves above fifty years old, be declared void, and the executors bound to indemnify the county. " But another objection occurs, which may deserve a more particular reply, because against that there can be no adequate provision. ' Testators may impoverish their families by incon- ' siderate marlumission in their last sickness. They may be ' frightened by preachers, refined moralists, and others, when the 'mind is Easily alarmed and incapable of its usual resistance.' I answer, Sir, that if emancipations can be effected with the own er's consent, While his understanding is legally competent to the act, I care not through what medium, fraud excepted. Should he reduce his family to beggary by it, I should not be the one to repine at the deed. I should glory in the cause of their distress, while I wished them a more honest patrimony. Sir, the chil dren have no claim to the property of the parent, except as the law casts it on them ; and, therefore, you violate no rule of moral justice in allowing him to transfer it in his lifetime. You permit their claim to be barred by the will of the ancestor in every instance but this ; an instance which deserves more to be within the rule than any other that can be mentioned, because the property, being founded in iniquity, cannot be too easily defeated. But I much fear that this common apprehension will not be veri fied in practice. Families will take care that these preachers shall have as little access as possible to the person from whom they have expectations. They will not permit him, if they can avoid it, to close his life with the noblest act of justice that can dignify the man or characterize the Christian. The importunate zealot will have less employment than is expected ; less than I wish him. " We have also been told 'that manumissions by last will may ' produce the untimely death of the maker. Slaves, knowing ' that they are provided for in the will, may destroy their master ' to prevent a revocation, and hasten the completion of the be- * quest.' 'Tis strange to tell, but I have known this objection relied on ; and yet it is plain that it applies with equal force to 4 [ 22 ] ¦ every devise whatsoever, let the subject be what it may, or the devisee as white as the snows of heaven. Who is there can dis criminate ? I wish to hear a distinction attempted. I would draw one myself if I was able. " Once more, it has been aUeged, ' that such humane provi sions in favour of slaves will diminish their value, by rendering them turbulent, disobedient, and unruly.' Far different was the idea of a man whose name and whose opinions cannot be too often repeated ; a man whose greatness of soul, and profound discernment, beaming in every page of his works, have deserv edly acquired him the admiration of his cotemporaries and pos terity. I mean Montesquieu. Let those who hold this opinion read the Spirit of Laws, with their understandings open to con viction, and if they still retain this sentiment, I shall despair of producing their conversion. And yet. Sir, I cannot help remarking, that greatness and humanity are the parents of conci- Uation ; but stubbornness and obstinacy are the effects of causeless barbarity. The more mild and equitable our laws upon this subject, the easier the situation of our slaves. And can it be believed, that to better their situation will make them more dis contented with it ? — Is it probable that to abolish one sad conse quence of their bondage, will give additional weight to their shackles ? Is the spirit of acquiescence known only in the gloomy regions of despair ; or is it rather to be found where the cheerful rays of hope diffuse their soothing influence ? Look back for examples to the republics of Athens and of Sparta. Never did the sedition of her slaves disturb the tranquillity of the former ; because the lenity, the justice of her regulations with respect to them, precluded the possibility of a murmur. But the slaves of Sparta made that republic a perpetual scene of commo tion, because in considering them as ¦ s?aucs, the republic forgot that they were men. In addition to these observations, it may be remarked, that the law in question has not always existed in this State ; and who is it will contend that our slaves are more tractable now than before its passage ? In Pennsylvania, where they have gone to a prodigious extent towards the total abolition of slavery, have they felt these evils at which gentlemen affect to be so alarmed ? [23] " I have heard of no objections, except those I have already noticed, against the report upon the table, and I can foresee no more. If there are ahy not yet stated, I request the enemies to this measure to disclose them now. I offer myself ready to euiswer them, or to yield to be a proselyte to their opinion if I cannot. " Here then, Sir, let the subject rest with the House, upon its obvious merits. What will be their determination, I know not. What it ought to be, I have, at present, no doubt. You are not called upon, at this time, to compel an emancipation of your slaves. For such a measure I am no advocate, however proper it might be upon principle, or if the temper Of the people would allow it (for there are times when the best laws cannot with pro priety be enacted.) — Thus stands the question at present. A former legislature has created a barrier to the course of voluntary liberation. They have forbid a manumission by last will and testament, or in any manner during the last sickness of the owner : a time when the heart is most powerfully disposed to be generous and just. They have destroyed almost the only oppor tunity these wretches can have of regaining the station to which God and nature have given them a title. They have thrown up an insuperable mound against the gentle current of humanity, to the additional injury of those whom they had already injured beyond the reach of justification. All this they have done with out one rational inducement ; without even policy to plead in its extenuation. Will you, then, whose councils the breath of free dom has heretofore inspired ; whose citizens have been led by Providence to conquests as glorious as unexpected, in the sacred cause of human nature ; whose government is founded on the never-mouldering basis of equal rights ; will you, I say, behold this wanton abuse of legislative authority ; this shameful disregard of every moral and religious obligation ; this flagrant act of strained and unprovoked cruelty, and not attempt redress, when redress is so easy to be effected ? " Often, Mr. Speaker,-^ has the public treasure relieved the wants of suffering merit, whenthe bounty of government was hardly reconcileable with justice ; but you have now submitted to your consideration a case where the finer feelings of benevolence may [ 24 ] be gratified, and right and justice add their sanction to the mea- ,sure, while the community sustains no damage. Yours, too, will be the gratitude of the miUions whom this day's vote may give to breathe the air of freedom ; yours the flattering approbation of the friends of mankind ; and yours the pleasing consciousness of having, under the influence of every nobler sentiment, unloosed the manacles of many a fellow-creature, and led him by the hand to LIBERTY and SOCIAL HAPPINESS !" In 1792, Mr. Pinkney was elected a member of the Executive Council of Maryland, and continu ed in that station until November, 1795, when being chosen a delegate to the Legislature from Anne Arundel county, he resigned his seat at the Council Board, of which he was at that time President. During all this period he continued indefatiga- bly devoted to his professional pursuits, and gra dually rose to the head of the bar, and to a dis tinguished rank in the public councils of his native State. ^' His acutene.sss, dexterity, and zeal in the transaction of business ; his readiness, spirit, and vigour in debate ; the beauty and rich ness of his fluent elocution, adorned with the finest imagery drawn from classical lore and a vivid fancy ; the manliness of his figure and the energy of his mein, united with a sonorous and flexible voice, and a general animation and grace ful delivery,"* were the qualities by which he at tained this elevated standing. But there remain no other memorials of his professional character at this period of his life than such as have been • Mr. Walsh. [25 ] preserved in the fleeting recollection of his co- temporaries, in the written opinions which he gave upon cases submitted to him as counsel, and in the books of law reports. It is, however, ob viously impossible to form any adequate notion of the powers of an advocate froni the concise sketches of the arguments of counsel contained in the books of reports. But an argument which he delivered in 1793 upon the question whether the statute of limitations is a bar to the issue of tenant in tail, (which will be found reported in the 3d volume of Harris and M'Henry's Reports, p. 270,) may be referred to as a specimen of the accuracy and depth of his legal learning, and of his style and peculiar manner of reasoning upon technical subjects. In 1796, he was selected by President Wash ington as one of the Commissioners on the part of the United States, under the 7th article of Mr. Jay's treaty with Great Britain. After consulta tion with his friends, he reluctantly determined to accept this appointment, which had been spon taneously tendered to him. He accordingly em barked for London with his family, where he arrived in July, 1796, and was joined by Mr. Gore, the other Commissioner on the part of our government. The Board having been organized by the addition of Dr. NichoU and Dr. Swabey as British Commissioners, and of Colonel Trum bull, (a citizen of the United States appointed by lot,) proceeded to examine the claims brought before it. Various interesting questions arose, [ 26] in the course of this examination, respecting the law of contraband, domicil, blockade, and the practice of the prize courts, which were investi gated and discussed with great learning and ability. Mr. Pinkney's written opinions delivered at the Board, which are subjoined in the Second Part of this publication, will, I think, be found to be finished models of judicial eloquence, uniting powerful and comprehensive argument, with a copious, pure, and energetic diction.* He was also engaged, during his residence abroad, in attending to the claim of the State of Maryland for a large amount of public property invested in the stock of the Bank of England be fore the revolution, and which had become the subject of a complicated Chancery litigation. He at last succeeded in extricating the stock from this situation by an arrangement under which it was (with his consent) adjudged to the crown, with an understanding that after the payment of the liens upon it, the balance should be paid over to the government of Maryland. The following extracts from letters to his elder brother, will show the nature of Mr. Pinkney's occupations and pursuits during his residence in England. " London, 26th August, 1796. " Dear J., — We are now London house-keepers. I found it would not answer to take lodgings unless we meant to do penance instead of being comfortable. Our present residence * See Part Second, No. I. [27 ] is merely temporary. I have taken a short lease of a new house in Upper Guil ford-street. No. 5, to which we shall remove in about six weeks. The situation is airy, genteel, and convenient enough to the Commissioners' office. We are compelled to live handsomely, to avoid singularity ; but our view is still to be as economical as the requisite style of living will admit. We do not and shall not want for the most respectable and agreeable society. The American feunilies here are* on the most friendly and intimate footing with us, and we have as many English ac quaintances as we desire. In short, we may pass our time here (for a- few years to come) with considerable satisfaction — not so happily, indeed, as at Annapolis, but still with much comfort and many gratifications. My health is apparently bettered, and Mrs. P. is evidently mending, — but we~iiave not yet had suffi cient experience of the climate to be able t6 conjecture its future effects on lis. The child continues well. " Our namesake (the late American minister) is an amiable man. We have been much with him, and have received from him every possible attention. He unites with an excellent under standing, the most pleasing manners, and is at once the man of sense, and the polished gentleman. Every body speaks 'well of him, and deservedly. There is no doubt of our relationship. His family came from the North — I think from Durham, where he tells me he still has relations. The loss of his wife ap pears to have affected him deeply, and has doubtless occasioned his anxiety to return to America. He leaves us soon, and I am sorry that he does so. " Yesterday we appointed the fifth Commissioner hy lot. He is an American (Colonel John Trumbull,) and was Secretary to Mr. Jay, when envoy at this court. I made the draft. We all qualified this morning before the Lord Mayor, and shall com mence business very soon. Every thing in relation to the com mission wears at present a favourable aspect, and I have now expectations of being able to return to my friends within a pe riod much shorter than I had ventured to hope for. « 2d Sept. 1796. P. S. Your letter of the 26th June has just reached me. Be assured that nothing can diminish my attach ment to Annapolis. I have nothing to complain of from the in habitants—on the contrary, they have done me honour beyond [ 28] my merit. I feel the worth of their attentions, and shall never lose the grateful recollection of them. They have treated me with flattering and friendly distinctions, and I will never give them cause to regret it. In a word, the hope of once more be coming an inhabitant of my native city forms one of my great est pleasures. If I cannot be happy there, I cannot be happy any where. If I were to settle in any other place, interest, not inclination, must give rise to it. I know not where the wish of procuring a competence may hereafter fix me ; but if that competence can be obtained at AnnapoUs, there will I labour for it. " I intended to have written to Mr. James Williams, but have been so much interrupted and engaged as not to be able to do so. Indeed I have no subject for a letter but what is exhausted in this. His friendly ofiices on the eve of my departure, proved the goodness of his heart, and made a deep impression on mine. Let me be remembered to him in the warmest terms. I will write to all my friends in due time — and in the interim tell them to write to me — a letter is now of real value to me. ^ "-Sept. 18th. P. S. I missed the opportunity of sending my letter, and do not now know when I shall have another. " The shooting season began here the 15th inst., but I have not yet had a gun in hand. I envy Dr. Sheaff the sport he will have in the neighbourhood of Annapolis. There can be none in this country to equal it. " Adieu — if I keep my letter by me much longer, it will be come a volume of postscripts. " October 14th. I have just got yours of the 14th Aug. It is kind in you to write thus often. Persevere in a practice so well begun, and you will oblige me highly. The Commissioners commenced business the 10th inst. I was presented to the King on Wednesday last at St. James's. It was necessary, and I am glad it was, for while I am here I wish to see as much as possible. I was in the House of Lords at the opening of Par liament, and heard his Majesty deliver his speech — but I was not able to hear the debate upon it in the House of Commons, as I wished to do. I have attended the theatre pretty often, and have seen all their great performers. Be assured that we are ac customed in America to rate their excellence too high . There is [29] hardly an exhibition in London which report does not exag gerate to us. I was led to expect more than I have been able to find. There are subjects, however, upon which I have not been disappointed — the beauty and flourishing appearance of the country — the excellence of the roads— the extent and perfection of their various manufactures — the enormous stock of indivi dual wealth which town and country exhibits, &c. &c. cannot be too strongly anticipated." " London, 26th April, 1799. " Dear J., — I have received your letter of the 4th of March, enclosing one for Mr. Trumbull — but that of the 17th of April, covering a duplicate of Trumbull's letter, I have not received. Mr. T. has charged me with his thanks for your attention — and will, I presume, write to you himself. " I am grieved by the style of your letter. If I have neglect ed you, it has not been from want of affection or forgetfulness of what I owe to your worth. I did not know that it would be acceptable to you to hear very often or very fully from me ; and if on that account I have sometimes made you trust to others for tidings of me, and at other times have written rather scantily on subjects that might have been interesting to you, I ask to be forgiven. " To say the truth, a long letter of a merely friendly com plexion is not easily made. It would be idle to give you in such a letter the news of the moment, for the news would cease to be so before the letter could reach you ; and I should fatigue you to death if I were to doom you to read accounts of London amuse ments, or of the manner in which I pass my time. Such details would soon have no novelty to recommend them, and would lose ' all attraction, " I have seen in this country, and continue to see, much that deserves the attention of him that would be wise or happy ; but I would prefer making all this the subject of conversation, when Providence shall permit us to meet again, to putting it imper fectly on paper for your perusal when we are separated. There is not perhaps a more dangerous thing for him who aims at con sistency, or at least the appearance of it, than to hasten to record 5 [ 30 ] impressions as they are made upon his mind by a state of things to which he has not been accustomed, and to give that record out of his own possession. I have made conclusions here, from time to time, which I have afterwards discarded as absurd ; and T could wish that some of these conclusions did not show them selves in more than one of the letters I have occasionally written to my friends. I have made false estimates of men and things, and have corrected them as I have been able ; in this there was nothing to blush for, for who is there can say he has not done the same ?— But I confess that I do feel some little regret, when I remember that I have sent a few (though to say the truth, very few) of those estimates across the Atlantic, as indisputably ac curate, and have either deceived those to whom they were sent, or afforded them grounds for thinking me a precipitate or super ficial observer. The consciousness of this has indisposed me to a repetition of similar conduct ; and 1 have desired so to write in future as to be able to change ill-founded opinions without the hazard of being convicted of capriciousness or folly. You will observe that I am all this time endeavouring to make my peace with you on the score of your complaint of negligence ; but after all, I must in great measure rely upon your disposition to bear with ray faults, and to overlook those you cannot fully acquit. I must not, however, omit to state my belief that you do not receive all the letters I send you, and of course that I appear to you more culpable than I really am. " I wish I could tell you when I shall be likely to see you ; although my time passes in a way highly gratifying, I am anxious to return. Our acquaintance has lately very much enlarged itself, and our situation is altogether peculiarly pleasant for fo reigners ; but I sigh now and then for home. I am told that I am considerably altered since I came here, and I incline to think there is some foundation for it ; but I shall not grow much wiser or better by a longer stay. I am become familiar with almost every thing around me, and do not look out upon life with as much inteutness of observation as heretofore, and of course I am now rather confirming former acquisitions of knowledge than laying in new stores for the future — I begin to languish for my profession — I want active employment. The business of the [ 31 ] commission does not occupy me sufficiently, and visiting, &c. with the aid of much reading, cannot supply the deficiency. My time is always filled in some way or other ; but I think I should be the better for a speech now and then. Perhaps another twelvemonth may give me the opportunity of making speeches till I get tired of them — and tire others too. " There are some respects in which it may be better that I should remain here a little longer ; my health, though greatly mended, is still delicate — I look better than I am ; and perhaps a summer at Brighton or Cheltenham may make me stronger. The last winter has been unfavourable to me, by affecting my stomach severely, and I have at this moment the same affection in a less degree, accompanied with a considerable head-ach. I ought to have good health, for I take pains to acquire it ; and have even gone so far as to abandon the use of tobacco, to which I was once a slave. — It is now about eighteen months since 1 have tasted this pernicious weed ; but I did not forbear the use of it solely on account of my health ; I found that it was consi dered here as a vulgar habit, which he who desired society must discard." " London, 14th February, 1800. " Dear J., — It is now so long since I have had a line from you, that I must conclude I have been unlucky enough to give you offence for which it is necessary I should atone. What it can be I have no means of conjecturing ; but let it be what it may, you ought to believe that it has been wholly accidental. You complained to me some time ago that I was a negligent corres pondent ; I explained the cause, and asked to be forgiven. If that explanation did not satisfy you, at least my prayer of pardon had some claim to be well received. I thiiik I know you so well that I may venture to be certain you are not still angry with me for the old reason. There must be some neio ground of exception. Let me know it, I entreat you, and I will make amends as far as I am able. I had indeed hoped that it would not be for ordinary matters that you would forget my claims to your friendship, if not your affection. I had supposed that you would nbt lightly have been induced to treat me as a stranger ; and to [ 32 ] substitute the cold intercourse of ceremony for that of the heart. Why will you allow me to be disappointed in expectations so reasonable, and so justly founded on the natural goodness of your disposition, and the soundness of your understanding ? Can you imagine that I do not recollect how much I am indebted to your kindness on various occasions, and how strong is your title to my attachment and respect ? If I have appeared to slight your letters by sometimes giving them short answers, and some times delaying to give them any, can you think so meanly of me as to suppose that therefore I have not placed a proper value on them and you ? I declare to God that if you have made this supposition, you have been unjust both to yourself and me. There is not a person on earth for whom I have a more warm and sin cere regard, nor is there one whose correspondence, while you permitted it to last, was more truly grateful to me. I beg you, therefore, to resume it, and to resume it cordially. — But if, after all, you are so different from yourself as to persist iij regarding me as one who has no better ties upon you than the rest of the world, at least tell me why it is that this must be so. " Of the late revolution in France and of Bonaparte's ad vances to negotiation, with the rejection of these advances, you will have heard before this can reach you. I was present very lately in the House of Commons at the debate on the rejection of these overtures. So able and eloquent a speech as Mr. Pitt's on that occasion, I never witnessed. Experience only can de cide how far the conduct he vindicated was wise. Administra tion have undoubtedly sanguine hopes of restoring the House of Bourbon; and prodigious efforts will be made during the next campaign with that object. I do not think this will succeed. The co-operation of Russia still remains equivocal; but even if Russia should give all her strength to the confederacy, it will not have power to force upon France the ancient dynasty of that country with all the consequences inseperable from it. The present government of that ill-fated nation is a mockery — a rank usurpation by which political freedom is annihilated ; but it is a government of energy, and will be made yet more so by an avowed attempt to overturn it by a foreign array in favour of the exiled family. This is my opinion ; but the war in Europe has [ 33 ] so often changed its aspect against all calculation that prophe cies about its future results, are hardly worth the making. The death of General Washington has ascertained how greatly he was every where admired. The panegyrics that all parties here have combined to bestow upon his character have equalled those in America. " P. S. As our commission is at a stand on account of the disagreements under the American commission, I can form no guess as to the probable time of my return. There is little pros pect, however, of its being very soon. I must be patient, and am determined to see it out ; but I wish most ardently to revisit my country and my friends. I think it likely that my brother Commissioner, Gore, will take a trip to America next summer, and come back in the course of the autumn. I am afraid we shall both have leisure enough for a voyage to the East Indies. I have nothing to do here but to visit, read, write, and so forth — In this idle course I certainly grow older and perhaps a little wiser ; but I am doing nothing to expedite my return. " Pray can you make out to send me a box of Spanish cigars ? If you can, I will thank you ; for I find it beneficial to smoke a cigar or two before I go to bed. This I do by stealth, and in a room devoted to that purpose ; for sm9king here is considered a most ungentlemanlike practice. Having left off chewing tobacco, which was prejudicial to me, I have taken up the habit of smoking to a very limited extent in lieu of it ; and as I find it serviceable to me, and nobody knows it, 1 think I shall continue it. Remem ber me affectionately to Ninian, and tell him I mean to write to him soon. Mrs. Pinkney hears that William is able to write something like a letter. If this be so, she begs you will request Ninian to make him write to her." ******- " London, August 27th, 1 800. " Dear J., — I received your letter of the 27th May, while in the country, and delayed answering it till my return to town. For your good intentions relative to the cigars, I am much obliged to you, and I heartily wish it was in my power to thank you for the cigars themselves, of which I have heard nothing otherwise than in your letter. Perhaps I may still get them^but 1 have [ 34 1 not much hopes. Make my acknowledgments to Mr. Williains for the box you speak of as being a present from him. As there is no person for whom I feel a more warm and sincere regard, and upon whose friendship I more value myself, you may be as sured Ihat this little proof of his recollection, gives me the great est pleasure. I shall not easily forget the many kind attentions I have received from him — nor can ever be more happy than when an opportunity shall occur of showing the sense I entertain of them. " Whether the justification you offer for ceasing to write me is a sound one or not, it is not worth while to inquire. You have written at last, and this puts out of the question all past omissions. Perhaps we have been both to blamfe — or perhaps the fault has been wholly mine. I will not dispute with you on this point, but I entreat that in future it may be understood between us that trifles are not to be allowed to bring into doubt our regard for each other, and that our intercourse is not to be regulated by the rules of a rigorous ceremony. While I admit what you urge in regard to my neglect of you, I take leave to enter my protest in the strongest terms against the general charge made in your letter that I have neglected several others in the same way. I have had no correspondent in America (I have already excepted you) who has not generally been in my debt. The truth is, my friends have overlooked me in a strange way — and I have been compel led to jog their memories more than perhaps I ought to have done. As to Ninian, you know very well that in writing to you I con sidered myself as writing to him ; for I did not imagine it was de sirable that I sliould make two letters, which should be little more than duplicates, when one would serve just as well. But since I have discovered that Ninian wished me to write to him, I have taken pleasure in doing so — and for some time past, I think he has no cause to complain of me on this score. * ? * " It is my most earnest wish to return home without loss of time, and to apply in earnest to my profession for the purpose of se curing, while my faculties are unimpaired, a competence for my helpless family. For several months past I have thought of desiring from my government to be recalled, and if the prospect of our resuming our functions does not greatly change for the better be- [35] fore next spring, I shall undoubtedly have recourse to this step. At present, it is not practicable to form even a conjecture upon this subject. We have been stopped by the difficulties that have occm-red under the 6th article of the treaty, and not by any thing depending on ourselves, or connected with our own duties. If we had not been thus arrested in our progress, we should have finished ere now, or at farthest by Christmas, to the satisfaction of all parties. The arrangement under the 6th article will be ac complished, I am afraid, very slowly, if at all — and even when that arrangement shall be made, the execution of it will demand several years ; and we are not, it seems, to outstrip the advances it shall make. Thus it is probable that I shall grow old in this country, unless I resign. In short, I see very little room to doubt that I shall be driven to this expedient. So much for the mis management and folly of other people ! " The commission in America has been wretchedly bungled. I am entirely convinced that with discretion and moderation a better result might have been obtained ; be this as it may, it is time for me to think seriously of revisiting my country, and of employing myself in a profitable pursuit. I shall soon begin to require ease and retirement ; my constitution is weak, and my health precarious. A few years of professional labour will bring me into the sear and yellow leaf of life ; and if I do not begin speedily, I shall begin too late. To commence the world at forty is indeed dreadful ; but I am used to adverse fortune, and know how to struggle with it ; my consolations cannot easily desert me — the consciousness of honourable views, and the cheering hope that Providence will yet enable me to pass my age in peace. It is not of small importance to me that I shall go back to the bar cured of every propensity that could divert me from business — stronger than when I left it — and I trust, somewhat wiser. In regard to legal knowledge, I shall not be worse than if I had continued ; I have been a regular and industrious student for the last two years, ahd I believe myself to be a much better lawyer than when I arrived in England. There are other respects too, in which I hope I have gained something — ^how much, my friends must judge. But I am wea- [ 36 ] rying you with prattle about myself, for which I ask you to excuse me. * » * * « I received Ninian's letter by Mr. Gore, but have not now time to answer it. I wrote him very lately. Re quest him to get from Mr. Vanhorne the note-book, or note books I lent him, and to take care of them for me. In one of my note books I made some few reports of General Court and Chancery decisions. Let it be taken care of. When I write again, I hope to be able to state when it is probable I shall have a chance of seeing you. When I do return, it is my present intention to settle at Annapolis, unless I go to the federal city. No certainty yet of peace — but I continue to prophesy (notwith standing the Emperor of Russia's troops) that a Continental peace will soon take place. The affair between this country and Denmark will probably be settled by Denmark's yielding the point. I have no opinion of the armed neutrality so much talked of. It could do nothing now, if it were formed — but I doubt the fact of its formation." The following is extracted from a letter to his brother, Mr. JNinian Pinkney, dated July 21st, 1801. " Report has certainly taken great liberties with my letter to Mr. Thompson. Undoubtedly I have never written to any person sentiments that go the length you state. When the contest for President was reduced to Mr. Jefferson and Mr. Burr, my judg ment was fixed that the former ought to be preferred — and I went so far as to think that his superiority in every particular that gives a title to respect and confidence, was so plain and decided as to leave no room for an impartial and unprejudiced man to hesi tate in giving him his voice. Of course it is probable tha in re ference to the result of this competition, when it was known, I have expressed myself in some of my letters to my friends as highly pleased, and that before it was known, I expressed my wishes that the event might be such as it has been. It is highly [ 37 ] probable too that, even before the contest was brought to this al ternative, I have said that, whatsoever may have been my wishes, I felt no alarms at the idea of iMr. Jefferson's success. I do not remember that I have said thus much, but I believe it to be likely, because it would have been true. " I have at all times thought highly of Mr. Jefferson, and have never been backward to say so. I have never seen, or fancied I saw, in the perspective of his administration the calandities and disasters, the anticipation of which has filled so many with terror and dismay. " I thought it certain that a change of men would follow his elevation to power — but I did not forebode from it any such change of measures as would put in hazard the public happiness. I believed, and do still believe him to be too 'wise not to compre hend, and too honest not to pursue the substantial interests of the Uniled States, which it is in fact almost impossible to mis take, and which he has every possible motive to secure and pro mote. I did not credit the suggestions that unworthy prejudices against one nation, or childish predilection for another, would cause him to commit the growing prosperity of his country to the chances of a war, by which much might be lost, but nothing could be gained, except the fruits of petty hostility and base pil lage on the ocean. I did not credit, and often did not understand, the vague assertions that he was a disorganizer — an enemy to all efficient government — a democrat — an infidel, &c. &c. " In the past conduct of Mr. Jefferson, so far as it had come to my knowledge, I discovered no just foundation for these asser tions — and I am not to be influenced by mere clamour from what soever quarter it may come. In short, I never could persuade myself to tremble, lest the United States should find, in the presi dency of Mr. Jefferson, the evils which might be expected to flow from a weak or a wicked government. I am, on the contrary, satisfied that he has tfJents, knowledge, integrity, and stake in the country sufficient to give us well-founded confidenccj that our affairs will be well administered so far as shall depend on him ; although he may not always perhaps make use of exactly the same means and agents that our partialities or peculiar opinions might induce us to wish. 6 [ 38 ] " I hope you are deceived as to the possible consequences of the ensuing state elections. What has Mr. Jefferson's being President of the United States to do with your General Court, Chancery, &c. ? Without tracing the peril in which these esta blishments manifestly are, to the ascendancy of this or that political party in the nation at large, it may be found in the local interests of the different counties at any distance from the seat of Justice — in the interests of the attornies who swarm in every part of the state, and in the House of Delegates — in the plausible and popular nature of the theory that justice should be broiigltf home to men's doors, and that it should be cheap, easy and expeditious — in the love of change which half the world believe to be synonymous with improvement — in the disgust of parties who have lost their cause and their money at Annapolis, or Easton, and who imagine they would have done better in the County Court — and in a thousand other causes thata long speech only could enumerate. Five years ago your House of Delegates voted the abolition of the General Court, and yet Maryland was at that time in high reputation as a federal state. The Senate, it is true, rejected the bill ; not, however, because they were more federal than the House of Delegates, but simply because they had good sense enough to perceive that the bill was a very foolish affair ; and I have confidence that your next Senate, whether Mr. Jefferson's partizans or opposers, will manifest the same soundness of mind and firmness of conduct. I profess I am a good deal surprised that you at Annapolis who are inte rested locally, as well as generally, in preserving the General Court, &c. should be so imprudent as to cause it to be under stood that you consider the whole of a great and triumphant party, in the state as hostile upon principle to these establish ments. For my part, I would hold the opposite language, and would industriously circulate my unalterable conviction that this was no party question, but such a one as every honest man, a friend to the prosperity of Maryland, and to the purity of justice, cannot fail to oppose. By making a party question of it, you are in f) -atHr danger of a defeat than you otherwise would be;; be- causH you may give party men inducements to vote for it, who in a difi"erent and more correct view of the subject might vote [ 39] the other way. You are on the spot, however, and must have better means of judging on this head than I have. No man would lament more sincerely than I should do the destruction of what I consider the fairest ornaments of our judicial system. If I was among you, I wtmid spare no honest effort to stem the torrent of innovation, which has long been threatening the supe rior courts, and will finally overwhelm them. But I should not believe that I was promoting my object by putting in array against me, and insisting on considering and treating as adver saries, a numerous and zealous body of men with w hom I hap pened to differ on some other topic, and who perhaps if I would allow them to take their own stations, would be found on my side." " London, July 2lst, 1803. " Dear N., — I received your kind letler of the 31st of May on yesterday. You had omitted lo write to me for so great a length of time, that I had despaired of again hearing from you during my stay in England. Your letter has, of course, given me more than usual pleasure. " I offer you my congratulations on your marriage, which you have now for the first time announced to me. Mrs. P. desires me also to offer you hers. We both wish you all the happiness you can yourself desire. '' It is now certain that I am not to see you this year. Our commission will, however, close next winter, and in April or May, if I live and do well, I shall undoubtedly be with you. In the mean time, such insinuations as you mention, let them come from what quarter they will, (and I can form no conjecture whence they come,) can give me no uneasiness. I am not so in ordinately fond of praise as to be disappointed or provoked when I am told that there are some who either do or affect to think less of my capacity than I would have them. What station you allude to, I am wholly unable to judge, but I know that I have never solicited any. I am no office-hunter. Without professing to shun public employment when it seeks me, I can truly say that f disdain to seek it. My reliance, both for character and [40 ] fortune, is, under Providence, in the House of Delegates (my second speech) in pamphlet form, and hav(^ sent it to members of both Houses. They have sent one copy to me. After a hasty perusal of h, I think it will not disgrace me ; and I should not care if they should think it worth while to republish h." , In framing thc complex political system by which the United States are governed, one of the mo8t difficult problems which occurred, was the manner of determining controversies which might arise under acts of the local State legislatures conflicting with the constitution, laws, and trea ties of the Union. All agreed in the necessity of declaring the supremacy of the latter, but the manner in which it should be practically enforced presented a question of great difficulty. One of the schemes presented to the Convention con templated a revision by the federal government of all acts passed by the State legislatures, and a negative to be vested in the former in order to prevent the passage of laws repugnant to those of the Union. But it was finally determined, as a less objectionable means of accomplishing the same end, to extend the judicial power of the Uniled States to all cases arising under the con- [ 169 ] stitution, laws, and treaties of the Union ; making the Supreme Court the appellate tribunal in such cases, with such exceptions and under such regu lations as Congress might provide. Under this constitutional provision, instead of giving to the national Courts original jurisdiction of these cases, as might have been done, all that Congress has deemed it expedient to do, has been to pro vide for the exercise of the appellate jurisdiction of the Supreme Court over all such cases arising in the State Courts. The jurisdiction had been exercised by the Supreme Court in this manner in a great variety of cases since the year 1789, ahd the constitutionality of the act of Congress was never questioned until 1815, when, on the reversal by the Supreme Court (in the case of Martin and Hunter) of a judgment of the Court of Appeals of the State of Virginia, and a man date issued to the latter, that Court refused to obey the mandate, upon the ground that the con stitution did not authorize Congress to vest the Supreme Court with appellate jurisdiction over the decisions of the State Courts. The question was again reviewed by the Supreme Court, and the jurisdiction solemnly determined to be con stitutionally vested. The question was believed to be thus finally settled, but it was again agi tated in 1821, in the celebrated case of Cohens against the State of Virginia. This case arose upon the act of Congress empowering the Corpo ration of the City of Washington to authorize the drawing of lotteries for certain purposes ; and [ no ] the principal question was, whether this Act ex tended to authorize the Corporation to sell the tickets in such lotteries in those States where the selling of lottery tickets was prohibited by the local laws. Mr. Pinkney had given an opinion, in conjunction with other eminent counsel, (but which was drawn up by him,) that Congress might, under its power of exclusive legislation over the District of Columbia, authorize the Cor poration of the City of Washington to sell its lot tery tickets in any part of the Union, notwith standing any State law prohibiting it, and that Congress had in fact, by the act now in question, authorized the Corporation to sell its lottery tick ets throughout the Union.* The Court, however, deemed it unnecessary to consider whether the act of Congress would be constitutional, suppos ing it to authorize the Corporation thus to force the sale of lottery tickets in States where it was prohibited by the local laws, because it was of opinion that the act did not purport in its terras to give such an authority to the Corporation. Mr. Pinkney was prevented by accidental circum stances from arguing this question before the Court, but upon the other part of the cause, as to the appellate jurisdiction, he pronounced one of his most elaborate and able arguments. His reasoning in favour of the jurisdiction was adopt- * See Pakt Second, No. VIU. [ 171 j ed by the Court ; and it may now be regarded as one of those points of constitutional law wliich are most conclusively and satisfactorily esta blished. Mr. Pinkney continued his professional labours at the session of the Court in 1822, with the same intense application and ardent desire of suc cess which had marked his whole career. He also took a part in the preliminary discussions upon the Bankrupt bill in the Senate, and pre pared himself for the debate upon the Maryland propositions relating to the appropriation of the public lands belonging to the Union for the pur poses of education.* But his busy life was hur rying to a conclusion. He had exerted himself in the investigation and argument of a cause in which he felt peculiar interest, at a time when the state of his health unfitted him for application to study and business. On the 17th of February, he was attacked by a severe indisposition, which was, doubtless, produced by this eftbrt. He men tioned to a friend that he had sat up very late in the night pn which he was taken ill, to read the Pirates, which was then just published, and made many remarks respecting it, — drawing compari sons between the two heroines, and criticising the narrative and style with his usual confident and decided tone, and in a way which showed that his imagination had been a good deal excited by * See North American Review, vol. iv. p. 310— New Series. [ 172 ] the perusal- From this period till his death he was a considerable part of the time in a state of delirium. But in his lucid intervals, his mind re verted to his favourite studies and pursuits, on which, whenever the temporary suspension of his bodily suffijrings enabled him, he conversed with great freedom and animation. He seems, how- ever, to have anticipated that his illness must have a fatal termination, and to have awaited the event with patient fortitude. After a course of the most acute suffering, he breathed his last on the night of the 25th of February. The striking impression produced by the cir cumstances of his death, cannot be better de scribed than in the following extract from a letter which has been attributed to an eminent scholar, very capable of estimating the intellectual endow ments of Mr. Pinkney. " Washington, March 1st, 1822. " The death of Mr. Pinkney, is the remarkable and engrossing circumstance of the present week, in this metropolis. Besides the reflections connected with the sudden privation of abilities so splendid, and knowledge so profound, as those by which the de ceased was distinguished in his profession, other startling thoughts must have risen in the minds of that portion of the spectators who were capable of a serious mood, and who had seen him such as he was only ten or twelve days before — full of confidence, in his vigour and his fortunes, exulting in the supremacy of his pow ers and reputation, and earnest to maintain it, by every mode ot strenuous exertion. He had reached the age at which, in tliis country, dissolution is not deemed altogether premature, and the feelings by which the Inwyer and orator is impelled to extreme effort for invariable triumph in his career, usually abate ; when [ 173 ] he becomes, in some degree, visibly fatigued with the race, and comparatively unambitious of its honours. But every thing about this brilliant personage, inspired the idea of the strongest vitality ; of ripe, but enduring faculties of mind ; of unabated ardour and hope in the pursuit of fame, and the keenest fruition of the suc cesses of life. Hence, his sudden exit was calculated to produce the liveliest impression of the fragility of human reliance and the vanity of terrestrial plans. As he had attained so much of mental power and various reputation, and the idea of a term to the en joyment of what he had won in resources and dignities, did not intrude itself upon any observer, the lesson was more striking and forcible, than if the case had been that of a more youthful mnn, struggling with every promise of success for the same pos sessions. " It is believed that the last illness of Mr. P. was occasioned by an excessive effort in the preparation and delivery of an argument, within the few days immediately preceding the attack. It is said that he consumed all the night of Thursday week in framing his brief. When he spoke in court on Friday, he evidently labour ed under a severe cold, and exerted himself beyond his strength — he was obliged several times to ask the indulgence of the Bench, while he sat down to rest for a few minutes, and to reco ver his breath. Some of the Bar remarked to him that he would do wrong to proceed, seeing that he was indisposed and enfee bled. But his zeal was not to be repi essed on this occasion, as it had not been on any similar one. " I have heard a distinguished lawyer, who had practised long in the same courts with him, remark of him, that he did not be lieve that he ever undertook a cause, however insignificant it might be, without entering into it, as it were, with his whole soul, and managing it as if his whole professional reputation were at stake upon the issue. It was his pride and passion never to ap pear in court, but after having entirely mastered the business which he was to transact. Sleep, exercise, the pleasures of so ciety, he was always ready to renounce, rather than hazard the loss of an inch of the ground which he had gained, or seem at any moment unequal to his reputation. Does not the nature of his end remind you of Cicero's relation of that of Lucius Cras- sus, an orator whom he resembled in the intensity of his ardour 23 [ 174 ] to excel, and the extent of his influence over the minds of hij hearers. ? " Post ejus interitum veniebamus in curiam, ut vestigium illuii ipsum in appearance of exaggeration. lie was profoundly versed in the ancient learning [ 183 ] of the common law ; its technical peculiarities and feudal origin. Its subtle distinctions ant! arti ficial logic were familiar to his early studies, and enabled him to expound with admirable force and perspicuity the rules of real property. He was famdiar with every branch of commercial law ; and superadded, at a later period of his life, to his other legal attainments, an extensive acquaintance with the principles of international law, and the practice of the Prize Courts. In his legal studies he preferred the original text writers and report ers, (e fontibus hauriri,) to all those abridg ments, digests, and elementary treatises, which lend so many convenient helps and facilities to the modern lawyer, but which he considered as adapted to form sciolists, and to encourage indo lence and superficial habits of investigation. His favourite law book w^as the Coke Littleton, which he had read many times. Its principal texts he had treasured up in his memory, and his argu ments at the bar abounded with perpetual recur rences to the principles and analogies drawn from this rich mine of common law learning. Different estimates have been made of the ex tent and variety of his merely literary accomplish ments. He was not what is commonly called a learned man ; but he excelled in those branches of human knowledge which he had cultivated as auxiliary to his principal pursuit. Among his other accomplishments, (as has been before no ticed,) he was a thorough master of the English language, — its grammar and idiom, — its terms and [ 184 j significations, — its prosody, and in short, its whole structure and vocabulary. It has also been before intimated that, speaking with reference to any high literary standard, his early education was defective. He had doubtless acquired in early life some knowledge of classical literature, but not sufficient to satisfy his own ideas of what was necessary to support the character of an ac complished scholar. He used to relate to his young friends an anecdote, which explains one of the motives that induced him, at a mature age, and after he had risen to eminence, to review and extend his classical studies ; and at the same time illustrates one of the most remarkable traits of his character — that resolution and firmness of purpose with which he devoted himself to the acquisition of any branch of knowledge he deem ed it desirable to possess. During his residence in England, some question of classical literature was discussed at table in a social party where he was present, and the guests, in turn, gave their opinions upon it : Mr. Pinkney being silent for some time, an appeal was at length made to him for his opinion, Avhen he had the mortification of being compelled to acknowledge that he was un acquainted with the subject. In consequence of this incident he was induced to resume his clas sical studies, and actually put himself under the care of a master for the purpose of reviewing and extending his acquaintance with ancient liteva- ture, [ 185 ] But the acquisition of such knowledge may be recommended, and no doubt was soua^ht by Mr. Pinkney for a higher purpose than merely com pleting the circle of liberal accomplishments. He never afterwards neglected to cultivate an attain ment which he found so useful in enlarging his knowledge of his own language, improving his taste, and strengthening and embellishing his fo rensic style. Attempts have recently been made to depreciate the utility of classical learning ; and certainly the expediency of devoting the greater part of the time spent in education to the acqui sition of the languages of Greece and Rome may well be questioned. But " there is a certain pe- " riod of life, when the mind like the body is not " yet firm enough for laborious and close opera- " tions. If applied to such, it falls an early vic- " tim to premature exertion : exhibiting indeed at " first, in those young and tender subjects, the '' flattering appearance of their being men while " they yet are chddren, but ending in reducing " them to be children when they should be men. " The memory is then most susceptible and tena- " cious of impressions ; and the learning of lan- " guages being chiefly a work of memory, it seems " precisely fitted to the powers of this period, " which is long enough too for acquiring the most " useful modern as well as ancient languages."* And, we may add, that the bright examples of * Jefferson's Notes, Query XIV. [ 186 ] ancient virtue, and the perfect models of ancient taste, are best studied in the originals. That generous love of fame, of country, and of liberty, which was the animating soul of the Grecian and Roman republics, caniiot be too early imbibed by the youth of every free state ; and whilst they are taught duly to estimate the more wise and perfect organization of modern societies, they should be warmed and cheered with those noble sentiments which illuminate the pages of the eloquent w. iters of antiquity, and which are the best fruits, and at the same time the surest preservatives of liberal institutions. During the whole course of his active and busy life, Mr. Pinkney pursued his professional studies, and those which related to the English language and literature, with the strictest method and the most resolute perseverance. But, in other re spects he seems to have read in the most desul tory manner possible ; in such a way, perhaps, as any man would be likely to pursue, who, wilh a vigorous intellect, and a disposition to industry, had no very precise object before him but to gra tify his curiosity and to keep pace with the current literature of the day. His tenacious memory en abled him to retain the stores of miscellaneous knowledge he had thus acquired, and his mind was enriched with literary and historical anecdote, which constituted the principal interest of his conversation, the charm of which was heightened by the facility and habitual elegance of his collo quial style. [ 187 ] Whether he was endowed by nature with those large and comprehensive views, and that extensive knowledge of mankind which constitute the quali fications of a great statesman, and which would have fitted him to take a leading part in the po litical afiairs of his country, and to guide its pub lic councils in those moments of difficulty when " a new and troubled scene is opened, and the " file affords no precedent," — is a question which we have no adequate means of determining. His diplomatic correspondence will show indeed that he was perfectly competent to maintain his own reputation for general talent, and to acquit him self in a manner creditable to his country, when brought in contact with the ablest and most expe rienced statesmen of Europe. But, as has been before observed, his profession was the engross ing pursuit of his life ; and beyond that, his talents shone most conspicuously in those senatorial dis cussions which fall within the province of the constitutional lawyer. In the various questions relating to the interpretation of the national constitution which have been recently discussed in the Supreme Court, it may be said, it is hoped, without irreverence, that Mr. Pinkney's learning and powers of reasoning have very much contri buted to enlighten and fix its judgments. In the discussion of that class of causes, especially, which, to use his own expressions, " presented " the proud spectacle ofa peaceful judicial review " of the conflicting sovereign claims of the go- " vernment of the Union and the particular States [ 188 ] " by this more than Amphictyonic council," — his arguments were characterized by a fervour, ear nestness, gravity, eloquence, and force' of reason ing, which convinced all who heard hiin that he delivered his own sentiments as a citizen, and was not merely solicitous to discharge his duty as an advocate. He exerted an intellectual vigour proportioned to the magnitude of the occasion. He saw in it " a pledge of the immortality of the " Union, — of a perpetuity of national strength " and glory, increasing and brightening with age, " — of concord at home, and reputation abroad." As to the general nature and operation of our federative system, he thought with the illustrious authors of the letters of Publius, that Hke other similar forms of government recorded in history, its tendency was rather to anarchy among the members than tyranny in the head, and that a general government, at least as energetic as that intended to be established by the framers of the constitution, was indispensably necessary to secure the great objects of the Union. Believing these to be, generally speaking, in more peril from ex cessive jealousy on the part of the respective members of the Confederacy, than from encroach ments by the national government, he carried the weight of his support to that side of the vessel of state which he thought to be in danger of losing its equipoise. Absolute unanimity is not to be expected on questions of such intrinsic difficulty as those which spring up on that debatable ground which marks the boundaries between the State [ 189 ] and national sovereignties. Still less is it to be look ed for in the discussion of such a controversy as that arising from the admission of the State of Mis- soui^i into the Union, where so many deep-seated prejudices and passions mingled in the debate, and a contest for political power and claims of private interest were involved in the result. That mighty tempest, which at one time seemed to shake the Union to its centre, and in the language of Mr. Pinkney, threatened to " push from its " moorings the sacred ark of the common safety, " and to drive this gallant vessel, freighted with " every thing dear to an American bosom, upon " the rocks, or lay it a sheer hulk upon the " ocean," — has now passed away. But the agi tation of the billows has not yet subsided ; and a distant posterity will alone be capable of pro nouncing an impartial judgment Upon the merits of a question complicated of so many considera tions of humanity, of policy, and of constitution al power. But a spirit of liberality may even now tolerate an honest difference of opinion on such a subject ; and it should be the part of the wise and the good to pour oil over this angry sea to endeavour to calm the passions which were excited by the discussion, rather than to revive the remembrance of so painful a controversy by seeking to arraign the motives of those who were engaged in it. Whatever difference of opinion may still exist as to the part which Mr. Pinkney took in this question, or of the manner in which the controversy was conducted on his side, all 25 [ 199 ] will now, I should think, concur in the sentiment expressed by him at the close of his speech in the Senate on that memorable occasion. After al luding to the ambitious motives whiih were im puted to some who were engaged in the contro versy, he added : " For myself I can truly say that " I am wholly destitute of what is commonly call- " ed Ambition. It is said that Vmbition is the " disease of noble minds. If it be so, mine must " be a vulgar one : For I have nothing to desire " in this world but professional fame, — health and " competence for those who are dear to me, a " long list of friends among the virtuous and the " good, and honour and prosperity for my coun- " try. But if I possessed .any faculties by the ex- " ertion of which at a moment like the present 1 "could gain a place in the affectionate remem- " brance of my countrymen, and connect my " humble name with the stability of the American " Union by tranquilizing the alarms which are " now believed to endanger it, Iknow of no re- " ward on this side the grave, save only that of an " approving conscience, which, put in compari- "sou with it, I should think worthy of a sigh, if " lost, — of exultation, if obtained." PART SECOND. 1 ^H i'.^ ^ ¦^ NO- I. MR. PINKNEY S OPINIONS DELIVERED AT THE BOARD OF COMMISSIONERS, ACTING UNDER THE 7tH AR TICLE OF THE TREATY OF 1794, BETWEEN THE UNITED STATES AND GREAT BRITAIN. THE BETSEY, Furlong, Master. Dr. Nicholl. — " The board having maturely considered thc Memorial and Exhibits, together with the letter of Mr. Gosling, and it being proposed and agreed that the board should now come to a decision on the following question : ' Whether on behalf of the claimant, a case has been made out which comes vlfithin the provisions of the treaty ?' Dr. Nicholl stated as his opinion, that the sentence of condemnation having been affirmed in this case, upon an appeal to the supreme tribunal, credit is to be given to it, inasmuch as, according to the general law of nations, it is presumed that justice has been administered in mat ters of pi ize by the supreme tribunal of the capturing state. " That the treaty has not altered this general rule of the law of nations, having engaged tb'afford relief only in cases (either existing at the time of signing or arising before the ratifications) in which, from circumstances belonging to them, adequate com pensation could not then be obtained in the ordinary course of justice, or in other words, (but no words can be more explicit and clear than those of the treaty itself) cases to which circum stances belonged that rendered the powers of the Supreme Court of this country, acting according to its ordinary rules, incorape- ient to afford complete compensation. [ 194 ] '¦ That the appeal was heard after the signing of the treaty, and the claimant has not satisfactorily shown any circumstances, belonging to his case, on account of which adequate compensa tion could not have been obtained in the ordinary course of ju dicial proceedings ; or on account of which the supreme tri bunal could not fully consider, and justly decide upon the whole merits of the case. " Dr. Nicholl therefore thought that the claim ought to be dis missed. (Signed) JOHN NICHOLL. January 30th, 1797- " Enlarged opinion by Dr. Nicholl. " Several members, of the board have re corded their opinions, not only on the preliminary question which arose in this case, as to the construction of the treaty, but also on the merits of the claimant's demand of compensation. They have not only recorded the general grounds of their opin ions, but have discussed at length several of the topics that were either contained in the printed cases and other proceedings, or mentioned at the board in the course of the inquiry. — Lest from this latter circumstance it should be inferred that those topics formed the principal grounds of my decision, I feel myself called upon to state in writing the reasons of my ultimate opinion on the merits of the case. " At the same tiine, I take the opportunity of declaring that it is not my present intention again ti(m of the merits of the claim. I shall content myself with stating briefly what was my own final impression of the case, leaving undisturbed those reasons which have governed other gentlemen in their decision. " It appears unnecessary again to state minutely the circum stances of the case. They will be found in the proceedings, and in the opinions of other members. " The first and principal consideration is in respect to the compensation claimed on behalf of George Patterson, the pro- proprietor of the vessel, and ofa moiety of the cargo. " George Patterson was a citizen of America. He went on board the Betsey to the French Island of Guadaloupe several months after the existence of open war between Great Britain and France, disposed of her cargo there, dispatched the vessel to America whh the (present) return cargo, and wilh instruc tions to bring back another cargo to Guadaloupe. " George Patterson remained behind at Guadaloupe, and was resident there at the time of the capture in question. " All persons who are within the enemy's territory, are, prima facie, to be considered as enemies, and are liable to hostility. " But a person within the enemy's territory is excepted from hostility, if it can be shown that he was a neutral, and was there for an occasional purpose, and not engaged in any transactions connected with the operations of war. A neutral must cautious- [ 196 ] ly abstain from interposing in the war — to prove this, no autho rity is necessary to be referred to. He is not at liberty to do all acts with the same unguarded freedom as in time of peace. If a neutral has rights, he has also duties. " George Patterson's right to compensation depends then, in my opinion, on his having shown that notwithsianding he was at Guadaloupe at the time of the capture of his vessel and proper ty, still he was there acting in a manner perfectly consistent with the strict duty of a neutral. The burthen of proof lies upon him — prima facie he was an enemy : he must exculpate himself. " He carried to Guadaloupe a cargo of provisions. This was not illegal. His cargo, though brought there for sale, was forci bly purchased from him by the governing powers of the Island; a circumstance from which he would naturally infer, that provi sions were at that time necessary to the military operations of the Island. " It was a matter of public notoriety that a British armament of considerable force was at that time acting in the West-Indies for the conquest of the French'Islands. " Martinique, a neighbouring Island, was at that time invaded. " The attack of Guadal.mpe was at that time expected. " George Patterson, though his ouiward cargo was dispo.sed of, and a return cargo of great value purchased, thought proper to separate himself from his vessel, to dis|iatch her to America, and voluntarily to remain at this critical period at Guadaloupe — liable to be called upon to do military (lut\ , and to act in common with the other inhabitants in defence of the Island. " He did not remain there to whhdraw his property, or from apprehension of danger to it ; for he sent to America for ano ther cargo ; another cargo of provisions, which, from what he had already experienced, he must well know were highly necessary to the defence of the place. His instructions were that the vessel should return with these provisions with all possible speed. Whether all this was done with the intention of aidiniJ and ad hering to the enemy, and of interposing in the war, or merely for mercantile profit, is not material to be proved. A neutral who supplies the enemy with contraband, probably, has profit only in view. [ 197 ] " The Board is not called upon to lay down general rules, or, to define abstract principles, but to decide on the merits of the claim, under all its accompanying circumstances. It may be ex tremely difiScult to define precisely what residence in a belligerent country, in its nature and duration, shall be permitted to a neutral — or what acts amount to an interposition in the war : and al though I feel the present case to be by no means clear of doubt and diflftculty, yet under all the circumstances taken together, I am of opinion that George Patterson, voluntarily staying at Gua daloupe at the particular period in question, and acting in the manner before stated, was not excepted from hostility, and is not entitled to compensation for the loss of his property engaged in that transaction and taken during the time he so continued at Guadaloupe. " Mr. William Patterson was owner of the other moiety of the cargo. He remained in America, and was no otherwise engaged in the transactions of George Patterson or responsible for his acts than as being his partner in trade. " Having very maturely considered the case of this claimant, and with all that deference and respect which is justly due to the decision of a very exalted tribunal, but being bound (if that decision is not conclusive) to decide ultimately upon my own conscientious judgment, I cannot but concur with the majority of the Board in thinking that William Patterson is entitled to compensation. " The next consideration is, what are the losses and damages for which compensation is to be made ? " The claimants demand not only for those arising from the condemn ation, but for all those in any degree resulting from the original capture. " This demand depends upon the consideration whether or not there was probable cause of seizure, and of bringing in the vessel and cargo for legal adjudication. " And when the two regular tribunals of the belligerent state, (which by the general law of nations are alone competent to de cide on captures;) and when two members out of five who com pose this Board, all acting under the most solemn obligations, have concurred in holding that the most considerable part of the property is even subject to confiscation, it seems to me (without 26 [ 198 1 entering into other reasons) that at least there was ^jroJafi?.; cause for putting the matter into a course of judicial inquiry, and that the demand of compensation for all losses and damages resulting from the capture is wholly unfounded. " The last matter of any material importance to be consider ed, is the demand made not only for the loss and damage actual ly incurred, and out of pocket, but also for loss of the profit that might have been made if the cargo had arrived and been sold at its port of destination. « The claimants in making this demand appear to me to have forgotten, that if neutrals are to enjoy the benefits arising from a state of war, they must be content to bear part of its incon- veniencies ; or on the other hand, if they claim to be exonerated from all the risks and inconveniencies of war, they must agree to forego its advantages. They are not to say, give to my com merce the security of the state of peace, but give me the profits of the state of war. The risk and the profits are the counter poise to each other. " A claim is here made of a profit of near an hundred per cent. This is scarcely ever heard of in time of peace. If it ex isted at all, it existed only in consequence of the war, and the risks that usually accompany it. " To reimburse the claimants the original cost of their proper ty, and all the expenses they have artually incurred, together wilh interest on the whole amount, would, I think, be a just and ade quate compensation. This, I believe, is the measure of compen sation usually made by all belligerent nations, and accepted by all neutral nations, for losses, costs, and damages occasioned by illegal captures. " To add to the original cost of the property a reasonable mercantile profit, such as is usually made in time of peace, would, in my opinion, amount even to a very liberal compensation. " But the demand that is set up of the profits that might pos sibly have been made, if the cargo had arrived and been sold at its destined port, when it is recollected that the trade itself was barely not illegal, it being opened by the enemy to the neutral, in a great measure, under the pressure of war—that the profits of this frale were highly inflamed by the war; the French West- India colonists being under a necessity of selling their produce [ 199 ] at a very low price to neutrals, who conveyed it circuitously t» Europe ; and the prices in Europe from the same causes being very high ; that the prices were further raised in America at the period in question, by the general order that had existed to stop all American vessels engaged in that trade — when it is further re collected that the prices at Baltimore were probably increased by the capture of several vessels destined to that port ; and in some degree by the capture of this very vessel, (for it would be al most monstrous to insist that in making compensation for these captures, the inflamed price occasioned by the very captures themselves, is to be paid,) added to this, the extreme difficulty of ascertaining the amount of these profits, under all the risks, with any degree of rational certainty. Under all these circumstances, the demand, I say, of these war profits, at the same time that the British government is about to compensate the citizens of Ame rica for all the actual losses resulting at this period from the state of war, and to indemnify them by a new and extraordinary mode of relief, from those costs and damages which other na tions are content to seek only in the ordinary course of justice, appears to me highly unreasonable. It is a demand that, in my opinion, is not consistent with the true meaning of the treaty itself, which intended to substitute in this respect a new mode, and not a new measure of compensation. It is a demand not supported by that reciprocity — by that maxim of taking advantage and dis advantage together, which is the very foundation and spirit of equity, justice, and the law of nations." Mr. Pinkney. — A leading feature of this case is, that the sentence of condemnation in the Vice- Admiralty of Bermuda, has, upon the appeal of the claimant been affirmed by the Lords Com missioners for Appeals, the supreme judicature in the kingdom in matters of prize. Ia consequence, a question has occurred upon the showing of the agent of the crown, " Whe- " ther this Board is bound and concluded by that [ 200 ] " affirmance, so as to be prevented (as between " the claimants and his Majesty's government) " from examining into and relieving against the " capture and condemnation, sanctioned by it as " between the claimants and the captor, upon " the same evidence in substance submitted to the " consideration of their Lordships 1" The agent's objection is in ihe following words, " That the captor has no right against the claim- " ants to found a condemnation but as a grantee " of the crown, and such as the crown would have " had in the same circumstances ; and that, there- " fore, this is a case between the same parties, '* and upon the same facts in which a judgment " has been given in a solemn decision by the Su- " preme Court of the law of nations in this king- " dom, which other authorities, proceeding by " the same law, are bound to respect and con- " firm ; — that the case has no circumstances be- " longing to it, by which the claimants were disa- " bled f'om receiving complete justice in the ordi- "nary course of judicial proceedings, and, there- " fore, that it is not a case in which the parties " are entitled to relief under and by virtue of the "' provisions of the treaty." Upon the fullest consideration of this objec tion, I have stated it to be my opinion, "'that thb " affirmance of the condemnation by the Lords " does, in no respect, bind us as Commissioners " under the 7th article of the treaty ; and that it " is no further material to our inquiries, in the " execution of the trust confided to us, than as it [ 201 ] " goes to prove that compensation was unattaina- "ble by the claimants in the ordinary course of "justice." It has been explicitly understood that the opi nion I have thus delivered is in precise conformi ty with that of his Majesty's governnient ; but, as the objection to which it is opposed has been re peated by the agent on every occasion that has since occurred, notwithstanding the avowed dis approbation of its principles by those from whom his authority is derived, and as one of the Board has not only sustained the objection by his ulti mate opinion, but recorded the reasons which have induced him to do so, in the nature of a pro test against the decision of the majority, I feel it to be my duty to reduce to writing, and to file the reflections which have led me to the foregoing eonclusion. There are some of the agent's premises which I shall not employ myself in contesting. He who alleges, for, example, that the crown is the same party with the master or owner of a privateer, to whom it has granted a commission of reprisals, can expect no more than that his allegation should be merely denied. But even if the allegation were true, there is certainly more novelty than correctness in the argument that a judgment of hi.s Majesty's own Court, composed of the mcjnbers of his own Council, is the more especially entitled to a conclusive quality against neutral nations and their citizens, who have been injured by it, 6c- eause his Majesty was himself a party to the suit. [ 202 ] I am very far from being disposed to insist that the judgments of the Lords of Appeal is the less to be respected on that account : but it is neither indecorous towards that high court, nor unrea sonable in itself to say, that the extensive binding force, now for the first time attributed to their sentences, could not rest on a foundation so little calculated to support it. In order to ascertain whether the sentence of the Lords in this case (however unjust it may be) is conclusive upon this Board under the treaty, it is previously to be inquired whether the govern ment of the United States, independent of the treaty, would, upon the application of the claim ants for redress against the capture and condem nation confirmed by it, by way of reprisals or otherwise, be bound by the law of nations to es teem it just, although upon its face, it was mani festly the reverse. The necessity of this preliminary inquiry would seem' to be obvious at first sight ; but it will, per haps, be more apparent when 1 proceed to show the influence which its true result is entitled to have upon the construction of the treaty. " By the law of nations, universally and imme- morially received, the legality of a seizure as prize is to be determined in the courts of the nation to which the captor belongs, judging accordino- to that law, and to treaties (if any) subsisting be tween the states of the captor and claimant." (Answer to Prussian Memorial.) [ 203 ] The nature and grounds of this exclusive prize jurisdiction in the nation of the captor, and the legal effects flowing from its exercise, are so clearly detailed by Rutherforth, in his Institutes of Natu ral Law, that I will here quote that detail at large in place of giving my own. This right of the nation of the captor (says Rutherforth, 2d vol. p. 596) is founded upon ano ther, i. e. the right of the nation to inspect into the conduct of the captors, both because they are members of the state, and because it is ansicera- ble to all other stales ;¦ for what they do in tear is done either under its general or under its spe cial commission. " The captors, therefore, (p. " 597) are obliged, upon account of the jurisdic- " tion which the state has over their persons, to " bring such ships or goods as they seize on the " main ocean into their ports : and they cannot " acquire property in them till the state has de- " termined whether they were lawfully taken or " not. This right which their own state has to " determine this matter is so far an exclusive one, " that no other state can claim to judge of their " behaviour till it has been thoroughly examined " into by their own : both because no other state " has jurisdiction over their persons, and likewise " because no other state is answerable for what " they do. But the state to which the captors " belong, whilst it is thus examining into the be- " haviour of its own members, and deciding whe-i " ther the ships or goods which they have seized " upon are lawfully taken or not, is determining [ 204 ] " a controversy between its own members and the " foreigners who claim the ships or the goods : " and this controversy did not arise within its own " territory, but on the main ocean. The right, " therefore, which it exercises is not civil juris- " diction ; and the civil law^ which is peculiar to " its own territory is not the law by which it ought " to proceed ; neither the place where the con- " troversy arose, nor the parties who are con- " cerned, are subject to that law. The only law " by which it can be determined is the law of na- " ture applied to the collective bodies of civil " societies ; that is, the law of nations, unless in- " deed there have been particular treaties made " between the two states to which the captors and " claimants belong, &c." " This right of the state to which the captors " belong, (p. 598) to judge exclusively, is not a " complete jurisdiction. The captors, who are its " members, are bound to submit to its sentence, " though this sentence should happen to be er- '•'roneous, because it has a complete jurisdiction " over their persons. But the other parties in " the controversy, as they are members of another " state, are only bound to submit to its sentence, " as far as this sentence is agreeable to the law " of nations or to particular treaties, because it " has no jurisdiction over them, in respect either " of their persons or of the things that are the sub- " ject of the controversy ; — if justice therefore is " not done them, they rnnf apply to their own " state for a remedy which may consistently with [ 205 ] " the law of nations, give them a remedy, either "by solemn war, or by reprisals. In order to "determine when their right to apply to their own "state begins, we must inquire when the exclu- " give right of the other state to judge in this "controversy ends. As this exclusive right is " nothing else but the right of the state to which " the captors belong, to examine into the con- " duct of its own members, before it becomes an- " swtrable for what they have done, such exclu- " sive right cannot end until their conduct has "been thoroughly examined. Natural equity will " not allow that the state should be answerable " for their acts, until those acts are examined " by all the ways which the state has appointed " for this purpose. Since, therefore, it is usual in " maritime countries to establish not only infe- " rior courts of marine, to judge what is and what " is not lawful prize ; but likewise superior courts "of review, to which the parties may appeal, " if they think themselves aggrieved by the infe- " rior courts ; the subjects of a neutral state can " have no right to apply to their own state for a "remedy against the erroneous sentence of an in- " ferior, until they have appealed to the superior " court, or to the several superior courts, if there " are more courts of this sort than one, and until the " sentence has been confirmed in all of them. After "the sentence of the inferior courts has been thus " confirmed, (the very case of the Betsey, Fur- " long,) the foreign claimants may apply to their " own state for a remedy if they think themselves 27 [ 206 ] " aggrieved : but the law of nations will not enti- " tie them to a remedy unless they have been ac- " tually aggrieved, and, even if upon their own " report they appear in the judgment of their " own state to have been actually aggrieved ; yet " this will not justify it in declaring war or in " making reprisals immediately. When the mat- " ter is carried thus far, the two states become the " parties in the controversy. And since the law " of nature, whether applied to individuals or ci- " vii societies, abhors the use of force, until force " becomes necessary, the supreme governors of " the neutral state, before they proceed to solemn " war or to reprisals, ought to apply to the su- " preme governors of the other state, both to " satisfy themselves that they have been rightly " informed, and likewise to try whether the con- " troversy cannot be adjusted by more gentle " methods." From the foregoing quotations it may be col lected, that the jurisdiction of the court of the capturing nation is complete upon the point of property — that its sentence forecloses all contro versy between claimant and captors, and those claiming under them — and that it tenninates for ever all ordinary judicial inquiry upon the mat ter of it. These are the unquestionable effects "of a final admiralty sentence, and in these re spects it is unimpeachable and conclusive. But the doctrine involved in Mr. Gosling's objection reaches infinitely further. It swells an incidental jurisdiction over things into a direct, complete. [ 207 ] and unqualified control over nations and their citizens. The author I have just quoted, proves incontestibly, by arguments drawn from the na ture and foundation of prize cognizance, that this doctrine is absurd and inadmissible — that nei ther the United States, nor the claimants its citi zens, are bound to take for just the sentence of the Lords, if in fact it is not so ; and that the af firmance of an illegal condemnation, so far from legitimating the wrong done by the original seizure, and precluding the neutral from seeking reparation for it against the British nation, is pe culiarly that very act which consummates the wrong, and indisputably perfects the neutral's right of demanding that reparation through the medium of his own government. If I had no opinion to combat but that of the agent, on a point so extremely plain, I would con tent myself on this part of the subject with what has been said. But the agent's opinion has de rived countenance from a source too respectable to be slighted, and I will, therefore, bestow some further consideration on it. It results, from the ''quality and independence of nations, thatthe jurisdiction entrusted to one nation for wise and equitable purposes, by that law which is common to all, shall not be allowed to encroach upon the rights of other states, or (which is the same thing) those of their citizens or subjects. The municipal law of every well regulated com munity, in which the ends of social union, and the moral duties arising put of it, are understood,. [ 208 ] will furnish us with the axiom — " sic utere tuo ut " alienum non lajdas." This axiom, although in corporated into the local code of many countries, belongs to and forms a part of the law of nature; and if such is the rule which natural as well as civil law prescribes to individuals in their social relations, it is not to be conceived that the law of nations, which considers states as so many indi viduals upon a footing of relative equality, com municates jurisdiction to any, without annexing a condition to the grant, that in its exercise it shall not trench upon the rights of any other member of the great society of nations. If the largest possible scope be given to the jurisdiction in question, still it is a jurisdiction which must be rightjully used by the state that claims it. The law of nations cannot be supposed to give to one state the right of invading, under judicial forms, the property of another. The power it does give is that of examining and jusdy deciding (directly upon the conduct of its own members) and (incidentally) upon the rights of neutrals, in matters of prize ; but it would be a libel upon the law of nations to say, that a decision contrary to justice, against those who are equal to, and independent of, the court pronouncing it, is warranted by any jurisdiction known to that law. Such a decision, it may confidently be urged, has and can have nothing but physical power to sus tain it. However it may be pronounced under colour of an existing authority, it can never be by virtue of it. [ 209 J The law of nations, which is a system of mo ral equity applied to civil societies, respects, and is calculated to shield from infringement, the rights of all, without preference to any. If it recog nizes and protects the right of a belligerent to de termine the question of prize or no prize, accord ing to the rules it has ordained, it also acknow ledges and protects the right of a neutral to his merchandise and vessels not confiscable by ithose rules. And if the former right is abused or ex ceeded (from error or design) to the manifest violation of the latter, that law which has both equally under its protection, will vindicate the right so violated, by entitling the party injured to redress. The most strenuous advocate for the omnipo tence of prize jurisdiction, would hardly venture to advance so bold an absurdity as that the law of nations confers an unlimited discretion upon those who act under it. On the contrary, it is univer sally agreed (vid. Lee on Captures, 238 — Ansr. to Prussian Memorial, 2 — Ruth, ubsupr. &c. &c.) that the use of the jurisdiction is regulated and bounded by the law which grants it. Who does not see, then, that if it is used contrary to the regu lations, or stretched beyond those limits, such use is wrongful in respect of the neutral nation, and its citizens affected by its operation 1 And if it be wrongful, how can it be maintained that the neutral nation and its injured citizens are remedi less .'' But if admiralty decrees are to carry along with thera incontrovertible evidence of their own [ 210 ] legality ; if they are to be sheltered by a veil of imaginary sanctity, from all scrutiny or examina tion into their merits — if they are to pass upon the world for just, although palpably oppressive, it is in vain that the law of nations has circum scribed prize cognizance, and laid down rules of conduct for those to whom it is committed ! No sophistry can establish this position, that although a flagrant wrong has been done by one nation to another, under the pretext of the law of nations, that very law prohibits retribution ; or, that an in jurious act becomes to all effectual purposes a lawful one, for no other reason but because it has been done. The only ground upon which admiralty juris diction ever has been or can be rested, shows that a sentence under it, is not to be conclusively taken to be legal. A belligerent has this jurisdiction for its own safety — because it is answerable to other nations for the conduct of its captors. It is allowed exclusive cognizance of the cap ture, for the purpose of ascertaining whether it will confirm it, and thus complete its own respon sibility, or give to the claimant adequate redress against the captor, and thus exonerate itself. Until it has made this ascertainment (provided it is not delayed) the neutral has not in general* any I say in general, because there may be cases where the palioii may be answerable immediately, or at least befoie the cause has gone through every possible stajre,— as where the capture is under the special orders of the state, &c. [ 211 ] cause of complaint against the belligerent nation. The national liability is suspended while the sub ject is regularly sub judice between captor and claimant, because it is yet undecided whether the state will adopt the injury, and convert it from a private to a public one. The judgment of it.s Prize Court, in the last re sort, in general, perfects or destroys that liability. If it grants adequate redress, there is nothing to be answerable for ; but if, instead of doing so, it completes the original injury by rendering it irreparable by any ordinary means, the national responsibihty is obviously perfect. The injury becomes its own ; and the neutral, from being compelled to ask redress against the captor, is now authorised to ask it against his nation, which has sheltered him from his just demands.* Grotius, b. S.ch. 2, sec. 5, (treating of reprisals) states expressly that a judicial sentence plainly against right to the prejudice of a foreigner, en titles his nation to obtain reparation by reprisals ; "for the authority of the judge is not of the same "force against strangers as subjects. Here is " the difference : subjects are bound up by the " sentence of the Judge, though it be unjust, so as " they cannot oppose the execution of it lawfully, " nor by force recover their own right, for the " efficacy of that power under which they live : — * Vide Grotius, Lib. 2, ch. 21. sect. 1, 2, and 8 ; and 2 Ruth. Inst. Nat. Law, p. 515. [ 212 ] " But strangers have coercive power" (i. e. re prisals of which the author is treating) " though " it be not lawful to use it, whilst they may re- " cover their right in a judicial way." So that Grotius agrees with Rutherforth that the nation of the captor is so far from being dis charged of its responsibility for a wrong com mitted by him, by means of a definitive decree of its prize tribunal denying justice to the neutral claimant, that this very circumstance consummates that responsibility, and he opposes himself une quivocally to the novel doctrine that the Courts of Marine of this or any other country can bind strangers to receive their sentences as indisputa bly legal, when they are in truth otherwise. The same principles will be found in Lee on Captures, (treating of reprisals) and in Vattel on the same subject. It is doubtless true that the law of nations prescribes to states reciprocal re spect for the maritime jurisdictions of each other, and for the sentences flowing from them. It is necessary to their repose that they should not encourage or act upon captious complaints against such sentences. But there is no law, nor can a shadow of authority be produced, to prove that there is, which prescribes to states implicit sub mission to them, when well-grounded complaints are made against them. On the contrary, it is, under such circumstances, the duty of the state whose citizens are oppressed to seek reparation for the damages produced by them. It is self- evident that a belligerent has not, by the law of £ 215 ] Nations, the power of adjudging aWay the pro perty of neutrals not liable to condemnation. But a belligerent has this colossal power in its utmost size, if the decrees of its Prize Courts are in every view to be irrefragable testimony of their justice. How is the v/ant of right to pass a de cree by which a neutral has been injured to be established, if that very decree is admitted to prove undeniably that the right existed ? How is oppression to be shown or redressed, if that which constitutes its essence, and gives to it, its character and quality, is precisely that which le gitimates and shields it from investigation ? A final, unjust judgment against a neutral, says the law of nations, is a good ground for reprisals, because no other mode of compensation is Idft. But Mr. Gosling informs us that the ground of reprisals is annihilated in the moment of its birth ; for, that as soon as the unjust judgment is passed, the law of nations presumes that it is a lawful judgment, and forbids all the world to doubt or question it ! It is obvious that between independent states, none of which can have authority over the others, one cannot assume to itself an exclusive power of interpreting the law of nations to the prejudice of the rest. So long as the interpretation put upon that law is a proper one, and works no in jury to any other state or its citizens, all are under a moral obligation to acquiesce in it, be cause all are bound by the rule itself; but surely if the rule ie misconceived, or if rules unknown 28 [ 214 ] to the law of nations are attempted to be intro duced by one nation to the detriment of another, the independence of nations is a term without a meaning, if this is to be submitted to. To administer the law of nations is the ac knowledged province of a Prize Court ; and, while acting within this province, (which can only ap pear from its decrees,) none are authorized to complain of it ; but, when it occupies itself in ad ministering some other law by which the society of nations is not bound, it is out of its province^ and has no claim to the acquiescence of those whom its sentences may prejudice. If it be true that the definitive decree of a Prize Court, though contrary to the law of nations, binds the nation of the claimant to admit the propriety of its prin ciples, as well as forecloses judicial controversy, the court so decreeing has legislated pro hac vice, not adjudged. For the decree introduces a new law for the case, and does not execute that which already exists. What more can be said of a law than that it has a title to implicit submission, and creates the rules which it enforces 1 That a Frize Court, whether inferior or superior, of any one nation, has this extravagant authority of legis lating, in the shape of admiralty sentences as op portunities occur, so as to bind the independent nations of the universe, is a proposition so mon strous, that to be rejected it needs only to he stated. One of Grotius's commentators, speaking of his idea of a positive law of nations, remarks. [ 215 ] " that the want of a voluntary union amongst the "several nations of the world, is the reason why "there is in this great society no legislative p ow- «er."(2Ruth..463.) He was not aware of the boundless effect of admiralty sentences — or, instead of being able to find no legislative authority among nations, he would have discovered it to reside in every supe rior Prize Court in Europe, under the sembl ance of judiciary power. In short, Mr. Gosling's position turns upon a total misconception of the true principle appli cable to this question. The definitive sentence pf an admiralty court is conclusive upon the subject of it, so as to justify the captor, establish his pro perty, and divest that of the claimant. In reference to ordinary judicatures, the matter of such a sen tence can never be drawn ad aliud examen. So far is true — but while in this view it operates conclusively by the common consent of mankind, and from the nature of the thing, it leaves open, or rather begets, the question of injury and claim to compensation as between the nations of cap tor and claimant ; the final quality of the sen tence, in one respect, is the best reason why it should not be so in the other. It is by that final quality that the claimant's hopes of ordinary re tribution are destroyed — it is that final quality that protects the captor from the just demands of the claimant — and it is that which completely transfers the original wrong from the captor to his government, who, by sheltering him through the [ 216 1 instrumentality of an unquestionable judgment from all individual responsibility, takes his act upon itself, and shows its intention of standing the consequences. Can it be imagined that the bel ligerent is relieved from its liability for the irregu lar behaviour of its commissioned cruizers, be cause it has done that which renders this bability the only instrument of reparation .'' Can it be be lieved that it exonerates itself from the obliga tion to repair eventually the wrong sustained by a neutral from its fleets and privateers, merely by refusing to compel compensation from the wrong doers 1 Among all the principles ever attempted to be established in former times, to the ruin of neutral commerce, and the introduction of lawless plun der upon the ocean, none can be selected that equals this. If once it shall be admitted that an admiralty sentence must be received as just, how ever it may be in fact, there is no species of de predation to which neutrals may not be subjected. The memoirs of France and the placart; of Hol land, may be revived ahd executed in their utmost rigour without danger of reprisals: since, if con firmed by admiralty sentences, their effects are not to be murmured against ! Constructive block ades may be set up without limit, for admiralty sentences can legalize them ! I do not mean to intimate that such would be the conduct of this or any other government in particular. It is enough that such may be, (although we know that such has been) thc conduct of maritime states; and I [ 217 ] am at liberty to argue against a principle from its possible pernicious consequences. Heretofore it has been supposed that this sort of conduct found its only warrant in physical power ; but the new principle, that admiralty sentences can justify every thing by an ex post facto purification, will, if ' it shall be adopted, place it upon the basis of mo ral right ; or, in other words, it is a contrivance to make the law of nations uphold and justify the violation of its own rules. The law of nations is difi'Srently understood in diffe>rent countries. In most countries the instruc tions of the sovereign are held to be the law of its admiralties, without reference to their coincidence with the law of nations. War has in general pro duced such instructions, and they have not always been conformable to the only law by which Prize Courts ought to determine. A neutral nation, how ever, has a perfect right to have the claims of its citi zens in matters of prize decided according to the law of nations, let the instructions of the belli gerent government be what they may ; but this right never has been, and never will be, regarded by maritime jurisdictions, whatever we may be told to the contrary. It follows, that the rights of neutrals are often sacrificed ; but, being sacri ficed by admiralty sentences, acting upon the in structions of the government, there can be no remedy for the neutrals, if these sentences, though notoriously founded on instructions at variance with the law of nations, are to be conclusively presumed to be in exact conformity with that law. [ 218 ] Thus, although the instructions were unlawful, and the seizure under them equally so ; — although the condemnation was evidently unjust, and the af firmance in the last resort (of course) no better; although by this illegal series the neutral was oppressed, and the rights of his nation violated in his own — the affirmance in the last resort, by a retrospection peculiarly operative, sanctioned the whole transaction ; thus beginning, progressing and ending in wrong, and by accumulating one in jury upon several otiiers, left no injury remaining ! Without going into further detail on this part of the subject, (upon which I have already said more than I believe to be necessary) it may, I think, be safely concluded that the sentence of the Lords did not, and cannot, bind the neutral claimants or their nation to deem it just ; but that, on the contrary, if in truth it was otherwise, that sentence was the unequivocal perfection of the original injury produced by irregular or illegal capture, and gave to the claimants and their na tion a complete right by the law of nations to seek reparation for the loss and damage result ing from such capture against the government of Great Britain. Independent of the treaty, such unquestionably would have been the law. It is now to be seen how far the establishment of this conclusion is entitled to influence the construction of the treaty, with a view to the case before us. The preamble of the 7th article sets forth a complaint on the part of divers American citizens. [ 219 ] " that during the course of the war in which his Majesty was then engaged, they had sustained considerable losses and damages by reason of irregular and illegal captures or condemnations of their vessels and other property, under colour of authority or comvriissions from his Majesty ;" and " that from various circumstances belonging to the said cases, adequate compensation for the said losses and damages could not then be ac tually obtained, had and received, by the ordi nary course of judicial proceedings." Such were the grievances existing, or suppos ed to exist, at the time of making the treaty, for the reparation of which the British government was ultimately answerable by the law of nations, as has been already shown. Upon the principles above stated, however, it is apparent, that, gene rally speaking, the responsibility of the British government to the American claimant was, at the time of making the treaty, (even supposing his complaint to be well-founded in regard to the capture or condemnation) incomplete. It did not then appear that justice was unat tainable by the claimant against the captor through the Lords of Appeal, since at that time the Lords had decided nothing. The law of na tions declares, that before the' neutral shall have any demand against the captor's government, he shall endeavour to obtain redress against the captor himself by all the judicial means in his power. At the time of making the treaty such endeavours had not been used by the American [ 220 ] claimants to the extent required, for the most for ward of their cases were still sub judice. There had been no denial of right (in the language of Grotius) by the Lords of Appeal. The sentences of the inferior courts had not (in the language of Rutherforth) been in any instance confirmed, or in any shape acted upon by the superior. There had not been even an unreasonable delay of jus tice against the captor. It follows that the Ame rican government was not authorized to demand from the British government immediate and wn- conditional compensation for the captures or condemuiilions of which its citizens complained; since (even supposing them to be irregular or il legal, as alleged) it was yet to be known whether the claimants could or could not procure indem nification against the captors in the ordinary course of justice ; and this could only be known, in cases where there were responsible captors, by the direct or analogous determinations of the Lords of Appeal. The framers of the treaty were to adapt their stipulations to a state of things which had not yet arrived, but which it supposes, and upon which it was to operate. They were to adapt it, in a word, to the rights of the one party and the eventual obligations of the other. They do not provide, therefore, "that for the " losses and damages arising from the irregular " or illegal captures or condemnation^ complain- " ed of the British government will, at all events, " make compensation ;" but thn we thus find the negociators of the treaty em ployed in weighing the import of the terms in which they had conceived this provision, — when we find them occupied in bounding them by a proviso, so as to fit thera with exactness to their object, it is not to be credited that they would have omitted the important limitation which has since occurred to the agent, if, in truth, they in tended so to narrow the scope of the clause. Surely if it was meart to assert the infallibility of any particular judicature, in opposition to the words of the provision, an object which is sup posed to have been preserved so steadily in the view of one of the paities, would not have been neglected at the time when explicitness upon a subject of infinitely inferior consequence was so cautiously attended to. I forbear to enlarge fur ther on this point, because I wish to avoid unrea sonable prolixity; but I think I have already said enough to prove that the objection to our jurisdic tion is unfounded. [ 242 ] Upon the merits of this case, a question has occurred, which requires to be examined. Two of the commissioners have held, that on facts disclosed in the case of George Patterson, the owner of the brig, and part owner of the car go, was, during and by reason of his stay in Gua daloupe, (an enemy's territory,) liable to be treat ed as an enemy to Great Britain by those acting under its authority ; and of course, that his proper ty sent out from Guadaloupe and seized by a Bri tish cruzier, while he remained in that island, was, by the law of nations, rightfully subject to con demnation as prize. The facts are these — William and George Patterson (the claimants) were citizens of the United States, and partners in trade, resident and carrying on business at Baltimore. The brigan- tine Betsey was the sole property of George Pat terson. She sailed from Baltimore for the West Indies on the 19th December, 1793, with a cargo of flour, butter, and spece, belonging jointly to the said partners. George Patterson sailed in her as owner and supercrrgo. The vessel pro ceeded to Guadaloupe (lier port of destinarion) where she arrived on the Sth of January following, and there delivered her cargo to the said George Patterson. The cargo (ar least the provision part of it) was taken from him by the administration of the island by force, with a promise of payment of its value. He loaded on boatd the said brig a return cargo, the produce of the island, and des tined her therewith to Baltimore, remaining him- [ 243 ] self at the said island ; and she accordingly sailed from Guadaloupe on the ISth of March, bound on her said intended voyage : in the prosecution thereof, she was on the 20th of the same month (two days after her departure from the island) met- with and taken as prize, by the British private sloop of war Agenoria. It appears by the evidence found on board the brig, that George Patterson had no intention of settling in Guadaloupe ; that his stay was meant to be for a short time only, (until the Betsey should return with another car go;) that his views were to procure from the admi nistration of the island, payment for cargoes which they had taken from him and his partner, and while he stayed to manage the affairs of the concern and conduct the lawful trade in which it was enffagfed to the best advantas^e. No act is proved to have been done or contemplated by him inconsistent with his neutral character and duties. The allegation that when he went to Gua^ la- loupe it was in a state of blockade (an assumed fact upon which the condemnation at Bermudas appears to have been foimded) is admitted to be falser The suggestion that during his stay in the island, it was notoriously expected to be blockaded, is un.supported' by the shadow of evidence — and if it were proved, it would be idle and unconsequen- tial. It cannot be necessary to argue that the ex pectation of a blockade does not render provi sions contraband, or in any shape interfere with the freedom of neutral commerce. We are all agreed that there cannot be a constructive block- [ 244 J ade to the prejudice of the trade of neutrals— and after this concession, it would be absurd to waste time in showing that the mere expectation of a blockade, when none exists in fact, or can be made out constructively, is not entitled to have that effect. His sending to America for another cargo of flour after the administration of the island had taken the Betsefs cargo by force, was not the act of an enemy to Great Britain/ but strictly lawfid for him to do so as neutral. Is he to be called an enemy to Great Britain, because he did not petulantly re sent the infringement of his rights by a colonial government of France ? — and is he to be subject ed to plunder, without retribution, by British cruizers, because a Guadaloupe administration, having seized his property under a promise of adequate compensation, he has thought proper to submit to this wrong, and even to hazard the re petition of it 1 If he chose to act thus, in the ex pectation of that profit which is the object of trade, what right has Great Britain to complain 1 The administration took his property not theirs ; and if he discovered it to be more prudent to be silent on the subject, to wait for the promised payment, and even to import another cargo similar to the former, while he was so waiting, under a risk of similar violation, he has neither done nor intend ed any thing injurious to Great Britain, — provided the cargo imported was such as the law of na tions did not prohibit. If the reverse of this doctrine were true, I do [ 245 ] not know that the citizens of the United States could, since the year 1795, be at liberty to bring provisions to Great Britain without becoming enemies to France. For during that year the go vernment of this country went far beyond the administration of Guadaloupe, in seizing and ap propriating the provision cargoes of American citizens. In a word — the views with which George Pat terson went to, and remained at, Guadaloupe, were fair and warrantable, — the trade he was pro secuting was not forbidden, — his conduct, while in the i,sland, was, in all respects, such as the law of nations allows and prescribes to neutrals, — his stay there was intended to be, and in fact was, tem porary, — he did not become an iniiabitant of the island, but was a mere sojourner in it for special limited purposes lawful in their nature. Still, however, it is said that his residence there, such as it was, made him, under all circumstan ces, the enemy of Great ^r\tam. In order that I may be distinctly comprehend ed in what I have to urge against the above opi nion, I will begin with stating that I understood the law of nations, as applicable to this question, to be as follows : Neutral stangers who settle, or, in other words, take up a fixed residence for permanent purposes, however lawful they may be, in the territory of a belligerent nation, flagrante bello, and thereby become united to, and, sub raodo, citizens or sub jects of it, are liable to be treated as enemies by 32 [ 246 ] the opposite belligerent ; but neutral strangers, ¦ who merely pass or sojourn in the territory of a belligerent nation, for the management of their affairs, or in quality of travellers,or for in any other lawful temporary object, not hostile to the oppo site belligerent, are not so liable to be treated. From Vattel, abundant sanction is derived to this distinction. (Vattel, b. 1st, ch. xix.) In Sect. 212—213, of this chapter, the author treats of the citizens and natives ofa country, and of its inhabitants, as dis tinguished from citizens, who are in some sort blended with the society into which they have en tered ; and these again he afterwards distinguish es from temporary sojourners in the predicament of Mr. Patterson. Sect. 213. " The inhabitants, as distinguished " from citizens, are strangers who are permitted " to settle and stay in a country. Bound by their " residence to the society, they are subject to the " laws of the state while they reside there, and they " are obliged to defend it, because," &c. The actual inhabitants then, here meant by Vattel, are such as are in some degree incorpora ted with the nation, and are liable to the duties of citizenship, although not enjoying all its advan tages. Such inhabitants have, doubtless, the quality of enemies, in respect of a nation at war with that in which they reside, — because they have voluntarily united themselves to the enemies of that nation, subiected themselves to their control, [ 247 ] bound themselves to defend their interests dur ing their stay, adopted their prejudices and their enmities, and in short acquired in their country a citizenship complete as to duties, though not so as to privileges. The same author says, in Sect. 215 of the above chapter, speaking of a man who has left his own country : " If he ha& fixed his abode in a foreign " country, he is become a member of another so- " ciety, at least as a perpetual inhabitant, &.c." But how is it with sojourners, whom Vattel dis tinguishes from inhabitants ? (Vattel, b. 2d c. Sth s. 99th.) " We have al- " ready treated (b. 1st c. 19, already quoted) of " the inhabitants, or of the men who reside in a " country where they are not citizens. We shall " only treat here of the strangers who pass or so- "journ in a country, for the management of their " affairs, or in quality of mere travellers." Sect. 101. (Speaking of such sojourners.) " But even in the countries where every stranger " freely enters, the sovereign is supposed to allow " him access only upon this tacit condition, that " he be subject to the laws ; I mean the general " laws made to maintain good order, and which " have no relation to the title of citizen or sub- "ject of the state." Sect. 105. (Same subject.) " From a sense of " gratitude for the protection granted him, and " the advantages he enjoys, the stranger ought not " to confine himself to the respect due to the laws " of the country ; he ought to assist upon occa- [ 248 ] " sion, and to contribute to its defence, as much ¦ " as his being a citizen of another state may per- " mit him. But nothing hinders his defending it " against pirates and robbers ; against the ra- " vages of an inundation or the devastations of "fire." The author in this place, evidently sup poses that (although in the case of an inhabitant or fixed resident,) every duty of a citizen is on such inhabitant while he continues, so there is no obligation upon a srijourner or temporary resident to assist in defending the country in a solemn war ; and of course, that there is no obligation upon him inimi(!al to the nation with which that country is in a state of hostility. But in Sect. 106, he is still more explicit. Sect. 106. " Indeed he cannot be subject to " the taxes, which have only a relation to theciti- " zens ; but he ought to contribute his share to all "the others. Being exempt from, virring in the " militia, and from the tribute destined for the " support of the rights of the nation, he will pay "the duties iiniiosed on provisions, merchandise, " &c., and, in a word, every thing has only a re- " lation to his rcsid/ ncc in the country, and ihe " affairs which brought hini thither." Thus then it is obvious that a neutral, who sojourns in one of the countries at war, for the purpose of manag ing his affairs, nnd docs not become a settler in, or inhabitant of, the countiy, cannot, by reason of such sojourning, be considered as having subject ed himself to any obligations injurious to the op posite belligerent, as having associated himself [ 249 ] with its enemy, or as having lost the purity of his original neutral character. It appears that, notwithstanding such sojourning, he continues under the pressure of all his former duties as a neutral, and acquires none that are inconsistent with them. To call such a man an enemy is to do violence to common sense. Sect. 107. (Same subject) " The citizen or "subject of a state who absents himself for a " time without any intention to abandon the so- " ciety of which he is a member, does not lose "his privilege by his absence; he preserves his " rights, and remains bound by the same obliga- " tions. Being received in a foreign country in " virtue of the natural society, &c., he ought to be " considered there as a member of his own nation, " and treated as such." The nation then, with whom a neutral stranger sojourns, is, by the law of nations, to consider and treat him as a member of his own coimtrtf : It cannot compel him to assist it in its hostile efforts against its enemy, or even in its defence against that enemy. He continues, notwithstanding his residence, to every purpose of the war, offensive or defensive, as much a neutral as if he was still n his own country. And yet it is imagined that the opposite power at war, merely on the ground of his residence, which does not alter his charac ter, and is in no respect unlawful, may consider and treat hirn as an enemy ! Why is it then that neutral goods found in an [ 250 ] enemy's territory are not liable to confiscation, if the quality of the place, where a neutral shall himself be found, attaches itself thus powerfully to him 1 If this doctrine against which I am now con tending were true, the converse of it would be al so true. If place and not character is to fix a man as friend or enemy, an enemy would cease to be so as soon as he quitted the territory of his nation. Surely the character of enemy may be thrown off by the same means, by which it may be acquired, where parallel means are practica ble. But " enemies continue such, (says Vattel,) " (b. 3, c. 5, s. 71,) wheresoever they may happen " to be. The place of^abode is of no account. It " is the political ties which determine the quali- " ty." Here is the true criterion by which friend or enemy is to be ascertained. The political ties, not (he locus in quo, designate the quality. Has the paly duties upon him in favour of one ofthebeUi- gerents agaiii.-t the other, which, if calh'd into ac tion, u ould be hostile in their effects .'' If he has, no matter in what part of the world he shall be found, he is an enemy. If he has not, you cannot treat him as an enemy, without trampling upon the laws of nations, although you should find him in the heart of the country with which you are at war.* I have already shown that a sojourner in a country with temporary views, or one who has not • This is upon a supposition that he does no act hostile in its nature, as in the case of Mr. Patterson. [ 251 ] in fact settled in it, has no such political ties to that country as to make him an enemy to those with whom it may be in a state of hostility — that his duties do not point to the annoyance of any nation — and that the obligations which bind him, are as perfectly neutral as those he brought along with him. The foregoing observations are confirmed by Burlemaqui's Principles of Political Law. (p. 281, s. 6.) " As to strangers, those who settle in an ene- " my's country after a war is begun, of which they "had previous notice, may justly be looked upon as enemies." P. 299. " It is also certain, that in order to ap- " propriate a thing by the right of war, it must be- " long to the enemy ; — for things belonging to " people who are neither his subjects, nor anima- " ted with the same spirit as he is against us, " cannot be taken by the right of war, even " though," &c. By settlers in a country, it will not be imagined that those are meant who sojourn in it with tem porary views, and who come without any intention of abandoning their own country, or becoming in habitants of another. In the description of " those " who are animated with the same spirit against " us," it will not be supposed that those are in cluded, who, with a complete neutral character and with every neutral obligation upon them, go for a time into the belligerent country on a law ful errand, liaving no relation to hostility — and, while there, take no improper part in the national [ 252 ^ quarrel, but confine themselves to the object which brought them thither — who bind themselves by no ties to the nation in whose territory they are, at variance with those which marked and constituted th ir neutrality, and who continue as free from anv duties, adversary lo either of the contending parties, as if they had remained at home. It is plain that Burlemaqui's meaning is the same with that of Vattel. By settlers he intends those whom Vattel calls inhabitants, who may fairly be presumed to be animated with the same spirit with the nation with whom they have per manently mingled, to whose interests they have joined their own, and under whose subjection they have placed themselves. Such may be said to make common cause with the nation and to adopt its quarrel. Thus far the doctrine may justly be carried ; but when a neutral trader goes into an • enemy's territory for a few weeks to conduct a legal trade, to call in precarious debts, or to do any other act connected with a commerce which no law condemns, when, during his stay, he does nothing to make common cause with the enemy, or to evidence his intention of espousing its quar rels, it is so manifestly unreasonable to call him an enemy upon such a foundation, that no argu ment can lend even a colour to it. Lee on Captures, (p. 65) gives us his opinion on this subject precisely in the words of Bude- maqui, and accounts no strangers as enemies but such as settle in the enemy's countiy. [ 255 ] The following is copied from a manuscript note of Lord Camden's opinion in two of the St. Eu statius' cases, (Harmonic and Jacobus Joannes,) heard on the 10th of February, 1785, put into my hands by a respectable gentleman in the profes sion. " If a man went into a foreign country upon a "visit, his trav Is ,or health, to settle a particular " business, or the like — of such persons, so tem- " porarily residing, he said, he thought it would '' be hard to seize upon their goods. That a re- " sidence not attended with these circumstances " ought not to be considered as a permanent resi- " dence." In applying the evidence and the law to the re sident foreigners in St. Eustatius, he said — " In " every point of view they ought to be deemed '/ resident subjects. Their persons, their lives, " their industry, are employed for the benefit of " the state under whose protection they lived ; " and if war broke out, they continuing, they paid " their proportion of taxes, imposts, and the like, " equally with natural born subjects, and no doubt " come within that description." The note concludes with stating, " that the " goods in both ships (viz. the Harmonic and Jaco- " bus Joannes,) were condemned (except those be- " longing to Erutz) upon the ground of perma- " nent residence or inhabitancy of the owners in " an ebemy's territory." The ground upon which the property of Erutz was excepted from the condemnation, is stated in 33 [ 254 ] the note to be, " that he was an occasional resi dent at Amsterdam." It is evident from this opinion of Lord Camden that he did not consider a temporary sojourner in an enemy's country as the proper object of hos tility, but that he rested his decision whollfon the fact of permanent inhabitancy, a fixed ani settled residence. Such was the doctrine in this country formerly ; and, if it has been changed, it will not be easy to prove that the change is justi fied by the law of nations. Even the form of the commission of reprisals issued by this country, during its present and for mer wars, concurs to establish the distinction with which I set out. It gives authority to seize property belonging to France, or to any persons being subjects of France, or inhabiting within any of the territories of France.; Such also is the language of the different prize acts. We have seen in Vattel the true notion of an inhabitant, and it cannot be pretended thata temporary sojourner does, even in common par lance, come within the meaning of that term. The only authority which has been mentioned at the Board as opposed to the principles I have endeavoured to establish, is a passage in Gro tius, lib. iii. c. 4, s. 6. For an answer at large to this authority, I shall content myself with reffcrrixng to the written opi nion of Mr. Gore. I am induced to this, because in the written opinions of one of the British com missioners, lately filed, that authority, though [ 255 1 ©riginally relied upon to prove that any person found, or being in an enemy's territory, was abso lutely liable to be treated as an enemy, is used for a different and a less extensive purpose, meet ing my approbation. Upon the whole I take it to be clear, that, upon the footing of residence, George Patterson's pro perty was not liable to condemnation. It would not be proper, however, to dismiss the question without noticing the particular manner in which one of the commissioners, in his written opinion, sustains the condemnation of George Pat terson's property. The arguhient stands thus: — All persons who are within the enemy's territory are, prima facie, to be considered as enemies and liable to hostilities. (Grotius.) George Patter son being at Guadaloupe at the time of the cap ture, of course came within this rule, and to ex tricate himself from it, it was incumbent on him to show — " that he was there acting in a manner " perfectly consistent with the strict duty of a neu- " tral. The burden of the proof was upon him." It is then supposed, and attempted to be shown, that he has failed in this proof. ' Even if it be admitted that the above rule is o, sound one, and I am not disposed to question it, the application of it is certainly exceptionable. To extricate himself from the operation of such a rule, it could only be incumbent on Mr. Patter son to prove himself an American citizen. That fact being established, (as it was by all the evi dence on board the brig,) the neutrality of his. [ 256 ] character stood free from the presumption against him, arising solely from the place in which he happened to be. The burden of the proof would then be transferred from him to the captors. By showing that he was a citizen of the United States, he showed that he was no enemy to Great Britain ; and, if the captors desired to defeat the effect of that evidence, it was indispensible for them to go further than barely to prove that he was in an eneniy^s country, which in itself was not at all inconsistent with the neutral quality at tached to his citizenship of a friendly nation. Until they showed that he had done some act by which he had forfeited the friendly character, which all the ship's papers proved him to possess, that friendly character was entitled to protect him, They did not prove sirch an act by merely show ing that he had gone to Guadaloupe a few days or weeks before the capture, on a commercial er rand, and had, at the time of the capture remain ed there two days after the sailing of the vessel of which he was supercargo ; since all this was perfectly lawful for him as a neutral to do. They did not prove such an act in any way ; neither his actual stay in the island, from the time of the brig's departure, to the time of the capture, (two days,) nor the stay he intended to make, as declar ed by one of his letters, (until the brig should re turn with another cargo.) can be said to come up to the idea of a permanent residence, let such stay be coupler! with what lawful acts it may, so as, upon the footing of inhabitancy, to make him [ 257 ] an enemy to Great Britain. It cannot be pre tended that, while at Guadaloupe, he did any act not admitted to a neutral by the law of nations. On the contrary, it may confidently be asserted that he did nothing inconsistent with the strict duty of a neutral. His object in remaining at the island, was manifestly to procure payment of what was due to him from the administration ; and, while so employed, to make such mercantile profit, by conducting the U!r;uartrade of the part nership as might be practicable. That the island wa,nted provisions is probable, and that he wish ed to have an opportunity of supplying it, not only on account of the price of flour, but also oft account of the profit to be made by a return car*-. go, is certain ; but it was strictly consistent with his duty as a neutral to do so. In short, he was neither an enemy by residence, nor by reason of any conduct unlawful to a neutral. It is supposed that, even admitting the property of George Patterson not to have been liable to condemnation, there was at least probable cause of seizure and detention for the purpose of judicial inquiry. If this probable cause be referred to any ambi guity as to facts at the time of the capture — I an swer that no such ambiguity existed. But it is not in this view that there is believed to have been probable cause of seizure. The law arising from the facts appearing in the letters of George Patterson, is imagined not to have been so clear ly in his favour as to render detention, for the pur- [ 258 ] pose of obtaining judicial opinions upon it, ille- .ral. But, in my judgment, it was so clearly in his favour, that I confess myself astonished that any doubt could be entertained about it. It is not satisfactory to insist upon the Vice Admiralty of Bermudas and the Lords of Appeals condemning the property, as sufficient evidence of probable cause. The sentence of the Vice Admiralty of Bermudas, founded upon a ridicu lous falsehood, abandoned by every body, is no evidence of any thing but the folly of the judge who passed it. The sentence of the Lords is that of a tribunal, respectable in the highest de- I gree for talents, integrity and station ; but even the ? commissioner who recommends it to us as conclu sive proof of probable cause, confesses that it was an erroneous sentence, inasmuch as it cimdemned the property of William Patterson, as well as that of George Patterson. For this sentence, as tt stands, it is impossible to find or conjecture a reason ; and yet we are told that we ought to receive it as irrefra gable proof of probable cause. The sentence of the Lords is either erroneous, or it is not. If it is not erroneous, we ought to decide in exact con formity with it. If it is erroneous, it cannot; in any shape, be an authority for us. We are unani mous, that, as to William Patterson's property, it is palpably erroneous ; — that no pretext can be imaarined even to countenance it in respect of his property ; — and a majority of the Board are of opinion, that it is c/rar/2^ erroneous ^¦» toto. Af ter this, it is at least novel to rest the jproof of t 259 ] probable cause upon the authority of that sen tence. 'The question of probable cause is as much a question upon which it is our duty to de cide, according to our own judgments, as the question whether the condemnation was rightful ; and if the sentence of the Lords is not allowed to be sufficient to control our judgments on the latter question, I see no reason why it should be allowed to control it on the former; — especially when the sentence thus set up as a proper guide to decision on the former, is nothing more than a confessedly erroneous sentence upon the latter. As to the opinions of the commissioners who dif fer from the majority on this subject, if they were suflUcient evidence of probable cause, it would follow that every decision against probable cause ought to be unanimous. In short, I hold it to be plain that there was' not the smallest foundation for the seizure in ques tion ; — and that if the captor thought proper to make the seizure upon any mistaken idea of the law of nations, he did it at his peril ; and that his nation, in default of redress against him, is to in demnify the parties injured. And, thinking thus, I cannot persuade myself that I am to sacrifice the conviction of my own mind, not to the reasons of others, but to the acts of others, admitted on all hands to be founded on misconception. The last question which occurred at the Board in this case, respected the rule of compensation [ 260 ] to be applied to it in relation to the cargo. The majority were of opinion that the claimants were entitled, not only to the value of their merchan dise, but to the nett profits which would have beep made of it at ihe port of destination, if the voy age had not been interrupted. This opinion pro ceeded upon the supposition that the voyage was wrongfully interrupted — and upon that supposi tion would seem to be free from exception. It has been questioned, however ; and I shall, of course, assign my reasons for adopting it. There can be no doubt that the illegal capture and condemnation of this vessel and cargo have given to the claimants a title to receive from the British government the value of the things of which they were deprived ; — but the question is whether they have not also a title to receive the profits that might and would have arisen from them 1 The right of the claimants to the cargo was a perfect one ; and for that reason, they are autho rized to demand compensation for its value ; — but this right was in no respect better or more per fect than their right to proceed upon the voyage, and to make such profit of the goods as the situa tion of the destined market would at the time of the vessel's arrival, enabled them under all cir cumstances to make. When the claimants show (and a majorityof the Board have determined that they have shown it), that tlic cargo belonged to them ;— that the voyage which the vessel (also the property of one [ 261 ] , of them) had commenced was a lawful one ; — th.it there was no ground upon which she could justifiably be seized or detained, they prtfve a complete right to prosecute that voyage, without molestation, and to acquire such advantages there from as in the course of trade might fairly be calculated on. According to a written opinion filed by one of the Board on this occasion, no compensation is due for the violation of this latter right; for it states " that to reimburse the claimants, the ori- " ginal cost of their property, and all the expenses " they have actually incurred, together with inte- " rest on the whole amount, would be a just and " adequate compensation." But what substan tial reason can be assigned, why one of the claim ant's rights shall be selected as a proper object of compensation, while another of their rights, equal ly indisputable, and equally violated, shall be left without any compensation at all ? No compensation for an injury can be just and adequate which does not repair that injury ; but he who wrongfully deprives me of a lawful profit which I am employed in making, cannot be said to afford reparation until he has given me an equivalent for the advantages of which he has deprived me ; to which advantages my right was as unquestionable as the right I had in the things from which they were to arise. Rutherforth (1 Inst. Nat. Law, p. 105, s, 5) lay$ down the rule that " in estimating the damages " which any one has sustained, where such things 34 [ 262 ] " as he has a perfect right to, are unjustly takea "from him, or withholden, or intercepted, we " are to consider, not only the value of the thing " itself, but the value likewise of the fruits or "profits that might have arisen from it. He who " is the owner of the thing, is likewise the owner " of such fruits or profits. So that it is as pro- " perly a damage to be deprived of them as it is " to be deprived of the thing itself" " But it is " to be considered whether he could have receive^ " these profits without any labour or expense ; he- " cause if he could not, then in settling the dama- " ges for which reparation is to be made, the pro- " fits are not to be rated at their full worth ; but " an allowance is to be made for the labour or ex- " pense of collecting or receiving them ; and when " the labour or expense is dedueted from their " full worth, the remainder is all that he has lost, " and, consequently, is all that he has any title to " demand." " In rating the damages which a man has sus- " tained, we are to estimate something more than " the present advantage which he has lost : for the " hope or expectation of future advantage is worth " something : and if such hope or expectation is " cut off" by the injury, the value of it is to be al- " lowed him. We must, however, in estimating " this hope, be careful not to estimate it as if the " advantage were in actual possession. Proper " deductions are to be made for the accidents " which might have happened to disappoint his ," expectations. And in proportion as these acci- [ 263 1 " dents are greater or more in number, or more " likely to happen, a greater abatement is to be "made in consideration of them, &c." Id. p. 416. " Not only the damages which a man sustains " from an unlawful act are chargeable to them " who do the act, but those damages are like- " wise to be made amends for, which are the con- " sequence of such act." Id. p. 409. s. 8. The foregoing quotations are supported by Grotius, (lib. 2, c. 17, s. 4 — 5.) and also by Puf- fendorf. It is to be admitted, that in the case before the Board, the claimants' prospect of pro fits (provided insurance had not been made upon both profits and cargo,) was not entirely certain ; for the cargo might- have been damaged or lost, and, of course, in the language of Rutherforth, we should be careful " not to estimate those pro- " fits as if they were in actual possession." But it is also evident that the profits were just as se cure as the cargo itself, and were subject to no other risk than the cargo was exposed to. With a view to prices, there was no risk at all, aiiice we resort to the prices which are proved to have been those at which the cargo might have been sold if it had arrived. In that respect we \ia,\Q facts by which to regulate our estimate, and not possibilities. If then the danger of loss of, or injury to, the cargo, was the only circumstance which rendered the claimants' profits precarious, it is extremely easy to make an allowance for that hazard, in the same manner as in ascertaining the value of the cargo itself. We have only to make [ 264 ] a proper deduction for the sea risk — and for this, the rate of insurance upon such a voyage as the vessel was engaged in, will furnish us with the best possible rule. The rate of insurance is the value of the hazard, and it is that criterion upon which we may safely rely, since it is that value which is uniformly paid and received for the sea risk by those, who are able, from their pursuits, and induced by their interests, to calcu late it accurately. Some objections were started at the Board, against the ascertainment of the probable profit', by reference to the prices current at the port of destination. It was said to be better to give 16 per centum on the invoice price; and this was alleged to he, and is, the rule in the Court of .Admiralty, in pro vision cases, under the Orders of April, 1795. But it is obvious that this rule is an arbitrary one, sug gested indeed by a good principle, but not acting upon it. It supposes (what is true) that a claim ant is entitled to compensation for his profits as well as for his capital. And so far it adds weight to the foregoing remarks ; but it cannot pretend to ascertain what those profits would be. Ten per centum may be either more or less than a just compensation. It may be a good average rule among various claimants ; (though if it is so, it can only be by accident ;) but surely it is no consolation to a claimant who gets less than is due to him, that another with whom he has no connection, has got more. Our province is to [ 265 ] render justice to each individual complainant. It is not sufficient that our awards shall cover the ae- gregate losses of all the different parties injured, unless we distribute compensation in equitable proportions. It is supposed that there can be no certainty in estimating profits, with a view to the prices cur rent at the port of destination. I am satisfied of the contrary. To ascertain the current prices of the commodities composing the cargo, at the des tined market, at any given time, is neither impos sible- nor difficult. What those commodities were, together with their quality, may be shown by the ship's papers and other testimony. The deduction for risk is known at once by the rate of insurance, and the expenses of freight, land ing, storing, «fec., and the amount of duties no person can be at a loss for.* The principal reason assigned for this uncer tainty, is the difficulty of fixing the precise in fluence which the arrival, not only of the vessel in question, but of other American vessels de tained by British cruizers, contrary to the law of nations, would have had upon the market if they had been allowed to proceed upon their voyage. My answer to this is, that any influence which cati be attributed to the arrival of the particular ves- fs,These observations are confirmed by the experience we have had, of the operation of the rule in the several cases to which it has been applied, since it was first adopted by the Board. Its execution has appeared to be easy, and its result certain. [ 266 1 sel in question, ought to be attended to, and that this is capable of a reasonably accurate calcula tion ; but that the possible effect of the arrival of other captured vessels upon the market, is manifestly improper for our consideration. The claimants had a right to make, and would have made, such profits of their voyage as the actual (not the possible) state of the intended market would afford. The circumstances by which that state was produced, (whether the wreck of other vessels, bound to the same port, or their illegal detention by -British cruizers,) could neither make a change in their right, nor extenuate the violation of it. I cannot, for my part, perceive any thing mon strous in this opinion ; but I can see much room for objection to the opposite doctrine, that, al though profit is the lawful object ofa merchant; although he has a right to make such profit, as the real,not the hypothetical situation, of the projected market, holds out to him ; yet, that a belligerent, unjustly interfering with that right, and wresting from him the effect of it, is not bound to grant him retribution commensurate with the actual da mage ; because, if it were not for the unlawful con duct of that belligerent towards various other neutral merchants, the actual damage might have been less. If the prices of merchandise at the port of des tination had been inflamed by the act of God, (the wreck of many vessels bound to that port,) it is not supposed that we ought to consider, in the [ 267 ] estimate of the neutral's probable profits, the in fluence which the arrival of the vessels so wreck ed might have had upon those prices. In such a case it is agreed that a neutral is to be compen sated, (if he is to be allowed any profits at all,) with a view to the real state of the market, or, at least, that nothing is to be deducted for any change which that state might have undergone, if these vessels had, instead of being wrecked, brought their cargoes to their intended ports. And yet one would think that the belligerent would be more at liberty to set up the act of God, to which he was no party, in extenuation of the retribution required of him, than acts of injustice theretofore committed by that very belligerent, or its commissioned cruizers, towards the fellow citi zens of the claimants. It does not appear to be a very satisfactory ar gument, to say that the rule adopted by the Board is uncertain, although it acts upon things as they are, because a state of things not existing might have produced an incalculable variation ; and the argument is more especially unsatisfactory when it is considered that this alleged uncertainty, which a belligerent is made to urge as the means of evading reparation for a wrong to the actual extent of the loss resulting from it, has been con fessedly produced by the illegal conduct of that belligerent, or those acting under its authority. When it is recommended to us to desert the sure grounds of facts, to employ ourselves in an im practicable calculation upon possibilities, we [ 268 1 should have some stronger inducement to do so than merely to protect a belligerent from the ob vious consequences of its own injustice, or that of its cemmissioned subjects. When we are asked to reject the fair rule of measuring the compen sation for an injury, by ascertaining the com-i plainant's right, and the damage really sustained by the infringement of it, we ought to have a bet ter reason for compliance, than that the damage might have been less if the same wrong-doers had not previously committed similar injuries. If we are to abandon the criterion which the actual prices current offer to us, I do not know a substitute so inadmissible as that suggested; It rests upon the most exceptionable of all principles, that he who does wrong shall be at liberty to plead his own illegal conduct on other occasions as a partial excuse. It is said, indeed, that the British government will be injured in the aggregate of compensation awarded, if the possible influence of the total of illegal captures on the market is excluded from consideration. Doubtless, if it be true that these captures raised the price in the different markets, (which I am not convinced of) and if each claimant is compensa ted with a view to that price, the aggregate amount of all the compensations will be more than the claimants collectively would have received as pro fits, if every vessel so captured had arrived at her place of destination. But we are not rendering justice in the aggregate, nor is it possible to do so, [ 269 ] without producing particular injustice. Complain ants do not coine before us as a body, with one case and upon one bottom, but as unconnected individuals setting up distinct rights, and com plaining of distinct losses. Each complainant's case is entitled to be determined according to the injury which that complainant has received ; and it ean be no reetson for not indemnifying him to the extent of it, that his loss would not have been so great, if none others could complain of the like violence to their neutral rights. If a thousand illegal captures had preceded that of the Betsey, and raised the price of the ar ticles with which she was freighted, the only con sequence would be, that the claimants had an un doubted right to avail themselves of that raised price ; and Great Britain having no possible right to prevent them, but choosing (or at least her cruizers choosing) to interfere with their title, must make reparation equal to the damage, such as it was, not feuch as it might have been, under circumstances not existing. It is immaterial whether the prospect of profit was bettered by the same persons that wrongful ly prevented it from being realized, or by other persons, or by mere accident. It is enough that the profit might lawfully be made, that the claim ants were lawfully employed in making it, and that the British governnient (or its commissioned captor) unlawfully interposed so as to defeat their efforts. The right existed with a view to the pro fits actually attainable, without reference to the 35 [ 270 ] circumstance, that made it attainable ; and the right being ascertained, thc compensation is in adequate unless it is co -extensive with it. We need not be apprehensive that any injury will be done to Great Britain by this mode ; for it will not pay to any complainant more than a compensation for the actual loss and damage sustained by him, as expressly stipulated by the treaty. It is observed in the written opinion already quoted, "that the claimants appear to have for- " got that if neutrals are to enjoy the benefits " arising from a state of war, they must be content " to bear part bf its inconveniences ; or, on the " other hand, if they claim to be exonerated from " all the risks and inconveniences of war, they " must agree to forego its advantages. They " are not to say, give to my commerce the securi- " ty of a state of peace ; but, give me the profits of " a state of war. The risk and the profit are the " counterpoise to each other." This may be admitted, if I understand what it means. Every neutral trader does and must stand the risk which the law of nations annexes to the state of war. A neutral who trades in contraband hazards confiscation. A neutral who trades to a besieged or blockaded port with notice, runs the same hazard. A neutral who carries enemies' goods, runs theliazard of search, seizure, deten tion, Sec. The inconveniences to which the status belli subjects neutral commerce, are, that it cannot be [ 271 3 carried on so freely as in time of peace; — that a neutral nation cannot trade with either of the bel ligerents in certain articles; — or at all to such ports of either as are in a state of siege or block ade ; — that it cannot carry the goods of either without being subject to search and detention ; — and, in short, that, in the prosecution of its trade, it must observe an impartial neutrality. These are the risks and inconveniences to which a nputral must submit, because the law of nations imposes them on him. If any other risks or inconveniences (such as the risk or inconvenience of illegal seizure or con fiscation) are intended by the above cited observa tions, it need only be-said that they are not such as the law of nations authorizes, however they may be arbitrarily imposed by one or all of the powers at war. Let us now compare the above cited obser vation with the consequences deduced from it. " To reimburse the claimants the original cost of " their property, and all the expenses they have " actually incurred, together with interest on- the "whole amount, would be a just and adequate " compensation." " To add to the original cost " of the property a reasonable mercantile profit, " such as ts usually made in time of peace, would ** amount to a very liberal compensation." According to this opinion, then, taken altogeth er, the neutral shall incur all the risks and incon veniences of the status belli, and yet shall have either no profits at all, or only the peace profits. [ 272 3 The law of nations imposes restrictions upon neutral commerce during war which the belhge- rents may and do enforce. If the neutral attempts to carry on a trade which the state of war renders unlawful to him, his pro perty, says the law of nations, shall be confis cated. Here (as in many other respects) the ihconveniences of the state of war operate up on him. But again, says the above opinion, if he is carrying on a lawful trade, and his property is seized and confiscated by one of the powers at war upon some illegal pretext, he is to receive as a compensation, either no more than the invoice price of his goods, or that price and the peace profit. Where then are the war profits, to be set against the war inconveniences? You enforce against the neutral the inconveniences and risks to which he is liable, and yet you do not permit him, in cases where his conduct is unexceptionable, to make or enjoy the profiis which it is admitted are and ought to be their counterpoise. If in one instance a lawful neutral trade can be interrupted by a belligerent, on the terms of pay ing to the party aggrieved only the first cost of his merchandise, or that and the peace profit, it is evi dent that this can be done in every instance. Who does not see that, if this doctrine be true, a state of war burdens neutral commerce with the re straints and disadvantages lawfully incident to that state ; — and yet that a neutral can, in no circum stances, be entiUed to the war profits, or, indeed. [ 273 3 any profits at all as a counterpoise to them, if either of the belligerents has the power and in-, clination to seize upon his property.'' What becomes of the admission that the war profits are the neutral's compensation for, the in convenience to which the law of nations subjects the commerce of his nation, if it is maintained that the war profits are rightfully at the mercy of such of the belligerents as shall be strong enough to defeat them I If I were to make the claimants speak upon this occasion, I would make them say, " the trade of our nation is by the law of nations subject to certain restrictions resulting from the state of war in Europe ; in consideration of which, such of our citizens as do not violate these restrictions and conform themselves to their neutral duties, are en titled to the war profits. We have not violated these restrictions ; we have conformed ourselves to these duties ; and were, of course, entitled to make the war profits. You have prevented us from obtaining them, by an illegal seizure and confiscation of our vessel and cargo ; and we now claim retribution equal to the injury." What could be replied to this.'' We are told that the invoice price is the mea sure of compensation usually adopted by all bel ligerent nations, and accepted by all neutral nations. I understand that this is not, even at present, the case in this country. Where the property has [ 274 ] been sold, the nett proceeds are given in ordinary cases, and in the provision cases the invoice prios and \Q per centum profit was given. Mr. Gore has referred to an adjudged case, to prove that in Eng land the very rule adopted by the Board has been heretofore in practice. But it is not likely that there is to be found any one rule which has been received and "^ adhered to inthe Courts of Admiralty of all countries, or even of many countries. It is also said " That the trade in which the ves- " sel was engaged was barely not unlawful :" and this is suggested as proper to influence the quan tum of compensation. But if the trade was not unlawful, it was surely as lawful as any trade can be. I know of no mode by which the absolute legality of a trade can be proved, in reference to the law of nations, but by showing that this law tloes not prohibit it. Such, it is admitted, was the trade in which the Betsey was employed, and I cannot conceive how any trade can be said to be lawful in any other sense. If the trade was law ful at all it was completely so ; and, of course, was entitled to security as far as any trade could be so entitled. There is no medium between le-' gality and illegality. It is true, there are certain illegal acts more injurious and more wicked than others, and, consequently, requiring and justify ing heavier punishment ; — but it is incomprehen sible how an act confessedly legal, can ever be the [ 275 ] object of punishment upon a loose idea that it was barely not unlawful.* It is said further that the treaty intended to sub stitute a new mode, not a new measure of com pensation. Upon the question of jurisdiction, I have understood it to be urged that a new measure of compensation was almost the only object of the treaty. We have been supposed to have the pow er of relieving, in cases where the Lords have given only the nett proceeds, in copsequence of the rule to that effect in the Prize Act, and in cases of seizure under the Orders of Council where the Lords are bound to refuse costs and damages against the captor. But it is in vain that we have power to enllfertain these cases, if we are not to introduce any new measure of compensation, how ever justice may require-it. If we are to adopt the measure of redress applied by the Lords, our jurisdiction in such cases is a ridiculous nonen tity. But be this as it may, the words " adequate compensation," and " full and complete compen sation," to be found in the 7th article of the trea ty, do not warrant the above interpretation of it. I have thus stated the principal reasons which have governed my judgment in the case of the Betsey. I have not been able to avoid the dis cussion of such objections as have been insisted * Vid. 1st Burlemaqui, 11 6. [ 276 ] on against the opinions I have delivered on the several points that have occurred in the progress of this case. For such of the commissioners as differ from me I feel the best founded respect ; but I could not explicitly detail the grounds of my decision^ on this occasion, without noticing topics that were believed to militate against them, and with that impression have been put upon our files. London, 1st July, 1797. WM. PINKNEY. THE NEPTUNE.* A PROVISION CASE. Mr. Pinkney. — This case has gone to the mer chants upon the opinion of a bare majority, con sisting of the two American Commissioners and the fifth Commissioner ; — and of course, 1 think myself, as one of that majority, strongly called upon to state and file the reasons which have governed my judgment. In making this statement I shall not (as it has been supposed I ought to do) confine myself to what is called the question of jurisdiction The motives which influence me to record the grounds of my decision, arise out of a sense of the deli cacy of my situation ; and these motives apply as forcibly to a decision upon the merits, as to a deci.-iori upon the import of the words of the treaty. [ 277 3 In the course of the following detail it will ap pear that I have sometimes noticed the topics in sisted on by others, as militating against the de termination of the Board ; and it is proper for me to observe that I have not studied to avoid this. My sole view is the vindication of my own opinion ; but this requires the discussion of ob jections to it. If the manner in which this is done shall be temperate and decorous, (and I hope I am inca pable of adopting any other manner,) the thing itself can neither be offensive nor reprehensible. I may, indeed, misrepresent what possibly I may not have understood ; but it will be easy for those whose ideas I have misconceived, to counteract the effect of accidental misrepresentation, by putting on record their real thoughts. The general nature of the case is briefly as follows : In April 1795, (between the tmie of the signa ture of the treaty and the time of exchanging the ratifications) his Britannic Majesty in council is sued an instruction to tbe commanders of his ships of war and privateers, &c., by which they were directed to stop and detain all vessels loaded wholly or in part with corn, flour, meal, and other articles of provisions therein mentioned, and bound to any port in France, &c., and to send them to such ports as should be most convenient, in order that such corn, &c., might be purchased in behalf of his Majesty's government. 36 [ 278 ] I state( the tenor of the ' instruction, not from aiiy authentic copy, for that is not to be obtaitf-; ed, (the instruction never having been published, as is customary,) but from a collation of the evi dence of its purport with the first additional in structions of the Sth of June, 1793. The sub stance is sufficiently established by proof, and I have merely borrowed, from the instruction of 1793, the language in which it was probably clothed. ' In virtue of this instruction, the Neptune, be longing to American citizens, laden in part with rice, and bound on a voyage from Charleston to Bordeaux, in France, was stopped by one of his Majesty's ships of war, and finally brought into the port of London, where proceedings were com menced against her in the High Court of Ad miralty. The Court of Admiralty ordered the cargo to be sold to his Majesty's governmerit, and thepro^ ceeds* to be brought into court for the benefit of those who should be entitled ; and upon a claim be ing made in the usual form, in behalf of the owners, restitution of the cargo or the value was decreed. The ship was restored with freight, demurrage, and expenses. The ascertainment of the value of the said oa^ go, and the account for freight, demurrage, and expenses, were referred to the registrar and mer chants. * The proceeds never were brought into court. [ 279 3 The registrar and merchants, in ascertaining the value of the cargo, allowed much less than the claimants demanded, and much less than it would have produced at Bordeaux, or even in London. The rule by which they made this as certainment was the invoice price, and a mercan tile profit of 10 per centum, which they alleged they bad not the power of departing from, that rule being prescribed to them by the British go vernment in all cases under those orders. Mullet &. Co., the agents of the claimants, up on the arrival of the ship at Portsmouth, applied on their behalf to the Lords of the Treasury, and also to Claude Scott, Esquire, the agent appoint ed by the British government for the manage ment of cargoes of this description, offering to indemnify the British government against all claims and demands on account of the capture, and also to give security to sell the cargo in Eng land, provided it was given up to them to be sold on account of the owners. His offer was refused. The claimants did not except to the reports of the registrar and merchants, but, being told by the officers of the government that payment of what was so reported could only be obtained by joining in a prayer for their confirmation, they did so accordingly, (protesting against their er rors and justice,) and received from his Majesty's government the amount of these reports. The memorial is for further compensation, over and above the compensation already received [ 280 ] from the British government under the above reports. Upon the coming in of the memorial, the follow ing preliminary question was started : Whether it sufficiently appears that the claim ants could not obtain, have, and receive, by the or dinary course of judicial proceedings, adequate compensation for the loss and damage they are supposed to have sustained by the seizure com plained of? Upon this question, I have given my opinion in the affirmative, and the following are my reasons; There are only two parties against whom com plete judicial redress is alleged to have been prac ticable, viz. the captor and the British govern ment ; and if it is clear that it was not attainable against either of these, it follows that it was not attainable at all. 1st. I am satisfied that it was unattainable against the British government in such manner as is pointed out by the treaty. One would think that this position need only be stated to be acceded to. It has been combat ed, however, and therefore requires to be remark ed upon. It will not be pretended that the sentence of Sir James Marriot, or of the Lords of Appeal, would, as against the British nation, have carried along with it any further efficacy than the government of the country chose io give to it. He who should seek the performance of siich a sentence, must address himself to the discretion' [ 281 3 of the government, and not to the powers qf any ordinary judicature known to the laws or con stitution. It has been admitted (and very properly) by one of the Board, in a written opinion filed on a former occasion, that the treaty extends to cases " to which circumstances belonged that rendered the powers of the Supreme Court, acting accord ing to its ordinary rules, incompetent to afford eomplete compensation." I do not think that this admission is co-extensive with ihe actual scope of the treaty ; but, as far as it goes, no person will question the propriety of it ; and surely no case can be imagined more unequivocally within it, than the case I am now considering, in the view in which it is now presented to us. The powers of the Lo|ds (as well as those of the High Court of Admiralty) were, and are, no toriously incompetent to afford any compensation at all against the British government in the sense the treaty contemplates. They may be competent to pronounce an opi nion in judicial form, that compensation ought to be afforded, i)ut the opinion when pronounced would be intrinsically ineflScient and powerless. It is said, indeed, that the government would be bound in good faith to comply with any sentence the Lords or the High Court of Admiralty might pass upon the case ; and I am not disposed to doubt that it would have done so. But the treaty does not call upon the claimants to apply to the good faith of either of the contracting par ties, except through our instrumentality. [ 282 ] The claimants, when they come to us, are re quired to show that they could not obtain, have, and receive adequate compensation % the ordi nary course of judicial proceedings. On this oc casion (unless the captor was liable) they show, beyond all controversy, that this was impractica ble, by proving that the only party against whom redress was demandable, could never be affecti| by the ordinary course of such proceedings.; ¦ They show that, although judicial proceedings, as against that party, might possibly have reach ed a certain point, i. e. the formal rendition of g, judgment, they could never, in the nature of things, reach that point expressly designated by the trea ty, i. e. the actual receipt of complete compen sation. They show that, even if the Lords, or Sir James Marriot, ha,^ adjudged in their favour to the utmost extent of their present demand, all beyond that judgment must of necessity i have been a perfectly discretionary act on the part of the British government, with which the ordinttfy course of judicial proceedings could have no connection, , and which they could not in any shape have accomplished. It is not to such nerve less judgments that the treaty can be supposed to refer the claimants. Thus, in the case of the insolvency of the cap tor and his securities, the Court of Appeals may pronounce a sentence ; but as it cannot enfoj'^ that sentence by reason of the insolvency of those upon whom only it can operate, wc are all agreed that the claimant is entitkd to come here foi" re- [ 283 3 dress. The present case is infinitely stronger than that of an insolvent captor, &c. ; for there the incompetency of judicial authority results from a fact collateral to it, whereas here it is ra dical and inherent. The Lords never had, and never can have, even the shadow of power to execute a decree against the government of Qreat Britain. No proof, no experiment, can be necessary to establish a truth so 'palpable. Will any one maintain that the compensation, already paid on this occasion, was obtained, or could have been obtained against the British go vernment, by the ordinary course of judicial pro ceedings ? On the contrary, it is certain that the payment was merely voluntary, and that, although consequent upon, it was not, and could not be, procured by any judicial proceedings whatsoever. It is in proof that, notwithstanding the decree, payment was refused, unless the claimants would join in a prayer for the confirmation of the report of the registrar and merchants — and it was in virtue of their constrained consent to do so, that they have received what has been paid to them. If the refusal to pay had been peremptory in stead of conditional, by what form of judicial proceedings could the claimants have compelled compliance against the sovereignty of the British nation ? i' In short, it is an incomprehensible solecism to talk of obtaining, having, and receiving ade quate 'compensation against the government of [ 284 3 this country, by the ordinary course of judicial proceedings. The moment it should be granted that redress was only practicable against the go vernment, it would follow, as a self-evident con" elusion, that it was not judicially practicable at all to the extent intended by those who appointed us. A decree for compensation is not compensa tion in fact, — and however the former might have been obtained against the government in the or dinary course of judicial proceedings, it is cer tain that the latter (of which only the treaty speaks) was not so attainable. If this part of the question be plain upon the letter of the treaty, it is (if possible) yet plainer upon its spirit. With what rational object can it be conceived that the treaty should compel the neutral claimants to apply to the Lords of Appeal for retribution against the government of the country, before their com[)laints shall be laid before usl In ordinary cases between claimant and captor, there is the best reason for such an application. The national responsibility in such cases would be lessened in proportion to the quantum of compensation judi cially received from the individual wrong-doer; and if the compensation so procured from the in dividual should be equal to the injury, the nation al responsibility upon which we are appointed to act would be at an end. But in a case where the government, and the government only, is answerable to the claimant, there is no inducement to prescribe to him the [ 285 3 circuity and expense of exceptions and appeals. The national liability being fixed, no judicial pro ceedings can diminish it. They may, indeed, en large, and doubtless would uniformly have that effect, inasmuch as theclaimant could not except and appeal without incurring considerable costs, which either the Lords of Appeal or this Board would be "bound to reimburse against the British government. By sending the claimants, therefore, in a case of this kind, to the Lords, the treaty would have pre judiced one of the contracting parties and the claimants, without benefiting either ; and it is, of course, fair to presume that it had no such inten tion. If the words of the treaty necessarily pur ported such an intention, we should have then only to obey, whatever our opinion might be of its pro priety ; but I have already shown that the words are so far from conveying any such meaning, that their natural interpretation leads to its reverse. 2d. I am also satisfied that judicial redress was unattainable against the captor. As the seizure was made under an order of council, the captor could not be made to restore more than the property seized or its value. He was not liable for costs and damages, as the Lords of Appeal have uniformly determined, on analo gous occasions. Immediately upon the case getting into a train of judicial inquiry, the High Court of Admiralty ordered the cargo to be sold to his Majesty's go- 37 [ 286 1 vernment, and the proceeds to be brought into court for the benefit of those who should appear to be entitled to them. The sale was made, (though upon no specific terms,) but the proceeds were not, and indeed could not be brought into court. The consequence was, that the property, for the restitution of which the captor might originally have been answerable, was, by the act of the court in plain pursuance of the order of council, placed out of his reach, and converted into a mere debt due from the British government to whomso ever should appear to be entitled to it. I take it to follow undeniably, that the captor was no longer liable for the restitution of the property itself, since no court can be supposed capable of enfiircing against a party that which it has, by its own decree, disabled him from per forming. It is only to be inquired then, whether he re mained answerable to the claimants for the value of the property ? That value was the proceeds, and in ordinary cases he would doubtless have been answerable to that extent, and to that only. But in ordina ry cases, where a sale is directed, the court does not prescribe to whom it shall be made ; and such a sale always creates somewhere a legal re sponsibility for the purchase money, of which the captor may avail himself, so as to get in the pro ceeds to meet the court's decree. In the present case the court departed from the ordinary mode, and directed the sale to be made .f ' [287 3 io his Majestyh government, (evidently in execu tion of the order of council,) over which neither the captor nor the Court of Admiralty, nor any other court, had or can have the least efficient control. Upon the completion of the sale, then, the pro perty was put beyond the power of the captor, and of judicial process ; and as the proceeds were not paid into court, they too were equally beyond the arm of justice, exerting itself in the ordinary course of judicial proceedings. Nothing remain ed but an engagement on the part of the govern ment to pay the proceeds to whomsoever should be entitled ; but upon that engagement no judi cial proceedings were competent to act. Its performance depended, not on the agency of ju dicial authority, but upon the pure discretion of the state. In this state of things it is impossible to ima gine that any decree eould be procured, or if pro cured, executed against the captor, he being de prived of the goods with a view to which his lia bility commenced, and nothing being substitut ed in their place but the honorary promise of a sovereign power. Accordingly we find, that in fact the Court of Admiralty has not made any decree against him, but that the decree actually made by it is wholly against the government. So far has it been from attempting to impose any burden upon the cap tor, in favour of the claimants, that it orders the [ 288 3 captor's as well as the claimants' costs to be paid by the state. It could decree in no other form, without violating its own established rules, and subverting every principle of law and equity. If it had decreed the captor to pay costs, damages, and expenses, it would have intrenched upon the settled rule, that the Orders of Council justified him ; and if it had decreed him to restore the cargo, or to pay the value, or the proceeds, (such proceeds not' being brought into court,) it would have made him responsible for unavoidable obe dience to its own orders, (founded upon the 'Or der of Council) by which he was compelled to part from the cargo, without receiving or having the means of enforcing payment of the value or the proceeds. In no stage of the cause was it possible for the captor or the court to get possession of the pro ceeds by the instrumentality of any judiciary in terference ; and if, under these circumstances, a decree should pass against him to the extent of these proceeds, it is manifest that it would have been founded in gross iniquity, since it would have been an attempt to coerce, or rather to in fluence the sovereignty of the nation, (the only party really bound to compensate the claim ant,) by, penalties upon an individual admitted by the tribunal inflicting them to be entirely in nocent. I will not presume^ nor can I believe, that any Court of Judicature would proceed to an end, however just, by means so flagrandy oppressive. [ 289 3 It is no answer at all to say that the honour of the British government would not have permitted it to abandon the captor to the operation of the Admiralty sentence, without furnishing him with the means of complying with it. I do not ques tion the national honour, for no one believes more highly of it than I do. But I may, notwithstand ing, be permitted to suggest that a dependence upon it might have failed, and that whether it shtiuld feil or not, the result must have sprung from the mere pleasure of the government, and not from the operative power of the law. Even if the Court of Admiralty or the Lords had (as I am thoroughly persuaded they would not) pronounced against the captor an absolute sentence to pay the proceeds, in a hope or upon a reliance that it would be discharged by the go vernment before process was taken out upon it, yet if such hope or reliance should be disappointed, they could not have executed the sentence against him, without bringing upon the administration of Admiralty justice imputations, which I am confi dent it will never deserve. So that, in any view in which this subject can be considered, the Court of Admiralty or the Lords could only proceed upon the good faith of the British government ; and the whole ques tion, at least, revolves itself into this : — " Is it a suflSoient reason, under the 7th article of the treaty, for dismissing the claimants' case, that they did not persevere in a dilatory, expensive, and ruinous procedure, which, although obviously [ 290 ] incompetent to arrive, by its own efficacy, at the point relied upon by the treaty, and affording no certain prospect that it could even aid them in reaching that point at all, might possibly have induced the British government voluntarily to Ao them justice ?" To this question there can be but one answer. Before I dismiss this part of the subject, (upon which, perhaps, I have already dwelled too long,) I will subjoin some further observations to prove that the captor was not, on this occasion, in. any degree liable to the claimants' remedy. The Orders of Council, in virtue of which American vessels bound from the French West Indies to the United States, with the produce of those islands, were captured and taken in for ad judication, have (although revoked) been held to deprive the Lords of the power of adjudging against the captor the costs and damages accruing from the seizure. It is agreed on all hands, how ever, that there have been cases of capture under these orders, in which the neutral claimants were entitled to have costs and damages, if not against the captors, at least against the government of this country. We have been told that to afford compensation for these costs and damages was one of the principal objects, and, indeed, almost the only object of the 7th article of the treaty, and on one occasion we have unanimously grant ed compensation for them. But if it be true that in the case of the Nep tune, the Lords of Appeal could have proceeded [ 291 3 against the British Government, through the sides of the captor (as has been contended) for the proceeds of her cargo, I cannot discover why they could not also have proceeded against the government in the same way, for the costs and damages above mentioned, but for which it seems we only have authority to grant redress. The same sense of honour would, it is to be. presumed, have influenced the government to in terpose itself between the claimant and the cap tor, by paying out of its treasury the amount of the costs and damages decreed ; and yet it never occurred to the Lords, that, upon the probalnlity of that interference, they were justified in decree ing them against him. Rather than accomplish, in this mode, the in demnification of the claimants, they have said, that, however well grounded his claim, he should have no costs and damages at all. The force of this analogy will not be weaken ed by any suggestion, that the instances placed in comparison are different in their circumstances. In both instances the captor's situation is sub stantially the same, so long as the government has not supplied him with the means of payment. He is equally innocent in both, and has in both precisely the same excuse, viz. obedience to the orders of competent superiors. The orders of April 1795, under which the Neptune was seized, directed the sale of the car goes to his Majesty^s government, as icell as the seizure of them. [ 292 ] If the captor was not answerable for the con sequences of one part of this order, (and we know that he was not,) why was he answerable for the consequences of the other, and if in truth, he was not (out of his own funds) liable for the con sequences of either, why is a decree or process against him personally to be used as the instru ment of giving effect to the responsibility of the government in one case more than the other 1 These are distinctions which I confess myself un able to make, — and I have not found others who differ from me disposed to assist me in making them. The nature of this order of council, and the proceedings upon it, show decidedly that the go vernment alone was intended to be liable to the claimants. It was an order from which the captor was to derive no benefit, and in the execution of which he was to acquire no interest that should create any correspondent liability, unless upon grounds entirely distinct from and out of it. In the body of the order, it was declared that the cargoes were to be purchased by the state; and, accordingly, the Court of Admiralty always so decreed, except where government, in one or more instances, late in the year, gave permission to the claimants to sell to others. The government, after becoming the purchaser, (not for any entire sum or at specific prices, as in common cases.) kept the supposed purchase-mo ney in its own hands, and never placed it under [ 293 3 the control of the court. Of the cargoes it took possession immediately upon their coming into port, without waiting for the formality of Sir James Marriot's orders to sell. The agency and influence of the government is visible and prominent in every step of the trans action. The sale was the obvious eflfect of its will. Even in the ascertainment of the compen sation to be paid to" the neutral owners, (although it is pretended that it was a proceeding in the or dinary course of justice,) the measure of redress was dictated by the state, and, as prescribed, applied. In short, the whole affair was so plainly, and indeed confessedly, a mere political arrangement for the compulsory purchase by the British go- verment of articles of provision from neutrals, that it seems wonderful how it can be imagined that a case, arising under it, was a case between captor and claimant in which the claimant was to look to the captor for the promised retribution. Upon such a subject there needs no laboured argument. I have thus stated the principal reasons upon which I have formed the opinion, " that it does " sufficiently appear on this occasion, that the " claimants could not, by the ordinary course of "judicial proceedings, obtain, have, and receive " adequate compensation for the loss and damage "they are supposed to have sustained by the, " seizure complained of." 38 [ 294 ] The jurisdiction of the Board being establish ed, the rule by which compensation for the cargo should be estimated, came next into discussion. The majority of the Board were for applying the rule adopted in the case of the Betsey, Fur long, i. e. " the nett value of the cargo at its port of destination, at such time as the vessel would probably have arrived there." One of the British commissioners objected to the application of that rule, not only upon the general grounds mentioned in his written opinion in the case of the Betsey, Furlong, which I have elsewhere fully considered, but upon grounds pe culiar to cases arising under the provision order of 1795. The objections peculiar to this class of cases were chiefly founded upon the following positions : 1st. That the order of council was made when there was a prospect of reducing or bringing the enemy to terms by famine ; and that, in such a state of things, provisions bound to the ports of the enemy became so far contraband as to justi fy Great Britain in seizing them upon the terms of paying therefor the invoice price, with a rea sonable mercantile profit thereon, together with freight, demurrage, S^e. 2d. That the order of council was justified by necessity — the British nation being at that time threatened with a scarcity of those articles di rected to be seized. The first of these positions has been rested not only upon the general law of nations, but up- [ 295 3 on the 18th article of the treaty between Great Britain and America. The evidence of this supposed law of nations is principally the following loose passage of Vat tel : " Commodities particularly used in war, and the importation of which to an enemy is prohibit ed, are called contraband goods. Such are mili tary and naval stores, timber, horses, and even provisions in certain junctures where there are hopes of reducing the enemy by famine." (Vattel, b. 3, c. 7,s. 112.) It might be sufficient to say, in answer to this authority, that it is at least equivocal and indefi nite, as it does not designate what the junctures are in which it shall be allowable to hold " that there are hopes of reducing the enemy by famine," that it is entirely consistent with it, to affirm that these hopes must be built upon an obvious and palpable chance of effecting the enemy's reduc tion by this obnoxious mode of warfare, and that no such chance is by the law of nations admitted to e:!tist except in certain defined cases, such as the actual siege, blockade, or investment of particu lar places. This answer, satisfactory enough in itself, would be rendered still more so by com paring what is contained in the foregoing quota tion with the more precise opinions of other re spectable writers on the law of nations, by which we might be enabled to discover that which Vat tel does not in this quotation profess to explain, the combination of circumstances to which his principle is applicable, or intended by him to be applied. [ 296 3 But there is no necessity for relying wholly on this answer, since Vattel will himself furnish us with a pretty accurate commentary on the vague text he has given us. The only instance put by this writer, which comes within the range of his general principle, is that which he, as well as Grotius, has taken from Plutarch. Demetrius (as Grotius expresses it) held Attica by the sword. He had taken the adjoin ing towns of Eleusine and Rhamnus, designing a famine in Athens, and had almost accomplished his design, when a vessel laden with provisions attempted to relieve the city. Vattel speaks of this as of a case in which the provisions were contraband (Sect. 117;) and although he does not make use of this example for the declared purpose of rendering more specific the passage above cited, yet, as he mentions none other to which it can relate, it is strong evidence to show that he did not mean to carry the doctrine of spe cial contraband, farther than the example will warrant. It is also to be observed that in Sect. 113. he states expressly that all contraband goods, (in cluding ot course those becoming so by reason of the junctures of which he had been speaking at the end of Sect. 112,) are to be confiscated. But nobody pretends (and it would be monstrous to pretend) that Great Britain could rightfully have confiscated the cargoes taken under the order of 179.5, and yet if the seizures made under that or der fell within Vattel's opinion, the confiscation [ 297 3 of the cargoes seized would have been justifia ble according to the same opinion. It has long been settled that all contraband goods are subject to forfeiture by the law of na tions, whether they are so in their own nature, or become so by existing circumstances ; and even in early times, when this rule was not so well es tablished, we find that those nations, who sought an exemption from forfeiture, never claimed it upon grounds peculiar to any description of contraband, but upon general reasons, embracing all cases of contraband whatsoever. As it is admitted, then, not only by the order itself, but by the agent of the crown, and every member of this Board, that the cargoes in ques tion were not subject to forfeiture, as contraband, it is manifest that the juncture which gave birth to that order is admitted not to have been such an one as Vattel had in view, or in other words, that the cargoes were not become contraband at all within the true meaning of his principle, or within any principle known to the general law of nations. In confirmation of the above observations upon Vattel, it may not be unimportant to add that Zouch,* who speaks upon this subject almost in the very words used by Vattel in the foregoing quotation, illustrates and fixes the extent of his general doctrine by the case of the investment of Athens by Demetrius. * Bynkershoek too, who lays down his general principle eve» in larger terms than Vattel, evidently confines its application to cases of siege and blockade. [ 298 3 I have understood it to be supposed that Gro tius also countenances the position I am now ar guing against. He divides goods into three classes, the first of which he declares to be plainly contraband, the second plainly not so, and as to the third, he says; " In tertio illo genere usus ancipitis distinguendus " erit belli status : nam si tueri me non possum, " nisi que mittuntur intercipiam necessitas, ut " alibi exposuimus* jusdabit, sed sub onere resti- " tutionis, nisi causa alia accedat." (lib. 3. c. 1. s. 5.) This "causa alia" is afterwards explained by an example, " ut si oppidum obsessum tenebam si por- " tus clausos et jam deditio aut pax expectabatur." This opinion of Grotius as to the third class of goods, does not appear to me to proceed at all upon the notion of contraband, but simply upon that of a pure necessity on the part of the cap turing belligerent. He does not consider the right of seizure as a means of effecting the re duction of the enemy, but as the indispensiWe means of our own defence. ^ ' " He does not authorize the seizure upon any supposed illegal conduct in the neutral, in at tempting to carry articles of the 3d class, to the ports of the enemy, or upon any supposed cha racter of contraband attached to those articles. He authorizes it upon the footing of that sort of absolute necessity on the part of the belligerent, making the seizure, which, by the law of nations, suspends in his favour, sub modo, the rights of others. * Lib. 2. c. 2. s. 6. &c. [ 299 3 This necessity he explains at large, in lib. 2. c. 2 s. 6. &c., and in the above recited passage he refers expressly to that explanation. 1. "Videamus porro ecquod jus communiter " hominibus competat in eas res, quae jam propria! " aliquorum factse sunt, quod quseri mirurn forte " aliquis putet, cum proprietas videatur absorpsisse " jus illud omne, quod ex rerum communi statu " nascebatur. Sed non ita est. Spectandum enim " est, quae mens eorum fuerit qui primi dominia " singularia introduxerunt : quae credenda est talis " fuisse ut quam minimum ab aequitate naturali " recesserit, Nam si scriptae etiara leges in eum " sensum trahendae sunt quatenus fieri potest, " multo raagis mores qui scriptorura vinculis non " tenentur." 2. " Hinc prirao sequitur, in gravissima ne- "cessitate reviviscere jus illud pristinum rebus " utendi, tanquam si communes mansissent : quia "in omnibus legibus humanis, ac proinde et in " lege dominii, summa ilia necessitas videtur ex- " cepta." 3. " Hinc illud, ut in navigatione si "quando defecerint cibaria, quod quisque habet " in commune conferri debeat. Sic et defendendi " mei causa vieini aedificium orto incendio dis- " sipare possum : et funes aut retia discindere " in quae navis mea impulsa est, si alitor explicari " nequit. Quae omnia lege civili non introduc- "ta, sed exposita sunt." Lib. 2, c. 2, s. 6. In sections 7, 8 and 9, Grotius lays down the qonditions annexed to the exercise of this right ef neeessity. As 1st, It shall not be exercised [ 300 ] until all other possible means have been used ; 2d. nor if the right owner is under a hke neces sity ; and 3dly, restitution shall be made as soon as practicable. Vide also lib. 3, c. 17, sect. 1. Grotius examplifies what he has said in the foregoing passages, thus, (sect, x,) " Hinc coUi- " gere est, quomodo ei, qui bellum pium gerit "liceat locum ocupare, qui situs sit in solo paca- " to ; nimirum si non imaginarium, sed certum " sit periculum, ne hostis eum locum invadat, et " inde irreparabilia damna det : deinde si nihil su- " matur, quod non ad cautionem sit necessariura, " puta, nuda loci custodia, relicta domino vero " jurisdictione et fructibus : postremo, slid fiat " animo rediendse custoddse simulatque necessitas " ilia cessaverit. * Enna aut malo, aut necessa- " rio facinore retenta,' ait Livius, quia malum hie, " qutcquid vei minimum, abit a necessitate," &c. From these quotations it must be evident that Grotius, in the first mentioned passage, does not rely upon any principle similar to that which is attributed to Vattel, and that he does not hold the seizure of articles of the third class (among which provisions are included) not bound to a port he- sieged or blockaded, to be lawful when made with the mere view of annoying or reducing the ene my, but solely when made with a view to our own preservation or defence, under the pressure of that imperious and unequivocal necessity, which breaks down the distinctions of property, and upon certain conditions, revives the original right of using things as if they were in common. [ 301 3 In book 3, ch. 7, sect. 1, (of neutrals in war,) this author, riscapitulating what he had said before on this subject, further explains this doctrine of necessity, and most explicitly confirms the con struction I have placed upon chap. 1, sect. 5. (Vide also Lee on Captures, p. 158, where the same construction is put upon Grotius.) Rutherforth, in commenting upon lib. 2, c. 1, s. 5, also explains what Grotius there says of the right of seizing provisions upon the footing of ne eessity — and supposes his meaning to be that the seizure will not be justifiable in that view, " un less the exigency of afllairs is such that we cannot possibly do without them." (2d Ruth. p. 585.) And in commenting on lib. 3, c. 17, s. 1, he says, the necessity must be absolute and unavoidable. (Vide Ruth. p. 586.) So far as Grotius considers the capture of arti cles of the 3d class as a means of reducing the enemy, he confines the right within very narrow limits ; — fbr he supposes the trade of neutrals, in these articles, to be lawful even to a besieged or blockaded port, " unless a surrender or a peace is quickly expected." Instead of stating provisions to be contraband in any case, (other than those of siege or blocks ade,) he declares it to be the duty of neutrals to supply both parties to the war with provisions; (lib. 3, c. 1 7, s. 3 ;) and he places no other restric tion upon this duty than that they are not to re lieve the besieged. 39 [ 302 3 I think that it may be confidently concluded, that this writer, in place of countenancing the or ders of 1 797, upon any idea of contraband, may be relied upon in that view as a strong authority against them.* Every other writer on the law of nations, so far as has come within my observation, in treating upon the subject of contraband, limits the right of seizing goods, not generally contraband of war, (and provisions among the rest) to such cases as I have stated above. Rutherforth, in a work of great merit, speaking particularly of the article of provisions, so con fines this right. (2 vol. Inst. Nat, Law, p. 583.) * Even if it .were proved that the opinion of Grotius (lib. 3, c. 1, s. 5,) applied to the orders of, 1795, the rule of compensation established by the majority of the Board would still be proper. For this writer tells us in the sections before quoted, as well as in the section which contains the opinion relied upon in favour of these orders, that when under the pressure and plea of necessity, we appropriaie that which belongs to others, we must make resti tution or compei)sation to the owner, and of course, we come again to the question in the case of the Betsey, Furlong, " ought not the compensation to be equal to the damage sustained ?" Vat tel, speaking of this right of necessity, and putting the same case with Grotius, has this passage. (Vattel, b. 3, c. 7',s. 122.) "Ej- tr;>me necessity may even authorize the temporary seizure of a jnlace, and the putting a garrison therein for defending itself against the enemy, or preventing him in his designs of seizing this place when the sovereign is not able to defend it. But when the danger is over, it must be immediately restored, paying all the charges, inconveniences, and damages caused by seizing the place."' BurlanLiaqui's Principles of Natural and politic Law, vol p. 1 Ruth. p. 85, and Lee on Captures to the same effect — see also 2 Ruth. 587, and Grotius, lib. 3, c. IT, s, 1, [ 303 ] Bynkershoek (whom I forbear to quote at large, since Mr. Gore has already done so) also so con fines it. Lee, on Captures, ch. 11 and 12, following Bynkershoek, upon a full consideration of the practice of nations, also so confines it ; and he con cludes his 12th chapter in these words, " From what has been said, it appears that the whole matter turns upon the place being besieged or not, as to the goods which are not contraband, (among which he reckons provisions,) or pro hibited by treaty. Those which are so, being at all times during the war lawful prize, &.c. Postell. Specim. Jur. Marit. sect. 11, has the same limitation. See also in Zouch, and Valin's Commentary on the ordinances of Louis the XIV., the same limi tation. It appears that, so far as the authority of the writers on the law of nations can influence this question, the orders of 1795 cannot be rested up on any just notion of contrabapd ; nor can they in that view be justified by the reason of the thing or the approved usage of nations.* * Mr. Hammond's justification of the provision order of ^793, to the American government seems to carry this principle to a still greater extent : for he says, in his letter to Mr. Jefferson, of the 12th of September, 1793, (covering a copy of those orders,) " that by the law of nations, as laid down by the most modera writers, it is expressly stated, that all provisions are to be con sidered as contraband, and as such liable to confiscation, in the [ 304 ] If the mere hope (however apparently well founded) of annoying or reducing an enemy by intercepting the commerce of neutrals in articles of provision, (which are no more contraband iir themselves than common merchandise,) to ports not besieged or blockaded will authorize that in terruption, I think it will follow, that a belligerent may at any time prevent (without a siege or block ade) all trade whatsoever with its enemy ; since there is at all times reason to believe that a na tion having little or no shipping of its own may be so materially distressed, by preventing all other nations from trading with it, that such preven tion may be a powerful instrument of bringing it to terms. The principle is so wide in its nature, that it is in this respect incapable of any boun dary. One may reason upon it to the total anni hilation of neutral commerce — or rather it inevit ably leads to that inadmissable result. There is no solid distinction, in the view of this principle, between provisions and a thousand other articles. Men must be clothed as well as fed ; and even the privation of the conveniences of life is severely felt by those to whom habit has rendered thera necessary. Besides, a nation at war, in propor tion as it can be debarred of its accustomed commercial intercourse with other states, must be enfeebled and impoverished, and if it is allowable case where the depriving the enemy of those supplies, is one of the means intended to be employed for reducing him to reasona ble terms of peace." [ 305 ] to a belligerent to violate the freedom of neutral commerce in respect to any one article of trade, notoriously not contraband in se, upon the expec tation or imagined practicability of annoying the enemy, or bringing him to terms by a seizure of that article, and preventing it from reaching his ports, why not upon the same expectation of an noyance (equally rational, and indeed more so) eut oftj as far as possible, by captures, all com munication with the enemy, and thus strike at ence at his power and resources in a way which would not often fail of being eflfectual ? We know that, in the case of siege or block- ade^ there is no distinction between provisions and other articles of merchandise. The besieger may stop all commodities bound to the place be sieged, and if this barbarous mode of hostility is admitted to extend itself beyond its ancient lim its, I know not where it is to find others, which, while they leave provisions liable to seizure, shall exempt other commodities, not contraband in themselves, from a similar fate. The principle in question, into whatsoever form it may be moulded, will not allow of such a re striction. It stands simply upon the possibility of injuring or bringing an enemy to terms by intercepting provisions on their way to his ports ; or, as we find it in the letter which I have just mentioned in a note, " Upon the intention of em ploying the seizure of provisions on their way to the ports of an enemy as the means of reduc ing him to reasonable terms of peace." Surely [ 306 ] if such a foundation be sufficient for this princi ple, it will always be lawful for a belligerent to do any act whatsoever, or commit depredations upon any trade whatsoever, provided it shall appear to be possible, by doing so, to annoy or bring tht enemy to terms, or provided he shall only intend by doing so to reduce the enemy to reasonable terms of peace. Hence this new rule of the law of nations would furnish a complete apology for the Dutch placart of 1630, by which they prohibited all commerce with Flanders, (doubtless with a prospect, and certainly with an intention of injuring and bring ing the enemy to terms, by enforcing such a firo- hibition,) and for the convention between Eng land and Holland, in the treaty of Whitehall, by which they agreed to prohibit all commerce with France, unquestionably with the same prospect and intention. Yet these attempts have been re probated as lawless and oppressive by all the world ; and in the last instance, upon a counter treaty being entered into between Sweden and Denmark, in 1693, for maintaining their rights and procuring just satisfaction, the parties to the convention (says Vattel) perceiving that the com plaints of the two crowns were well grounded, did them justice. It is true indeed, that these attempts were not made with any reference to the new-found prin- ' ciple ; for it was not then supposed to exist. Those who struck so deeply at the commerce of Europe, in 1630 and I6!^9, seem to have be lieved that they could only lend a colour to theif [ 307 ] enterprize by pretending that they had blockaded, or intended to blockade the ports of their enemies. The pretence was manifestly frivolous ; but it would appear to be at least as well founded as the vague allegation of a hope, or prospect, or in tention of reducing such a country as France by famine. In a word, if a belligerent is empowered by the law of nations to seize the property of neutrals upon its own terms, whensoever that belligerent shall believe, or atiect lo believe that by such means its enemy may be annoyed or reduced, few nations would choose to remain neuter. A state of war would be infinitely preferable to such a state of neutrality. I say, " affect to belit^ve," — because the principle now contended for is liable to be thus abused. Who is to be the judge when there exists a prospect of reducing the enemy by violating the acknowledged liberty of commerce ? If the belligerent is not to be himself the judge, at least in the first instance, the principle is an idle one, and means nothing ; and, if he is to be the j,udge, it follows that the principle is more than an idle one, and will be applied in practice upon false as well as mistaken grounds. What standard have neutral nations to refer to, for the purpose of ascertaining the abuse of this limitless discre tion .'' The standard of siege or blockade is de serted — and what can we substitute in its place but speculative calculations upon probabilities which will be as various as the interests, the hopes, and the inclinations of those who make them, and never can present a certain result until after they [ 308 1 have been acted upon ? It is upon this ground, among others, that modern writers on the law of nations reject the idea of Grotius, that all trade to a place besieged or blockaded is lawful, unless a surrender or a peace is quickly expected. Without professing to enter into much detail upon this occasion, the foregoing considerations appear to me to prove satisfactorily, that the or ders of 1795 cannot, in the light in which I am now considering them, be justified or excused.* * Even if the general position stated by Vattel be admitted in the utmost possible latitude, still it would not follow that provi sions belonging to neutrals, and bound to France, could right fully be seized, as the orders of 1795 directed. Before articles not contraband in se can be seized, even when bouQd lo a besieged or blockaded port, the person attempting to carry them there must be apprised of such siege or blockade, and it is only in his persisting in his efforts to supply the place after such know ledge that his cargo becomes liable to seizure. In what way a neutral is to be informed of the hope or prospects of one belli gerent of reducing the other hy famine, or of its intentions of re sorting to the stoppage and seizure of all provisions bound to the enemy, as a means of reducing him to terms, 1 know not, unless it be from the declarations ef that belligerent : but we may, I think, safely assume that it is indispensible that he should have this information before his cargo of provisions on its way to the ports of the enemy, not besieged or blockaded, can be taken upon any terms of contraband. In cases of seizure under the orders of 1795, the American traders had no information of this sort. Great Britain had made no declaration amounting to a notice of its hopes, prospects, or intentions in this particular ; and how otherwise a neutral could obtain a knowledge of them, it is not easy to conjecture. The orders themselves were not made public. They were mere secret instructions to commanders of armed vessels, and were not even sent to the Court of Admiralty [ 309 ] It is nOw to be seen whether the 18th article of the treaty gives any sanction to those orders. as is usual. Even now it is found impracticable to procure a copy of them, although of every other order issued during the war copies have been easily procured. The provision order of 1 793 (which was made public) contained an alternative, that the vessel stopt might (upon giving security) proceed upon her voyage to the ports of any country in amity with his Majesty. This, to be surf, was little more than a nominal alternative; but it does not appear that the orders of 1795 contained any alternative at all. How can it be imagined that the absolute and unconditional sei zure of these provisions-cargoes could be lawful upon the footing of contraband, when those who were conveying these cargoes to France had not and could not have the least information of the hopes, &c. of Great Britain, of reducing that country by famine ? They could not collect such hopes, &c from any facts known to them ; for in truth there was not any state of things to produce a rational prospect of that sort ; and indeed it may well be doubt ed whether there can be such a state of things in a country like France. To starve a single town or fortress is practicable, be cause it cannot raise provisions to supply itself, and because it may be sufficiently' prevented from receiving supplies from with out ; but the fertile soil, the extensive territories and sea coasts of France, would seem to fix upon an attempt to treat it like a town or garrison, the character of wild and chimerical. At any rate, there must be a concurrence of circumstances, which have not happened in that country, diiring the present war, to authorize the prospect in question. If the orders of 1795 are to be considered as an experiment oa this subject, (and we are told ihat they are,) that experiment has proved the rashness of the hope ; but in fact these orders made no experiment which has not been already made by those of 1793 under circumstances equally, if not more favourable to such an enterprise. I believe the truth to be, that Great Britain in tended by the orders of 1795 to supply its own wants, and had no expectation of making them instrumental in the reduction of the enemv. 40 [ 310 ] Upon this part of the case, I shall content my self with transcribing the observations of a writer of the first eminence in America,* published while the treaty was under discussion there. It will not be necessary to subjoin more than a few re flections of my own, because it happens that the topics now urged at the Board, in reference to this article, are in substance the same with those which occurred to the enemies of the treaty in the United States, and are consequently considered and (in my judgment satisfactorily refuted) in the number of that publication which I am about to quote. Indeed, it may safely be asserted, that if these objections had not been believed in America to be totally groundless, we should not now be sit ting here in the character of commissioners. N"- XXXU.— Of Camillus. " The 1 Sth article of the treaty, which regulates " the subject of contraband, has been grievously " misrepresented — the objections used against it, " with most acrimony, are disingenuous and un- " founded," &c. " The most laboured, and at the same fime "the most false of the charges against the 18th " article of the treaty is, that it allows provi- " sions to be be contraband in cases not heretofore " warranted by the laws of nations, and refers to * General Hamilton. [ 311 J ' the belligerent parly the decision of what these ' cases are. This is the general form of the charge. * The draft of a petition to the legislature of Vir- ' ginia reduces it to this shape — the treaty ex- ' pressly admits " ' provisions are to be held con- ' ' traband in cases other than when bound to an ' ' invested place, and impliedly admits that such ' * eases exist at present.' " " The first is a palpable untruth, which may be ' detected by a bare perusal of the article. The ' last is an untrue inference, impregnated with the * malignant insinuation, that there was a design to * sanction the unwarrantable pretension of a right ' to inflict famine on a whole nation. " Before we proceed to an analysis of the ar- ' tide, let us review the prior situation of the ' parties." | " Great Britain it is known' had taken and act- ' ed upon the ground that she had a right to stop * and detain, on payment for them, provisions be- ' longing to neutrals going to the dominion of ' France. For this violent and impolitic mea- * sure, which the final opinion of mankind will ' certainly condemn, she found colour in the ' sayings of some writers of reputation on pub- ' lie law." " A passage of this kind from Vattel, has been ' more than once quo'ted in these terms, ' Com- * ' modities,' &c. Heineccius* countenances the • I have examined Heineccius, and find that he ranks provi sions among the articles generally contraband of war, for which [ 312 ] " opinion, and even Grotius seems to bear to- " wards it. " The United States with reason disputed this " construction of the law of nations restraining " the general propositions, which appear to fa- " vour it, to those cases in which the chance of " reducing the .enemy by famine was manifest " and probable, such as the cases of particular " places bona fide besieged, blockaded, or in- " vested. The government accordingly -renion- " strated against the proceedings of Great Britain, " and made every effort against it, which pru- " dence in the then posture of affairs would " permit. The order for seizing provisions was "after a time revoked, (i. e. the order of 1793. " W. P.) " In this state our Envoy found the business, " pending the very war in which Great Britain " had exercised the pretension, with the same " administration which had done it ; was it to be " expected that she would in a treaty with us even " virtually or impliedly have acknowledged the " injustice or impropriety of the conduct 1 &c. &c. " On our side, to admit the pretensions of " Great Britain was still more impossible. We " had every inducement of character, right, and " interest against it. What was the natural and he cites Bynkersh. c. 9, and Grotius, lib. 3, t. 17, ». 3. It need not be stated that these writers prove the reverse of this, and that the reverse of it is universally admitted. Indeed, thelSth article expressly admits the reverse of it. W. P. [ 313 ] " only issue out of this embarrassment ¦? Plainly " to leave the point unsettled, to get rid of it, to " let it remain substantially where it was before " the treaty. This I have good ground to believe,' " was the real understanding of the two negocia- " tors, and the article has fulfilled that view. " After enumerating specifically what articles " shall be deemed contraband, it proceeds thus, " ' and whereas the difficulty of agreeing on the "^precise cases in which alone provisions and " ' other articles, not generally contraband, may " ' be regarded as such, renders it expedient to " ' provide against the inconveniences and mis- " ' understandings which might there arise : It is " ' further agreed that whenever any such arti- " ' cles, so becoming contraband, according to the - " ^ laws of nations, shall for that reason be seiz- " * ed, the same shall not be confiscated, but the " ' owners thereof shall be speedily and complete- " ' ly indemnified ; and the captors, or, in their " ' default, the government under whose authority " ' they act, shall pay to the masters or owners of /' ' such vessels the full value of all the articles "'with a reasonable mercantile profit thereon, " ' together with the freight, and also the demur- " ' rage incident to such detention." ' " The difficulty of agreeing on the precise " cases in which articles not generally contraband " become so from particular circumstances, is ex- " pressly assigned as the motive to the stipula,tion " which follows. [ 314 J "This excludes the supposition that any cases " whatever were intended to be admitted, or " agreed. But this difficulty rendered it expe- " dient to provide against the inconveniences and "misunderstandings, which might thence arise ; " a provision with this view is therefore made, '• which is that of a liberal compensation for the " articles taken. The evident intent of this pro- " vision is, that in doubtful cases, the inconve- " niences of the neutral party being obviated or " lessened by compensation, there may be the less " cause or temptation to controversy and rup- " ture, and the affair may be the more suscepti- " ble of negociation and accommodation. More " than this cannot be pretended, because the " agreement is, ' that, whenever any such arti- " ' cles, so become contraband according to the " ' existing laws of nations, shall for that reason be " ' seized, the same shall not be confiscated, but " ' the owners, &.c." ' " Thus the criterion of the cases in which arti- " cles, not generally contraband, may from par- " ticular circumstances become so, is expressly " the existing law of nations, in other words the " existing law of nations at the time the transac- " tion happens. When these laws pronounce " them contraband, they may for that reason be " seized ; when otherwise, they may not be seiz- " ed. Each party is as free as the other to de- " cide whether the laws of nations do, in the given " case, pronounce contraband or not, and neither [ 315 ] " ia obliged to be governed by the opinion of the " other. If one party, on a false pretext of being " authorized by the law of nations, makes a " seizure, the other is at full liberty to contest it, " to appeal to those laws, and if he thinks fit, to " oppose even to reprisals and war. This is the " express tenor of the provision ; there is nothing *' to the contrary; nothing that narrows the ground, " nothing that warrants either party in making a " seizure which the laws of nations, independent " of the treaty, do not permit ; nothing which " obliges either party to submit to one, when it is " of opinion that the law of nations has been vio- " lated by it." "But as liberal compensation is to be made in " every case of seizure whereof difference of opi- " nion happens, it will become a question of pru- " dence and expediency whether to be satisfied " with the compensation, or to seek further re- " dress. The provision will in doubtful cases " render an accommodation of opinion the more " easy, and, as a circumstance conducing to the " preservation of peace, is a valuable ingredient " in the treaty. A very diflferent phraseology " was to have been expected, if the intention had " been to leave each party at full liberty to seize " agreeably to its own opinion of the laws of na- " tions, upon the condition of making compen- " sation. The stipulation would not then have " been. " ' It is agreed that whenever either of " ' the contracting parties shall seize any such ar- [ 316 ] " ' tides so becoming contraband." ' This makes " not the opinion of either party, but the fact of " the articles having become contraband by the " laws of nations, the condition of the seizure. " A cavil has arisen on the term ' existing,' as , " if it had the effect of enabling one of the par- " ties to make a law of nations for the occasion.* " But this is mere cavil. No one nation can make " a law of nations, no positive regulations of one " state, or of a partial nomination of states, can " pretend to this character. A law of nations is " a law which nature, agreement, or usage hases- " tablished between nations ; as this may vary " from one period to another, by agreement or " usage, the article very properly uses the term " ' existing' to denote that law which, at the time " the transaction may happen, shall be then the " law of nations. This is a plain and obvious " use of the term, which nothing but the spirit of "misrepresentation could have perverted to a " different meaning." " The argument against the foregoing construc- " tion is in substance this : It is now a settled doc- " trine of the law of nations, that provisions and " other articles, not generally contraband, can ea- " sily become so when going to a place besisged, " blockaded or invested. Cases of this kind are fully * This has not been urged at the Board on this occasion, but in the case of the Betsey, Furlong, Mr. Goatling's objection to the jurisdiction amounts to it. W. P. [ 317 ] " provided for in a subsequent part of the article ; "the implication, therefore, is that something " more was intended to be embraced in the ante- " cedent part."* " Let us first examine the fact whether all the " cases of that kind are comprehended in the " subsequent part of the article — I say they are " not. The remaining part of the clause divides '-' itself into two parts. The first describes the " case of a vessel sailing for a port or place be- " longing to an enemy, without knowledge that " the same is either besieged, blockaded, or in- " vested and provides that, in such a case, the " vessel may be turned away, but not detained, ." nor her cargo, if not contraband, confiscated, " unless after notice she shall again attempt to " enter. The second describes the case of a ves- " sel or goods which had entered into such port '' or place before it was besieged, «fcc. ; and de- " Glares that neither the one nor the other shall be " liable to confiscation, but shall be restored to " the owners thereof. These are the only cases " described or provided for. A third, which oc- " curs on the slightest reflection, is not mentioned. " The case of a vessel going to a port or place " which is besieged, blockaded, or invested, with " notice of its being in that state when she com- * This argument at the Board, stood thus : — cases relative ta siege, &c., ure fully provided for in the latter part of the article, and, therefore, t|)e former part is intended to embrace something more. W. P. 41 [ 318 ] " mences her voyage, or previous to her receiv- " ing notice from the besieging, blockading, or " investing party. This is left to the operation " of the general law of nations, except so far as " it may be affected in respect to compensation " by the antecedent clause. Thus the fact which " is the foundation of the argument fails, and "with it of course — the argument itself. " But had this been otherwise, the conclusion "would still have been erroneous. The two " clauses are entirely independent of each other, " and though they might both contemplate the " same cases in the whole or in part, they do it " with an eye to very different purposes." " The object of the first is to lessen the danger " of misunderstanding, by establishing this gene- " ral rule, that whenever articles not generally " contraband, become so from particular circura- " stances according to the law of nations, they " shall still not be confiscated, but when seized "the owners of them shall be indemnified." " The object of the last is to regulate some " special consequences with regard to vessels and " goods going to, or which had previously gone " to, places besieged, blockaded, or invested ; and " in respect to which, the dispositions of the laws " of nations may have been deemed doubtful or " too rigorous. Thus it is held, that the laws of " nations permit the confiscation of ships and " goods going to places besieged, blockaded, or " invested ; but this clause decides that if going " without notice, so far from being confiscated [ 319 ] " they shall not even be detained, but shall be " permitted to go whithersoever they please. If " they persist after notice, then the contumacy " shall be punished with confiscation. In both " instances, the consequence is entirely different " from every thing in the antecedent clause. There "then is seizure with compensation. Here, in " one instance, seizure is forbidden, and permis- " sion to go elsewhere is enjoined. In the other in- " stances, the offending things are confiscated, " which excludes the idea of compensation. "Again, the last part of the last clause stipulates, " in the case which it supposes, the restoration of " the property to its owners, and so excludes both " seizure and compensation. Hence it is appa- " rent that the objects of the two clauses are cn- " tirely foreign to each other, and that no argument " or inference whatever can be drawn from the " one to the other." " If it be asked what other cases there can be, " except those of places besieged, blockaded, or "invested.? and if none other, what difficulty in " defining them ? and why leave the point so vague "and indeterminate.? One answer, which, in- ' deed, has already been given in substance, is, " that the situation of one of the parties prevent- " ed an agreement at the time ; that not being able " to agree, they could not define, and the alterna- " tive was to avoid definition. The want of defi- " nition only argues want of agreement. It is " strange logic that this or that is admitted be- " cause nothing is defined !" [ 320 1 " Another answer is, that even if the parties had " been agreed that there were no other cases than " those of besieged, blockaded, or invested places, " still there would ha\e remained much room for " dispute about the precise cases, owing to the " impracticability of defining what is a besieged; " blockaded, or invested place. About this there " has been frequent controversy ; and the fact is '' so complicated, and puts on such a variety of " shapes, that no definition can well be devised " which will suit all. Thence nations, in their " compacts with each other, frequently do not at- " tempt one ; and, where the attempt has been " made, it has left almost as much room for dis- " pute about the definition, as there was about " the thing." " Moreover, is it impossible to conceive other " cases than those mentioned above, in which pro- " visions and other articles not generally contra- " band might, on rational grounds, be deemed so? " What if they were going expressly, and withno- " tice to a besieged army, whereby it might ob- " tain a sujiply essential to the success of its ope- " rations ? Is there no doubt tliat it would be jus- " tifiable in such case to seize them ? Can the " liberty of trade be said to apply to any instance " of direct and immediate aid to a military ex- " pedition? It would be at least a singular effect " of the rule, if provisions could be carried without " interruption, for the supply of a Spanish army " besieging Gibraltar, when, if destined for the [ 321 ] " sapply of the garrison in that place, they rriight " of right be seized by a Spanish fleet. " The ca lumniators of the article have not had " the candour to notice that it is not confined to "provisions, but speaks of provisions and other " articles. Even this is an ingredient which com- " bats the supposition that countenance was to be "given to the pretensions of Great Britain with " regard to provisions which, depending on a rea- " son peculiar to itself, cannot be deemed to be "supported by a clause including other articles "to which that reason is entirely inapplicable." " There is one more observation which has " been made against this part of the article, which " may deserve a minute's attention. It is this, " that although the true meaning of the clause be " such as I contend for, still the existence of it af- " fords to Great Britain a pretext for abuse, which "she may improve to our disadvantage. I an- " swer, it is difficult to guard against all the per- " versions of a contract which ill faith may sug- " gest. But we have the same security against "abuses of this sort, that we have against those of " other kinds, the right of judging for ourselves, " and the power of causing our rights to be re- " spected. We have this plain and decisive re- " ply to make to any uncandid construction which " Great Britain may at any time endeavour to "raise. ' The article pointedly and explicitly "' makes the existing law of nations, the stan- "' dard of the cases in which you may rightfully " ' seize provisions and other articles, not gene- [ 322 J " * rally contraband. This law does not autho- " '"rize the seizure in the instance in question ; you " ' have consequently no warrant under the treaty " ' for what you do." ' " The same disingenuous spirit, which tinctures " all the conduct of the adversaries of the treatyj " has been hardy enough to impute to it the last " order of Great Britain to seize provisions going " to the dominions of France." " Strange ! that an order issued before the " treaty had ever been considered in this country, " and embracing the other neutral powers be- "sides the United States should be represented " as the fruit of that instrument ! The appear- " ances are, that a motive no less imperious than " that of impending scarcity has great share in " dictating the measure, and time I am persuaded " will prove that it will not even be pretended to " justify it by any thing in the treaty." In this last persuasion it appears that this wri ter has been mistaken ; but his inducements to adopt it will hardly fail to convince those who shall be disposed to examine them with candour, that, although the persuasion has not been, coun tenanced by the event, it will not be brought into discredit by it. There is one topic which the 18th article of the treaty has produced at the Board, upon which Ca millus has not observed, and upon which I shall, of course, bestow some slight consideration. That article says, that the owners of the cai'goes becoming contraband by the laws of nations, and [ 323 ] for that reason seized, shall be speedily and com pletely indemnified. It is argued that, as the article goes on to express the understanding of the contracting parties as to the import of the terms completely indemnified, by prescribing a rule for the attainment of com plete indemnification, we have here a precise commentary upon the words " full and complete compensation," used in the seventh article of the treaty. The rule is, " the value of the cargoes and a reasonable mercantile profit, with freight," &c. I shall not trouble myself to inquire into the exact scope of this rule, — nor shall I occupy my self with an inquiry whether the words indemifi- cation and com,pensation are so far synonimous as that we should be justified in taking the sense of the contracting parties upon the import of the former, as conclusive evidence of the import of the latter. For, surely, a rule which should com pletely indemnify or compensate the owner of goods become contraband, and for that reason rightfully taken from him by the laws of nations, might still be wholly inadequate to the complete compensation of the owners of a cargo wrong fully captured or condemned. The term complete indemnification or compen sation depends, for its scope and for the rule which shall attain it, upon the nature of the case to be redressed. We are required by the Vllth article, in all cases to grant " complete compensation," where we grant any thing — but [ 324 ] do we apply the same rule in every case 1 or do we not rather understand by " complete compen sation" that retribution which is commensurate with the'injury received 1 , In short, it can never be satisfactory to abstract the words " complete indemnification" in the 18th article from the subject to which they are applied, and then, reasoning upon their abstract meaning, to draw an inference from them that shall affect an entirely different subject. There is not a mem ber of this Board who has heretofore acted upon this idea. We have all agreed that in granting " complete compensation" we are not always obliged to give freight or demurrage ; but the rule in the 18th article gives freight and demurrage universally ; and if that rule is proper for our go vernment at all, we must adopt it uniformly, for we are compelled to grant complete compensation in every instance in which it is proper for us to relieve. This absurdity would follow, that we should apply the same measure of redress to cases wholly different in principle, and, instead of suit ing the compensation to the injury under all its circumstances, should treat alike a claimant whose case was liable to no exception, and one whose case was attended with such facts as not only to warrant the original capture for the purpose of judicial investigation, but to destroy the equitable claim to freight and all title to demurrage. 2dly. We are next to inquire whether these or ders were justified by necessity, Grefit Britain be- [ 325 ] ing as alleged at the time of issuing them threa tened with a scarcity of those articles directed to be seized. I shall not deny that extreme necessity may jus tify such a measure. It is only important to as certain whether that extreme necessity existed on this occasion, and upon what terms the right it communicated might be carried into exercise. We are told by Grotius, that, the necessity must not be imaginary — that it must be real and press ing, and that even then it does not give a right of appropriating the goods of others until all other means of relief, consistent with the neces sity, have been tried and found inadequate. Ruth erforth, Burlemaqui, and every other writer who considers this subject at all, will be found to con cur in this opinion. No facts are stated to us by the agent of the crown, from which we might be justified in in ferring that Great Britain was pressed by neces sity like this — or that, previous to her resorting to the orders of council, other practicable means were tried for avertincf the calamity she feared. It is not to be doubted that there were other means. The offer of an advantageous market, in the diflferent ports of the kingdom, was an ob vious expedient for drawing into them the pro duce of other nations. Merchants do not require to be forced into a profitable commerce. They will send their cargoes where interest invites, and if this inducement is held out to them in time, it will always produce the eflfect intended. 42 [ 326 t But so long as Great Britain offered less for the necessaries of life than could have been ob tained from her enemy, was it not to be expected that neutral vessels should seek the ports of that enemy and pass by her own ? Can it be said that under thc apprehension (not under the actual ex perience) of scarcity, she was authorized to have recourse to the forcible seizure of provisions be longing to neutrals, without attempting those means of supply which are consistent with the rights of others, and which were not incompatible with the exigency ? After these orders had been issued and carried into execution, the British government did what it should have done before. It offered a bounty upon the importation of the articles of which it was in want. The consequence was, that neutrails came with these articles, until at length the mar ket was found to be overstocked. Thj& same ar rangement, had it been made at an Earlier period, Would have rendered wholly useless the orders of 1795. I do not undertake to judge, for I have no suf ficient data upon which to judge, whether at the , time of issuing these orders, there was, or was not, reasonable ground for apprehending that sort of scarcity which produces severe national dis tress, or national despondency, unless extraordi nary measures were taken for preventing it. But it will not admit of a question, that there was no ground for apprehending that such a ca lamity would happen, unless the govei'nment re- ¦ [ 327 ] sorted to depredMions upon neutral trade, and seized by violence the property of its friends. That such a resource should not be placed in the front of the expedient for warding off" an evil like this, seen only in perspective, is too plain for argument. I do not desire, on this occasion, to determine more than is necessary to the formation of a cor rect judgment upon the case before us : and hence it is that I content myself with the limited view I have here taken of this part of the subject. Let it now be supposed that the alleged ne eessity was such as warranted the orders of 1795, and the seizure under them. How does this vary the rule of compensation I Upon this supposition no more will be proved, than that Great Britain might by force assume the pre-emption of the ar ticles in question ; but can it be imagined that she could assume this pre-emption upon any other terms than giving to the neutral as much as he could have obtained from those to whom he was carrying them ? Great Britain might be able to say to neutrals, "you shall sell to us ;" but does it follow that she ^ould also say, you shall sell to us upon worse terms than you would have procured elsewhere in the lawful prosecution of your commerce ? The authorities already cited in a note will an swer these questions satisfactorily. Grotius, Jib. 2, c. 2, s. 6, &c. — lib. 3, c. 1, s. 5, c. 17, s. 1. &c. — 1 Ruth. 85, and Burlemaqui — [ 328 ] Vattel, b. 3, c. 7, s. 122—1 Ruth. 405—2 Ruth. 586, 7. But uj>on such a subject neither authorities nor arguments can be required. WM. PINKNEY. London, 25th June, 1797. THE MOLLY— Young. Mr. Pinkney. — The information given to the Board, by Joshua Johnson, Esq., in relation to this case, has satisfied me that the memorial ought to be disniissed. But for that information, I should think the claimants entitled to demurrage.* 27th Feb. 1797. WM. PINKNEY. * It may be necessary to add, by way of explanation, that die demurrage above alluded to is not on account of the detention of the vessel,y«r the piirpose of giving effect to the captor's right to the cargo, but on account of her detention, when it was no longer necessary in reference to the cargo, and when the object of it was solely the vessel herself. The papers, both false and irue, and all the evidence in the cause, concurred in showing the property of the vessel to be as claimed ; ancl, but for the information of Mr. Johnson, I should have determined that inquiry into that property, after such a con currence of testimony, was unreasonably protracted, and that much of the intermediate detention, from the appearing of that testimony until the decree for restitution was wrongful. The capture was on the Sth of August, 1793. The cargo was condemned 2d of May, 1794, but the vessel was not restored un- [ 329 ] THE ^AhluY—Choate, Master. Mr. Pinkney. — I am of opinion, 1st. That the claimants are entitled to the costs below, to , damages and demurrage. 2d. That they are entitled to the costs of appeal, and to be reimburs ed such costs as were adjudged against them to the captors. * There was no probable cause of seizure or de tention. The orders of the 6th November 1793, relied upon in the respondent's printed case, might have excused the captor in a controversy between him and the claimants, but can have no weight in a question between the claimants and the British government under the treaty. The complaint is now to be considered independent of those orders. According to Vattel, credit should have been given to the ship's papers produced by the neu tral master at the time of the capture, unless any fraud appeared in them, or there were very good reasons for suspecting their validity. ist. The ship's papers upon the face of them bore no marks of fraud, and aflforded no reason at all to justify a doubt of their validity and fairness. til the 5th of July following — although no new lights were thrown upon the property of the vessel. This explanation is made long after the filing of the foregoing opinion, the inexplicit nature of which did not sooner strike me in fact, it is only inexplicit to those who are not acquainted with the circumstances of the case in which it was filed. W. P. [ 330 ] The want of formal bills of lading could not affect their credit, as there were papers on board in substance equivalent to them. Invoices to which the master's acknowledg ments were subjoined, stating explicitly for whose account the goods were shipped, and engaging to follow the shippers' instructions by which they were accompanied, and to which they refer, an swered every object for which bills of lading are calculated. The invoices, acknowledgments and instructions, taken together, formed a body of clear and une quivocal evidence of the ownership of the cargo, its place of destination, the person to whom it was consigned, and the manner in which the proceeds were to be disposed of Bills of lading could not have done more, nor indeed so much ; and if in point of information, they would at most have been barely equal to these documents, in point of law they could not in any respect lay claim to su perior efficacy. Indeed, as the whole cargo was consigned to the master on board, the manner in which it was documented was better suited to the nature of the transaction than bills of lading in the customary form. An engagement on the part of the master to deliver the cargo to himself upon his arrival in port, could hardly be so proper as an engagement to follow the instructions of the consignors either endorsed upon or accompanying the invoice. It is alleged in the printed case of the respon dents that there is in thk respect an trrecoiu^^eo&^e [ 331 1 inconsistency between the letter of instruction^ from the ship owners to the master and the other papers relative to the cargo. It is true that this letter does direct the master to take his freight for goods not shipped on their account, according to bills of lading, but it is so obvious that thie was mere inaccuracy, that it ought not to have been mentioned as a rational ground of suspicion. The instructions of those who shipped the goods on freight prove universally that there was no bill of lading signed for them, for they refer to an invoice and to that only ; which invoice, having the master's acknowledgment and engagement as above stated, subjoined together with the freighters' instructions therein referred to endor sed, was, to every purpose of law or explicitness, equal to a bill of lading, and might well have been ealled so by the ship-owners (putting inadvertence out of the question) without hazarding the credit of the ship's papers with thoscj who should be dis posed to place upon them a just and liberal con struction. But surely if a bill of lading was purposely omit ted with dishonest view«, the same views would have induced the ship-owners to say nothing about bills of lading in their instructions to the master, which doubtless were not intended for concealment. If bills of lading were actually signed, but meant to be concealed from British or other cruizers, for fraudulent purposes, it was the perfection of stu pidity to refer to thera in that very paper which [ 332 ] was sure to come under the inspection of those ao-ainst whom the fraud was meditated. If it was designed to carry on a fraud by means of show ing false papers, and concealing true ones, what reason can be imagined why the master should not have signed and taken with him false bills of lading, as well as receive on board, as instru ments of deception, ya/sc and colourable invoices, to which he made himself a party as effectually as he could be to bills of lading? There can he no reason, unless we suppose that fraud consults form in what it intends to keep out of sight, but neglects it altogether in what it fabricates, as the only means of imposition, that it is scrupulously technical when it is of no use to be so, but is slovenly and negligent when its own object pre scribes to it a nice attention to regularity and ac curacy. He who adopts such a supposition must reject all experience. In short, the objection ap pears to be manifestly captious. It is further objected by Mr. Gosling, thatthe master's pretence of the vessel's destination from Rochelle to Amsterdam is contradicted by the letter of instructions from the ship-owners, &c. If we are to take the letter of instructions with out the postscript under the same date, this allega tion is true. But why it is that we are to reject the postscript, (which expressly authorizes the des tination to Amsterdam,) it would have been well for the objector to have explained. 2d. If (as I hold to be most clear) the papers on board were free from any imputation upon the' [ 333 ] face of them, it is to be considered whether the preparatory examinations furnished any thing up on which to impeach thein. The law of nations requires that a belligerent making prize of a neutral, in the teeth of proper written documents, shall have very good reasons for his conduct. The reason in this case (even admitting it to have been known to the captor at the tinie of the sei?:ure, which is not at all likely) was simply that Anduze, a Frenchman, who hap- (pened to . . that he is bound to pretermit the exercise of his right of coming within the eighteen months, in order to put himself in a capacity to ask a favoiu' in relation to the extension of that term, which he does not know that we shall grant. Every claimant then, whose case is or can be come proper for our cognizance, (and we all ap' pear to agree that every case may, sooner or later , , , become so,) may file his application within the eighreen months, and if it be manifestly in his power to do so, must file it within that period'. [ 349 ] The complaints in question, therefore, have been duly preferred under the article. 2d. If they have been duly preferred under the a/rticle, it will not be difiScult to prove by the express letter of it, that it is note our duty to pro ceed to the examination and decision of them, according to their merits, and to justice, equity, and the laws of nations. It is not, I think, to be doubted that the framers of the treaty, in adjusting the terms of our official oath, have taken care that they should be suitable to their own views, and to our powers ; nor can it be too much to assume that whatsoever we find in that oath may be safely relied upon, so far as it reaches,- as indisputable evidence of our duty. The oath commands us diligently to examine and decide according to their merits, and to jus tice, equity, and the laws of nations, all such complaints as under the seventh article shall be preferred to us. Thus, then, a diligent examination and deci sion of complaints is required to follow their due exhibition, a command which assuredly cannot be fulfilled, in regard to the class of cases in ques tion, by delaying all examination and decision until the Lords of Appeal (and in some instances Sir James Marriott, and after him the Lords) shall have determined upon thera, and until the tardy and circuitous process of that tribunal shall have been successively spent against captors, owners, and bail, to enforce their determination. 45 [ 350 ] Nothing can be n ore conclusive than the lan- guaj/e oC this oath to show thatthe makers of the treaty did not mean to authorize, far less enjoin, the indefinite procrastination now contended for; but on the contrary that they designed to secure to the article that prompt and ready execution which alone could render it either just or satisfac tory. 3d. But, independent of the explicit language of the oath, the whole scheme of the provision itself points to a certain epoch, beyond which there shall not, of necessity, be any delay. The fixing ofa period within which claims were to be preferred, and the precise and very narrow limits imposed upon the power to extend it in particular cases, is unequivocal proof that the complete fulfilment of our functions was not to depend upon events which might not happen for years, and might never happen at all. It is not practicable to conceive any valuable object that could be expected to be answered by compelling claimants to make their applications within a certain time, or to be barred for ever from redress, if these applications were afterwards to be dormant, not only until the determination of Admiralty suits, but until the execution of Admi ralty decrees. In thus requiring the presentation of com plaints within a defined limit, the framers of the treaty clearly suppo.'?e that all complaints, ca[ia- ble of being perfected at all, would be perfected [ 351 ] by the lapse of it, that they wbuld in its course obtain the ingredients indispensible to their va lidity, and that they would then or never be true in all those material allegations essential to their title to consideration and redress. In any other view they call upon parties to complain before the injury is consummate, and when it is uncertain that it ever will be so, and command them to allege that which is false, and may never be otherwise, for no conceivable purpose. It is not to be believed that claims would be thus forced before us with such anxious haste, and at the risk of so serious a penalty as future exclusion, if the negociators had not meant that they might be acted upon as perfect. They would at least have guarded against the consequences to which this premature exhibition of them (if such they intended it to be) was plain ly calculated to lead. They would have protected those uninformed and defective applications from dismissal during their progress to completion, if they had conceived that they were to rely for their perfection on a train of circumstances to occur long after they should be preferred. But they have not done this : so that if these applications do in fact want the characteristic feature of a complaint under the article, there is nothing to hinder us from re jecting them at once as irrelevant and groundbiss, and thus shutting them out from all possibility of relief. [ 352 ] 4th. The article provides that his Britannic Majesty will cause the compensations adjudged by us to be paid at such places and times as we shall award, " and on condition of such releases " or assignments as by the said commissioners " may be directed." If it was in the contemplation of the contract ing parties that the judicial remedy should in all its stages be exhausted by every claimant before he should be authorized to demand our aid, it is not easy to ascribe to this provision for assign ments any motive worthy of entering into a na tional stipulation. But if it be supposed, that all cases in which the judicial remedy could not be exhausted within the time limited for preferring complaints, were, at the expiration of that time, to be subject to our cognizance, an adequate view is immediately found for this provision. 5th. If the British commissioners are right in their construction of the article, there never was a stipulation formed upon more inadmissible or more discordant principles. According to that construction, the article re fers the claimant in the first instance to the Courts of Admiralty of this country in a way so absolute, as only to allow him to come to us for an awhrd when they shall have finally refused him redress, or, having decreed him redress, when it shall have been found impracticable, after a thorough trial, to enforce that decree. [ 353 ] But although every thing is thus made to de pend on the Courts of Admiralty, and although we are to have no jurisdiction until they shall have thought proper to determine, there is no part of the article which gives to the claimant any assurance that these courts shall perform with reasonable diligence, or even at all, what is thus made to depend on them. The case of the Betsey, Furlong, gives me au thority now to say that this implicit confidence in the maritime tribunals of Great Britain, (what ever titles they may have to the respect of neutral nations,) is so far from distinguishing the seventh article of the treaty, that even after a decision by the highest Prize Court in the country against the claimant, we are authorized to entertain his claim, inquire into the merits of it, and grant compen sation against the British government, if by the laws of nations, as applied to the case, we shall think it right to do so. But if the time of decision is thus to be left to these Courts of Prize, without any limitation whatsoever, why is it that the confidence which this implies is not extended to the decision itself? If the time of redress is to be entirely with them, why is it that the redress itself is not ex clusively submitted to the same discretion 1 In fact, the most important point to be guarded against, and that which it was most natural to an ticipate, was delay : for it was not probable that the decrees of so enlightened a tribunal as the Lords Commissioners of Appeal, could, in many [ 354 J instances, be the subject of well-founded com plaint ; but it was not at all improbable, that such a tribunal should sometimes administer justice with more wisdom than despatch. The preamble to the treaty declares the inten tion of the parties to it, to terminate their differ ences, (among which the captures and condem nations recited in the seventh article were far from being the least considerable,) in such manner as should be best calculated to produce mutual satisfaction and good understanding. In the spirit of this preamble, and in the nature of the thing, it seems just to consider the seventh article as a self-efficient definite arrangement, in trinsically adequate to the accomplishment of the object it professes to aim at. But the interpretation put upon it by the Bri tish commissioners wholly deprives it of this cha racter, by denying to it all activity and effect un til the Courts of Prize of one of the contracting parties shall have done what the article does not stipulate that they shall do, either within a speci fied period, or generally within a reasonable time. Such an interpretation places the promise con tained in the article in the power of the party making it, and thus leaves it a promise merely in name and form. I cannot form an idea of a scheme of redress more ridiculously feeble and inoperative. On the other hand, if oiir construction be re ceived, the article will be rendered, not only con sistent in all its parts, and simple and uniform in [ 355 1 its principle, but capable of fulfilling its own destination. Nor does this construction, as has been sup posed, in any shape, violate the letter of this article. The words of the agreement are, " that in all " such cases where adequate compensation cannot, " for whatever reason, be now actually obtained, " had and received by the said merchants and " others, in the ordinary course of justice, full and "complete compensation will be made," &c. That the impracticability of obtaining judicial redress, as mentioned in this agreement, could only be established by subsequent events — by the result of actual experiments then making, or to be made, by the claimants — is admitted by us all. The judicial remedy was to be tried; and, doubtless, it was meant that it should be fairly tried. Thus far it is clear ; but it does not follow that the duration of the prescribed experiment was intended to be indefinite. The negociators might suppose, and evidently did suppose, that a term might be fixed, at the close of which that experiment should be said to be complete, and the inadequacy of the judicial remedy suflSiciently manifested. The efficacy of the arrangement they were forming demanded that such a term should be agreed on. It could not have the stamp and quali ty of a conclusive stipulation without it. It could not, as a contract, be said to have done any thing [ 356 j secure or obligatory, until such a limitation was inserted in it. That limitation is accordingly its prominent feature. It is to be seen in its letter, and to be in ferred from every portion of the article, as I have already shown. Nor is the limitation such a one, as it was im proper for the United States to ask, or Great Britain to grant. The treaty was framed in November, 1794, when the great mass of the cases were sub judice. Our Board was organized in 1796, and, conse quently, the eighteen months assigned for the re ceipt of claims did not expire till April last : so that the limitation was not, could not, be much short of three years and a half. It ousfht to be remembered, too, that- the cases were not, in general, those of ordinary capture, but seizures under the immediate instructions of the British government ; instructions of which it is moderate to say, that some were of highly questionable legality, while others were plainly unlawful. It was not to be required (especially in a plan whose object was conciliatory and accommoda ting) that the neutral claimant should, under these, and perhaps other circumstances of aggravation, be compelled, for an' indefinite length of time, to. follow the captors for retribution through all the dilatory forms of admiralty proceedings, before the responsibihty of the British government should become an available means of compensation. [ 357 ] That government, being originally a party to the wrong, could ask only a qualified resort to the or dinary remedy in its courts of judicature. The foregoing sketch, which has reached a size, I did not wish or intend, contains the out line of my reasons on the subjects herein pro posed. It is not such as I could desire it to be, for it has been hastily made ; but I put it upon our files in the confidence that it will be received with candour. WILLIAM PINKNEY. London, June 26th, 1798. EXTRACTED FROM THE MINUTES. 16th of April, 1803. Mr. Pinkney observed that the nature of the motion,* and the circumstances connected with it, made it proper that he should explain at some length the view he had taken of the questions in volved in it. These questions are, Ist. Whether the Board is competent under the treaty and convention, to include in the amount of compensation to be awarded to claim ants, if it shall appear to be just and equitable to do so, interest during the late suspension 1 * A motion made by Mr. Gore, that theCommissioners should proceed to subscribe the awards ready for their signature. 46 [ 358 ] 2d. Whether it would be just aad equitable to do so ? On the first question, It is understood that no doubt is entertained as to our power on the subject of interest general ly. The actual doubt is confined to interest from July, 1799, when our proceedings were interrupt ed by the interference of the I'ritish government until the resumption of our duties in January or February 1802, after the making of the convea- tion. It is not easy to ascertain the exact foun dation of this extraordinary doubt ; but so far ae I am able to collect it from the entry on the Jour nals of the 17th of last month, made at the in stance of Dr. Swabey, I understand it to be, that the treaty did not contemplate such an incident as this interruption of our proceedings, and there fore could not intend to authorize the allowance of interest during that interruption, and moreover that such interest is not the subject of any provi sion in the convention subsequently concluded : It is of course supposed to be casus omissus. In the examination of this ground, (which Dr. Swabey now admits to be correctly stated,) I might certainly decline to perplex myself with an inquiry whether the framers of the treaty did, or did not foresee that our progress might be occa sionally suspended by the occurrence of difficul ties growing out of the novel and complicated ar rangements contained in the sixth and seventh articles. It would be sufficient to say, that the assumption of the fact, that such a suspension [ 359 ] oould not be, or was not. contemplated at the making of the treaty, is purely gratuitous : but I cannot forbear to add, that, of all gratuitous as sumptions, it is the least suited to the use that haa heen made of it. as it is npt only highly improba ble in itself but would be of no importance in the argument, if it were true. It is, undoubtedly, to ascribe to the makers of the treaty a singular and most discreditable want of foresight to suppose that it never occurred to them, that obstacles against which no human wisdom could guard, might in the course of this before untried experi ment, temporarily arrest our proceedings with out destroying our functions ; and this supposi tion will appear to be more peculiarly inadmissi ble when it is considered that independent of the difficulties in America, by which the commission under the sixth article was constantly embarrassed so as that it might almost be said to be in a per petual state of suspension, we ourselves had scarcely assembled in 1796, before our proceed ings in a whole class of cases of the greatest value and extent were entirely suspended ; nor did the interruption cease until the British government, in a way which it ought to be confessed was high ly honourable to it, thought proper to direct its commissioners to go on. Soon afterwards (early in 1798) we were reduced to a similar predica ment in another class of cases, then comprehend ing the whole, or nearly the wh6le of the com- pla nts before us. So that, in truth, the suspension now in question was the third by which the com- [ 360 ] mission has been retarded since its first organiza tion. Of such an event, therefore, which this new and delicate scheme of adjustment was naturally to be expected to produce not once only, but frequent ly, and which accordingly it did produce, from time to time, as difficult topics presented themselves for discussion, it cannot be allowable to say, that it was an incident not in the contemplation of the treaty, or of those by whom it was framed. But admitting it to be true that the exact case of a suspension was not, at the making of the treaty, contemplated as a possible incident, does it therefore follow, that if a suspension should nevertheless occur, every thing connected with it, or arising out of it should, upon our resuming our proceedings, be considered as casus omissus? One should rather be disposed to think that, be fore we could venture upon such a conclusion, it would be our indispensable duty to go a little fur ther and examine, whether the actual provisions of the treaty, reasonably interpreted with a proper view to their spirit and object, were sufficiently ample to reach and embrace the subject so con nected with, or arising out of, the suspension ? The 7th article of the treaty is not an arrange ment of detail It would not have been made, if detail had been practicable. Accordingly, after reciting complaints of loss and damage sustained by the citizens or subjects of the con tracting parties, it submits these complaints with out limit or exception to us. It makes us the ex clusive arbiters, net only of the justice of the com- [361 ] plaints, but also of the amount of compensation to be paid in each. Of what the items of compensation shall con sist, or by what process it shall be ascertained, it does not profess to state. It declares only that the compensation shall be full and complete, and leaves the rest to this Board, in confidence that it will do justice ; and so far is that confidence car ried that, in the cases submitted to us, our award is declared to he final and conclusive. In such a provision it would be vain to search for the traces of any anticipation of the inci dents, to which its execution might give birth, with any view to the modification of the powers communicated by it. Such modification was in compatible with its genius and character. Its prominent feature, which it would seem to be impossible to mistake, is a clear intention to au thorize the tribunal erected by it, whensoever and under whatever circumstances it should be occupied with the claims committed to it^ to deal with those claims according to its own opinion honestly formed of their title to redress, and the proper measure of that redress. Whether this commission should endure three years or eight — whether it should proceed without impediment, or at times be prevented from proceeding at all, were points which the treaty could not settle ; but it could determine, and it has determined, in the most explicit manner, that, when allowed to ex ert our powers, we should find in them no defi ciency in regard to the justice of any claim regu- [ 362 J larly before us, or the amount of the sum to be awarded. On these two points, therefore, viz. the justice of a claim, within our cognizance, and the amount of the compensation, so emphati cally and completely referred to us by words of the widest extent and most comprehensive import, evidently in unison with the whole plan of the provision itself, there can be no casus omissus in the treaty. Indeed the correctness of this conclusion is in effect admitted by those who deny it. They ad mit that we are empowered to grant interest both before the interval of the suspension and since. Whence do we derive that power 1 Certainly not from any words in the treaty, taking notice of in terest eo nomine, or giving a defined or modified authority on the subject of it. We derive it sim ply from those words in the treaty, which submit the amount of the compensation to our decision. The conceded power, therefore to give inter est on either side of the suspension, rests upon this, that such a power is necessary to enable us to settle the amount of compem^ation according to our notions of justice and equity. But is not this reason, undoubtedly the only one that can be assigned in favour of thc power to grant interest before and since the suspension, broader than the power itself; and does it not discredit and falsify the pretended exception 1 In other words, does it not, in all fair reasoning incontrovertibly prove that we have the power to grant interest during the suspension as well as before and after. [ 363 ] Such a power being just as necessary, in the one case as in the other, " to enable us to set- " tie the amount of compensation according to "oitr notions of justice and equity.'"' It is quite impossible to avoid the force of this argument otherwise than by showing that there is an ex ception of some sort, either in the treaty or the convention, in regard to this obnoxious interest, an attempt which would presuppose an abandon ment of the ground of casus omissus in favour of another, still less capable, if that were possi ble, of being defended In the treaty, I think I have already shown that no such exception exists ; and vve shall soon see that it is not to be found in the convention, viho&e provisions it is now time to examine. The convention directs us to proceed in the exe cution of our duties, according to the provisions of the seventh article of the treaty; except only that we are to make our awards payable in three equal annual instalments. Subject to this ex ception, therefore, our powers continue to be at least as ample as under the treaty. The convention may be considered as recom- Municating in 1802, by reference to the seventh article of the treaty, the powers originally com municated by that article in 1 794, with the single toodification above mentioned. We have, of course, the same power now, as formerly, con clusively to fix the amount of compensation in claims which we have decided to be just. But we not only have that power (in which it is admit- [ 364 ] ted that a power to give interest is included) un-, impaired : — we have it freed by the convention from Dr.' Swabey's objection, even if that objec tion was a sound one, as applied to the treaty on ly. The objection, as applied to the treaty, does not rely upon the inadequacy of the language of it to give the power in question, but from a loose inference drawn from a loose speculation, that such an incident as the suspension was not con templated by it. Can this objection be transfer red from the treaty to the Convention 1 Manifestly not. The convention was posterior to the sus pension, recites it, and removes it. The suspen sion was consequently in the contemplation of that instrument. To whatsoever objection, there fore, the original communication of the power in question may have been liable, on the mere sup position that such an event as the suspension was not then in view, the recommunication of this power, since the suspension, and with particular reference to it, must be free from that objection. In a word, there is not in my judgment, even the ap pearance of a reason for questioning the authori ty of the Board on this occasion. On the second question, The power of the Board to grant the interest in question, being thus, as I think, obvious, I will now say a very few words on the matter of equity. I have not been able to discover upon what pre cise grounds it is supposed, that in this view, in terest during the suspension is distinguishable from interest before and since. It cannot be upon [ 365 ] the naked foundation of a temporary want of ca pacity in this Board, from July 1799 until 1802, to relieve the claimants : for, independent of the gross absurdity of allowing to such a fact, singly taken, so important an influence on the mea sure of the relief, what shall we say of interest from 1793 to 1796, when this Board was not even in existence ? If the mere cessation, for a season, of our capacity to act under the treaty renders it unjust to allow interest during the pe riod of that cessation, surely the argument is in finitely stronger against the allowance of interest during a period when we had no official capacity whatever ; and yet it never occurred to any of us, or to either of the high contracting parties, that the interest before 1796 was inequitable. A no tion must therefore be entertained that, in regard to this suspension, some peculiar considerations exist by which interest, during the interval occu pied by it, ought to be held to be aflfected. What these iQonsiderations are, I am left to conjecture, since they have not been explained. It is perhaps imagined that if a claimant should receive such interest from the British government, the former would be placed in a better situation, and the latter in a worse, than if the suspension had not happened. If this should appear to be true, I agree that it would be of great weight. It is, however, so totally erroneous as to be the exact reverse of the truth ; the /act is, that the claimant will be a loser, and the British govern ment a gainer, by the suspension, even after this 47 [ 366 ] interest shall have been paid and received. A very short examination will make this apparent. As to the claimant. If the suspension had not taken place, his complaint, supposing it to be ready for decision, would have been decided hy the Board, so as that an award would have been made in his favour, payable in the spring of 1800, for principal and interest then due. He loses, of course, by the suspension, the use from the spring of 180G, not only of his principal, but of such in terest upon that principal, as, but for the suspen sion, would at that time have come to his hands. To put him, therefore, in aily thing like so good a situation as he would have been in if the suspen sion had riot occurred, it would be necessary not only to give him interest upon his principal during and after the suspension, as we propose to do, but also to give him interest from the spring of 1800 upon the amount of such interest, as the suspen sion prevented him from then receiving. A claim ant, whose case was ready for decision, wfll con- seqently be so far from being a gainer by the sus pension, if the interest in question be allowed him, that even after the receipt of that interest, he will still have sustained a considerable loss, for which it is not intended by any member of this Board to give him any compensation at all. In addition to this, it is to be considered, that the claimants being merchants, are not adequately compensaV ed for the privation of what ought to have formed a part of their capital, at a time when comitiet- cial capital was more than usually active, by a re- [ 367 ] tribution granted with a view to the mere rate bf interjest. The foregoing observations, it is to be admit ted, apply solely to claimants whose cases, in re gard to the judicial remedy, were ready for our de cision at the commencement of the suspension, or would haye become so in the course of it; and they apply undoubtedly with less or greater force, according as the time when the case was, or would have beep ready, shall be taken to have been late or early. As to the other claimants, (not many in number,) they were certainly not losers by the suspension ; for it produced no ef fect at all upon their claims. But it fnust at the same time be seen that, for precisely the same reason, Great Britain could not be, as to such claims, in the slightest degree injured by the sus pension : and indeed it is understood to be ad mitted that, on the footing of equity, the suspen sion does not aflfect these claims in the same manner as it is supposed to affect the others. Let us now see how the account stands on the part of the British government. The gain of the British government may safe ly be aflSrmed to be at least co-extensive with the claimants' loss. In cases ready for decision, or that would have become so during the suspension, it has already been shown that it has enjoyed the use of the claimants' principal by reason of the suspension only : and if this were the whole bene fit, it wo,uld seem to be obvious that the suspen sion rather furnishes an argument in favour of the [ 3'68 ] payment of interest than the contrary. But the suspension has also given it the use of the claim ants' interest due at the time of it, which interest must have been paid in or about the year 1800, and upon which, if it had been paid, the British government would now be paying, as well as upon the principal, an annuity to some public creditor. The whole foundation of the argument, then, against the equity of granting against the British government interest, during the suspension on the claimants' principal, is, properly understood, nei ther more nor less than this, that during that in terval it has had the use of both principal and interest, so far as interest had then accrued. There cannot be a better foundation on which to grant this interest. To what has been said it ought to be added that the British government has been benefited by the suspension to a considerable amount in another respect. Large sums have been recover ed by the claimants from the captors during the suspension, which might otherwise have been wholly or in a great measure lost. The effect has been greatly to lessen the aggregate of the sums to be awarded. Upon the whole, the sus pension is not an event by which the British go vernment has suffered, or can suffer, so as to create an equity in its favour on this occasion. It has, on the contrary, been, and will continue to be, advantageous to it, and prejudicial to the claim ants, let this question be disposed of as it may. [ 369 1 In what other view this subject can be consider ed, 1 am entirely at a loss to conjecture. We do not, I take it for granted, think ourselves at liber ty to go into an endless and odious inquiry by whose fault, if by any fault, the suspension was produced. Nor do we, I also take for granted, imagine that, even if such an inquiry could now lead to any result, the utility of that result, as it might be made to bear upon the question before us, would make amends for the time and attention employed upon it. The convention is either a dead letter, or it has put such an offensive discussion for ever at rest both here and elsewhere : and, if it had not, where are our means of agitating it, with any hope of arriving at a correct conclusion ? To en deavour at this late hour to influence either the sense or the practical operation of the conven tion, by an arbitrary and invidious imputation of an antecedent blame avoided, and therefore re jected, by the convention itself, and which, if not so rejected, it would now be impossible to fix, would be so extraordinary and monstrous an irregulari ty, that I am entirely confident it has not been thought of. The convention has told us all that it was intended we should know on this subject, and all that either of the contracting parties can at this time be free to insist upon, viz. that the suspension was produced by the immediate act of the British government, in consequence of diffi culties having arisen in America, under the sixth article of the treaty. ( 370 ) With this character conclusively given to that transaction by the convention, it would be worse than idle to attempt to give it another, in which the presumed misconduct of either of the two governments should be an ingredient. But give to it what character you will, and ascribe it to what fault you may, still, if the situation of the British government, in reference to the claims depending under the seventh article, is no worse than it would have been had not the suspension happened, it is inconceivable in what way, or upon what intelligible principles, it can give an equity against those to whom the suspension or its con sequences cannot be attributed, to whom it has been so far from being advantageous, that the most liberal compensation which they are likely to procure will not repair the injury they have sustained by it. I will make but one observation more on this subject. If we should enter into an inquiry whether either, and which of the two governments, was in fault as to the suspension ; if we should even be disposed to think, as most certainly some of us would not, that the American government was so in fault ; if we should go on to infer that therefore the British government was not to pay interest during the suspension to American claim ants, there would still remain a most embarrassing question which we should find it difficult to set tle, i. e. whether the American government should pay interest during the suspension to British claimants ? [ 371 ] To give to British claimants a larger measure of redress in this respect than we give to Ameri can claimants, upon a vague charge of miscon duct against one of the high contracting parties, for which no countenance is found in the contract itself, would be to set up a distinction which the convention does not acknowledge, but disclaims; which the contracting party, outraged by the ac cusation, would hold, and justly hold, to be inde cent and arrogant ; and which, as regards the in nocent complainants, would be too iniquitous for any honest man to lend himself to. On the other hand, if, withheld by these or other considerations, we should forbear to make the distinction, what will have become of our princi ple, or our title to consistency ? This is a dilem ma on which I will nbt enlarge, but on which it might be well to reflect. It shows the utter inad missibility of the objection which, if listened to and acted upon, would produce it. Mr. Pinkney concludes by seconding the mo tion ; but at the request of Mr. Trumbull, it was postponed fijr a few days, and on the 30th of April, the Board proceeded to make awards on the principle contended for by Mr. Gore and Mr. Pinkney. [ 372 ] N°- IL MEMORIAL ON THE RULE OF THE WAR OF 1756. To the President of the United States, and the Senate and House of Representatives of the United States of America, in Con gress assembled : THE MEMORIAL OP THE MEKCBANTS AND TRADERS OF THB CITY OF BALTIMORE. Your memorialists beg leave respectfully to submit to yoiir consideration the following statement and reflections, produced by the situation of our public affairs, in a high degree critical and perilous, and peculiarly affecting the commerce of their country. In the early part of the late war between Great Britain and France, the former undertook to prohibit neutral nations from all trade whatsoever with the colonies of the latter. This exorbi-, tant pretension was not long persisted in. It was soon qualified in favour of a direct trade between the United and these colonies, and some years afterwards was further relaxed in favour of Eu ropean neutrals. The United States being thus admitted, by the express acknowledgment of Great Britain, to a direct trade, with out limit, between their own ports and the colonies of the opposite belligerents, another trade naturally and necessarily grew out of it, or rathe) formed one of its principal objects and inducements. The surplus colonial produce, beyond our own consumption, im ported here, was to be carried elsewhere for a market ; and it was accordingly carried to Europe, sometimes by the original im porter, sometimes by other American merchants, either in the ves sels in which the importation was made, or in others. In the course of this traffic, it was understood to be the sense of Great Britain, and was explicitly declared by her courts of prize, that, although she had not expressly allowed to the merchants of the [ 373 1 United States, by the letter of her relaxations, and immediate trade between the colonies of her enemies and the markets of Europe, a circuitous trade to Europe, in the production of these colonies, was unexceptionable ; and that nothing more- was neces sary to make it so, than that the continuity of the voyage should be broken by an entry, and payment of duties, and the landing of the colonial cargo in the United States. During the greater part of the late war, and the first years of the present, this trade was securely prosecuted by our merchants^ in the form which Great Britain had thus thought fit to give to it. The modification of a traffic, in itself entitled to be free, was submitted to, on our part, without repining, because it presented a clear and definite rule of conduct, which, although unauthorized in the light of a restriction, was not greatly inconvenient in its prac tical operation ; and your memorialists entertained a confident hope, that, while on the one hand, they sought no change of system by which the assumption of Great Britain to impose terms, how ever mild in their character and effect, upon their lawful commerce, should be repelled ; on the other hand, it would not be desired, that the state of things which Great Britain had herself prescribed, and which use and habit had rendered familiar, and intelligi ble to all, should be disturbed by oppressive innovations ; far less that these innovations should, by a tyrannical retrospection, be made to justify the seizure and confiscation of their property, committed to the high seas, under the protection of the existing rule, and without warning of the intended change. In this their just hope, your memorialists have been fatally dis appointed. Their vessels and effects, to a large amount, have lately been captured by the commissioned cruizers of Great Bntain, upon the foundation of new principles, suddenly invented, and applied to this habitual traffic, and suggested, and promul gated, for the first time, by sentences of condemnation ; by which, unavoidable ignorance has been considered as criminal, and an honourable confidence in the justice ofa friendly nation, pursuied with penalty and forfeiture. Your memorialists are in no situation to state the precise nature of the rules to which their most important interests have thus been sacrificed : and it is not the least of their complaints against 48 [ 374 ] them that they are undefined, and undefinable, equivocal in their form and the fit instruments of oppression by reason of their ambiguity. Your memorialists know that the circumstances which have heretofore been admitted to give legality to their trade, in colo nial productions, with their European friends, protect it no longer- But they have not yet been told, and are not soon likely to learn, what other circumstances will be suffered to produce that con sequence. It is supposed to have been judicially declared, in general, that a voyage undertaken for the purpose of bringing into the United States the produce of the belligerent colonies, purchased by American citizens, shall, if it appears to be in tended that this produce shall ultimately go on to Europe, and an attempt is actually made to re-export and send it thither, be considered, on account of that intention, as a direct voyage to Europe, and therefore illegal, notwithstanding any temporary in terruption or termination of it in the United States. Your memorialists will not here stop to inquire upon what grounds of law or reason the same act is held to be legal when commenced with one intention, and illegal when undertaken with another. But they object, in the strongest terms, against this new criterion of legality, because of its inevitable tendency to m- justice, because of its peculiar capacity to embarrass with sei zure, and to ruin with confiscation, the whole of our trade with Europe in the surplus of our colonial importations. The inquiry which the late system indicated was short and simple, and precluded error on all sides ; but the new refinement substitutes in its place a vast field of speculation, overshadowed with doubt and uncertainty, and of which the faint and shifting boundaries can never be distinctly known. Intention, as to the object of our colonial voyages, may be in ferred from numerous circumstances, more or less conclusive. To anticipate them all is obviously impracticable ; and of course to guard against the inference, in this respect, which British cap tors and British courts may be disposed to draw, will be impossf ble. Our property is therefore menaced by a great and formida ble danger, which there are no means of eluding ; for, even if it should chance to escape the condemnation which this pernicious [ 375 J novelty prepares for it, the wound inflicted upon our commerce by arresiations on suspicion, and detentions for adjudication, will be deep and fatal. The efforts of our merchants will be check ed and discouraged by more than ordinary inquisitions ; our best concerted enterprises broken up, without the hope of retribution, or even reimbursement for actual costs, upon the footing of an intention arbitrarily imputed ; and the only alternative which will be presented to our choice will be, either to refrain at once from a traffic which enriches our country while it benefits ourselves, or to see h wasted, and in the end destroyed, by a noxious system of maritime depredation. Your memorialists are the more alarmed by this departure from a plain and settled rule, in favour of a pliant and myste rious doctrine, so eminently suited to the accomplishment of the worst purposes of commercial jealousy, because the injurious and vexatious qualities of the substituted rule must have been known to those who introduced it, and because, if these qualities did not recommend it to adoption, it is difficult to conceive why it was adopted at all. If it is meant that our trade to Europe shall, notwithstanding this rule, be allowed to continue without being subjected to extraordinary difficulties, operating as actual reduc tions and mischievous restraints ; if it is meant that a few facts, known and comprehended, shall, as heretofore, form a standard by which the lawfulness of our European voyages may be une quivocally ascertained ; if a wide range has not been designed for the inquiry after intention, and a real effect expected from that inquiry ; if, in a word, the late regulation has not been supposed to be capable of bearing on our trade in a manner new and im portant, we should hardly have now been called upon to remon strate against a change. It is not pretended that the rule now en forced against us, is levelled against any practice to which we may be supposed to have lent ourselves, of disguising as our own the property of the enemies of Great Britain. That is not its object ; and if it were, we are enabled to assert, solemnly and con fidently, that our conduct has afforded no ground for the injuri ous suspicion which such an object would imply. The vii'w is professedly to regulate and effect our traffic in articles fairly pur chased by us from others ; and if the consequences to that traffic [ 376 ] were not intended to be serious, and extensive, and permanent, your memorialists search in vain for the motive by which a state, in amity with our own, and moreover connected with it by the ties of common interest, to which many considerations seem to give peculiar strength, has been induced to indulge in a paroxysm of capriciiius aggression upon our rights, by which it dishonours itself without promoting any of those great interests for which an enlightened nation may fairly be solicitous, and which only a steady regard for justice can ultimately secure. When we see a powerful state, in possession of a commerce of which the world affords no examples, endeavouring to interpolate into the laws of nations casuistical niceties and wayward distinctions, which for bid a citizen of another independent commercial country, to ex port from that country what unquestionably belongs to him, only because he imported it himself, and yet allow him to sell a right of exporting it to another ; which prohibit an end because it arisps out of one intention, but permit it when it arises out of two; which, dividing an act into stages, search into the mind for a cor respondent division of it in the contemplation of its author, and determine its innocence or criminality accordingly ; which, not denying that the property acquired in an authorized traffic, by neutral nations from belligerents, may become incorporated into the national stock, and under the shelter of its neutral character, thus superinduced, and still preserved, be afterwards transported to every quarter of the globe, reject the only epoch which can distinctly mark that incorporation, and point out none other in its place ; which, proposing to fix with accuracy and precision the line of demarcation, beyond which neutrals are trespassers upon the wide domain of belligerent rights, involves every thing in darkness and confusion : there can be but one opinion as to the purpose which all this is to accomplish. Your memorialists have endeavoured, with all that attention which their natural anxiety was calculated to produce, to ascer tain the various shapes which the doctrine in question is likely to assume in practice, but they have found it impossible to conjecture in what way, consistently with this doctrine, the excess of our im ports from the belligerent colonies can find its way to foreign mar kets. The landing of the cargo, and a compliance with all the [ 377 ] forms and sanctions, upon which our revenue depends, will not so terminate the voyage from the colonies, as that the articles may be immediately re-exported to Europe by the original importer. But if they cannot be exported immediately, what lapse of time will give them a title to be sent abroad, and if not by the origi nal importer, how is he to devolve upon another a power which he has not himself? And if by a sale he can communicate the power, by what evidence is the transfer to be manifested, so as to furnish an answer to the ready accusation of fraud and eva sion ? In proportion as this doctrine has developed itself, it has been found necessary to invent plausible qualifications, tending to conceal its real character from observation. It has accordingly been surmised, that, notwithstanding the obstacles which it pro vides against the re-exportation of a colonial cargo by the im porter, such a re-exportation may, perhaps, be lawful. Attempts on his part to sell in the United States, without effect, (which must often happen,) may, it is supposed, be suflScient to save him from the peril of the rule. But, admitting it to be certain, instead of being barely possible, that these attempts would form any thing like security against final condemnation, it is still most material to ask, how they are to afford protection against seizure ? By what documents they can be proved to the satisfaction of those to whom interest suggests doubts, and whom impunity en courages to act upon them ? The formal transactions of the custom-house once deserted as a criterion, the cargo must be fol lowed, through private transfers, into the ware-houses of indivi dual merchants ; and when proofs have been prepared, with the utmost regularity, to establish these transfers, or the. other facts which may be deemed to be equivalent, they are still liable to be suspected, and will be suspected, as fictitious and colourable, and capture will be the consequence. For the loss and damage which capture brings alo«g with it, British courts of prize grant no ade quate indemnity. Redress to any extent is difficuh ; to a compe tent extent, impossible. And even the costs which an iniquitous seizure compels a neutral merchant to incur, in the defence of his violated rights, before their own tribunals, are seldom de creed, and never paid. Your memorialists have thus far complained only of the recent abandonment, by Great Britain, of a known rule, by which the [ 378 ] oppressive character of an important principle of her maritime code has heretofore been greatly mitigated. But they now beg leave to enter their solemn protest against the principle itself, as an arbitrary and unfounded pretension, by which the just liberty of neutral commerce is impaired and abridged, and may be whol ly destroyed. The reasons upon which Great Britain assumes to herself a right to interdict to the independent nations of the earth a com mercial intercourse with the colonies of her enemies, (out of the relaxation of which pretended right has arisen the distinction in her courts between an American trade from the colonies to the United States, and from the same colonies to Europe) will, we are confidently persuaded, be repelled with firmness and ef fect by our government. It is said by the advocates of this high belligerent claim, that neutral nations have no right to carry on with either of the par ties ai war any other trade than ihey have actually enjoyed in time of peace. This position forms the basis upon which Great Brhain has, heretofore, rested her supposed title to prevent alto gether, or to modify at her discretion, the interposition of neu trals in the colony trade of her adversaries. But, if we are called upon to admit the truth of this position, it seems reasonable that the converse of it should also be ad mitted. That war should not be allowed to disturb the custo mary trade of neutrals in peace ; that the peace-traffic should, in every view, be held to be the measuie of the war-traffic ; and that, as oil the one hand there can be no enlargement, on the other there shall be no restriction. What, however, is the fact ? The first moment of hostilities annihilates the commerce of the na tions at peace, in articles deemed contraband of war ; the pro perty of the belligerents can no longer be carried in neutral ships; they are subject to visitation on the high seas ; -to harassing and vexatious search ; to detention for judicial inquiry ; and to the peril of unjust confiscation : they are shut out from their usual markets, not only by military enterprises against particular places, carried on with a view to their reduction, but by a vast system^f blockade, affecting and closing up the entire ports of a whole nation : such have been the recent effects of an European war upon the trade of this neutral country ; and the prospect of the L 379 ] future affords no consolation for the past. The triumphant fleets of one of the contending powers cover the ocean ; the navy of her enemies has fallen before her ; the communication by sea with France, and Spain, and Holland, seems to depend upon her will, and she asserts a right to destroy it at her pleasure : she forbids us from transporting, in our vessels, as in peace we could, the property of her enemies ; enforces against us a rigorous list- of contraband ; dams up the great channels of our ordinary trade ; abridges, trammels, and obstructs what she permits us to prose cute, and then refers us to our accustomed traffic in time of peace, for the criterion of our commercial rights, in order to justify the eonsummation of that ruin with which our lawful commerce is menaced by her maxims and her conduct. This principle, therefore, cannot be a sound one ; it wants uni formity and consistency ; is partial, unequal, and delusive : it makes every thing bend to the rights of war, while it affects to look back to, and to recognize, the state of things in peace, as the foundation and the measure of the rights- of neutrals. Pro fessing to respect the estaWished and habitual trade of the na tions at peace, it affords no shadow of security for any part of it : professing to be an equitable standard for the ascertainment of neutral rights, it deprives them of all body and substance, and leaves them only a plausible and unreal appearance of magnitude and importance : it delivers them over, in a word, to the mercy of the states at war, as objects of legitimate hostility ; and while it seems to define, does, in fact, extinguish them. Such is the faithful picture of the theory, and practical operation of this doctrine. , But, independent of the considerations thus arising out of the immediate interference of belligerent rights and belligerent con duct with the freedom of neutral trade, by which the fallacy of the appeal to the precise state of our peace-trade, as limiting the nature and extent of our tiade in war, is suflRciently manifested, there are other considerations which satisfactorily prove the inad missibility, of this principle. It is impossible that war among the primary powers of Eu rope should not, in an endlessVariety of shapes, materially affect the whole civilized world. Its operation upon the prices of la- [ 380 ]. hour and commodities ; upon the value of money ; upon ex change ; upon the rates of freight and insurance, is great and im portant. But it does much more than all this. It imposes upon commerce in the gross, and in its details, a new character ; gives to it a new direction, and places it upon new foundations. It abolishes one class of demands ; creates, or revives others ; and diminishes, or augments the rest. And, while the wants of man kind are infinitely varied by its powerful agency, both in ob ject and degree, the modes and sources of supply, and the means of payment are infinitely varied also. To prescribe to neutral trade thus irresistibly influenced, and changed, and moulded by this imperious agent, a fixed and unal terable station, would be to say that it shall remain thc same, when not to vary is impossible ; and to require, since change is unavoidable, that it shall submit to the ruinous retrenchments and modifications which war produces, and yet refrain from indemnifying itself by the fair advantages which war offers to h as an equivalent, cannot be warranted by any rule of reason or equity, or by any law to which the great community of nations owes respect and obedience. When we examine the conduct of the maritime powers of Europe, in all the wars in which they have been engaged for upwards of a century, we find that each of them has, occasion ally, departed from hs scheme of colonial monopoly ; relaxed its navigation laws, and otherwise admitted neutrals, for a longer or shorter space, as circumstances required, to modes of trade from which they were generally excluded. This universal practice, this constant and invariable uspge, for a long series of years, would seem to have established among the European states a sort of customary law upon the subject of it, from which no single power could be at liberty to depart, in search of a questionable theory at variance with it. Great Britain is known to suspend, in war and on account of war, her famous act of navigation, to which she is supposed to owe her maritime greatness, and which, as the palladium of her power, she holds inviolable in peace ; and her colonies are frequently thrown open, and neutrals invited to supply them, when she can not supply them herself. She makes treaties in the midst of [ 381 ] war, (she made such a treaty with us) by which neutrals are received into a participation of an extensive traffic, to whii:h be fore they had no title. And cail she be suffered to object, that the same, or analogous acts are unlawful in her enemies ; or that, when neutrals avail themselves of similar concessions made by her opponents, ihey are liable to punishment, as for a crimi nal intrusion into an irregular and prohibited commerce ? The weight of this consideration has been felt by the advo cates of this doctrine, and it has, accordingly, b^en t.ttempted to evade it by a distinction, which admits the legality of all such relaxations in war, of the general, commercial or colonial sys tems of the belligerents, as do not arise out of the predominance of the enemy's force, or out of any necessity resulting from it. It is apparent, however, that such relaxations, whether dic tated by the actual ascertained predominance of the enemy's force, or not, do arise out of the state of war, and are almost universally compelled, and produced by it ; that they are in tended as reliefs against evils which war has brought along with it, and the opposite belligerent has just as much right to insist, that these evils shall not be removed by neutral aid, or in terposition, as if they were produced by the general preponde rance of her own power, upon the land or upon the sea, or by the general success of her arms. In the one case, as completely as in the other, the interference of the neutral lightens the pres sure of war ; increases the capacity to bear its calamities, or the power to inflict them ; and supplies the means of comfort and of strength. In both cases, the practical effect is the same, and the legal consequences should be the same also. But whence are we to derive the conclusion of the fact upon which this extraordinary distinction is made to turn ? How are we to determine with precision and certainty, the exact cause which opens to us the ports of a nation at war — to analyze the various circumstances, of which, perhaps, the concession may be the combined effect ; and to assign to each the just portion of influence to which it has a claim ? How easy it is to deceive ourselves on a subject of this kind, Great Bntain will herself instruct us, by a recent example. Her courts of prize have in sisted that, during the war which ended in the peace of Amiens, 49 t 382 ] France was compelled to open the ports of her colonies, by a necessity created and imposed by the naval prowess of her ene mies. And yet these ports were opened in February, 1/93, when France and her maritime adversaries had not measured their strength in a single conflict ; when no naval enterprize had been undertaken by the latter, far less crowned with suc cess ; when the lists were not even entered, and when the supe riority afterwards acquired, by Great Britain in particular, was yet a problem ; when the spirit of the French nation and govern ment was lifted up to an unexampled height, by the enthusiasm of the day, and by the splendid achievements by which their armies had recently conquered Savoy, the county of Nice, Worms, and other places on the Rhine, the Austrian Low Coun tries, and Liege. It would seem to be next to impossible to contend that a concession made by France to neutrals, on the subject of her colony trade, at such a period of exultation and triumph, was " compelled by the prevalence of British arms," that it was " the fruit of British victories," or the result of " British conquest," that it arose out of the predominance of the enemy's force, that it was produced by " that sort of necessity which springs from the impossibility of otherwise providing against the urgency of distress inflicted by the hand of a supe rior enemy," and that " it was a signal of defeat an3 depression." It would seem to be impossible to say of a traffic so derived, " that it could obtain or did obtain, by no other title than the success of the one belligerent against the other, and at the ex pense of that very belligerent under whose success the neutral sets up his title." Yet all these things have been said, and so lemnly maintained, and have even been made the foundation of acts, by which the property of our citizens has been wrested from their hands. It cannot be believed that the laws of nations have entrusted to a belligerent the power of harassing the trade, and confiscating the ships and merchandise of peaceable and friendly nations, upon grounds so vague, so indefinite, and equivocal. Of all law, certainty is the best feature ; and no rule can be otherwise than unjust and despotic, of which the sense and the application are and must be ambiguous. A siege or blockade presents an intelligible standard, by which it may always be [ 383 ] known, that no lawful trade can be carried on with the places against which either has been instituted. But the suggestions upon which this new belligerent encroachment, having all the effect ofa siege or blockade, is founded, are absolutely incapable of a distinct form, either for the purpose of warning to neutrals, or as the basis of a judicial sentence. The neutral merchant finds that, in fact, the colonial ports of the parties to the war are thrown open to him by the powers to which they belong ; and he sees no hostile squadrons to shut them against him. Is he to pause, before he ventures to exercise his natural right to trade with those who are willing to trade with him, until he has inquired and determined why these ports have been thus made free to receive him ? To such a complicated and deli cate discussion, no nation has a right to call him. It is enough that an actual blockade can be set on foot to close these ports, and that they may be made the objects of direct efforts, fof conquest or occlusion, if the enemy's force is, in truth, so de cidedly predominant as it is pretended to be. And if it is not predominant to that point, and to that extent, there can be no cause for ascribing to it an effect to which it is physically incompetent, or for allowing it to do that constructively, which it cannot do, and has not done, actually. The pernicious quali ties of this doctrine are enhanced and aggravated, as from its nature might be expected, by the fact, that Great Britain gives no notice of the time when, or the circumstances in which she means to apply and enforce it. Her orders of the 6th of No vember, 1793, by which the seas were swept of our vessels and effects, were, for the first time, announced by the ships of war and privateers by which they were carried into execution. The late decisions of her courts, which are in the true spirit of this doctrine, and are calculated to restore it, in practice, to that high tone of severity which milder decisions had almost concealed from the world, came upon us by surprize ; and the captures of which the Dutch complained in the seven years' war, were pre ceded by no -warning. Thus is this principle most rapacious and oppressive in all its bearings. Harsh and mysterious in itself, it has always been and ever must be used to betray neutral merchants into a trade supposed to be lawful, and then to give [ 384 ] them up to pillage and to ruin. Compared with this principle, which violence and artifice may equally claim for their own, the explided doctrine of constructive blockade,by which belligerents for a time insulted and plundered the states at peace, is innocent and harmless. That doctrine had something of certainty belong ing to it, and made safety at least possible. But there can be no security while a malignant and deceitful principle like this hangs over us. It is just what the belligerent chooses to make it- lurking, unseen, and unfelt — or visible, active, and noxious. It ma\ come abroad when least expected; and the moment of con fidence may be the moment of destruction. It may sleep for a time, but no man knows when it is to awake, to shed its baleful influence upon the commerce of the world. It clothes hself from season to season, in what are called relaxations, but again, with out any previous intimation to the deluded citizens of the neutral powers, these relaxations are suddenly laid aside, either in the whole or in part, and the work of confiscation commences. Nearly ten months of the late war had elapsed before it announced itself at all, and when it did so, it was in its most formidable shape, and in its fullest power and expansion. In a few weeks it was seen to lose mere than half its substance and character, and before the conclusion of the war was scarcely perceptible With the opening of the present war it re-appeared in its mildest form, which it is again abandoning for another, more consonant to its spirit. Such are its capricious fluctuations, that no commercial undertaking which it can in any way effect, can be considered as otherwise than precarious, whatever may be the avowed state of the principle at the time of its commencement. It has been said that, by embarking in the colony trade of either of the belligerents, neutral nations in some sort- interpose in the war, since they assist and serve the belligerent, in whose trade they so embark. It is a sufficient answer to this observa tion, that the same course of reasoning would prove that neutrals ought to discontinue all trade whatsoever with the parties at war. A continuance of their accustomed peace trade assists and serves the belligerent with whom it is continued; and if this effect were sufficient to make d trade unneutral and illegal, the be.st estab lished and most usual traffic would of course become so. But [ 385 1 Great Britain supplies us with another answer to this notion, that our interference in the trade of the colonies of her enemies is un lawful, because they are benefited by it. It is known that the same trade is, and long has been, carried On by British subjects ; and your memorialists feel themselves bound to state that, ac cording to authentic information lately received, the government of (ireat Britain does at this moment grant licenses to neutral vessels, taking iri a proportion of their cargoes there, to proceed on trading voyages to the colonies of Spain, from which she would exclude us, upon the condition that the return cargoes shall be cairied to Great Britain, to swell the gains of her merchants, and to give her a monopoly of the commerce of the world. This great belligerent right then, upon which so much has been sup posed to depend, sinks into an article of baiter. It is used, not as a hostile instrument wielded by a warlike state, by which her enemies are to be wounded, or their colonies subdued, but as the selfish means of commercial aggrandizement, to the impoverish- , ment and ruin of her friends ; as an engine by which Great Britain is to be lifted up to a vast height of jirosperity, and the trade of neutrals crippled, and crushed, and destroyed. Such acts are a most intelligible commentary upon the principle in question. They show that it is a hollow and fallacious princi ple, susceptible of the worst abuse, and incapable of a just and honourable application. They show that in the hands of a great maritime state, it is not in its ostensible character of a weapon of hostility that it is prized, but rather as one of the means of esta blishing an unbounded monopoly, by which every enterprize, cal culated to promote national wealth and power, shall be made to begin and end in Great Britain alone. Such acts may well be considered as pronouncing the condemnation of the principle against which we contend, as withdrawing from it the only pre text upon which it is possible to rest it. Great Britain does not pretend that this principle has any warrant in the opinions of writers on public law. She does not pretend, and cannot pretend, that it derives any countenance from the conduct ol other nations. She is confessedly solitary in the use of this invention, by which rapacity is systematized, and a state of neutrality and war are made substantially the same. In [ 386 ] this absence of all other authority, her courts have made an ap peal to her own early example, for the justification of her own recent practice. Your memorialists join in that appeal, as af fording the most conclusive and authoritative reprobation of the practice which it is intended to support by it. It would be easy to show, by an examination of the different treaties to which Great Btitain has been a party from times long past, that this doctrine is a modern usurpation. It would be equally easy to show, that during the greater part of the last century, her statesmen and lawyers uniformly disavowed it, either expressly or tacitly. But it is to a review of judicial examples, of all others the most weighty and solemn, that your memorialists propose to confine themselves. In the war of 1744, in which Great Britain had the power, if she had thought fit to exert it, to exclude the neutral states fronj the colony trade of France and Spain, her high court of appeals decided that the trade was lawful, and released such vessels as had been found engaged in it. In the war which soon followed the peace of Aix la Chapelle, Great Britain is supposed to have first acted upon the pretension that such a trade was unlawful, as being shut against neutrals in peace. And it is certain that, during the whole of that war, her courts of prize did condemn all neutral vessels taken in the pro secution of that trade, together with their cargoes, whether French or neutral. These condemnations, however, prc.ceeded upon peculiar grounds. In the seven years' war France did not throw open to neutrals the traffic of her colonies. She establish ed no free ports in the east, or in the west, with which foreign vessels could be permitted to trade, either generally or occasion ally as such. Her first practice was simply to grant special li censes to particular neutral vessels, principally Dutch, and com monly chartered by Frenchmen, to make, under the usual restric tions, particular trading voyages to the colonies. These licenses furnished the British courts with a peculiar reason for condemn ing vessels sailing under them, viz. " that they became in virtue of them the adopted or naturalized vessels qf France." As soon as it was known that this effect was imputed to these licenses they were discontinued, or pretended to be so ; but the [ 387 ] discontinuance, whether real or supposed, produced no .change in the conduct of Great Britain ; for neutral vessels, employed in this trade, were captured and condemned as before. The grounds upon which they continued to be so captured and condemned, may best be collected from the reasons subjoined to the printed cases in the prize causes decided by the high court of admiralty, (in which Sir Thomas Salisbury at that time presided,) and by the lords commissioners of appeals, between 1757 and 1760. In the case of the America, (which was a Dutch ship bound from St. Domingo to Holland with the produce of that island be longing to French subjects, by whom the vessel had been char tered,) the reason stated in the printed case is, " that the ship must be looked upon as a French ship, (coming from St. Do mingo,) for by the laws of France no foreign ship can trade in the French West Indies." In the case of the Snip, the reason (assigned by Sir George Hay^ and Mr. Pratt, afterwards Lord Camden) is, " for that the Snip (though [once the property of Dutchmen) being employed in carrying provisions to, and goods from a French colony, there by became a French ship, and as such was justly condemned." It is obvious that the reason, in the case of the America, pro ceeds upon a presumption, that as the trade was, by the standing laws of France, even up to that moment, confined to Frencli ships, any ship found employed in it must be a French ship. The reason in the other case does not rest upon this idle presumption, but takes another ground ; for it states, that by the reason of the trade in which the vessel was employed, she became a French vessel. It is manifest that this is no other than the first idea of adop tion or naturalization, accommodated to the change attempted to be introduced into the state of things by the actual or pretended discontinuance of the special licenses. What then is the amount of the doctrine of the seven years' war, in the utmost extent which it is possible to ascribe to it ? It is in substance no more than this, that as France did not, at any period of that war, aban don, or in any degree suspend, the principle, of colonial monopo ly, or the system arising out of it, a neutral vessel found in the prosecution of the trade, which, according to that principle and [ 388 j that system still continuing in force, could only be a French trade and open to French vessels, either became, or was legally to be presumed to be a French vessel. It cannot be necessary to show that this doctrine differs essentially from the principle of the present day ; but even if it were otherwise, the practice of that war, whatever it might be, was undoubtedly contrary to that of the war of 1744, and as contrasted with it will not be considered by those who have at all attended to the history of these two periods, as entitled to any peculiar veneration. The effects of that practice were almost wholly confined to the Dutch, who had rendered themselves extremely obnoxious to Great Britain, by the selfish and pusillanimous policy, as it was falsely called, which enabled them during the seven years' war to profit of the troubles of the rest of Europe. In the war of 1744, the neutrality of the Dutch, while it con tinued, had in it nothing of complaisance to France ; they fur nished from the commencement of hostilities, on account of the pragmatic sanction, succours to the confederates ; declared openly, after a time, in favour of the queen of Hungary ; and finally determined upon and prepared for war, by sea and land. Great Britain, of course, had no inducement in that war to hunt after any hostile principle, by the operation of which the trade of the Dutch might be harassed, or the advantage of their neutral posi tion, while it lasted, defeated. In the war of 1756 she had this inducement in its utmost strength. Independent of the commer cial rivalry existing between the two nations, the Dutch had excited the undisguised resentment of Great Britain, by declining to furnish against Fiance the succours stipulated by treaty ; by constantly supplying France with naval and warlike stores, through the medium of a trade systematically pursued by the people, and countenanced by the government ; by granting to France, early in 1757, a free passage through IVamur and Maes tricht, for the provisions, ammunition, and artillery, belonging to the army destined to act against the territories of Prussia, in the neighbourhood of the Low Countries ; and by the indifference with which they saw Nieuport and Ostend surrendered inic the bauds of France, by the court of \ ienna, which Great Britain represented to be contrary to the Barrier treaty and the treaty of [ 389 ] Utrecht. Without entering into the suflSciency of these grounds 'tfif dissatisfaction, which undoubtedly had a great influence on the conduct of Great Britain towards the Dutch, from 1757 un til the peace of 1763, it is manifest that this very dissatisfaction, little short of a disposition to open war, and frequently on the eve of producing it, takes away, in a considerable degree, from the authority of any practice to which it may be supposed to have led, as tending to establish a rule of the public law of Europe. It may not be improper to observe too, that the station occupied by Great Britain in the seven years' war, (as proud a one as any country ever did occupy,) compared with that of the other Eu ropean powers, was hot exactly calculated to make the measures which her resentments against Holland or her vi^ws against France might dictate, peculiarly respectful to the general rights of neutrals. In the north, Russia and Sweden were engaged in the confederacy against Prussia, and were, of course, entitled to no consideration in this respect. The government of Sweden was, besides, weak and impotent. Denmark, it is true, took no part in the war, but she did not suffer by the practice in question. Besides, all these powers combined would have been as nothing against the naval strength of Great Britain in 1758. As to Spain, she could have no concern in the question, ahd at length be came involved in the war on the side of France. Upon the whole, in the war of 1756, Great Britain had the power to be unjust, and irresistible temptations to abuse it. In that of 1744, her power Was, perhaps, equally great, but every thing was fa vourable to equity and moderation. The example afforded on this subject, therefore, by the first war, has far better titles to re spect than that furnished by the last. In the American war the practice and decisions on this point, followed those of the war of 1744, The question first came before the lords of appeal in January, 1782, in the Danish cases of the Tiger, Copenhagen, and others captured in < )ctober, 1780, and condemned at St. Khts, in De cember following. The grounds on which the captors relied for condemnation, in the Tiger, as set forth at the end of the respon dent's printed case, were, " for that the ship, having been trading " to Cape Francois, where none but French ships are allowed 50 [ 390 ] " to carry on ftny traffic, and having been laden at the time of " the capture, with the produce of the French part of the island " of ^t. Domingo, put on board at Cape Francois, and both ship « and cargo taken confessedly coming from thence, must, (pur- " suant to precedents in the like cases in the last war,) to all in- " tents and purposes, be deemed a ship and goods belonging to the " French, or at least adopted, and naturalized as such." In the Copenhagen, the captor's reasons are thus given : " 1st. Because it is allowed that the ship was destined, with " her cargo, to the island of Guadaloupe, and no other place." " 2dly. Because it is contrary to the established rule of gent- " ral law, to admit any neutral ship to go to, and trade at, a "port belonging to a colony of tlie enemy, to which such neutral " shifj Could not have freely traded in time of peace." On the 22d of January, 1782, these causes came on for hear ing before the lords of appeal, who decreed restitution in all of them : thus in the most solemn and explicit manner disavowing and rejecting the pretended rules of the law of nations, upon which the captors relied ; the first of which was literally borrow ed from the doctrine of the war of 1756, and the last of which is that very rule on which Great Britain now relies. It is true, that in these cases the judgment of the lords was pronounced upon one shape only of the colony trade of France, as carried on by neutrals ; that is to say, a trade between the co lony of France and that of the country of the neutral shipper. But, as no distinction was supposed to exist, in point of princi ple, between the different modifications of the trade, and as the judgment went upon general grounds applicable to the entire subject, we shall not be thought to overrate its effect and extent, when we represent it as a complete rejection both of the doctrine of the seven years' war, and of that modern principle by which it has been attempted to replace it. But at any rate, the subse quent decrees of the same high tribunal did go that length. With, out enumerating the cases of various descriptions, involving the legality of the fade in all its modes, which were favourably adjudged by the lords of appeal after the American peace, it will be sufficient to mention the case of the Vervagting, decided by them in 1785 and 1786. This was the case of a Danish L -^yi J ship laden with a cargo of dry goods and provisions, with which she was bound on a voyage from Marseilles to Martinique and Cape Francois, where she was to take in for Europe a return cargo of West India produce. The ship was not proceeded against, but the cargo, which was claimed for merchants of Os tend, was condemned as enemy's property (as in truth it was) by the vice-admiralty of Antigua, subject to the payment of freight, pro rata itineris, or rather for the whole of the outward voyage. On appeal, as to the cargo, the lords of appeal, on the Sth of March, 1785, reversed the condemnation, and ordered further proof of the property to be produced within three months. On the 28th of March, 1786, no further proof having been exhibited, and the proctor for the claimants declaring that he should exhibit none, the lords condemned the cargo, and on the same day re versed the decree below, giving freight, pro rata itineris, (from which the neutral master -had appealed,) and decreed freight generally, and the costs of the appeal. It is impossible that a judicial opinion could go more conclu sively to the whole question on the colony trade than this; fiir it not only disavows the pretended illegality of neutral interposi tions in that trade, even directly between France and her colo nies, (the most exceptionable form, it is said, in which that inter position could present itself,) it not only denies that property engaged in such a trade is, on that account, liable to confiscation, (inasmuch as, after having reversed the condemnation of the car go, pronounced below, it proceeds afterwards to condemn it merely for want of further proof as to the property,) but it holds that the trade is so unquestionably lawful to neutrals, as not even to put in jeopardy the claim to freight for that part of the voyage which had not yet begun, and which the party had not yet put himself in a situation to begin. The force of this, and the other British decisions produced by the American war, will not be avoided, by suggesting that there was any thing peculiar ly favourable in the time when, or the manner in which, France opened her colony trade to neutrals on that occasion. Some thing of that sort, however, has been said. We find the follow ing language in a very learned opinion on this jtoint : " It is cer tainly true, that in the last war, (the American war,) many de- [ 392 ] cisions took place which then pronounced, that such a trade be- twi'i'M France and her colonies was not considered as an unneutral com'n rce; but under what circumstances ? It was understood thai France, in opening her colonies during the war, declared, thnt this was not done with a temporary view relative to the war, but on a general permanent purpose of altering her colonial sys tem, and of admitting foreign vessels, universally, and at all times, to a participation of that commerce ; taking that to be the fact ^^however suspicious its commencement might be, during the actual existence of a war) there was no ground to say, that neu trals were not carrying on a commerce as ordinary as any other in which they could be engaged; and therefore in the case of the Vervagting, and in many other succeeding cases, the lords de creed payment of freight to the neutral ship-owner. It is fit to be remembered on this occasion, that the conduct of France evinced how little dependence can be placed upon explanations of mea.sures adopted during the pressure of war ; for, hardly was the ratification of the peace signed, when she returned to her an cient system of colonial monoptly." We answer to all this, that, to refer the decision of the lords, in the Vervagting, and other succeeding cases, to the reason here assigned, is to accuse that high tribunal of acting upon a confi dence which has no example, in a singularly incredible declara tion, (if, indeed, such a declaration was ever made,) after the utter falsehood of it had been, as this learned opinion does itself inform us, unequivocally and notoriously ascertained. We have seen that the Vervagting was decided by the lords in 1785 and 17*^6, at least two years alter France had, as we are told, " returned to her ancient system of colonial monopoly," and when of course the supposed assertion, of an intended per manent abandonment of that .system could not be permitted to produce any legal consequence. We answer further, that if this alleged declaration was in fact made, (and we must be allowed to say, that we have found no trace of it out of the opinion above recited,) it never was put into such a formal and authentic shape as to be the fair subject of judicial notice. [ 393 ] It is not contained in the I'rench arrets of that day, where only it would be proper to look for h, and we are not referred to any other document proceeding from the government of France, in which it is said to appear. There does not, in a word, seem to have been any thing which an enlightened tribunal could be supposed capable of considering as a pledge on the part of France, that she had resolved upon or even meditated the ex travagant change in- her colonial system which she is said, in this opinion, to have been understood to announce to the world. But even if the declaration in question was actually made, and that too with all possible solemnity, still it would be difficult to persuade any thinking man that the sincerity of such a declara tion was in any degree confided in, or that any person in any country could regard it in any other light than as a mere artifice, ' ' that could give no right which would not equally well exist with out it. Upon the whole, it is manifestly impracticable to rest the decisions bf the lords of appeal, in and after the American war, upon any dependence placed on this declaration, of which there is no evidence that it ever was made, which it is certain was not authentically or formally made ; which, however made, was not and could not be believed at awy time, far less in 1785 and 1786, when its falsehood had been unquestionably proved by the public and undisguised conduct of its supposed authors, in direct op position to it. That Sir James Marriot, who sat in the high court of admiralty of Great Britain during the greater part of the late war, did not consider these doctrines as standing upon this ground is evident ; for, notwithstanding that in the year 1756 ¦ he was the most zealous and perhaps able advocate for the condemnation of the Dutch ships engaged in the colony trade of France, yet, upon the breaking out of the late war, he relied upon the decisions in the American war as authoritatively settling the legality of that trade, and decreed accordingly. If, as a more plausible answer to these decisions, considered in the light of authorities, than that which we have just ex amined, it should be said that they ought rather to be viewed as reluctant sacrifices to policy, or even to necessity, under cir cumstances of particular difiiculty and peril, than as an expres sion of the deliberate opinion of the lords of appeal, or of the [ 394 ] government of Great Britain ; on the matter of right, it might perhaps be sufficient to reply, that if the armed neutrality coupled with the situation Great Britain as a party to the war did in any degree compel these decisions, we might also expect to find at the same era some reldxation on the part of that country relative to the doctrine of contraband, upon which the convention of the armed neutrality contained the most direct stipulations which the northern powers were particularly interested to enforce. Yet such was not the fact. But in addition to this and other con siderations of a similar description, it is natural to inquire why it happened that, if the lords of appeal were satisfied that Great Britain possessed the right in question, they recorded aud gave to the world a series of decisions against it, founded not upon British orders of council, gratuitously relaxing v/hat was still asserted to be the strict right (as in the late war) but upon general principles of public law. However prudence might have required (although there is no reason to believe it did require) an abstinence on the part of Great Britain, from the extreme exercise of the right she had been supposed to claim, still it could not be necessary to give to the mere forbearance of a claim the stamp and character of a formal admission that the claim itself was illegal and unjust. In the late war, as often as the British government wished to concede and relax, from whatever motive, on the subject of the colony trade of her opponents, an order of council was resorted to, setting forth the nature of the concession or relaxation upon which the courts of prize were afterwards to found their sentences ; and, undoubtedly, sentences so passed, cannot, in any fair reasoning, be considered as deciding more than that the order of council is obligatory on the courts, whose sentences they are. But the decrees of the lords of appeal, in and after the American war, are not of this description ; since there existed no order of council on the subject of them ; and of course they are, and ought to be, of the highest weight and authority against Great Britain, on the questions involved in and adjudged by them. This solemn renunciation of the principle in question, in the face of the whole world, by her highest tribunal in matters of prize, reiterated in a succession of decrees, down to the year 1786, [ 395 ] and afterwards, is powerfully confirmed by the acquiescence of Great Britain, during the first most important and active period of the late war, in the free and unlimited prosecution by neutrals of the whole colony trade of France ; she did, indeed, at last pro hibit that trade by an instruction unprecedented in the annals of maritime depredation ; but the revival of her discarded rule was characterized by such circumstances of iniquity and violence, as rather to heighten, by the effect of contrast, the veneration of mankind for the past justice of her tribunals. The world has not forgotten the instruction to which we allude, or the enormities bj' which its true character was de veloped. Produced in mystery, at a moment when universal sonfidence in the integrity of her government had brought upon the ocean a prey of vast value and importance ; sent abroad to the different naval stations, with such studied secrecy that it would almost seem to have been intended to make an experiment how far law and honour could be outraged by a nation proverbial for respecting both ; the heralds, by whom it was first announced, were the commanders of her commissioned cruizers, who at the same instant carried it into effect with every circumstance of aggravation, if of such an act there can be an aggravation. Upon such conduct there was but one sentiment. It was con demned by reason and justice. It was condemned by that law which flows from and is founded upon them ; it was condemned, and will for ever continue to be condemned, by the universal voice of the civilized world. Great Britain has made amends, with the good faith which belongs to her councils, for that act of injustice and oppression ; and your memorialists have a strong confidence that the late departure from the usual course of hei* policy will be fiiUowed by a like disposition to atonement and reparation. The relations which subsist between Great Britain and the United States rest upon the basis of reciprocal interests, and your memorialists see in those interests, as well as in the justice of the British government and the firmnejs of our own, the best reasons to expect a satisfactory answer to their complaints, and a speedy abandonment of that system by which they have been lately harassed and alarmed. [ 396 ] Your memorialists will not trespass upon your time with a recital of the various acts by which our coasts, and even our ports and harbours, have been converted into scenes of violence and depredation ; by which the security of our trade and pro perty has been impaired ; the rights of our territory invaded ; the honour of our country humiliated and insulted ; and our gallant countrymen oppressed and persecuted. They feel it to be unnecessary to ask that the force of the nation should be employed in repelling and chastizing the lawless freebooters who have dared to spread their ravages even beyond the seas which form the principal theatre of their piratical exertions, and to infest our shores with their irregular and ferocious hostility, These are outrages which have pressed themselves in a pecu liar manner upon the notice of our government, and cannot have failed to excite its indignation, and a correspondent disposition to prevent and redress them. Such is the view which your memorialists have taken, in this anxious crisis of our public affairs, of subjects which appear to them, in an alarming degree, to affect their country and its commerce, and to involve high questions of national honour and interest, of public law and individual rights, which imperiously demand discussion and adjustment. They do not presume to point out the measures which these great subjects may be sup posed to call for. The means of redress for the past and secu rity for the future are respectfully, confidently submitted to your wisdom ; but your memorialists cannot forbear to indulge a hope, which they would abandon with deep reluctance, that they may yet be found in amicable explanations with those who have ventured to inflict jvrongs upon us, and to advance unjust pre tensions to our prejudice. Baltimore, Jan. 21, 1806. [ 397 ] N°- III. PRIVATE CORRESPONDENCE WITH MR. MADISON, Mr. Pinkney to Mr. Madison. Private. " London, June 29th, 1 808. " Dear Sir, — I had a long interview this morning with Mr. Canning, which has given me hopes that the object mentitmed in your letter of the 30th of April,* (a duplicate by the packet, for the St. Michael has not yet arrived,) may be accomplished, if I should authorize the expectation which the same letter suggests.t Some days must elapse, however, before I can speak with any certainty on the subject. The St. Michriel will probably have arrived before thclt time, and will furnish me with an opportunity of giving you not only the result but the details of what has passed and may yet occur. I beg- you, in the mean time, to be assured that the most effectual care shall be laken to put nothing - to hazard, and to avoid an improper commitment of our govern ment. " I was questioned on the affair of the Chesapeake. > There seems to be a disposition here to consider the amende honorable as already made, in a great degree at least, by Mr. Rose's mission ; but I am strongly inclined to think that it will not be difficult to induce them to renew their overture in the same manner, on tirms more conformable with the views which you very justly take of ' The repeal of tlie Orders in Council. f The repeal of the Embargo. 51 [ 398 ] this interesting subject. I was told (it was not said officially) that the persons taken out of the Chesapeake would be readily restored. The punishment of the officer (otherwise than by his recall, which has been done) will, perhaps, form the greatest em barrassment ; but I will endeavour to ascertain informally what will be done on that and every other part of the case. My sole , object will be, of course, to lead them, as occasion offers, (as far as in my power,) to do what they ought, in the way most for our honour. I can the more properly do this now, as Mr. Canning has himself proposed the subject to me as intimated above." Mr. Pinkney to Mr. Madison. Private. " Brighton, July \Oth, 1808. " Dear Sib, — I had the hoiiour to write you a short letter, by Mr. Temple Bowdoin, dated, I think, on the 29th of last month, of which (not having it here) I cannot now send a duplicate. It stated that I had received by the British packet a dupUcate of your despatch by the St. Michael — that I had just had an inter view with .Mr. Canning — and that there was reason to believe that the object mentioned in that despatch might be accomplished upon my authorizing the expectation which it suggests. It was arranged between Mr. Canning and myself that another interview should take place about this time, and that he should send me a private note to Brighton, (where I am come for a few weeks on account of my health,) appointing a day for that purpose. I have not yet received this note ; but am confident I shall have it to-mor row or next day. I shall set out for London the moment it reaches me. " I stated in the letter, abovementioned, that I was told by Mr, Canning (extra officially) that there would be no objection here to restore the men taken from the Chesapeake ; and I suggested a hope that (except as to the punishment of Berkeley) there would not be much difficulty in inducing thera to propose in a propft manner suitable reparation for that aggression. This matter I will endeavour to ascertain fully at our next meeting. " I write-this with the view of sending it by the packet. News papers have been and will be sent by other opportunities. They [ 399 J are highly interesting with reference to Spain. I enclose a part of Cobbett's Register of last night, (the residue will go with the packets of newspapers,) containing the Brhish order in council that hostilities shall cease with Spain, &c., and the prorogation speech." Mr. Pinkney to Mr. Madison. Private. " August 17t A, 1 SOS. « Dear Sir, — I omitted to mention in my late letters that, at my second interview with Mr. Canning, he suggested incidental- lythat the late orders in council, or proclamation relative to Spain opened the ports of that country, not in the occupation of France, to a direct trade between those ports and the United States. "As I had in view a complete revocation of the orders of January and November, 1807, and the orders founded upon them, I did not think it right to appear to attach any importance to this stiggestion, very carelessly thrown out, by asking explanations ; and I was the less inclined to do so, as I still adhered to my opinion that there could be no compromise with their present system. " The same reasons (and others, indeed, with which it is not necessary to trouble you) prevented me, even after my last inter view with Mr. Canning, from inviting any formal assurances on this point ; but, as the real effect of the orders or proclamation of the 4th of July hegan to be doubted, and it might be desirable to have those doubts removed, I did not think it improper to en courage an application on the subject to the Board of Trade by some merchants in the city. " You will find a copy of their inquiries (less extensive than they ought too have been) and of the answers of the Board in the newspapers of yesterday, from which it appears, "1. That American vessels may proceed from a port in the United States with a cargo the produce of the United States, or colonial produce if not of the enemies' colonies, direct to any port in Spain or Portugal not in the possession or under the con trol of the enemies of Great Britain, and return back to the [ 400 ] United States direct with a cargo the growth or produce of Spain or Portugal. " 2. 1 hat an American vessel, having entered a port in Spain previous to the commencement of hostilities by the Patriots against France, may proceed from such port with a cargo, the growth and produce of Spain, direct to a port of the United Si tes unless the vessel entered in breach of the Orders in Council. " \ ou will observe that the answers are strictly confined to the points proposed by the questions ; but it would seem that from these explanations others necessarily follow." Mr. Pinkney to Mr. Madison. Private. " London, Sept. 10th, 1808. " Dear Sir, — I intended to have enclosed in my private letter of the 7th, by Mr. Bethune, who left town on the evening of that day for Falmouth, to embark in the B. Packet, a triplicate of my public letter of the 4th of August, but in my hurry I omitted it. I transmit it now by Mr. Young, our consul at Madrid, who is about to sail from Gravesend for New-York, and 1 beg to renew ray request that the slight variations from the original and dupli cate, which you will find in the lines marked in the margin with a pencil, njay be adopted. The only one of these correctiims, however, about which I am in the least anxious, is in the fourth paragraph from the end, which in my rough draft reads thus, " at " the close of the interview, I observed, that, as the footing upon " which this interview has, &c:" This awkward iteration of the word interview, (if not actually avoided in the original and du plicate, as perhaps it is,) I really wish corrected. " Mr. Canning's reply to my note not making its appearance, I went this morning to Downing-street to inquire about it ; but both Mr. Canning and Mr Hammond were in the country. I shall not omit to press for the answer (without, however, giving unnecessary offence) until I obtain it, or have the delay explained. Jt is p..ssible that, when received, it may be found to adopt our proposal, and that they are merely taking time to connect with [401 ] their compliance a long vindication of their orders. This is one way of accounting for the delay. " It is also possible that they are actually undecided, and that they wish to proscrastinate and keep back their answer until they can understand by the B, Packet (expected very soon) the work ings of the embargo, and of the Spanish views in America ; un til they can take measure of our elections ; until they can ascer- ta;n what is to be the course of France towards us ; until the state of tlurope, so flattering to their hopes, shall improve yet more, or at any rate be past the danger of a relapse, &c. &c. All this is possible ; but I continue to think that they will reject what I have proposed. Their present elevation is exactly calculated (aided by false estimates of America) to mislead them to such a eonclusion. They are hardly in a temper of mind to appreciate the motives of the President's conduct. The chances are that they will ascribe the assurances I have been authorized to give them, as to the embargo law, to a mere anxiety to get rid of that law ; and that they will only see in those assurances a pledge that we are heartily tired of our actual position, and are ready to abandon it at any rate. They will be apt, in a word, to pre sume (believing, as I am sure they do, that we will not venture upon extremities with them) that, by holding off, they will com pel us to retract our late measures (the most wise and honourable ever adopted by a government) and to fall at their feet. Vou must not be surprised if they should be found to expect even more than this from the pressure of the embargo. I allude to the influence which many hope it will have upon our elections, in bringing about a change of men as well as of measures. In this I trust they will be signally disappointed. If (party spirit out of the question) the conduct of our govern ment towards the two powers that keep the world in an uproar with their quarrel has been really disapproved in the United States, the overture just made to both cannot fail to subdue it. I anticipate from it a perfect union of sentiment in favour of any attitude which it may be necessary to take. It puts us so une quivocally in the right, that, although we were not, I think, bound to make it, it is impossible not to rejoice that it has been made. In any event it must be salutary and must do us honour. The [ 402 ] overture, however, would seem to be more advantageous to Great Britain than France. For if you should take off the embargo as to France and continue it as to Great Britain, your proceed ing would have little substance in it, considered as a benefit to France, unless and until you went to war against Great Britain. But the converse of this would have a vast effect in favour pf Great Britain, whether you went to war with France or not. " It does not follow, and certainly is not true, that the over ture is for that reason unjust to France ; although I think it the clearest case in the world that Great Britain is (at least) inpaxi delicto with France on the subject of thai code of violence which drives neutrals from the seas and justice from the world. " It is said here, by those who affect to know, that a concilia tory conduct by France towards the United States will not be acceptable to this government; and certainly Marriott's book affords some reason for suspicion that a repeal of the French decrees would not be followed by that of the British orders. Such infatuation is scarcely credible, yet it would not be much worse than their present backwardness to avail themselves of , what has lately been said to them. " After all, it will be safest (for a time longer) to keep opinion as much as possible in suspense — and I need not repeat my assurances that the moment I receive the information I am ex pecting, no effort shall be spared to put you in possession of it." Mr, Pinkney to Mr, Madison. Private. " London, Sept. 21, 1808. " Dear Sir, — The Hope arrived at Cowes from France the 13th. " Not having heard from Mr. Canning, although he returned to London the l6th, I called again yesterday at Downing-street, and was assured that the answer to my note would be sent to night or early to-morrow morning. Mr. Atwater will of course be able to leave town on Friday, and embark on Saturday with a copy of it. " I have been told since the arrival of the last British packet (but do not believe it) that there is more probability than I had ( 403 ) anticipated, that the late events in Spain and Portugal (which ought not to be considered as deciding any thing) will have an effect on pubUc opinion in America against the continuance of the embargo, and favourable to all the purposes of Great Britain. If this were true, I should think it w is deeply to be lamented. I may misunderstand the subject ; buft I cannot persuade myself that any thing that has happened on this side of the Atlantic, ought to induce us in any degree to retreat from our present system. " If we should resolve to trade whh Spain and Portugal (Great Britain and France persisting in their orders and decrees) in any way to which Great Britain would not object, we must suspend the embargo as to those countries only, or as to those countries and Great Britain, or we must repeal it altoyether. " The temptation to the first of these courses is, even in a commercial sense, inconsiderable — the objection to it endless. The object to be gained (if no more was gained than ought to be gained) would be trifling. There could indeed be no gain. An inadequate market redundantly supplied would be more injil- rious than no market at all ; it would be a lure to destruction and nothing more. A suspension of the embargo, so limited in its nature as this would be (supposing it to be in fact what it would be in form) would have a most unequal and invidious operation in the different quarters of the Union, of which the va rious commodities would not in the ports of Portugal and Spain be in equal demand. " A war whh France would be inevitable — and such a war, (so produced) from which we could not hope to derive either honour or advantage, would place us at the mercy of Great Britain, and on that account would in the end do more to cripple and humble us, than any disaster that could otherwise befal us. " The actual state of Spain and Portugal is moreover not to be relied upon. My first opinion . on that subject remains ; but even the most sanguine will admit that there is great room for doubt. The Emperor of France is evidently collecting a mighty force for the reduction of Spain ; and Portugal must share its fate. And even if that force should be destined (as some sup pose) first to contend with Austria, the speedy subjugation of [ 404 ] Spain is not the less certain. If France should succeed, Spain and Portugal would again fall undei the British orders of No- vemher, as well as under the operation of the French decrees. Our cargoes would scarcely have found their way to the ocean in search of the boasted market, before they would be once more in a state of prohibition, and we should in the mean time have incurred the scandal of suffering an improvident thirst of gain to seduce us from our principles into a dilemma presenting no alter native but loss in all the senses of the word. " But it is not even certain what Great Britain would herself finally say to such a partial suspension of the embargo. She would doubtless at first approve of it. But her ultimate course (especially if war between France and the United States were not the immediate consequence, or if the measure were eventually less beneficial to herself than might be supposed at the outset) ought not to be trusted. That she should approve at first, is hardly to be questioned, and the considerations upon which she would do so, are precisely those which should dissuade us from it. Some of these are — the aid it would afford to her allies, as well as to her own troops co-operating with thera, and its conse quent tendency to destroy every thing like system in our conduct its tendency to embroil us with France, its tendency to induce us, by overstocking a limited market, to make our commodiiies of no value — to dissipate our capital — to ruin our merchants with out benefiting our agriculture — to destroy our infant manufactures without benefiting our commerce — its tendency to habituate us to a trammelled trade, and to fit us for acquiescence in a maritime despotism. But there are other reasons — our trade with Spain and Portugal, while it lasted, would be a circuitous one witfi Great Britain and her colonies, for their benefit. Our produc tions would be carried in the first instance to Spain and Portu gal, would be bought there for British account, and would find their way to the West Indies or centre here, as British conve nience might require, and thus in effect the embargo be removed as to Great Britain, while it continued as to France, and we professed to continue it as to both. And if any profits should arise from this sordid traffic, they would become a fund, to ena ble us to import into the United States directly or indirectly the [ 405 J manufactures of Great Britain, and thus relieve her in anotlier way, while her orders would prevent us from receiving the commodities of her enemy. It would be far better openly to take off the embargo as to Great ISritain, than while affecting to .conunue it as to that power to do what must rescue her com pletely (and that too without advantage to ourselves) from the pressure of it, at the same time that it would promote her views against France in Portugal and Spain. " As to withdrawing the embargo as to Great Britain, as well as Spain and Portugal, while the British orders are unrepealed, the objections to that course are just as strong now as they were four months ago. The change in Spain and Portugal (if it were even likely to last) cannot touch the principle of the embargo, as regards Great Britain, who re-asserts her orders of November, in the very explanations of the 4th July, under which we must trade with those countries, if we trade with them at all. If we include Great Britain in the suspension, and exclude France, we do now what we have declined to do before, for the sake of a delusive commerce, which may perish before it can be enjoyed, and can not in any event be enjoyed with credit, with advantage, or even with safety. We take part at once with Great Britain against France, at a time the least suited that could be imagined to such h. determination, at a time when it might be said we were em boldened by French reverses, to do what before we could not resolve upon, or even tempted by a prospect of a scanty profit, exaggerated by our cupidity and impatience to forget what was due to consistency, to character and permanent prosperity. We sanction too the maritime pretensions which insult and injure us ; we throw ourselves, bound hand and foot, upon the generosity of a government that has hitherto refused us justice, and all this when the affair of the Chesapeake, and a host of other wrongs, are unredressed, and when Great Britain has just rejected an overture which she must have accepted with eagerness if her views were not such as it became us to suspect and guard against. To repeal the embargo altogether would be preferable to either of the other courses, but would notwithstanding be so fatal to us in all respects, that we should long feel the wound it would inflict, unless indeed some othe^r expedient, as strong at least and 52 [ 406 ] as efficacious in all its bearings, can (as I fear it cannot) be sub stituted in its place. " War would seem to be the unavoidable result of such a step. If our commerce should not flourish in consequence of this mea sure, nothing would be gained by it but dishonour ; and how it cpuld be carried on to any valuable purpose it would be difficult to show. If our commerce should flourish in spite of French smd British edicts, and the miserable state of the world, in spite of war with France, if that should happen, it would, I doubt not, be assailed in some other form. The spirit of monopoly has seized the people and government of this counuy. We shall not under any circumstances be tolerated as rivals in navigation and trade — it is in vain to hope that Great Britain will voluntarily foster the naval means of the United States. All her prejudices — all her calculations are against it. Even as allies we should be subjects of jealousy. It would be endless to enmnerate in detail the evils which would cling to us in this new career of vassallage and meanness, and tedious to pursue our backward course to the extinction of that very trade to which we had sacrificed every thing else. " On the other hand, if we persevere we must gain our pur pose at last. By complying wilh the little policy of the moment, we shall be lost. By a great and systematic adherence to prin ciple, we shall find the end to our difficulties. The embargo and the loss of our trade are deeply felt here, and vvill be felt with more severity every day. The wheat harvest is like to be ^alarmingly. short, and the state of the continent will augment the evil. The discontents among their manufacturers are only quieted for the moment by temporary causes. Cotton is rising, and soon will be scarce. Unfavourable events on the continent will subdue the temper unfriendly to wisdom and justice which now prevails here. But above all, the world will I trust be convinced that our firmness is not to be shaken. Our measures have not been without effect. They have not been decisive, because we have not been thought capable ot persevering in self denial, if that can be called self denial which is no more than prudent abstinence from destruction and dishonour. [ 407 ] " I ought to mention that I have been told by a most respect able American merchant here, that large quantities of such woollen cloths as are prohibited by our non-importation act, have been and continue to be sent to Canada, with the view of being ' smuggled into the Unhed States. " I beg you to excuse the frequency and length of my private letters. " I need not tell you that I am induced to trouble you with my hasty reflections, because I think you stand in need of thera. I give them merely because I believe that you are entitled to know the impressions which a public servant on this side of the water receives from a view of our situation." " P. S. Sept. 24th. Mr. Canning's answer received la.st night confirms all my late anticipations. It is a little extraordi nary that if a written proposal was required from me loith the idle motive mentioned in the accompanying papers, no such mo tive was suggested at the time, and even that other motives were suggested. The fact probably is that they wished to evade the overture, and hoped that it would not be formally made. Being made it was difficult to' dispose of it, and hence the delay. Be fore any public use is made of Mr. Canning's statement, I should wish my reply to be received." [In order to understand the above passage, it is necessary to observe, that Mr. Canning in a letter accompanying his note of the 23d September, 1808, in reply to Mr. Pinkney's overturg on the subject of the repeal of the orders in council, had stated, as a reason for requiring their communications to be in writing, the misrepresentation which had taken place in America of former conferences between thera, at the same time adding ; " You gave me on that occasion the ijiost satisfactory proof that such misre presentation did not originate with you, by communicating to me that part of your despatch, in which the conferences particu larly referred to were related, and related correctly ; but this very circumstance, while it establishes your personal claim to entire confidence, proves, at the same time, that a faithful report of a conference on your part, is not a security against its misre- [ 408 ] presentation." In his reply to this letter, Mr. Pinkney observed, that no person could be less disposed than he was to. find fault with the object of Mr. Canning's letter, which appeared to be to guard against all misrepresentation of what had passed in their late interviews " beyond what you find recorded in my note. You have told me that I have, personally, no concern in that object, and I did not require to be told that my government has as little. I understand, indeed, that the circumstance which has suggested a peculiar motive for this proceeding was. one of those newspaper misrepresentations which every day produces where the press is free, which find no credit and beget no consequence and for which it is greatly to be feared your expedient will pro vide no remedy. Of my conduct, when that circumstance oc curred, in giving you unsolicited proofs that 1 had transmitted to Mr. Secretary Madison a faithful report of our conferences, mis taken by public rumour or private conjecture, it is not necessary for me to speak, for you have yourself done justice to it." [The following extracts from Mr. Pinkney's official reply to JMr. Canning's letter, seem, also to be necessary to the understand ing of the remarks which he afterwards makes upon it in a pri vate letter to Mr. Madison, He recapitulates what had passed in conference between him and Mr. Canning, and states in aeon- dense form the arguments by wWch he supported the proposal he had made.] '¦' I meant to suggest, then, that upon your own principles it would be extremely difficult to decline my proposal ; that your orders inculcate, as ths duty of neutral nations, resistance to the maritime decrees of France, as overturning the public law of the world, and professedly rely upon that duty, and an imputed abandonment of it for their inducement and their justification; that of those orders, that of the "th of January, 1807, (of which the subsequent orders of November are said, in your official re ply to my note of the 23d of August, to be only an extension, (" an extension in operation not in principle,") was promulgated and cai-ried into efiect a few weeks only after the Berlin decree bad made its appearance, when the American government could [ 409 ] not possibly know that such a decree existed, when there had been no attempt to enforce it, and when it had become probable that it would not be enforced at all, to the prejudice of neutral rights ; that the other orders were issued before the American government, with reference to any practical violation of its rights, by an attempt to e.^ecute the Berlin decree in a sense different from the stipulations of the tieaty subsisting between the United States and France, and from the explanations given to General Armstrong by the French Minister of ME.rine, and afterv, ards impliedly confirmed by M. Champagny, as well as by a corres pondent practice, had any sufiJcient opportunity of opposing that decree, otherwise than as it did oppose it ; that your orders, thus proceeding upon an assumed acquiescence not existing in fact, re- tafiated prematurely, and retaliated a thousand fold, through the rights of the United States, wrongs rather threatened than felt, which you were not authorized to presume the United States would not themselves repel, as their honour and their interests required ; that orders, so issued, to say the least of them, were an unseasonable interposition between the injuring and the injured party, in a way the most fatal to the latter; that by talcing justice into your own hands before you were entitled to do so, at the expense of every thing like neutral rights, and even at the expense of other rights justly the objects of yet greater sensibility, and by inflicting upon neutral nations, or rather upon the United States, the only neutral nation, injuries infi nitely more extensive and severe than it was in the power of France to inflict, you embarrassed and confounded, and ren dered impracticable, that very resistance which you demanded of us : that very proposal destroyed al! imaginable, motives for continuing, whatever might have been the motives for adopt ing, this new scheme of warfare; that it enabled you to withdraw, with dignity and even wilh advantage, what should not have come between France and us ; that its necessary tendency was to place us at issue with that power, or in other words, in the precise situation in which you have maintained we ought to be placed, if it should persist in its obnoxious edicts; that the con tinuance of our embargo, so modified, would be at least equiva- lant to your orders ; for that, in their most eflicient state, your or- [ 410 ] ders eould do no more as regards the United States, than cut off their trade with France and the countries connected with her; and that our embargo, remaining as to France and tiiose countries, would do exactly the same ; that if the two courses were barely, or even nearlv upon a level in point of expediency, Great Britain ouc;ht to be forward to adopt that which Wds consistent with the rights and respectful to the feelings of others ; that my proposal, howevei, had powerful recommendations which the orders in council had not ; that it would re-establish, without the hazard of any disadvantage, before new habits had rendered if difficult, if not impossible, a traffic which nourished your most essential manufactures, and various other important sources of your pros perity ; that it would not only restore a connexion valuable in all its views, but prepare the way for the return of mutual kindness for adjustments greatly to be desired — and in a word, for aH,those consequences which follow in the train of magnanimity and con ciliation, associated with prudence and justice. " Among the observations intended to illustrate my opinion of the certain, probable and possible effects of the concurrent acts which my proposal had in view, were those to which you allude in the sixth paragraph of your letter. Having stated that renewed commercial intercourse between Great Britain and the United States would be the first effect, I remarked in the progress of the conversation, that the edicts of France could not prevent that inter course, even if France should adhere to thera ; although Great Britain, by her superior naval means, might be able to prevent the converse of it ; that the power of France upon the se'as was in no degree adequate to such a purpose ; and if it were otherwise, that it was not to be supposed that the United States, resuming their lawful commerce with this country after the recall of the British orders in council, would take no measures against sys tematic interruptions of that commerce by force and violence, if such should be attempted. " If, when I was honoured by the difierent interviews before mentioned, I had been able to conjecture the nature of the argu ments which were to have an influence against my proposal, as I now find thera stated in your answer to ray note, I should proba bly have ventured to suggest, in addition to the remarks actually I 411 ] submitted to your consideration, that if " the blockade of the Eu ropean continent," by France and the powers subservient to, or in combination with her, to which your orders, as " a temperate but determined retaliation," were opposed, has been " raised even before it has been well established," and if " that system" so op posed, "of which extent and continuity were the vital princi ples, has been broken up into fragments utterly harmless and con temptible," there seems scarcely to be left, in your own view of the subject, any intelligible justification for perseverance in such of the retaliatory measures of Great Britain, as operate through the acknowledged rights of a power confessedly no party to that combination, and ready to fulfil her fair neutral obligations', if you will suffer her to do so. Under such circumstances, to aban don what is admitted to have lost its only legitimate object, is not "concession ;" it is simple justice. To France, indeed, it might be concession. But it is not France, it is the government of America, neither subservient to France nor combined with France^ a third party, whose rights and interests your orders deep ly affect without any adequate necessity, according to your own showing, that requires their recall, and that too upon terms which cannot but promote the declared purposes of those orders, if any remain to be promoted. I say " without any adequate necessity, according to your own showing ;" for I am persuaded. Sir, you do not mean to tell us, as upon a hasty perusal of your answer to my note might be imagined, that those rights and interests are to be set at nought, lest " a doubt should remain to distant times of the determination and the ability of Great Britain to have con tinued her resistance," or that your orders may indefinitely 'give a new law to the ocean, lest the motive to their repeal should be mistaken by your enemy. If this tnight, indeed, be so, you will permit me to say that, highly as we may be disposed to prize the firm attitude and vast means of your country at this eventful mo ment, it would possibly suggest to some minds a reluctant doubt on the subject of your observation, " that the strength and power ef Great Britain are not for herself only, but for the world." " I might also have been led to intimate that my proposal would apparently lose nothing by admitting that, " by some un fortunate concurrence of circumstances, without any hostile inten- [ 412 ] lion, the American embargo did come in aid of " the before mentioned blockade of the l^uropean continent, precisely at the very moment when, if that blockade could have succeeded at all, this interposition of the American government would most effec tually have contributed to its success." Yet I should probably have thought myself bound to remind you that, whatever may be the truth of this speculation, the same erabargo withheld our tonnage and our productions from that communication whh the colonies of yourenemies and with the European continent, which you had asserted your right to prevent ; which, as a direct com- raunication, (with the continent) you had in fact prohibited ; which, even through British ports, or in other qualified forms, you had professed to tolerate, not as that which could be claimed, but as an indulgence that could at any time be withdrawn ; which, as a traffic for the United States to engage in, you had at least discouraged, not only by checks and difficulties in the way of its prosecution, but by manifesting your intention to mould it into all the shapes which the belligerent, fiscal, or other peculiar policy of Great Britain raight require, and to subject it to the exclusive jurisdiction of her municipal code, armed with all the prerogatives of that universal law to which nations are accus tomed to look for the rights of neutral commerce."' Mr. Pinkney io Mr. Madison. Private. " London, October lllh, 1808. " Dear Sir, — I am not able to judge whether my reply to Mr. Canning's letter (enclosed in ray public despatch ) will be approved by the President. I need not say that 1 hope it will. At any rate it can do no harm, as it is simply my act. What will be its reception here I know not. If ill received, as perhaps it may be, alth;iugh perfectly polite, it can affect only myself. This last reflection suggests another. I can say with perfect truth that I have no desiie to remain here a moment longer than I ought. Dispose of me, therefore, as shall be thought best, and do not think that I ara inclined to overrate myself, if 1 add, that I beg you in any event to be assured of my unshaken attachment and best services. ^ [ 413 ] " Mr. Canning's answer to my note and the accompanying letter will, no doubt, be well considered and thoroughly under stood. I may misconceive them, but I suppose them to be at once insulting an^ insidious ; and have endeavoured in my' reply to counteract their purposes without giving just cause of offence. « I need not dissect to you these papers ; but I must make one remark upon them. The answer contains an insinuation, scarcely to be mistaken, that our embargo was concerted with France,* and the letter endeavours to provide evidence of that concert by its account of what I said to Mr. Canning upon the nature and origin of the embargo. It has always, as you know, been a favourite purpose here to make out that the Prpsident knew nothing of the British orders of November, at the date of the message recommending that measure. The inference from this fact once established, would be, among other things, that there could be no inducement for including Great Britain in the embargo but an attachment to the French system of " a block ade of the continent." You will find, if occasion should arrive, that we shall be accused by this government, much more dis tinctly than in Mr. Canning's paper, of having been parties to * " Tiie government of thc United States is not now to be informed that ihe Berlin decree of November 21st, 1806, was the practical commeace- meiit of an attempt, not merely to check or impair the prosperity of Great Britain, but utterly to annihilate her political existence, through the ruin of her commercial prosperity ; that in this attempt almost all Ihe powers of the European continent have been compelled, more or less, to co-ope rate ; and that the American embargo, though most assuredly hot intended to that end, (for America can have no real interest in the subversion of the British power, and her rulers are too enlightened to act from any im pulses against the real interest of their country,) but by some unfortunate concurrence of circumstances, without any hostile intention, the American embargo did come in aid of the "blockade of the European continent," precisely at the very moment when, if that blockade could have succeeded at all, this interposition of the American government would most efiec- tually have contributed to its success. " To this universal combination, his Majesty has opposed a temperate, but a determined retaliation upon the eremy ; trusting that a firm resist ance would defeat this project, but knowing that the smallest concesaioa would infallibly encourage a perseverance in it." 53 ( 414 ) what that paper calls the " universal combination,'^ I have thought it my indispensible duly to repel in few words the above insinuation without appearing to understand it, and, in order to defeat the intended proof of it, to state explicitly what I really did say to Mr. Canning about the erabargo. You will, 1 am persuaded, be of opinion that the course I have pursued was ab solutely forced upon me. Nothing could be more disagreeable than such a discussion ; but I think I should have forgotten what was due to my country's honour, as well as to my own, if I had declined it.* * ** My suggestions were to the foUiwing efiect: that 1 believed that no copy of your orders of November had arrived in the United States at the date of the President's message ; that a recent change in the conduct of France to our prejudice did appear to be knofVD ; that intellig:ence had been received, and a belief entertained of your intention to adopt aome further measures as a measure of retaliation against France, by which our commerce and our rights would be affected ; that there was reason to con clude that you had actually adopted such a measure ; that (as I collected from American newspapers) this had appeared from private letters and the newspapers of this country received in the United States some days betoro the message of the President, and probably known to the govern ment ; that, in a word, various information concurred to show that'our trade was likely to be assailed by the combined efforts of both the bellige rent parties ; and that the embargo was a measure of wise and peaceful precautioD, adopted under the view of reasonably anticipated peril." [The nature of the evidence upon which the embargo was recommeudet) in the President's message to Congress of the I8th Dec. 1807, is not staled so strongly by Mr. Pinkney in the above extract as it might have been, had he known at the time all the facts connected with it, I have been informed from the highest authority that a copy of the British orders in council of iNovember llth, 1807, as printed in an English newspaper, stating them to be ready in that form to be signed and issued, was actually lying on the President's table at the time when the message was sent. Be sides the precise warning contained in the newspaper, it was generally understood that sooie such measure was contemplated by the British cabinet. Among other grounds for this beiiel was the following passage in a private letter to Mr. Madison, of October 5, 1807, from a very intelligent and close observer in London oi' the indicated views of the cabinet to wards this country: "The Gazette of Saturday has gone by without an nouncing the injurious blockade of all French ports and all ports under the [ 415 ] " 1 look with anxiety for the packet. It will not, I trust, appear that we are ready to submit to what Great Britain now declares to be her determination, nothwithstanding that " his Majesty would gladly facilitate the removal of the American Embargo as a measure of inconvenient restriction upon the American people .'" " I send you English newspapers, and the 1st and 2d parts of vol. VI. of Robinson's Admiralty Reports." influence of France, vphich was threatened all the week, and very gene rally expected." Another letter from the same of Oct. llth, adds, " two more Gazettes have been published without announcing the rigorous blockade, one of them as late as last night. I hope they have thought better of it." Although it is true therefore that no official evidence existed in this country of the orders in couacil when the embargo was recommended, there was a moral certainty in this evidence, connected with all the facts and ciicumstaoces referred to by Mr. Pinkney, and more distinctly enu- Dierated by Mr. Brougham in his speech on the orders in council, which warranted the measure, and which was so speedily confirmed by official intelligence. To this view of the case the language of the message was accoinmo'lated, and the subsequent message of February 2, 1^08, founded on ofBcial inlormatiou ot the orders, comports with the idea that they had been unofficially known when the provident measure of the embargo was recominended. Speaking of the circumstances under which the measure was adopted, Mr. Brougham retnarks : " If it he said that this measure of embargo vns adopted suddenly (a charge whioh I think cannot be attri buted to il) I answer that if it was to be done at all, it behoved to be done with vigour and promptitude, the very moment the government of that country perceived that it was called for by the measures which we had adopted. As soon as this unexampled attack upon their navigation, and encroachment upon their privileges was known, nay, the instant that this unheard of aggression was suspected to be in our contemilation, the United States were obliged, not to resent il, indeed, for it had not yet attacked them ; but at least to provide against its certain effects by some measure of precaution. Therclore I saj let it not be argued that the suddenness of this precautionary measure, n measure in its very nature sudden and applicable to an unexpected and pressing emergency, affords any ground for believing that the orders in council were not the ocoasion of it."] [ 416 ] Mr. Pinkney to Mr. Madison. Private. " London, November 2d, 1808. " Dkar Sir, — You will have discovered some weeks ago, that the hope which I had entertained of a satisfactory issue of my discussion with Mr. Canning was unfounded. I trust it will be thought that the experiment has been completely made, and that no clue can be found to maintain that every thing has not been done to render our overture acceptable. 1 tried it in every shape, and endeavoured to recommend it in every mode, even at the hazard of indiscretion, in vain. Nothing could have been more unexpected than Mr. Canning's letter to me, accompanying the official answer, which I am sure you will understand, to my pro posal. I feel that it is not such a letter as I could have persuaded myself to write in similar circumstances. That feeling is suffi ciently manifest in my reply ; which, nevertheless, I believe to be so carefully polite that it cannot be deemed to be in any respect out of rule. " You will observe that in my official note of the 23d of Au gust, as well as in the last mentioned paper, I have had in view Mr. Canning's speech of the 24th of June, to which your pri vate letter alludes. Whether his speech be correctly reported I know not; bul his letter to me of the 23d of September, (which will not, 1 am confident, bring any accession of honour to him,) renders it quite probable." Mr, Madison to Mr. Pinkvey. Private. " Washington, November 9th, 1808. " The conduct of the British cabinet in rejecting the fair offer made to it, and even sneering at the course pursued by the United States, pi ove at once a very determined enmity to them, and a confidence that events were taking place here which would re lieve it from the necessity of procuring a renewal of commercial [ 417 ] intercourse by any relaxation on its part. Without this last supposition it is difficult to believe that, with the prospects" at home and abroad in Europe, so great a folly would have been committed. As neither the public nor Congress have yet had time to disclose the feelings which result from the posture now given 10 our relations with Great Britain, I cannot speak posi tively on that subject. I shall be much disappointed, however, if a spirit of independence and indignation does not strongly rein force the past measures with others which will give a severity to the contest of privations at least, for which the British govern ment would seem to be very little prepared in any sense of the Word. It was perhaps unfortunate, that all the intelligence from this country, previous to the close of your correspondence with Mr. Canning, was from a quarter and during a period most like ly to produce miscalculations of the general and settled disposi tions. You will see in the newspapers sufficient evidence of the narrow limits to which discontent was confined, and it may rea sonably be expected that the counter-current will be greatly strenathened by the communications now going forth to the public. " Among the documents communicated confidentially to Con gress, I hope you will excuse us for including (with the exception of some small passages) your private letter of Sept. 21.* The excellent views which it appeared to take of our affairs with Great Britain, were thought to justify the liberty. They coin cided indeed so entirely with the sentiments of the executive, and were so well calculated to enlighten the legislative body, that it was con6dently presumed the good effect would outweigh the ob jections in the case. A like liberty was taken with a private let ter from General Armstrong." Mr. Madison to Mr. Pinkney. « Washington, Dec. 5th, 1808. " Dear Sir,— I have little to add to the printed communica tion accompanying my oflScial letter of this date. Congress * See page 402. [ 418 ] seems to be sufficiently determined, as you will perceive, to re sist the unjust and insulting edicts of the belligerents, and differ only as to the mode best suited to the end. The disposition to prefer war to the course hitherto pursued, is rather gaining than losing ground, and is even promoted by the efforts of those most opposed to war with Great Britain, who concur in deciding against submission, and at the same time contend that withdraw ing from the ocean is submission. It is very questionable, how ever, whether a preference of war to be commenced within the present session, is so general in Congress, or so much looked for by the nation, as to recommend the measure. Whether, in case the measure should be declined, any such substitute providing for war during the recess, as I have intimated in one of my last let ters, will be acceptable, is more than I can undertake to say, nothing of the sort having been brought into conversation. " I find by conversation with Mr. Erskine, that he is himself favourably impressed by the documents laid before Congress as to the fairness of our conduct towards the two belligerents, and that he is willing I should believe that the impression will be the same on his government. As it may be conceived by him, however, to be politic to lull our feelings and suspicions, I am the less sure that he calculates on any change in the councils of his government likely to do justice to those of this government. " As to the state of the public mind here, you will sufficiently collect it from the printed information now forwarded. I can not believe that there is so much depravity or stupidity in the eastern States, as to countenance the reports that they will sepa rate from their brethren rather than submit any longer to the sus pension of their commerce. That such a project may lurk with in a junto, ready to sacrifice the rights, interests, and honour of their country to their ambitious or vindictive views, is not to be doubted ; but that the body of an intelligent people, devoted to commerce and navigation, with few productions of their own, and objects of unceasing jealousy to Great Britain on account of their commerce and navigation, should be induced to abandon the southern States, for which they are the merchants and carriers, in order to enter into an alliance with Great Britain, seems to be impossible. What sort of a commercial treaty could be made [ 419 ] between such parties ? In truth the obstacles to one between the United States and that nation, arise almost wholly from the pa tronage by the former of the maritime rights and interests of the eastern States as a portion of the confederacy. A treaty between such parties, if made at all, must be political, not commercial, an|d have in view modifications of government and aggrandize ment of individuals, and not the public good." Mr. Pinkney to Mr. Madison. Private. " London, Jan. 16, 1809- " Mr. Sawyer's communication has been published (for the first time in England) in the Observer of yesterday as an interesting document. I question much if the daily papers will follow the example. " I enclose a curious extract from the Anti-Jacobin Review and Magazine for November last, brought to me by a friend a few days ago. I have not seen the book itself. Burr is at Edin burgh. The enclosed extract of a letter, relative to him, from one of my friends there, may amuse you. "The late proceedings of the Legislature of Massachusetts .surpass my worst expectations : — Those of Congress equal ray best. The advantage in debate is triumphantly with the friends of the embargo. The only speech sent to me in a pamphlet, (Mr. Giles',) has been given to a leading member of the House of Lords, together with the published documents, the very able re port of the committee of the House of Representatives, and the answer of the majority of the Massachusetts members to the Legislature of that State. I have sent a copy of each of these documents to Gen. Armstrong by a very uncertain opportunity, and have distributed the rest among members of Parliament. I wish you had sent me more. Our overture, connected with the late proceedings in Congress and the publication of the corres pondence, &c. has 1 know done much good. ' " Parliament is about to assemble under the most gloomy aus pices. Our affairs will be amply and zealously discussed. I know not how ministers can justify their conduct towards us. [ 420 ] Mr. Pinkney to Mr. Madison. "London, Jan. 23d, 1809. " Dear Sir, — I dined at Mr. Canning's with the corps diple- matique, on the 18th, the day appointed for the celebration of the Queen's birth-day. Before dinner he came up to me, and, entering into conversation, adverted to a report which he said had reached him, that the American ministers (here and in France) were about to be recalled. I replied that I was not aware that such a step had already been resolved upon. He then took me aside, and observed, that, according to his view of the late proceedings of Congress, the resolutions of the House of Representatives In committee of the whole, appeared to be calculated, if passed into a law, to remove the impedi ments to an arrangement with the United States upon the two subjects of the orders in council and the Chesapeake — that the President's proclamation had in fact formed the great obstacle to the adoption of what we had lately proposed, and that t very body knew that it had formed the sole obstacle to adjustment in the other affair — that the renewal of commercial intercourse with America, while that proclamation remained in force, would hajie been attended with this embarrassment, that British merchant ves sels, going into our ports, would have found there the commission- "» ed cruizers of the enemy in a capacity to assail them as soon as they should put to sea ; while British armed vessels, having no asylum in those ports, would not have been equally in a situation to afford them protection — that if this was noi insisted upon at large in his reply to my official letter of the 23d of \ugust, it was because it was difficult to do so without giving to that paper somewhat of an unfriendly appearance — that as the above men tioned crafiarrassfficni, produced by the proclamation of the Presi dent, and the right which Great Britain supposed she had to com plain of the continuance of that proclamation, proceeded, not from the exclusion of British ships of war from American ports, but from the discrimination in that respect between Great Britain and her adversaries ; and as the resolutions of the House of Re- pri'sentatives took away that discrimination, although not perhaps in the manner which Great Britain could have wished, they were t 421 ] willing to consider the law to which the resolutions were prepa ratory, as putting an end to the difficuhies which prevented satisfactory adjustments wilh us. He then said that they were, of course, desirous of being satisfied by us, that the view which they thus took of the resolutions in question was correct ; and he intimated a wish th.it we should say that the intention of the American government was in conformity with that view. He added that it was another favourable circumstance that the non importation system was about to be applied to all the belligerents. As all this occurred rather unexpectedly, (although my recep tion at court, and other circumstances of much more consequence, had seemed to give notice of some change,) and as I did not think it advisable to say much, even informally, upon topics of such delicacy at so short a warning, I proposed to Mr. Canning that 1 should call on him in the course of a day or two for the pur pose of a more free conversation upon what he had mentioned, "than was then practicable. To this he readily assented; and it was settled that I should see him on the Sunday following, (yes terday,) at 12 o'clock, at his own house. I thought it prudent, however, to suggest at onCe, that the resolutions of the House of Representatives struck me as they did Mr. Canning ; and (sup posing myself to be warranted by your private letter of the 25th of November, in going so far) I added, that although it was evi dent that if Great Britain and France adhered to their present sys tems, the resolutions had a necessary tendency to hasten a disa greeable crisis, I was sure that my governmerit, retaining the spirit of moderation which had always characterized it, would be most willing that Great Britain should consider them as cal culated to furnish an opportunity for advances to renewed inter course and honourable explanations. " The interview yesterday was of some length. An arrange ment with me was out of the question. An assurance from me as to the intentions of the American government in passing (if indeed it had passed) an Exclusion and Non-Intercourse law applicable to all the powers at war, was equally out of the question. I had no authority to take any oflScial step in the business ; and I should not have taken any, without further in structions from you founded upon the new state of things, even 54 [ 422 ] if my former authority had not been at an end. My object, therefore, was merely to encourage suitable approaches on the part of the government by such unofficial representations as I might be justified in making. " I will not persecute you with a detail of my suggestions to Mr. Canning, intended to place the conduct of our governnient in its true light, and to second the effect which its firmness and wis dom had manifestly produced. It will be sufficient to state that, while I declined (indeed it was not pressed) giving, or allowing Mr. Canning to expect, any such assurances as I had understood him to allude to in our last conversation, I said every thing which I thought consistent with discretion, to confirm him in his dispo sition to seek the re-establishment of good understanding with us, and, especially to see in the expected act of Congress, if it should pass, an opening to which the most scrupulous could not object, as well as the strongest motives of prudence for such advances, before it should be too late, on the side of this country, as could scarcely fail to produce the best results. " It was of some importance to turn their attention here, without loss of time, to the manner of any proceeding which might be in contemplation. It seemed that the resolutions of the House of Representatives, if enacted into a law, might render it proper, if not indispensible, that the affair of the Chesapeake should be settled at the same time with the affair of the orders and the embargo ; and this was stated by Mr. Canning to be his opinion and his wish. It followed that the whole matter ought to be settled at Washington ; and, as this was, moreover, desir able on various other grounds, I suggested that it would be well (in case a special mission did not meet their approbation) that the necessary powers should be sent to Mr. Erskine ; but I offered my intei vention for the purpose of guarding them against deficien cies in those powers, and of smoothing the way to a successful- issue. Mr. Canning gave no opinion on this point. " Although I forbear to trouble you in detail whh what I said to Mr. Canning, it is fit that you should know what was said by him on every point of importance. " In the course of conversation he proposed several questions for reflection, relative to our late proposal, which when that pro- [ 423 J posal was made were not even glanced at. The principal were the two following : ¦ " I. In case they should now wish, either through me, or through Mr. Erskine, to meet us upon the ground of our late over ture, in what way was the effectual operation of our embargo as to France, after it should be taken off as to Great Britain, to be se cured ? It was evident, he said, that if we should do no more than refuse clearances for the ports of France, &c., or prohibit, under penalties, voyages to such ports, the effect which my letter of the 21st of August and my published instructions professed to have in view would not be produced ; for that vessels, although cleared for British ports, might, when once out, go fo France instead of coming here. That this would in fact be so (whatever the penal ties which the American law might denounce against offenders) could not, he imagined, be doubted ; and he presumed, therefore, as he could see no possible objection to it (on our part) that the government of the United States would not, after it had itself declared a commerce with France illegal, and its citizens who should engage in it delinquents, complain if the naval force of _this country should assist in preventing such a commerce. " 2. He asked whether there would be any objection to making the repeal of the British orders and of the American em bargo contemporaneous ? He seemed to consider this as indis pensible. Nothing could be less admissible, he said, than that Great Britain, after rescinding lier orders, should, for any time, however short, be left subject to the embargo in common with France whose decrees were subsisting, with a view to an experi ment upon France, or with any other view. The United States could not upon their own principles apply the embargo to this country one moment after the orders were removed, or decline after that event to apply it exclusively to France and the powers connected with her. Great Britain would dishonour herself by any arrangement which should have such an effect, &c. " You will recollect that my instructions (particularly your letter of the 30th of April) had rather appeared to proceed upon the idea that the British orders were to be repealed before the embargo was removed as to England ; and it is probable that a perusal of these instructions had led to Mr. Canning's inquiry. [ 424 ] " Upon the whole I thought I might presume that this govern ment had at last determined to sacrifice to us their orders in council in the way we had before proposed, (although Mr. Can ning once, and only once, talked of amendment and modification, which I immediately discouraged, as well as of repeal,^ and to offer the amende honorable, in the case of the Chesapeake, pro vided Congress should be found to have passed a law in conform ity with the resolutions of the House of Representatives. I ought to say, however, that Mr. Canning did not precisely pledge him self to that effect ; and that the past justifies distrust. The result of ihe elections in America — the unexpected firmness displayed by Congress and the nation — the disappointments in Spain and elsewhere — a perceptible alteration in public opinion here since the last intelligence from the United Stalds — an apprehension of losing our market, of having us for enemies, &c., have appa rently made a deep impiession upon ministers ; but nothing can inspire perfect confidence in their intentions but an impossible forgetfulness of the past, or the actual conclusion of an arrange- .ment with us. In a fevi days I may calculate upon hearing from you. If Congress shall haVe passed the expected act, the case to which Mr. Canningilooks will have been made, and he may be brought to a test from which h will be difficuh to escape. Whatever mjiy be my instructions 1 shall obey them with fidelity and' zeal ; but I sincerely hope they will not make it my duty to prefer adjustment here to adjustment in Washington. I am firmly persuaded that it will be infinitely better that the business should be transacted immediately with our government ; and, if I should be at liberty to do so, I shall continue to urge that course. " V ou will not fail to perceive that the ground upon which it is npw pretended that our proposition of last summer was rejected, is utterly inconsistent with Mr. Canning's note, in which that proposition is distinctly rejected upon other grounds, although in the conclusion of the note, the President's proclamation is intro duced by the bye. Besides, what can be more shallow than the pretext of the supposed embarrassment ! " I took occasion to mention, at the close of our conversation the recent appointment of Admiral Berkeley to the Lisbon sta- [ 425 ] tion. Mr. Canning said that, with every inclination to consult the feelings of the American government on 'that subject, it was impossible for the admiralty to resist the claim of that officer to be employed, after such a lapse of time since Ms recall from Hali fax, vf\t\ioyit hnngmg h\m to a. court-martial. The usage of the navy was in this respect different from that of the army. He might, however, still be brought to a court-martial — and in what he had done, he had acted wholly without authority, &c. &c. I did not purpose to enter into any discussion upon the subject, and contented myself with lamenting the appointment as un fortunate. *' The documents laid before Congress and published have had a good effect here. Your letter to Mr. Erskine 1 have caus ed to be printed in a pamphlet, with my letter to Mr. Canning of the 23d of August, and his reply. The report of the Com mittee of the House of Representatives is admitted to be a most able paper, and has been pubUshed in the Morning Chronicle. The Times newspaper (notwithstanding its former violence against us) agrees that our overture should have been accepted. " The opposition in parliament is unanimous on this subject, although divided on others. Many of the friends of government speak well of our overture, and almost every body disapproves of Mr. Canning's note. The tone has changed too, in the city. In short, I have a strong hope that the eminent wisdom of the late American measures will soon be practically proved to the confusion of their opponents. " I refer you to the newspapers for news (in the highest de gree interesting) and for the debates. See particularly Mr. Canning's speech in the House of Commons, on the 19th, as reported in the Morning Chronicle. " P. S. As it was possible that the resolutions of the House of Representatives might not pass into a law, I endeavoured to ac commodate my conversation of yesterday to that possibility, at the same time that I did not refuse to let Mr. Canning see that I supposed the law would pass. " I have omitted to mention that we spoke of Mr. Sawyer's letter in our first conversation, and that during the whole of the evening Mr. Canning seemed desirous of showing, by raoie than [ 420 ] usual kindness and respect, that it had made no unfavourable impression. I incline to think that it has rather done good than harm. " I have marked this letter Private, because I understood Mr. Canning as rather speaking confidentially than officially, and I certainly meant so to speak myself; but you will, nevertheless, make use of it as you think fit. Of course it will not in any event be published. " A third embargo breaker has arrived at Kinsale, in Ireland, on her way to Liverpool. She is called the Sally, and is of Vir ginia, with more than three hundred hogsheads of tobacco." Mr. Madison to Mr. Pinkney. Private. " Washington, Feb. llth, 1809. " Dear Sir, — My official letter by this conveyance leaves but little to be added to its contents. You will see with regret the difficulty experienced in collecting the mind of Congress to some proper focus. On no occasion were the ideas so unstable and so scattered. The most to be hoped for at present is that a respec table majority will finally concur in taking a course not essential ly dishonouring the resolution, not to submit to the foreign edicts. The last vote taken, as stated in reports of their proceedings, 60 odd against 50 odd, implies that a non-intercourse with Great Britain and France, including an embargo on exports to those two nations, will be substituted for the general embargo existing ; and it is not improbable that 8 or 10 of the minority who pre- ,fer a simple adherence to the latter, will, on finding that it can not be retained, join in the non-intercourse proposed. It is im possible, however, to foretel the precise issue of such complicated views. "If the non-intercourse as proposed should be adopted, it will leave open a trade to all the continent of Europe, except France. Among the considerations for not including the other powers with France, were, 1st, the certainty that the Russian edict, of which I enclose a copy, does not violate our neutral rights :¦ and 2dly, the uncertainty as to most of the other powers, whether they have in force unlawful edicts or not. Denmark, it is ascer- [ 427 ] tained, though not officially notified, is undt^r the same description as Russia. Holland and Spain are the only two countries which are known to have copied the several decrees of France. With respect to Holland, it is understood that she will favour, ns far as she can, an intercourse wilh neutrals, in preference to a co-opera tion with France. It would be imitating the cruelty of the belli gerents to retaliate the reluctant injuries received from such a quarter. With respect to Spain, the same remark is applicable, even if her decrees should not haye been revoked. Besides this, it is particularly important not to extend the non-intercourse to the Spanish colonies, which whilst a part of Spain would be within the effect of the Spanish decrees on the question. It is probable, also, that if Gre£,t Britain should lose or withdraw her armies from Spain, she will endeavour to mitigate the odium by permitting at least all neutral supplies ; or rather not to increase the odium and the evil by subjecting them to the famine threaten ed by the exhausted state produced by the war. As another mo tive, she may be'expected to consult the sympathies with the parent nation of the Spanish colonies, to which her attention will doubtless be turned in the event of a subjugation of Spain. As to Portugal, there can be little doubt that the British cabinet will have prudence, if not humanity, enough not to oppose a trade supplying that country with the necessaries of life. "On what principle is it that Great Britain arrests our trade with Russia, or even Denmark? Neither of those powers have edicts to countenance her retaliations ; nor can the former be re garded as under the sway of France in the sense applied to some others, Is it that she prohibits the British flag? But that she has a right to do — England does the same. Is it that she pro hibited all trade with England under a neutral flag? That she has an equal right to do, and has equally examples in the Bri tish code justifying it. I have been frequently asked whether a trade from the United States to Russia would be captured. I have been obliged to answer that, as it came under the letter of the British orders, though excluded by what was held out as the prin ciple of them, it was to be inferred from the spirit and practice of British cruizers and courts, that such would be the fate of vessels makihg the experiment. [ 428 ] " The repeal of the embargo has been the result of the opinion of many that the period prescribed by honour for that resort against the tyrannical edicts against our trade had passed by, but principally from the violence exerted against it in the eastern quarter, which some wished to assuage by indulgence, and others to chastise into an American spirit by the lash of British spolia tions. I think this effect begins to be anticipated by some who were most clamorous for the repeal. As the embargo is disap pearing, the orders and decrees come into view with the commer cial and political consequences which they cannot fail to produce. The English market will at once be glutted, and the continental markets, particularly for the sugar and coffee in the eastern ware houses, will be sought at every risk ; Hence captures and cla mours against the authors of them. It cannot, I think, be doubted that if the embargo be repealed and the orders be enforced, war is inevitable, and will perhaps be clamoured for in the same quarter which now vents its disappointed love of gain against the embargo. " There is reason to believe that the disorganizing spirit in the east is giving way to the indignation of all parties elsewhere against it. It is repressed in part also by the course of events abroad, which lessens the prospect of British support in case of a civil war.'' " P. S. The mode in which Mr, Canning's letter got to the press is not ascertained. I have seen it stated, on what authority I know not, that the copy was obtained from the minister here, and was to have been published in the first instance at Halifax-; but being shown by the bearer to certain British partizans of more zeal than discretion at Boston, he was prevailed on to hand it at once to the Palladium, the paper in which it first appeared." Mr, Pinkney to Mr. Madison. Private, " London, May Sd, 1809. " Dear Sir, — I have had the honour to receive your letter of the 17th of March, and thank you sincerely for your good wishes. Permit me to offer you my coi-dial congratulations upon [ 429 ] the manner in which you have been called to the Presidency. Such a majority at such a time is most honourable to our country and to you. !Viy trust is that with the progress of your iidminis- tration your friends will grow in strength and numbers, and that the people will see in your future labours new titles to praise and confidence. You have my cordial wishes for your fame and happiness, and for the success of all your views for the public good. " The pubhcation of my letter of the 21st of September has not had the effect which malice expected and intended ; and it is not improbable that it has contributed to produce a result di rectly the "reverse of its obvious purpose. Such an incident, however, is injurious to the character of our country, but it will doubtless inspire at home such a distrust of the honour of mem bers of Congress, wh<) could condescend to so low and malignant a fraud, as to present a repetition of it. " My letter to the Secretary of State will announce to you the change which has taken place here on the subject of the orders in council.* I venture to hope that this measure will open the way to reconcilement between this country and America without any disparagement of our interests or our honour. I have not time (as the messenger leaves town in the morning and it is now late at night) to trouble you with a detailed statement of my no tions on this subject — but I will presume upon your indulgence for a few words upon it. " The change does undoubtedly produce a great effect in a eommercial view, and removes many of the most di.sgusting fea tures of that system of violence and monopoly against which our efforts have been justly directed. The ordeis of November were in execution of a sordid scheme of commercial and fiscal * [An order in council was issued on the 26th of April, 1809, by which the blockade declared by the previous orders was restricted to the ports of France and Holland as far north as the river Ems, inclusively, to the colo nies of both those powers, and to the ports in the north of Italy from Orbi- tello and Pesaro inclusively : and the duties on the transit of goods Ihnmgh British ports to those of the European continent, which had bein established by the former orders and the act of Parliament to carry them into effect, were also repealed by an order of December, 1808.] 55 [ 430.] advantage, to which America was to be sacrificed. They were not more atrocious than mean. The trade of the world was to be forced through British ports and to pay British imposts. As a belligerent instrument the orders were nothing. They were a trick of trade — a huckstering contrivance to enrich Great Britain and drive other nations from the seas. The new system has a better air. Commerce is no longer to be forced through this country. We may go direct to Russia, and to all other countries, except to France and Holland, and the kingdom of Italy and their colonies. The dutii system is at an end. We may carry as heretofore enemy productions. The provision about certifi cates of origin is repenled. That about prize ships is repealed also. What remains of the old measure is of a belligerent cha racter, and is to be strictly executed as such. No licenses are to be granted even to British merchants to trade to Holland or France. " There can be no question that this change gives us all the immediate benefits which could have arisen out of the acceptance of our overture of last year. It does not indeed give us the same claim to demand from France the recall of her edicts: but in every other respect it may be doubted whether it is not more convenient. If that overture had been received, a difficulty would have occurred as to the mode of making it effectual, as mentioned in my private letter of the 23d of January. And if we had agreed, either formally or by mere imderstanding, to Mr. Canning's suggestion mentioned in the same letter, the substance of the thing would have approached very nearly to what has since been done. But at any rate the manner of the transaction is open to negociation, and the intimation to that effect which has been made to me may be an inducement to resume a friendly attitude towards Great Britain, and to put the sincerity of that intimation to the test. " For the gain actually obtained we pay no price. We give no pledge of any sort, and are not bound to take any step wjhatever. The erabargo is already repealed after the end of the approach ing session of Congress. The non-intercourse law will expire at the same time. If neither should be continued at the approaching session, negociation may be tried lor obtaining what is yet lo be [ 431 ] desired, and, that failing, our future measures are in our own power. " I am not sure that we have not got rid of the most obnoxious portion of the British Orders in the most acceptable way. To what is left, it is impossible that either the government or the people of this country can be much attached. Having obtained gratuitously the present concessions, we are warranted in hoping that the rest, diminished in value, flattering no prejudices, ad dressing itself to no peculiar interests, and viewed with indiffer ence by all, will be easily abandtmed. In the mean time our peace is preserved, and our industry revived. France can have no cause of quarrel with us, nor we any inducement to seek a quarrel with her. The United States are no parties to the recent British measure, as a measure of pressure and coercion upon France. We may trade in consequence of it, and endeavour to obtain farther concessions, without the hazard of war with either party ; while what has already been conceded saves our honour and greatly improves our situation. Our overture of last summer, if accepted, must have produced war with France, unless France had retracted her decrees, which was greatly' to be doubted. The recent British measure, not being the result of an arrangement with America, will not have that tendency. For my own part, I have always believed that a war with France, if it could be avoided, was the idlest thing we could do. We may talk of "unfurling the Republican banner against France" — but, when we had unfurled our banner, there would be an end of our ex ploits. This is precisely such a flourish as might be expected from a heavy intellect wandering from its ordinary track. It is not remembered that if we go to war with France, we shall be shut out from the continent of Europe, without knowing where it would cease to repel us. It is not remembered that in a war with France we might suffer, but could not act — that we should be an humble ally without hope of honour, and a feeble enemy without a chance of victory. It appears to me that the world would stand amazed if we, a commercial nation, whose interests are incompatible with war, should, upon the instigation of our passions, strut into the lists with gigantic France, with a meta phor in our mouths, but with no means of annoyance in our [ 432 ] hands, and professirig to be the champions of commerce, do just enough to provoke its destruction and make ourselves ridiculous. " Our Iriends in this country are all of opinion that we should take in good part the new order in council, and, suffering our re strictive laws to expire, rely upon friendly negociation and a change of policy in this government for the further success of our wishes. I can assure you with confidence that they would be greatly disappointed and grieved if we should be found to take any other course. Our triumph is already considered as a signal one by every body. The pretexts with which ministers would conceal the'.r motives for a relinquishment of all which they prized in their system, are seen through ; and it is univer sally viewed as a concession to America. Our honour is now safe, and by management we may probably gain every thing we have in view. A change of ministers is not unlikely, and if a change happens it will be favourable to us. Every thing con spires to recommend moderation. " I need not, I am sure, make any apology for myself, even although you should think that less has been obtained here than ought to have been obtained. I have endeavoured to do the best with the means put at my disposal, and I have avoided committing my government. I am persuaded that all that was practicable has been accompUshed, and I have a strong confidence that used and followed up as your wisdom and that of the legislature will direct, the result will be good." Mr. Pinkney io Mr. Madison. Private. " London, Aug. \9th, 1809. " Dear Sir, — I have had the honour to receive your kind letter of the 21st of April; and now send the last edition of War in Disguise as you request. " American newspapers have been received here, showing that the disavowal of Mr. Erskine's arrangement has excited much [* One of the first acts of Mr. Madisnft's.administration had been to con clude an arrangement with the British minister at Washington, .\lr. Erskine, b^ which the orders in council were to i-e repealed, aud satisfaction was to be given for the attack on the frigate Chesapeake, and the trade between the [ 433 ] ferment in the United States.* I cannot subdue my first regret that it was found to be necessary at the last regular session of Congress to falter in the course we were pursuing, and to give signs of inability to persevere in a system which was on the point of accomplishing all its purposes. That it was found to be necessary I have no doubt ; but I have great doubts whether, if it had fortunately been otherwise, we should have had any disavmcals. It is to be hoped, however, that every thing will yet turn out well. That yuu will do ali that can be done at this peri lous moment for the honour and advantage of our country, I am sure. I congratulate you heartily on the abundant proofs of general confidence which have marked the commencement of your administration. I venture to prophesy that they will mul tiply as you advance, and that in the maturity of your adminis tration, it will be identified in the opinions of all men with the strength, and character, and prosperity of the State." " I shall be greatly deceived if France relaxes at this time from her decrees against neutral rights. I should rather have ex pected additional rigour, if General Armstrong had not given me reason to expect better things. The maritime arrondissement now so near its completion will furnish new inducements to per severance in the anti-commercial system." [The recall of Mr. Erskine, in consequence of the refusal of the British government to ratify the arrangement entered into by him, was followed by the mission of Mr. Jackson as special envoy to the government of the United States. There was a general expectation in this country that he would be charged with conci liatory explanations of the disavowal of his predecessor, and with proposals to be substituted for the rejected arrangement. But this expectation was disappointed. It was found that the new minister had received no authority to enter into explana- United States and Great Britain was to be renewed. This arrangement was no sooner known in England, than it was disavowed by the British govern ment, as not having been made conformably to the instructions sent to its minister in this country.] [ 434 ] tions relative to the rejection of the arrangement, or to substitute any proposal for that part of it which regarded the British or ders in council. His proposals respecting the attack on the fri gate Chesapeake were founded upon what the United States had repeatedly declared to be an inadmissible basis, that the first step towards an adjustment should proceed from them by a revocation of the President's proclamation interdicting British armed vessels from entering their waters. In the course of his correspondence with the Secretary of State, Mr. Jackson repeatedly imputed ta the government of the United States a knowledge of the fact that the arrangement concluded by Mr. Erskine was not autho rized by his instructions. In consequence of this offensive con duct, our government refused to receive any further communi cations from him, and Mr. Pinkney was instructed to explain the necessity of this step to the British court. At the date of the following letter, it would seem that he had only seen the first part of Mr. Jackson's correspondence, but had not then received its sequel and his instructions to explain to the British govern ment the necessity of refusing to receive any further communica tions from him.] Mr. Pinkney to Mr. Madison. Private. " London, Dec. 10th, 1809. " Dear Sir, — I see with great pleasure the ground taken by the Secretary of State in his correspondence with Mr. lackson connected with the probability that our people are recovering from recent delusion, and will hereafter be disposed to support with zeal and steadiness the efforts of their government to maintain their honour and character. Jackson's course is an extraordinary one, and his manner is little better. " The British government has acted for some time upon an opinion that its partizans in America were too numerous and strong to admit of our persevering in any system of repulsion to British injustice ; and it cannot be denied that appearances coun tenanced this humiliating and pernicious opinion ; which has been entertained by our friends. My own confidence in the American people was great ; but it was shaken nevertheless, I [ 435 ] am re-assured, however, by present .symptoms, and give myself up once' more to hope. The prospect of returning virtue is cheering ; and 1 trust it is not in danger of being obscured and deformed by the recurrence of those detestable scenes which lately reduced our patriotism to a problem. " The neiB ministry (if the late changes entitle it to be so called) is at least as likely as the last to presume upon our divi sions. 1 h.ive heard it said that it was impossible to form a cabinet more unfriendly to us, more effectually steeped and dyed in all those bad principles which have harassed and insulted us. I continue lo believe that, as it is now constituted, or even with any modifications of which it is susceptible, it cannot last ; and that it will not choose to hazard much in maintaining against the United States the late maritime innovations. " The people of England are rather better disposed than here tofore to accommodate with us They seem to have awaked from the flattering dreams by which their understandings have been so long abused. Disappointment and disaster have dissi pated the brilliant expectations of undefined prosperity which had dazzled them into moral blindness, and had cheated them of their discretion as well as of their sense of justice. In this state of things America naturally resumes her importance, and her rights become again intelligible. Lost as we were to the view of Englishmen during an overfxiwering blaze of imaginary glory and commercial grandeur, we are once more visible in the sober light to which facts have tempered and reduced the glare of fic tion. The use of this opportunity depends upon ourselves, and doubtless we shall use it as we ought. It is, after all, perhaps to be doubted whether any thing but a general peace (which, if we may judge from the past, it is not unlikely France will soon propose) can remove all dilemma from our situation. More wisdom and virtue than it would be quite reasonable to expect, must be found in the councils of the two great belligerent parties, before the war in which they are now engaged can become harmless to our rights. Even if England should recall (and I am convinced she could have been, and yet can be, compelled to reciU) her foolish orders in council, her maritime pretensions will still be exuberant, and many of her [ 436 ] practices most oppressive. From France we have only to look for what hostility to England may suggest. Justice and en- liglitened poHcy are out of the question on both sides. Upon France, I fear, we have nb means of acting with effect. Her ruler sets our ordinary means at defiance. We cannot alarm him for his colonies, his trade, his manufactures, his revenue. He would not probably be moved by our attempts to do so, even if they were directed exclusively against himself. He is less likely to be so moved while they comprehend his enemy. A war with France, I shall always contend, would not help our case. It would aggravate our embarrassments in all respects. Our interests would be struck to the heart by it. For our honour it could do nothing. The territory of this mighty power is ab-. solutely invulnerable ; and there is no mode in which we could make her feel either physical or moral coercion. We might as well declare war against the inhabitants of the Moon or of t|ie Georgian Sidus, When we had produced the entire exclusitin of our trade from the whole of continental t urope, and increased its hazards every where, what else could we hope to achieve by gallantry, or win by stratagem ? Great Britain would go smug gling on as usual ; but we could neither fight nor smuggle. We should tire of so absurd a contest long before it would end, (who shall say when it would end ?) and we should come out of it, after wondering how we got into it, with our manufactures annihilated by British competition, our commerce crippled by an enemy and smothered by a friend, our spirit debased into listlessness, and our character deeply injured. I beg your pardon for recurring to this topic, upon wliich I will not fatigue you with another word, lest I should persecute you with many. " The ministry are certainly endeavouring to gain strength by some changes. It is said, that Lord Wcllesley is trying to bring Mr. Canning back to the cabinet; and, if so, I see no reason why he should not succeed. One statement is that Mr. Canning is to go to the Admiralty — another, that he is to return to the Foreign Department, that Lord Wellesley is to take the Treasury, and Mr. Percival to relapse into a mere Chancellor of the Exchequer. It is added that Lord Camden (President of the Council) and Lord Westmoreland (Privy Seal) are to go out. [ 437 ] " If Mr. Canning should not join his old colleagues before the meeling of ParUament, he will probably soon fall into the ranks of opposition, where he will be formidable. There will scarce- ly be any scruple in receiving him. If he should join his old colleagues, they will not gain much by him. As a debater in the House of Commons, he would be useful to them ;* but his repu tation is not at this .moment in the best possible plight, and his weight and connections are almost nothing. I am not sure that they wotild not lose by him more than they could gain. If Lord Grenville and Lord Grey should be recalled to power, LoVd Holland would be likely to have the station of Foreign Se cretary (Lord Grey preferring, as it is said, the Admiralty.) I believe that I have not mentioned to you that Mr. G. H. Rose was to have been the special envoy to our country, if Mr. Er skine's arrangeinent had not been disavowed. I am bound to say that a worse choice could not have been made. Since his return ,to England, he has, I know, misrepresented and traduced us with an industry that is absolutely astonishing, notwithstanding the cant of friendship and respect with which he overwhelms the few Americans who see him. Mr. Madison to Mr. Pinkney. " Washington, Jan. 20th, 1810. " Dkar Sik, — I received, some days ago, a letter from Dr. Logan, containing observations on the posture and prospects bf our foreign relations. Before the answer was out of my hands, I received another, dated four days after, in which he merely in formed me that he should embark for England in about ,eight days, with an offer to take charge of any communications" for you. As his first letter did not glance at any such intention, it must be presumed to have been very suddenly formed. And as his last is silent as to the object of the trip, thi? is left to conjecture. From the anxiety expressed in his first letter for the preservation of * The only cabinet ministers at present in the House of Commons, are Mr Percival, and Mr. Kyder, (the Secretary of State for the Home Depart ment, and brother of Lord Harrowby.) The latter gentleman eycites no expectations. 56 [ 438 ], peace with England, which appeared to him to be in peculiar danger, and from his known benevolence and zeal on the subject, it may reasonably be supposed that his views relate, in some form or other, to a mitigation of the hostile tendencies which dis tress him ; and that his silence may proceed from a wish to give no handle for animadvjfrsions of any sort on the step taken by him. " You will receive from the Secretary of State, unless, indeed, the opportunity fail through the shortness of the notice, such com munications and observations as may be thought useful to you. You will find that the perplexity of our situation is amply dis played by the diversity of opinions and prolixity of discussions in Congress. Few are desirous of war ; and few are reconciled to submission ; yet the frustration of intermediate courses seems to have left scarce any escape from that dilemma. The fate of Mr. Macon's bill, as it is called, is not certain. It will probably pass the House of Representatives, and for aught 1 know, may be concurred in by the Senate. If retaliated by Great Britain, it will operate as a non-importation act, and throw exports into the circuit of the non-intercourse act: If not retaliated, it may be felt by the British navigation, and through that interest, by the government : since the execution of the law, which relates to the ship, and not to the merchandise, cannot be evaded. With re spect to the East Indies, the proposed regulation will have the effect of compelling the admission of a direct and exclusive trade for our Vessels, or a relinquishment of this market for India goods, further than they can be smuggled into it. It just appears that a proposition has been made in the House of Representatives, to employ our ships of war in convoys, and to permit merchant men to arm. However plausible the arguments for this experi ment, its tendency to hostile collisions is so evident, that I think its success improbable. As a mode of going into war, it does not seem likely to be generally approved, if war was the object. The military preparations which have been recommended and are under consideration, are what they profess to be, measures of precaution. They are not only justified but dictated by the un certainty attending the course which Great Britain may take, or rather by the unyielding and unamicable traits in her cabinet and [ 439 ] her countenance. Measures of that sort are also the more adapt ed to our situation, as in the event of accommodation with Great Britain they may possibly be wanted in another quarter. The long debates on the resolution of Mr. Giles, on the subject of Mr. Japkson, have terminated in affirmative votes by large majorities. This, with the refusal of the Executive to hold communications with him, it is supposed, will produce a crisis in the British po hcy towards the United States, ' to which the representations of the angry minister will doubtless be calculated to give an unfa vourable turn. Should this happen, our precautionary views will have been the more seasonable. It is most probable, however, that instead of expressing resentment by open war, it will appear ' in more extended depredations o.n our commerce, in declining to replace Mr. Jackson, and perhaps in the course, observed with respect to you, in rneeting which your own judgment will be the best guide. Should a change in the composition or calculations of the cabinet give a favourable turn to its policy towards this tountry, it is desirable that no time may bp lost in allowing it its effect. With this view you will be reminded of the seve ral authorities you retain to meet in negociation, and of the in- 'structions by which they are to be exercised : it being always un derstood that, with the exception of some arrangement touchirig the Orders in Council, reparation for 'the insult on the Chesapeake ¦ must precede a general negociation on the questions between the two countries. At present nothing precise can be said as to a condition on our part for a repeal of the Orders in Council ; the existing authority in the Executive to pledge one, being expirable with the Non-Intercourse act, and no other pledge being provided /or. As it is our, anxious desire, however, if the British govern ment should adopt just and conciliatory views, that nothing may be omitted that can show our readiness to second them, you may offer a general assurance that, as in the case of the Embargo, apd the Non-Intercourse acts, any similar power with which the Executive may be clothed, will be exercised in the same spirit " You will, doubtless, be somewhat surprised to find among the communications to Congress, and in print too, the confiden tial conversations with Mr. Canning reserved from such a use by your own request. It was, in fact, impossible to resist the [ 440 ] pointe'd call for them, without giving umbrage to some, and op portunity for injurious inferences to others. The difficulty was increased by the connexion between them and other communica tions necessarily falling within the scope of the rule of compli ance in such cases. Finally, there did not- appear to be anv thing in the conversations which could warrant British complaint of their disclosure, or widen the space between you and the British ministry. " As it may not be amiss that you should know the sentiments which I had expressed to Dr. Logan, and which, though in an swer to his letter written previous to the notification of his in tended trip, he will, of course, carry with him, I enclose a copy of the answer. " The file of newspapers from the Department of State, will give you the debates on the case of Jackson. I enclose, however, a speech I have just looked over in a pamphlet form. Although liable-to very obvious criticisms of several sorts, it has presented a better analysis of some parts of the subject, than I have ob served in any of the speeches." Mr. Pinkney to Mr. Madison. " London, 23d March, 1810. " Dear Sir, — I had intended to write to you a very tedious letter, but I have no longer time to do so — as it is now near 2 o'clock in the morning, and Lieut. Elliott leaves town at 10, A. M. " My official letter of the 21st inst. will apprize you of the course finally taken by this government in consequence of Mr. Jackson's affair. I do not pretend to anticipate your judgment upon it. It certainly is not what I wished, and, at one time, exppcted ; but I am persuaded that it is meant to be conciliatory. I have laboured earnestly to produce such a result as I believed would be more acceptable. Why I have failed I do not pre cisely know, and I will not harass you with copjectures. The result, such as it is, will I am sure be used in the wisest manner for the honour and prosperity of our country. " It is doubtfuf whether there will be any change of admini- .stration here. Partial changes in administration are very likely. [ 441 ] " I think T can say with certainty that a more friendly dispo sition towards the United States exists in this country at present than for a long time past." Mr. Madison to Mr. Pinkney. " Washington, May 23d, 1810, Deak Sir, — You will learn from the Department of State, as you must have anticipated, our surprize that the answer of Lord Wellesley to your very just and able view of the case of Jackson, corresponded so little with the impressions of that minister mani fested in your first interviews with him. The date of the answer explains ihe change, as it shows that time was taken for ob taining intelligence from this country, and adapting the policy of the answer to the position taken by the advocates of Jackson. And it must have happened that the intelligence prevailing at that date was of the sort most likely to mislead. The elections which have since taken place in the eastern states, and which have been materially influenced by the affair of Jackson and the spirit of party connected with it, are the strongest of proofs that the measure of the executive coincided with the feelings, of the nation. In every point of view the answer is unworthy of the source from which it comes. " From the manner in which the vacancy left by Jackson is provided for, it is inferred that a sacrifice is meant of the respect belonging to this government, either to the pride of the British go vernment, or to the feelings of those who have taken side with it against their own. On either supposition, it is necessary to coun teract the ignoble purpose. You will accordingly find that on ascertaining the substitution of a charg^ to be an intentional degradation of the diplomatic intercourse on the part of Great Britain, it is deemed proper that no higher functionary should re present the United States at London. I sincerely wish, on every account, that the views of the British government in this instance, may not be such as are denoted by appearances, or that, on find ing the tendency of them, they may be changed. However the fact may turn out, you will of course not lose sight of the expe- [ 442 ] diency of mingling in every step you take, as much of modera tion, and even of conciliation, as can be justifiable, and will, in particular, if the present despatches should find you in actual ne gociation, be governed by the result of it, in determining the question of your devolving your trust on a Secretary of Legation. " The act of Congress, transmitted from the Department of State, will inform you of the footing on which our relations to the bellige rent powers were finally placed. The experiment dow to be made of a commerce with both, unrestricted by our laws, has resulted from causes which you will collect from the debates, and from your own reflections. The new form of appeal to the policy of Great Britain and France, on the subject of the decrees and orders, will most engage your attention. However feeble it may appear, it is possible that one or the other of those powers may allow it more effect than was produced by the overtures heretofore tried. As far as pride may have influenced the reception of these, it will be the less in the way, as the law in its present form may be regarded by each of the parties, if it so pleases, not as a coercion or a threat to itself, but as a promise of attack on the other. Great Britain indeed may conceive that she has now a complete inte rest in perpetuating the actual state of things, which gives her the ftdl enjoyment of our trade, and enables her to cut it off with every other part of the world, at the same time that it increases the chance of such resentments in France at the inequality as may lead to hostilities with the United States. But, on the other hand, this very inequality, which France would confirm by a state of hostilities with the United States, may become a motive with her to turn the tables on Great Britain, by compelling her either to revoke her orders, or to lose the commerce of this country ! An apprehension that France may take this politic course, would be a rational motive with the British government to get the start of her. Nor is this the only apprehension that merits attention. Among the inducements to the experiment of an unrestricted commerce now made were two, which contribu ted essentially to the majority of votes in its favour ; first, a ge neral hope, favoured by daily accounts from England, that an adjustment of differences there, and thence in France, would ren- [ 443 ] tier the measuie safe and proper ; second, a willingness in not a few to teach the advocates for an open trade under actual cir cumstances, the folly, as well as degradation of their policy. At the next meeting of Congress, it will be found, according to pre sent appearances, that instead of an adjustment with either of the belligerents, there is an increased obstinacy in both, and that the inconveniences of the embargo and non-intercourse have been exchanged for the greater sacrifices as well as disgrace re sulting from a submission to the predatory systems in force. It will not be wonderful therefore if the passive spirit which marked the late session of Congress, should at the next meeting be roused to the opposite point ; more especially as the tone of the nation has never been as low as that of its representatives, and as it is rising already under the losses siistained by our commerce in the continental ports, and by the fall of prices in our produce at home, under a limitation of the market to Great Britain. Cotton I perceive is down at 10 or 11 cents in Georgia. The great mass of tobacco is in a similar situation: and the effect must soon be general, with the exception of a few articles which do not at present glut the British demand. Whether considerations like these will make any favourable impression on the British cabinet, you will be the first to know. Whatever confidence I may have in them, I must forget all that is past before I can indulge very favourable expectations. Every new occasion seems to countenance the belief that there lurks in the British cabinet a hostile feeling towards this country, which will never be eradi cated during the present reign ; nor overruled, whilst it exists, but by some dreadful pressure from external or internal causes. - " With respect to the French government, we h.re taught by experience to be equally distrustful. It will have, however, the same opportunity presented to it with the British government, of comparing the actual state of things with that which would be produced by a repeal of its decrees ; and it is not easy to find any plausible motive to continue the former as preferable to the latter. A worse state of things than the actual one could not exist for France, unless her preference be for a state of war. If she be sincere, either in her late propositions for a chronologi cal revocation of illegal edicts against neutrals, or to a pledge [ 444 ] from the United States not to submit to those of Great Britain, she ought at once to embrace the arrangement held out by Con gress ; the renewal of a non-intercourse with Great Britain, be ing the very species of resistance most analogous to her profess ed views. " I propose to commit this to the care of Mr. Parish, who is about embarking at Philadelphia for England, and finding that I have missed a day in my computation of the opportunity, I must abruptly conclude with assurances of my great esteem and friendly respect." Mr. PiNKNEV ta Mr. Madison. Private. " London, August 13, 1810. " Dear Sir, — I return you my sincere thanks for your letter of the 23d of May. Nothing could have been more acceptable than the approbation which you are so good as to express of iny note to Lord Wellesley on Jackson's affairs. I wish I had been more successful in my endeavours to obtain an unexception able answer to it. You need not be told that the actual reply was, to plan and terms, wide of the expectations which I had formed of it. It was unfortunately delayed until first views and feelings became weak of themselves. The support which Jack son received in America was admirably calculated to produce other views and feelings, not only by its direct influence on Lord Wellesley and his colleagues, but by the influence which they could not but know it had on the British nation and the Parha ment. The extravagant conduct of France had the same perni cious tendency ; and the appearances in Congress, with reference to our future attitude on the subject of the atrocious wrongs in flicted upon us by France and England, could scarcely be without their effect. It is not to be doubted that, with a strong desire in the outset to act a very conciliatory part, the British govern ment was thus gradually prepared to introduce into the proceed ing what would not otherwise have found a place in it, and to omit what it ought to have contained. The subject appeared to it every day in a new light, shed upon it from France and the United States, and a corresponding change naturally enough took [ 445 ] place in the scarcely remembered estimates which had at first been made of the proper mode of managing it. The change in Lord Wellesley's notion upon it, between our first interview and the date of his answer to my note, must have been considerable, if that answer had, as doubtless it had, his approbation. For, the account of that interview, as given in my private letter to Mr. Smith of the 4th of January ,^ is so far from exaggerating Lord Wellesley's reception of what I ?aid to him, that it is much below it. It is to be observed, however, that he had hardly read the con-espondence, and had evidently thought very little upon it. For which reason, and because he spoke for himself only, and with less care than he would perhaps have used if he had considered that he was speaking officially, I am glad that j'ou decUned laying ray private letter before the Congress. The publication of it, which must necessarily have followed, would have produced serious embarrassment. " Do you not think that, in some respects. Lord Wellesley's ariswer to my note has not been exactlj- appreciated in America? I confess to you that this is my opinion. — That the paper is a very bad one is perfectly clear ; but it is not so bad in intention as it is in reality, nor quite so bad in reality as it is commonly supposed to be. " It is the production of an indolent man, making a great effort to reconcile things almost incongruous, and just shovcing his wish without executing it. Lord Wellesley wished to be ex tremely civil to the American governnient ; but he was at the same time to be very stately; — to manage Jackson's situation — and to intimate disapprobation of the suspension of his functions. He was stately, not so much from design, as because he cannot be otherwise. In managing Jackson's situation he must have gone bey«Jnd his original intention, and certainly beyond any, of which I was aware before I received his answer. If the answer had been promptly written, I have no belief that he would have affected to praise Jackson's " ability, zeal, and integrity," or that he would have said any thing about his Majesty not having "marked his conduct with any expression of his displeasure." He would have been content to forbear to censure him ; and that I always took for granted he would do. 57 [ 446 ] "For Jackson, personally. Lord Wellesley cares nothing. In his several conferences with me, he never vindicated him, and he certainly did not mean in his letter to undertake his defence. It is impossible that he should not have (1 am indeed sure that he has) a mean opinion of that most clumsy and ill-conditioned minister. His idea always appeared to be that he was wrong in pressing at all the topic which gave offence ; but that he acted upon good motives, and that his government could not with ho nour, or without injury to the diplomatic service generally, dis grace him. This is explicitly staled in -ray private letter of the 4th of January to Mr. Smith. There is a great difference, un doubtedly, between that idea, and the one upon which Lord Wellesley appears finally to have acted. It must be admitted, however, that the praise bestowed upon Jackson is very meagre, and that it ascribes to him no qualities in any degree inconsistent with the charge of gross indecency and intolerable petulance pre ferred against him in my note. He might be honest,, zealous, able ; and yet be indiscreet, ill-tempered, suspicious, arrogant, and ill-mannered. It is to be observed, too, this has no reference whatever to the actual case, and that, when tlie answer speaks of the offence imputed to Jackson by the American government, it does not say that he gave no such cause of offence, but simply relies on his repeated asseverations that he did not mean to offend. " If the answer had been promptly written, I am persuaded that another feature which now distinguishes it would have been otherwise. It would not have contained any complaint against the course adopted by the American government in putting an end to official communication with Jackson. That ^.ordi Welles ley thought that course objectionable from the first appears in my private letter above mentioned to Mr. Smith. But be did not urge his objections to it in such a way, at our first interview or afterwards, as to induce "nie to suppose that he would except to that course in his written answer. He said in the outset that he considered it a damnum to the British government ; and I know that he was not disposed to acknowledge the regularity of it. There was evidently no necessity, if he did not approve the course, to say any thing about it — and in our conversations I al ways assumed that it was not only unnecessary but wholly inad- [ 447 ] missible to mention it officially for any other purpose than that of approving it. « After all, however, what he has said upon this point (idle and ill-judged as it is) is the mere statement of the opinion of the British government, that another course would have been more in rule than ours. It amounts to this, then, that we have opinion against opinion and practice ; and that our practice^ has been ac quiesced in. " As to that part of the answer which speaks of a charge d'affaires, it must now be repented of here, especially by Lord Wellesley, if it was really intended as a threat of future inequali ty in the diplomatic estt.blishments of the two countries, or eveji to wear that appearance. Lord Wellesley's letter to me of the 22d ult. abandons that threat, and makes it consequently much worse than nothing. His explanations to me on that head (not official) have lately been, that, when he wrote his answer, he thought there was some person in America to whom Jackson could have immediately delivered his charge, and that if he had not been under that impression, he should not probably have spoken in his answer of a charge d'affaires, and should have sent out a minister plenipotentiary in the first instance. I know not what stress ought to be laid upon those private and ex post facto suggestions ; but I am entirely convinced that there was no thought of continuing a charge d'affaires at Washington for more than a short time. Neither their pride, nor their interests nor the scantiness of their present diplomatic patronage would permit it. That Lord Wellesley has long been looking out in his dilatory way for a suitable character (a man of rank) to send 85 Minister Plenipotentiary to the United States, I have the best reason to be assured. Thatthe appointment has not yet taken place, is no proof at all that it has not been intended. Those who think they understand Lord W. best represent him as disinclined to business — and it is certain that I have found him upon every occasion given to procrastination beyond all ex ample. The business of the Chesapeake is a striking instance. Nothing could be fairer than his various conversations on that case. He settles it with me verbally over and over again. He promises bis written overture in a few days — and I hear no more [ 448 ] of the matter. There may be cunning in all this, but it is not such cunning ns 1 should expect from Lord Wellesley. " In the affair of the blockades, it is evident that the delay arises from the cabinet, alarmed at every thing which touches the sub ject of blockades, and that abominable scheme of monopoly, called the Orders in Council. Vet it is an unquestionable fact that they have suffered, and are suffering severely under the ini quitous restrictions which they and France have imposed upon the world. " I mean to wait a little lunger for Lord Wellesley's reply to my note of the 30lh of .\pril. If it is not soon received, I hope I shall not be thought indiscreet if I present a strong remonstrance upon it, and if I take occasion in it to advert to the affair of the Chesapeake, and to expo'se what has occurred in that affair be tween Lord Wellesley and me. " I have a letter from (ieneral Armstrong of the 24th of last month. He expects no change in the measures of the French government with regard to the United States. I cannot, how ever, refrain from hoping that we shall have no war with that government. We have a sufficient cause for war against both France and England — an equal cause against both in point of justice, even if we take into the account the recent violences of the former. But looking to expediency, which should never be lost sight of, I am not aware of any considerations that should induce us in actual circumstances to embark in a war with France. I have so often troubled you on this topic, that 1 will not ven ture to stir it again." Mr. Pinkney iTo Mr. Madison. " London, Oct. 30th, 1810. ********** " I have heard nothing further of the appointment of a Plenipo tentiary to the Unhed States, ^othing further of the case of the Chesapeake. Lord Wellesley is a surprizing man." ( 449 ) Mr. Madison io Mr. Pinkney. " WashinCTon, Oct. 30, 1810. " Dear Sir, — Your letter of August 13th was duly received. Its observations on the letter and conduct of Lord Wellesley ire an interesting comment on both. The light in which the letter was seen by many in this country was doubtless such as gave to its features an exaggerated deformity. But it was the natural effect of its contrast to the general expectation founded on the tenour of your private letter to Mr. Smith, and on the circum stances which in the case of Jackson seemed to preclude the least delay in repairing the insults committed by him. It is true also that the letter, when viewed in its most favourable light, is an unworthy attempt to spare a false pride on one side at the ex pense of just feelings on the other, and is in every respect infi nitely below the elevation of character assumed by the British government, and even of that ascribed to Lord Wellesley. It betrays the consciousness of a debt with a wish to discharge it in false coin. Had the letter been of an earlier date, and accom panied by the prompt appointment of a successor to Jackson, its aspect would have been much softened. But every thing was rendered as offensive as possible by evasions and delays, which admit no explanation without supposing a double game, by which they were to cheat us into a reliance upon fair promises, whilst they were playing into the hands of their partizans here, who were turning the delays into a triumph over their own govern ment. This consideration had its weight on the decision last communicated, with respect to your continuance at London, or return to the United States. " The sole question on which your return depends, therefore, is whether the conduct of the government where you are, may not render your longer stay incompatible with the honour of the United States. The last letter of the Secretary of State has so placed the subject for your determination, in which the fullest confidence is felt. Waiving other depending subjects, not of re cent date, a review of the course pursued in relation to Jackson [ 450 ] and a successor excites a mixture of indignation and contempt, which ought not to be more lightly expressed than by your im- mediately substituting a secretary of legation for the grade you hold, unless the step be absolutely forbidden by the weighty consideration which has been stated to you, and which coincides with the sound policy to which you allude of putting an adver sary completely in the wrong. The prevailing opinion here is that this has already been abundantly done. " Besides the public irritation produced by the persevering insolence of Jackson in his long stay, and his conduct during it, there has been a constant heart-burning on the subject of the Chesa peake, and a deep and settled indignation on the score of im pressments, which can never be extinguished whhout a liberal atonement for the former, and a systematic amendment of the latter. " You have been already informed that a proclamation would issue giving effect to the late act of Congress on the ground of the Duke de Cadore's letter to General Armstrong, which states an actual repeal of the French decrees. The letter of Wellesley to you is a promise only, and that in a very questionable shape; the more so, as Great Britain is known to have founded her re taliatory pretensions on the unprecedented mode of warfare against her, evidently meaning the exclusion of her trade from the continent. Even the blockade of May, 1806, rests on the same foundation. These considerations, with the obnoxious ex ercise of her sham blockades in the moment of our call for their repeal, backed by the example of France, discourage the hope that she contemplates a reconciliation with us. I sincerely wish your next communications may furnish evidence of a more favourable disposition. . " It will not escape your notice, and is not undeserving that of the British government, that the non-intercourse, as now to be revived, will have the efiect of giving a monopoly of our export ations to Great Britain to our own vessels, in exclusion of hers; whereas, in its old form. Great Britain obtained a snbstantiil monopoly of hers through the entrepots of Nova Scotia, East Florida, &c. She cannot therefore deprive our vessels, which may now carry our exports directly to Great Britain, of this [ 451 ] monopoly without refusing the exports altogether, or forcing them into difficult and expensive circuits with the prospect of a counteracting interposition of Congress, should the latter experi ment be resorted to. Nothing would be necessary to defeat this experiment but to prohibit, as was heretofore contemplated, the export of our productions to the neighbouring ports belonging to Great Britain or her friends. " The course adopted here towards West Florida will be made known by the Secretary of State. The occupancy of the terri tory as far as the Perdido, was called for by the crisis there, and is understood to be within the authority of the Executive. East Florida also is of great importance to the United States, and it is not probable that Congress will let it pass into any new hands. It is to be hoped that Great Britain will not entangle herself with us by seizing it, either with or without the privity of her allies in Cadiz. - The position of Cuba gives the United States so deep an interest in the destiny even of that island, that although they might be inactive, they could not be satisfied spectators at its fall ing under any European government which may make a fulcrum of that position against the commerce and security of the United States. With respect to Spanish America generally, you will find that Great Britain is engaged inthe most eager, and if with out the concurrence of the Spanish authorities at Cadiz, the most reproachful grasp of political influence and commercial prefer ence. In turning a provident attention to the new world, as she loses ground in the old, her wisdom is to be commended, if re gulated by justice and good faith; nor is her pursuit of commer cial preferences, if not seconded by insidious and slanderous means against our competitions, such as are said to be employed^ to be tested by any other standard than her own interest. A sound judgment of this does not seem to have been consulted in the specimen given in the treaty at Caracas, by which a prefer ence in trade over all other nations is extorted from the tem porary fears and necessities of the revolutionary Spaniards. The policy of the French government at the epoch of our indepen dence, in renouncing everv stipulation against the equal privileges of all other nations in our trade, was dictated by a much better knowledge of human nature, and of the stable interest of France. [ 452 ] " The elections for Congress are nearly over. The result is another warning against a reliance on the strength of a British party, if the British government be still under a delusion on that subject. Should France effectuall}' adhere to the ground of a just and conciliatory policy, and Great Britain bring the United States to issue on her paper blockades, so strong is this ground in right and opinion here, and even in the commitment of all the great leaders of her party here, that Great Britain will scarce have an advocate left." Mr, Pinkney to Mr, Madison. « London, Dec. 17th, 1810. " Dear Sir, — The proclamation of the 2d of November* is doing good here, and may, perhaps, bring the ministry to rea son. I enclose Cobbet's last number, which touches upon our relations with this country, and Bell's Weekly Messenger of yes terday, which treats of the same subject. My letter to Lord W. of the 10th instant, would have gone into it more fully, (though I was straightened for time,) but that I was afraid of the sin of prolixity, and expected, moreover, to be called upon to resume the discussion in another letter. There is reason to think that, though the freedom of its style may have given umbrage to some of the cabinet, it will assist your proclamation. I have never met with a state-paper to be compared with Lord W.'s note to me of the 4th instant. To tell me gravely and dryly, after ray letters of the 25th of August and 3d of November, that he had not been able to obtain any " authentic intelligence" of the re peal of the French edicts, &c. ! ! " You may, perhaps, suppose that in my letter to him of the 10th, I have examined too much at large the British construction of the French declaration. I should not have done so but for a conversation a (e'w days before with Sir William Scott, who ap peared to have a prodigious hankering after the nonsense about prealable conditions. It is known besides to have been the favour- * [Issued in consequence of the supposed repeal of the French decrees, and fleclariug the revival of the non-intercourse with Great Britain, unless that power should also repeal its Ordeis in Council ] [ 453 ] ite doctrine of the court and its adherents, and of all that anti- neutral class to which Stephen and Marryatt belong, and indeed of the people in general. We shall probably hear no more of it, however 5 and I understood, indeed, last night, that there is a peWeptible change in the tone of ministers and their friends on the whole subject.. Whether they will act, wisely in the end, I cannot yet say. The presumption is always against thera. " I have observed in my letter that the convenience of relaxing the orders in council by licenses " seems to be no longer enjoy ed." The object of all that part of my letter was merely to give a shght sketch (which I should have been glad to be at liber ty to make much stronger) of that monopolizing and smuggling scheme which has so long insulted the world and tried our pa tience. The fact is, that they have not granted any licenses fpr several weeks. It is not, however, (as I am assured,) that they are ashamed of this mean practice, but because they hope, by abstainr ing ft-om it for a time, to get better terms of intercourse in this way from their enemy. If their orders should not be immedi ately revoked, so as to prevent the revival of this trick of trade, a vigorous tone should be used with them — and I shall be happy to be authorised to use it at discretion. Be assured they will not stand against a show of determined resistance to their injustice. , But if they should, they must be resisted to the uttermost, never theless. " There will, I am inclined to think, be a regency ; but it is believed that the Prince will be greatly restricted at first. The restricticms will not last ; yet if he should be obliged to continue the present ministers for any time, however short, (which it is imagined will be a part of the terras with which he will be shack led,) the mischiefs of their crooked and little policy towards the United States, supposing that they raean to brave the conse quences of persevering in it, may become permanent and irre trievable. " There has been, I believe, some juggling in the affair of a Minister Plenipotentiary. You v^ill see in my letter to IMr. Smith of the 14th, an account of Lord W.'s late explanations to me on that head. I have omitted, however, to state in that let ter that he inadvertently remarked, in the course of the confer- 58 [ 454 ] ence, that great pains bad been taken by some people to persuade him '' that the British interest in America (I quote his words) would be completely destroyed by sending thither at this time a Minister Plenipotentiary." He soon perceived, by my comments on this suggestion, that he had committed an indiscretion in talk ing of it, and he wished me, I thought, to consider what he had said as confidential. May we not infer that these persuasions have had an effect, when we look to the quality of his ostensible reasons for not redeeming his pledge of July last ? Who the persuaders were he did not say — but Mr. Jackson (who, by the bye, cannot be very well satisfied with his reception here) may be supposed to be among the number, if he is not the only one. Whether this gendeman (if he Aas used such instances) quotes any American authorities in support of them can only be guessed. It would be no breach of charity to conjecture that he does. At any rate there must be some secret cause for the de lay of the promised mission. Even the insolence of , added to the reaso'n assigned in conference, will not explain it satisfactorily. There is cunning at the bottom ; and I can ima gine nothing so likely to throw a light upon it as the unguarded communication of Lord W. above mentioned. I- 455 ] N°- IV. SPEECH IN THE CASE OF THE NEREIDE. If I were about to addiess this high tribunal with a view to establish a reputation as an advo cate, I should feel no ordinary degree of resent ment against the gentleman whom I am compel led to follow ;* if indeed it were possible to feel resentment against one who never fails to plant a Strong and durable friendship in the hearts of all who know him. He has dealt with this great cause in a way so masterly, and has presented it before you with such a provoking fulness of illustration, that his unlucky colleague can scarcely set his foot upon a single spot of it without trespassing on some one of those arguments which, with an admirable profusion, I had almost said prodigality of learning, he has spread over the whole subject. Time, however, which changes all things, and man more than any thing, no longer permits me to speak upon the impulse of ambition. It has left me only that of duty ; better, perhaps, than the feverish impulse which it has supplanted ; suffi- * Mir. Dallas. [ 456 ] cient, as T hope, to urge me, upon this and every other occasion, to maintain the cause of truth, by such exertions as may become a servant of the law in a forum like this. I shall be content, there fore, to travel after my learned friend, over a part of the track which he has at once smoothed and illuminated happy, rather than displeased, that he has facilitated and justified the celerity with which 1 mean to traverse it — more happy still if I shall be able, as I pass along, to relieve the fatigue of your honours, the benevolent companions of my journeiy, by imparting something of freshness and novelty to the prospect around us. To this course, I am also , reconciled by a pretty confident opi nion, the result of general study as well as of parti cular meditation, that the discujssion in which we are engaged has no claim to that air of intricacy which it has assumed ; that, on the contrary, it turns upon a few very plain and familiar princi ples, which, if kept steadily in view, will guide us in safety, through the worse than Cretan labyrnth of topics and authorities that seem to embarrass it, to such a conclusion as it may be fit for this Court to sanction by its judgment. I shall in the outset dismiss from the cause whatever has been rather insinuated with a pru'- dent delicacy, than openly and directly pressed by my able opponents, with reference to the person al situation of the claimant, and of those with whom he is united in blood and interest. I am willing to admit that a Christian judicature may f 457 ] dare to feel for a desolate foreigner who stands before it, not for life or death indeed, but for the fortunes of himself and his house. 1 am ready to concede, that when a friendly and a friendless stranger sues for the restoration of his all to human justice, she may sometimes wish to lay asitle a portion of her sternness, to take him by the hand, and, exchanging her character for that of mercy, to raise him up from an abyss of doubt and fear to a pinnacle of hope and joy. In such circum stances, a temperate and guarded sympathy may not unfrequently be virtue. But this is the last place upon earth in which it can be necessary to state, that, if it be yielded to as a motive of deci- sion, it ceases to b^ virtue, and becomes some thing infinitely worse than weakness. What may he the real value of Mr. Pinto's claim to our sym pathy, it is impossible for us to be certain that we know ; but thus much we are sure we know, that whatever may be its value in fact, in the balance of the law it is lighter than a feather shaken from a linnet's wing, lighter than the down that floats upon the breeze of summer. 1 throw into the op posite scale the ponderous claim of War ; a claim of high concernment, not to us only, but to the world ; a claim connected with the maritime strength ofthis maritime state, with public honour and individual enterprise, with all those passions and motives which can be made subservieflt to national success and glory in the hour of national trial and danger. I throw into the same scale [ 458 ] the venerable code of universal law, before which it is the duty of this Court, high as it is in digni ty, and great as are its titles to reverence, to bow down with submission. I throw into the same scale a solemn treaty, binding upon the claimant and upon you. In a word, I throw into that scale the rights of belligerent America, and, as embo died with them, the rights of these captors, by whose etibrts and at whose cost the naval exer tions of the government have been seconded, until our once despised and drooping flag has been made to wave in triumph where neither France nor Spain could venture to show a prow. You may call these rights by what name you please. You may call them iron rights : — I care not : It is enough for me that they are rights. It is more than enough for me that they come before you encircled and adorned by the laurels which we have torn from the brow of the naval genius of England: that they come before you recom mended, and endeared, and consecrated by a thou sand recollections which it would be baseness and folly not to cherish, and that they are mingled in fancy and in fact with all the elements of our fu ture greatness. ******** After discussing the two first of the above mentioned grounds of argument, Mr. Pinkney proceeded : I come now to the third and last question, upon which, if I should be found to speak with more L 459 ] confidence than may be thought to become me, I stand upon this apology, that I have never been able to persuade myself that it was any question at all. I have consulted upon it the reputed ora cles of universal law, with a wish disrespectful to their high vocation, that they would mislead me into doubt. But — pia sunt, nullumque nefas ora- culck saudent. I have listened to the counsel fir the claimant, with a hope produced by his reputa tion for abilities and learning, that his argument would shake from me the sturdy conviction wliich held me in its grasp, and would substitute for it that mild and convenient scepticism that excites without oppressing the mind, and summons an advocate to the best exertion of his faculties, without taking from him the prospect of success, and the assurance that his cause deserves it. I have listened, I say, and am as great an infidel as ever. My learned colleague, in his discourse upon this branch of the subject, relied in some degree upon circumstances, supposed by him to be in evidence, but by our opponents believed to be merely as sumed. I will not rely upon any circumstances but such as are admitted by us all. I take the broad and general ground, which does not require the aid of such special considerations as might be borrowed from the contested facts. The facts which are not contested are these : The claimant, Manuel Pinto, intending to make a large .shipment of British merchandise from [ 460 ] London (where he then was) to Buenos Ayres, (the place of his ordinary residence,) for himself and other Spaniards, and moreover to take on freight, and with a view to a commission on the sales, and a share in the profits, in South Ameri ca, other merchandise belonging to British sub jects, chartered at a fixed price, in the summer of 1813, the British ship the Nereide, for those pur poses. The Nereide was armed, either at the time of the charter or afterwards, with ten guns ; and her armament was authorized by the British government, and recognized by the usual docu ment. The merchandise being all laden, the ship sailed upon her voyage under British convoy, (as her owner had in the charter party stfpulated she should do,) with the claimant, Pinto, and several passengers introduced, as I think, by him, on board, and with sixteen or seventeen hands. She parted convoy soon afterwards, and was met by the Governor Tompkins privateer, by which she was conquered, seized, and brought in as prize, after a resistance of several minutes, in the course of which the Nereide fired about twenty gum. Some of the passengers co-operated in this resis tance, but Pinto did not, nor as far as is known,, did he encourage it. I shall consider the case, then, as simply that of a neutral, who attempts to cany on his trade from a belligerent port, (not only under belligerent convoy,) hut in a belligerent vessel of force, with full knowledge that she has capacity to resist the [ 461 ] - commissioned vessels, and (if they lie in her way) to attack and subdue the defenceless merchant ships of the other belligerent, and with the further knowledge that her commander, over whom in this respect he has no control, has inclination and authority, and is bound by duty so to resist, and is inclined and authorized so to attack and subdue. I shall discuss it as the case ofa neu tral, who advisedly puts in motion, and connects his commerce and himself with a force thus quali fied and conducted ; who voluntarily identifies his commerce and himself with a hostile spirit, and authority, and duty, thus known to and un controllable by him ; who steadily adheres to this anomalous fellowship, this unhallowed league be tween Neutrality and War, until in an evil hour it falls before the superior force, of an American cruizer, when for the first time he insists upon dissolving the connexion, and demands to be re garded as an unsophisticated neutral, whom it would he barbarous to censure, and monstrous to visit with penalty. The gentlemen tell us that a neutral may do all this ! I hold that he may not, and if he may, that he is a " chartered libertine,'' that he is legibus solutus, and may do any thing. The boundaries which separate-War from Neu trality are sometimes more faint and obscure than could be desired ; but there never were any boundaries between them, or they must all have perished, if Neutrality can, as this new and most licentious creed declares, surround itself upon the 59 [ 462 ] ocean with as much of hostile equipment as it can aftbrd to purchase, if it can set forth upon the great common of the world, under the tutelary auspices and armed with the power of one belli gerent, bidding defiance to and entering the lists of battle with the other, and at the same moment assume the aspect and robe of peace, and chal-* leng6 all the immunities which belong only to submission. My learned friends must bear with me if I say, that there is in this idea such an appearance of re volting incongruity, that it is difficult to restrain the understanding from rejecting it without in quiry, by a sort of intellectual instinct. It is, I admit, of a romantic and marvellous cast, and may on that account find favour with those who delight in paradox ; but I am utterly at a loss to conjecture how a well regulated and disciplined judgment, for which the gentlemen on the other side are eminently distinguished, can receive it otherwise than as the mere figment of the brain of some ingenious artificer of wonders. The idea is formed by a union of the most repulsive ingre dients. It exists by an unexampled reconciliation of mortal antipathies. It exhibits such a rare dis- cordia rirvm, such a stupendous society of jar ring elements, or (to use an expression of Tacitus,) of res insociabilfs, that it throws into the shade the wildest fictions of poetry. I entreat your ho nours to endeavour a personification ofthis moUey notion, and to forgive me for presuming to inti- [ 463 ] mate, that if, after you have achieved it, you pronounce the notion to be correct, you will have gone a great way to prepare us, by the au thority of your opinion, to receive as credible his tory, the worst parts of the mythology of the Pa gan world. The Centaur and the Proteus of antiquity will be fabulous no longer. The pro sopopoeia, to which I invite you is scarcely, indeed, within the power of fancy, even in her most rio tous and capricious mood, when she is best able and most disposed to force incompatibilities into fleeting and shadowy combination, but if you can accomplish it, will give you something like the kid and the lion, the lamb and the tiger portentoiis- ly incorporated, with ferocity and meekness co-ex istent in thc result, and equal as motives of action. It will give you a modern Amazon, more strange ly constituted than those with whom ancient fable peopled the borders of the Thermodon — her voice compounded of the tremendous shout of the Minerva of Homer, and the gentle accents of a shepherdess of Arcadia — with all the faculties and inclinations of turbulent and masculine War, and all the retiring modesty of virgin Peace. We shall have in one personage the pharetrata Ca milla of the iEneid, and the Peneian maid of the Metamorphosis. We shall have Neutrality, soft and gentle and defenceless in herself, yet clad in the panoply of her warlike neighbours — with the frown of defiance upon her brow, and the smile of conciliation upon her lip — with the spear of Achilles in one hand and a lying protestation [ 464 ] of innocence and helplessness unfolded in the other. Nay, if I may be allowed so bold a figure in a mere legal discussion, we shall have the branch of olive entwined around the bolt of Jove, and Neutrality in the act of hurling the latter un der the deceitful cover of the former. ' * * « * * * * I must take the liberty to assert that if this be law, it is not that sort of law which Hooker speaks of, when, with the splendid magnificence of east ern metaphor, he says, that " her seat is the bo- " som of God, and her voice the harmony of the " world." Such a chimera can never be fashion ed into a judicial rule fit to be tolerated or calcu lated to endure. You may, I know, erect it into a rule ; and when you do, I shall, in common with others, do my best to respect it ; but until you do so, I am free to say, that in my humble judgment, it must rise upon the ruins of many a principle of peculiar sanctity and venerable antiquity, which " the wing of time has not yet brushed away," and which it will be your wisdom to pre serve and perpetuate. If I should be accused of having thus far spoken only or principally, in metaphors, I trust I am too honest not to plead guilty, and certainly I am not ashamed to do so : For, though my me taphors, hastily conceived and hazarded, will scarcely bear the test of a severe and vigorous criticism, and although I confess that under your indulgence I have been betrayed into the use of them, by the composition of this mixed and (for [ 465 ] a court of judicature) uncommon audience, I trust that they will be pardoned upon the ground that they serve to mark out and illustrate my general views, and to introduce my more particular argu ment. I will begin by taking a rapid glance at the ef fect which this imagined license to neutrals, to charter the armed commercial vessels of a belli gerent, may produce upon the safety of the un armed trade of the opposite belligerent : and I deceive myself greatly if this will not of itself dispose us to reject the supposition of such a hcense. It will not be denied that, if one neutral may hire such a vessel from a belligerent, every neu tral may do so. The privilege does not e;xist at all, or it is universal. The consequence is, that the seas may be covered with the armed ships of one of the parties to the war by the direct procurement, and at the sole expense, of those who profess to be no parties to it. What becomes, then, of the defenceless trade of the other party to the war ? Is it not exposed by this neutral in terference to augmented peril, and encountered by a new repulsion .'' Are not the evils of its pre dicament inflamed by it ? Is not a more ample hostility, a more fearful array of force provided for its oppression ? Can it now pass at all where before it passed with difficulty and hazard ? Can it now pass without danger where before it was in perfect safety ? Suppose one of the contending powers to be greatly superior in maritime means to the other ', [ 466 ] what better expedient could be devised to make that superiority decisive and fatal, than to au thorize neutrals to foster it into activity by subsidies under the name of freight, to draw it out upon the ocean with a ripe capacity for mischief, to spread it far and wide over its surface, and to send it across every path which the commerce of the weaker belligerent might otherwise hope to traverse 1 Call you that Neutrality which thus conceals beneath its appropriate vestment the gi ant limbs of War, and converts the charter-par ty of the compting-house into a commission of marque and reprisals ; which makes of neutral trade a laboratory of belhgerent annoyance ; which with a perverse ' and pernicious industry warms a torpid serpent into life, and places it be neath the footsteps of a friend with a more appal ling lustre on its crest and added venom in its sting ; which for its selfish purposes feeds the fire of international discord, which it should rather labour to extinguish, and in a contest between the feeble and the strong enhances those inequalities that give encouragement to ambition and triumph to injustice ? I shall scarcely be told that this is an ima ginary evil. I shall not, in this Court, hear it said, as I think it has elsewhere been said,* that the merchant vessel of a belligerent, (of England especially,) armed under the authority of the state, and sailing under a passport which recognizes * At the hearing of the cause in the Court below. [ 467 ] that armament, has not a right to attack, and, if she can, to capture such enemy vessels as may chance to cross her track. [Mr. Emmett. — I shall maintain that she has no such right. She can capture only when jshe is herself assailed. She may be treated as a pirate, if she is the assailant. Where are the authori ties that prove the contrary f] Where are my authorities ? They are every where. Common sense is authority enough up on such a point ; and if the recorded opinions of jurists are required, they are already familiar to the learning of this Court. The doctrine results in the clearest manner from the nature of solemn war, as it is viewed by the law of nations ; and it should seem rather to be the duty of my oppo nents to produce authorities to show that this ob vious corollary has been so restrained and quali fied by civil regulations, or convention, or usage, as no longer to exist in the extent which I ascribe to it. But L undertake, myself, to produce am ple proof that my doctrine is in its utmost extent correct. It is stated in Rutherforth' s Institutes, (vol. 2, p. 576 — 578,) that by the law of nations, a solemn war makes all the members of the one contend ing state the enemies of all the members of the other, and, as a consequence, that by that law a declaration of war does m itself authorize every citizen or subject of the nation which issues it to act hostilely against every citizen or subject of the [ 468 ] opposite nation. It is further stated, in the same book, (p. 577, 578,) that, as the nati9n which has declared war has authority over its own subjiects, it may restrain them from acting against the other nation in any other manner than the public shall direct, and, of course, that notwithstariding the general power implied in a declaration of war, it may happen that none can act in war except those who have particular orders or commissions for this purpose. But, (it is added,) " this restraint, " and the legal necessity which follows from it, " that they who act should have particular orders " or commissions for what they do, arises, not from " the law of nations, or from the nature of war, " but from the civil authority of their own coun- " try. A declaration of war is, in its own nature, " a general commission to all the members of the " nation to act hostilely against all the members of " the adverse nation. And all restraints, that are " laid upon this general commission, and make " any particular orders or commissions necessary, " come from positive and civil institution." I might now ask, in my turn, where are the authorities (or documents of any sort) that show the imposition or existence of these restraints upon English ves sels, without which restraints the Nereide might lawfully have assailed and (if strong enough) cap tured any American vessel that came in her way? Vattel, who is not a very precise or scientific, although a very liberal writer, states the law as it is laid down by Professor Rutherforth. (Vattel [ 469 ] ^ Droit des Gens, liv. 5, ch. 15, s. 226.) He says, however, that a usage has grown up among the nations of Europe restrictive of the general right of the individual subjects of one power at war — " agir hostilement contre I'autre." " La neces- "site d'un ordre particulier est si bien etabli que "lors meme que la guerre est declaree entre deux " nations, si des paysans commettent d'eux-me- "mes quelques hostilites, I'ennemi les traite sans "management, et les fait pendre, comme il feroit "des voleurs ou des brigands." He adds, " II en "est de meme de ceux qui vont en course sur mer. "Une commission de leur prince, ou de Tamiral, " pent seule les assurer, s'ils sout pris, d'etre traites " corame des prisonniers faits dans une guerre "en forme." This has been relied upon, it seems, as in point to show that vessels in the predica ment of the Nereide can have no authority to at tack such enemy merchant ships as they may meet upon the ocean. But does the qualification pro duced by the usage whicli Vattel describes, (ad mitting it to be as he supposes,) amount to this ? The rule in Vattel, as it ap|)lies to the peasan try of a country, is connected with another — that they shall not ordinarily be made the objects of hostility. This exemption implies a corres ponding forbearance on their part to mingle with out the orders of the state in offensive war ; and they are punished if they violate the condition of the immunity. This apparent severity is real mercy ; for its object is to keep the peasantry at 60 [ 470 1 home, and to confine the contentions, and con sequently the direct effects of war to the troops who are appointed by the state to fight its battles. But a non-commissioned merchant vessel upon the high seas has nothing of this exemption. She cannot purchase it by forbearance — nay, she is at every moment the chosen object of hostility, as she is at every moment peculiarly exposed to it. So far as the supposed usage applies to priva teers, it has no bearing upon this case. It may be proper to confine to commissioned vessels the right of cruizing for the mere purposes of war ahd prize. Yet it may be equally proper to leave to an armed merchant vessel the smaller and incidfen- tal right (modified and checked in its exercise by such municipal regulations as each belligerent may and always does find it expedient to provide) to act offensively against the ^ubUc enemies, if she chances to encounter them. At any rate, as the armament ofa merchant vessel is sanctioned by the state to which she belongs, and is evidencied by its passport, it must depend altogether upon the laws of that state, whether this sanction aiiiounts to a permission to commit hostilities in transitu or not. And I think I may venture to assert, that Whatevei" inferences may be drawn from loose ahd geneM dicta to be found in a very few works upon the law of nations, no instance can be produced in which a merchant ship attacking an eneniy vessel in the course of her voyage, has received the treat ment which the learned council for the claimant [471 ] has .allotted to such a proceeding, or has in any manner been punished, or even in any degree cejQsured. The notions of Azuni appear (as far as any intelligible notions ean be collected from his work called a Treatise on the Maritime Law , of Europe) to be similar to those of Vattel, and con sequently, do not touch the point under considera tion. This writer has not been able to satisfy himself as to the propriety of the practice of Privateering ; or, rather, he is the undisguised ^dvocate (in different parts of his book) of the two opposite opinions, that it is a very J)ad prac tice, and a very gCKtd one. Thus in Part 2d, ch. 4, s. 13, (p*. 232 of the translation,) he inveighs with an amiable vehemence against it, (bringing the Abbe Mably to his assistance,) and in the next chapter (p. 350) gives us a proud panegyric upon it, and stigmatizes its censUrers (and of course himself aad the *' virtuous Mably") as " pretend ed philosophers," and as shallow and malignant dqclaimers. Admit, however, that this member of a score of academies does seem to have been .jsteadily of opinion, that a cruizer, without a commission, or something equivalent to a com mission, must be regarded as " a pirate or sea- rplbtber" — " Per mara discurrit depreedandi <;ausa, is true, as he tells us, of a privateer, as well as of a pirate. They diflfer, as he also assures ys, in this — that the latter pursues all vessels in discriminately, (as Casaregis expresses it,) " sine paUntibus alicujus principis, ex propria tantum [ 472 j ac privato. auctoritate ;" or as Azuni himself phrases it, " without any commission or passport from any prince or sovereign state ;" whilst the former attacks ^mJ^c enemies onlij, and has a spe cial authority for that object.. Now, although I am not convinced that a cruizer (against public enemies) is necessarily a pirate, because she wants a commission, and am even very sure of the contra ry, I content myself with asking, if all this is not (as well as what has been quoted from Vattel) quite aside from the case of an armed merchant vessel, sailing under the passport of the sovereign, to whose subjects she belongs, not as a cruizer for prize or plunder, not depreedandi causa, but for commercial purposes, and upon a commercial voyage, and only using her authorized force as an assailant when an enemy more feeble than her self comes within her power .'' But if a thousand siich writers as Azuihi, or even writers of a much higher order, had incul cated (as they do not) the general idea that an arm ed merchant vessel ought only to defend herself, and can never attack without becoming criminal, I should still have this successful reply, that it is not for a general rule that I am bound to contend ; that the Nereide was an English ship ; and that it is, therefore, enough for me to show upon this matter the law of England as it has always been held by her prize tribunals, and acquiesced in by the rest of the world. I might, indeed, maintain that when I show the unresisted and uncomplain- ed of law and custom of that country upon a [ 473 ] great maritime subject, I have gone very far to show the law and cu.stom of Europe, or at least what they ought to be ; but as my purpose does not require that I should occupy so wide a field, I shall use the English authorities merely as sup porting the doctrine (unquestionable in itself) which I have quoted from Rutherforth and Vattel, and as proving that England has not introduced, or made herself a party to, those restraints, which the right of offensive warfare, possessed upon original principles, by her armed merchant vessels, are alleged to be subject ; but, on the contrary, that her government and courts of prize always have asserted, in the most explicit manner, the ex istence of this right, and always have encouraged its practical exercise. When the cases to which I am about to refer for this purpose come to be considered, it will be proper to bear in mind the distinction between the right which a capturing ship acquires in the thing captured, and the validity or legality of that capture. Without a constant attention to this distmction, which is manifestly the creature of municipal law, the English authorities cannot be understood. In England it depends upon the Prize Act and the royal proclamation, who shall be regularly entitled to the benefit of prizes. The property of all prizes is originally in the govern ment, and it grants that property how and to whom it pleases. The interest in prize is gua ranteed only to a commissioned captor. A non- eommissioned vessel cannot, therefore, take for [ 474 ] her own benefit, but she may take (and that to. deal with, what I may call, a benignant profusion in mch linDitations ? War brings to a neutral its bene fits and its disadvantages. For its benefits he is in debted to the lamentable discord and misery of his fellow creatures, and he should, therefore, bear, not n^erely with a philosophic, but with a Christian patience, the evils with which these be- JBefits are alloyed. It is fortunate for the world that they are so alloyed, and heaven forbid that the 64 [ 502 ] time should ever arrive when one portion of the human race should feel too dee,p an interest in perpetuating the destructive quarrels of their brethren. But is there any thing new or peculiar in this alternative ? What is the predicament of a neu tral merchant domiciled before the war in one of the belligerent countries ? Is he not called upon by the law of prize to cease to trade, or to trade upon belligerent responsibility.^ Does not that law tell him, " Abandon your commerce ! al though it was begun in peace, and perhaps esta blished by great sacrifices, prepare to find it treat ed as the commerce of the belligerent with whom you have identified yourself.'"' Does it not an nounce the same sentence to the dealer in articles of contraband — to the trader with ports which the belligerent chooses to blockade — to the ship owner who has transport vessels to let to foreign . governments.? In those cases, it does not say — you shall not trade, or hire your ships as you were used to do — but merely that if you do, and are cap tured, your property shall be forfeited as if it were the property of enemies. I ask if the man who lives with innocence, in peace, upon the profits of carrying contraband articles is less oppressed hy the alternative which is presented to his choice, than Mr. Pinto by that which I hold was tendered to him, if his situation be truely stated, hot ex aggerated by his counsel ? I ask if his situation was worse than that of any other neutral whose [ 503 ] ordinary peace-traffic is reduced or annihilated by the mighty instrumentality of war ? But it is said that the resistance which was made, was a rightful resistance on the part of the commander of the Nereide, by whom it was made in fact. It was so. And can Mr. Pinto take refuge behind the peculiar rights of his as sociates without sharing the legal eflfects of their defeat ? Nothing could be more intolerable than such a doctrine. A belligerent has a right to break a blockade if he can. But can a neutral, therefore, put himself under the shade of that right, and in case the belligerent master should make the attempt and succeed, take the profit, and if he fails, claim immunity from confiscation hy an ingenious reinforcement of his own rights with those of the belligerent master.? Or if the conduct of the belligerent master shall be thought to be insufficient to impute to the owner of the cargo the mens rea in the case of blockade, by a sweeping presumption that the vessel is going in to the blockaded port in the service of the cargo only — what shall we say to the case of contra band, which must be put on board by the owner with a knowledge that it will be exposed to the peril of capture, and if captured to the certainty of confiscation ? A belligerent master has a right to carry contraband if he can — and only superior forcecan prevent him. But, surely, a neutral can not so avail himself of that right, as to ship in ' '^"Safety contraband articles in a belligerent vessel. [ 504 ] If he could, he would have a larger and more ef fectual right than that under which he takes shelter ; for the belligerent's right is subject to be defeated by force, and so much of his pro perty as is engaged in the enterprize becomes prize of war, if he is conquered. Just as in this case, his right of resistance is met on the other side by a right to attack and seize as prize, and every thing depends upon the issue of the com bat. It is, indeed, self-evident that a neutrai, who is drivi;n to rely upon the rights of war, vest ed in others, not himself, leans upon a broken reed, if those rights fail of being successfully maintained against the opposite party to the war : and sure_ I am that no case can be imagined, in which a neutral can cover himself with the right of a belligerent whom he chooses to employ, and thus claim the combined advantages of a bel ligerent and a neutral character. If he can ad vance such a claim, the cases of domicil have all been adjudged upon false principles, for they ex pressly affirm the contrary, and stand upon no other reason. But the true light in which to view this point is, that the right of resistance vested in the bel ligerent master is precisely that which aggra vates instead of taking away the guilt of the neu tral charterer, or in other words, is exactly the consideration which ought to make the resistance his own in the eye of the law, and, consequently, to render him and his property liable to share the fate of the belligerent master and vessel. [ 505 ] It is indisputable that if Mr. Pinto, instead of chartering the Nereide, had hired a neutral ship, and: the neutral master, without his concurrence, had resisted visitation and search, the goods of. Pinto would have been prize as well as the neu tral vessel. We have fbr this the express autho rity of Sir William Scott, in the celebrated case of the Swedish convoy and others.* " The "penalty for the violent contravention of this "right, is the confiscation of the property" (cargo "as well as vessel) "so withheld from' visitation "and search." Upon what ground is the cargo forfeited in that case.? Upon the ground that the master's resist ance withholds the cargo from visitation and search, and that the owner of it is answerable for 'the-master's conduct in that respect, although the master is not, strictly speaking, the agent of the cargo, and the owner of the cargo is not gene rally aflTectedTjy his acts in the view of a Court of Prize. The extension of the penalty of confisca tion to all the property, withheld by the resistance of the neutral master from visitation and search,- whether it belongs to the owner of the vessel or not, proceeds,^ undoubtedly, from the importance attached to the right with which such resistance interferes — to a right without which all the other belligerent rights with which the law of prize is , * The Maria, Rob. Adm. Rep. vol. 1, p. 287. The Elsebe, Rob. Adm. Rep. vol. 5, p. l74. The (l^atharina Elizabeth, tb. 232. The Despatch, Rob. Adm. Rep. 280. [ 506 ] eoncerned, are mere shadows. The owner of a neutral cargo, forfeited by the resistance of the master of a neutral ship, would seem to have some show of reason for his complaint against the rigour of such an indiscriminate punishment of the innocent and the guilty. He might urge with great plausibility, that as he had not partaken' in any manner the resistance — as he not only did not command, but did not wish it — as he was justi fied, when he shipped his goods, in relying upon the presumption that a neutral master would fulfil his neutral duties, and would nojthave recourse to hostile resistance to the right of visiting and searching his vessel and those goods, he ought not to be made accountable for that resistance. But with what plausibility can the charterer of a belligerent vessel, which has by resistance with held his property from visitation and search, claim to be exempted from the utmost severity of the rule ? When he chartered such a vessel and ship ped his goods, had he any ground for presuming that the belligerent niaster would forbear resist ance to an enemy cruizer ? Did he not, on the contrary, know that he would resist, and that it would be out of his power to prevent him ? Did he not go to sea with an absolute assurance that his goods would be withheld from the visitation and search of the opposite belligerent by all the resistance that could be made .'' Nay, further — is not the neutral owner of the goods interested that resistance should be made, even with refer- { 507 ] ence to the vessel, when it can be made effectu ally — since, if the vessel be seized as prize, the voyage is broken up, and the hopes of profit which depended upon it utterly blasted ? Such was Mr. Pinto's predicament ; and it will not be believed that he would see with disapprobation the repulse of a cruizer of this country attempt ing to capture the Nereide, and to carry her any where but to Buenos Ayres. With regard to a neutral, therefore, who char ters an armed belligerent vessel, the penalty of confiscation for resistance by that vessel is unim- pe^hably just. If it is established that a neutral should be responsible for the resistance of the master of a neutral vessel, which he could not foresee, had no reason to expect, and no interest to produce, can it be unfit that he should be re sponsible for the regular and foreseen resistance of the master of an armed belligerent vessel char tered by him, which resistance he could not help foreseeing, which if he did not direct, he must have confidently expected, and which his interest required should be made as often as it happened to be practicable ? It would be intolerable that he who has done every thing which by all reason able calculation would subject his property to the full exercise of the right of visitation and search, shall be punished with confiscation for the disappointment of that calculation, and that he who has done every thing which was adapted to defeat that right, and who has spontaneously given [ 508 ] himself an interest in defeating it, should be re- wii -led with restitution, (or to speak more cor rectly,) by a concession of all the benefits of suc cessful resistance, and by an exemption from all its penal consequences in case of failure. I stand upon all just principles of law and rea son, therefore, when I say, that the known right and inclination of the niaster of the Nereide, combined with his capacity, obtained at Pinto's expense, to resist a cruizer of the United States, is so far from being a foundation on which to build his innocence, that it is the clearest and most conclusive inducement to consider his pro perty as prize. If one were called upon to select a case in which the confiscation of the cargo of a resisting vessel was not only lawful, but equitable, it would be a case in which a neutral abusing the indulgence extended to him by the modern law of nations to employ a belligerent vehicle, employs just such a vehicle as under belligerent command and conduct will inevitably be made to withdraw his property from examination, so far as its physil- cal force can so withdraw it. And certainly a greater anomaly can scarcely be conceived, than that I shall answer for the hostile conduct of him, upon whose neutral and peaceful conduct I was warranted, when I employed him, to rely; and yet shall not answer for the hostile conduct of him, from whom I was warranted, when I employed him, in anticipating nothing but hostility and vio lence ! [ 509 ] [VIr. Pinkney then examined the case of the Swedish convoy in 1798, and insisted that there was no difference between a ship sailing under protection of a resisting convoy and goods found in a resisting ship ; that it was admitted both by the counsel for the claimant and by the Court, in that case, that the distinction between an ene my convoy and a neutral convoy was unfavoura ble to the former, inasmuch as the enemy convoy stamped a primary character of hostility on all the vessels sailing under its protection, which presumption the counsel seemed tp think might be rebutted, but which Sir William Scott con sidered to be a conclusive presumption ; and that the distinction between hostile and neutral con voy, favourable to the latter, was, that where the convoying force was neutral, the captors must show ari aci^MaZ resistance, which in the case of the Maria was shown (among other things) by the in structions of the Swedish government, authorizing such resistance, which were relied upon, not as constituring a part of the offence, but as rendering it probable that there was actual resistance, whilst inthe case of the Nereide, the intention to re sist, (independent of the fact,) was rendered cer tain by the general hosrile character of the force femployed. I regret that I have not the means of restoring this part of the argument, which I un derstand was of great force and beauty : but it is irrecoverably lost. In the case of the Maria, the . ©ounsel for the claimant, in contending that the 65 [ 510 ] presumption arising from a hostile convoy was not conclusive against the ships and cargoes sailing under its protection, cited the case of the Samp son, Barney, before the Lords of Appeal, an as serted American ship taken under French convoy, and communicating with the French ships by sig nal for battle, which they said the Lords had sent to farther proof to ascertain whether there had been an actual resistance. To which intimation Sir W. Scott observed : " I do not admit the authority of " that case to the extent to which you push it. " That question is still reserved, although the " Lords might wish to know as much of die facts " as possible." And I may be excused for adding, that Mr. Justice Story, in his judgment in the case of the Nereide, states that the sentence of con demnation in the Sampson, Barney, was subse quently affirmed by the Lords.*] ******* The case of the Cdtharina Elizabeth (Rob. Adm. Rep. vol. 5, p. 232) has also been produced against us. It would seem, indeed, that my learn ed friend entertains some doubts of its applicabi lity to that of the Nereide, since he rather invites our attention to the brief marginal summary of the reporter than to the case. The marginal note says : "Resistance by an enemy master will not " affect the cargo, being the property of a neu- " tral merchant ." and my learned friend, taking or rather mistaking this for a universal position. * Cranch's Reports, vol. i,\, p. 442. Note. [511 ] is so well satisfied with it that he desires to look no farther, and would have us trouble ourselves as little as possible with the reasoning of the Court and the particular circumstances of the transaction, by which the Reporter (certainly a very excellent and able man) took for granted that his note would be qualified. Dr. Robinson meant only to say that the resistance of the enemy master, on that occa sion, did not affect the neutral cargo ; presuming that the reader of his note would read the judg ment to which it belonged, and in which he could not fail to find the nature of that occasion. This is what I have done, and what I trust your Ho nours will do. " Territus insisto prioris margine ripse,"* may come with a good grace from the learned counsel whose interest it is to take refuge there fron^ the doctrine of the case itself; but it does not suit me. I shall on the contrary pass to the case from the margin. Now what is that case .'' An enemy master en deavours to recover his captured property, or rather (as appears to have been the fact) to take the captured vessel ; and Sir William Scott in forms' us that there is no harm in this, as regards the enemy master himself, and that it is quite clear that it cannot affect the neutral owner of the car go. As to the enemy master, the quotation from Terence ("Lupum auribus teneo,") explains the whole matter. If I capture an enefliy I must * Territaque insisto prioris margine ripce. Ovid, Lib. v.. Fab. ix, 1. 59^^ [ 512 ] take care to hold him. He is not bound (unless under parole) to acquiesce ; and if when oppor tunity offers he tries to withdraw himself and his property, or even to capture the captors, he does just what might be expected and what he. has a right to do. He violates no duty, and infringes no obligation. I admit all this to be perfectly tru.? ; and 1 am ready to admit, if it will be of any service to the claimant, that the captain of the Nereide had a right, not only to resist the Gover nor Tompkins, but to capture her if he could. What I object against the claimant is, not thatthe captain of the Nereide resisted unlawfuliyj with a view to his own rights, but that the claimant whose property was liable to unresisted visitation and search, and whose rights and obligations were very different from those of the captain of the Nrreide, had identified himself with him, and was a party to that resistance, inasmuch as he' was the hirer of the force with which it was made, know ing its hostile character, and' had associated it up on the ocean with his property, aware of the hos tile control to which it was subject. For a force, , thus qualified, and so employed by a neutral,! say that he is responsible upon the plainest grounds of law and reason, if it be used (as from its na ture it must be) in a way in which he is not autho rized to use it. I say, further, thata neutral cannOt at all employ such a force, placed under suoli hostile control, w ithi ut guilt ; and that he incurs the confiscation of his goods if they are found connect- [ 51S ] ed with it, although there be no resistance on ac count of its being hopeless. I say, further, that if a neutral will have resort to force, it must at his peril be such as is npt from its character hurtful to the Oj>posite belligerent, or inconsistent with a peace- aljle compliance on his part with all his neutral du ties. .4nd, surely, there is nothing in the case of the Catbarina Elizabeth which says otherwise. . Another case in the same collection (vol. 3, p. 278., The Despatch) tells us that if a neutral mas ter endeavours to rescue or recover by force the captured property, it shall be condemned, because the captor is not bound as against a neutral to keep military possession of the thing captured, or justified in holding the neutral master and crew as prisoners. On the contrary, he is to rely upon the duty of the neutral to submit, and hope for restitution and eompiensation from a court of prize; and if this duty be violated by the neutral master and crew, confiscation is the result. This is explanatory of the judgment in the case of the Catbarina Elizabeth, and is there used by Sir Williiam Scott for that purpose. It shows, as the facts of the case also show, that the Court intend ed to confine its decision inthe Catbarina Fliza- bieth to the case of an enemy master already cap tured, for whom," as he is in the custody of the ca,ptor (whose business it is, not to trust, but to guard and keep him) the neutral shipper is no longer answerable. That the enemy master ceases the moment he becomes a prisoner, and his vessel [ 514 ] prize, to be for any purpose, the agent, or in any sense the associate of the neutral owner of the cargo, and that their connexion is utterly dissolved by the seizure, is perfectly clear. It would, there fore, be monstrous to fasten upon the neutral own er of the goods a continuing suretyship for the peaceful conduct of the enemy master, after he has passed into the state of a prisoner of war. But in the consideration of the case of the Ca- -tharina Elizabeth, it must in an especial manner be borne in mind, that the French vessel was not armed at all, and of course not by or for the own er of the cargo; that she did not resist visita tion, search, or seizure; that the single circum stance upon which condemnation of the American cargo was urged, was some hostile attempt of the enemy master after capture consummated^ which attempt was really and constructively his own personal act, not procured, or facilitated, or influenced, directly or indirectly, remotely or im mediately, by the owner of the cargo, to whom in law he had become a stranger. Who is it that can persuade himself that there is any resemblance be tween that case and the present, or that, if in that ease there was supposed to be an arguable reason (if I may be allowed that expression) for visiting upon the neutral shipper the hostile conduct of the enemy master, the same tribunal would in our case have hesitated to condemn ? Observe the contrast between the two cases. Tn our case, at the epoch of the resistance, the [, 515 ] relation was subsisring in its full extent between him who made that resistance, and him who pro vides the means without providing any check upon the use of those means ; in the other case, it was extinguished. In our case, the force employed was the original force, hired by the owner of the cargo, and left by, him to the direction of a hos tile agent, who used it, as he could not but be sure he would, hostilely ; — in the other case, there was no original force; and that which was used was the personal force of the enemy master, and not that of the vessel. In our case, the force was exerted in direct opposition to the neutral's obli gation of submission with reference to the cargo ; and in the other, the neutral had already submit ted, and his goods were in the quiet possession of the captors. In our case, a general capacity, le gal and actual, of annoyance, as well as of resist ance, had been given, by or for the neutral, to the vessel as a belligerent vessel, (a capacity which she preserved during her voyage,) for which alone^ independently of resistance in fact, the neutral is, as I confidently contend, liable to the penalty of confiscation ; in the other, the vesselwas an ordi nary, unarmed commercial vehicle, which the neu tral might hire and employ with perfect innocence and safety. * * « * * « * The little strength with which I set out is at last exhausted, and I must hasten to a conclusion. I commit to you, therefore, without further discus sion, the cause of my clients, idenrified with the [ 516 ] rights of the American people, and with those wnoicsome rules which give to public law s^iinpli- city anil system, and tend to the quiet of the world. We are now, thank God, once more at peace; Our belligerent rights may therefore sleep for a season. May their repose be long and profound ! But the time must arrive when the interests and honour of this great nation will command thera to awake, and when it does arrive, I feel undoubting confidence that they will rise from their slumber in the fulness of their strength and ir-iiesty, un- enfeebled and unimpaired by the judgi^-.jnt of this high Court. The skill and valour of our infant navy, which has illuminated every sea, and dazzled the master states of Europe by the splendour of its triumphs, have given us a pledge, which I trust will continue to be dear to every American heart, and influence the future course of- our policy, that the ocean is destined to acknowledge the youthful dominion of the West. I am not likely to live to s^eit, and, therefore, the more dp I seize upon the en joyment presented by the glorious anticipation— That this dominion, when God shall suffer us to wrest it from those who have abused it, will be ex ercised with such ju.stice and moderation as will put to shame the maritime tyranny of recent times, and fix upon our. power the affections of mankind, it is the duty of us all to hope ; but it is equally our duty to hope that we shall not be so inurHi- nately just to others as to be unjust to ourselves. [ 517 ] N°- V. SPEECH IN THE HOUSE OF REPRESENTATIVES ON THE TREATY-MAKING POWER. [In the debate upon the bill to carry into effect the British convention of 1815, Mr. Pinkney said,] he intep ''^d yesterday, if the state of his health had permitted, to have trespassed on the House with a short sketch of the grounds upon which he disapproved of the bill. What I could not do then, [said he,] I am about to endeavour now, under the pressure, nevertheless, of continuing indisposition, as well as under the influence of a natural reluctance thus to manifest an apparently ambitious and improvident hurry to lay aside the character of a listener to the wisdom of others, by which I could not fail to profit, for that of an expounder of my own humble notions, which are not likely to be profitable to any body. It is, in deed, but too probable that I should best have consulted both delicacy and discretion, if I had forborne this precipitate attempt to launch my little bark upon what an honourable member has aptly termed ' the torrent of debate' which this bill has produced. I am conscious that it may 66 [ 518 ] with singular propriety be said of me, that I am noves hospes here ; that I have scarcely begun to acquire a domicil among those whom I am under taking to address ; and that recently transplanted hither'from courts of judicature, I ought for a sea son to look upon myself as a sort of exotic, which time has not sufficiently familiarized with the soil to which it has been removed, to enable it to put forth either fruit or flower. However all this may be, it is now too late to be silent.' I proceed, therefore, to entreat your indulgent attention to the few words with which I have to trouble you upon the subject under deliberation. That subject has already been treated with an admirable force and perspicuity on all sides, of the House. The strong power of argument has drawn aside, as it ought to do, the veil which is supposed to belong to it, and which some of us seem unwilling to disturb; and the stronger pow er of genius, from a higher region than that of argument, has thrown upon it all the light with which it is the prerogative of genius to invest and illustrate every thing. It is fit that it should be so ; for the subject is worthy by its dignity and importance to employ in the discussion of it all the powers of the mind, and all the eloquence by which 1 have already felt that this assembly is distinguished. The subject is the fundamental law. We owe it to the people to labour -tvith sin cerity and diligence, to ascertain the true con struction of that law, which is but a record of [ 519 ] their will. We owe it to the obligations of the oath which has recently been imprinted upon our consciences, as well as to the people, to be obe dient to that will when we have^ succeeded in as certaining it. I shall give you my opinion upon this matter,, with the . utmost deference for the judgment of others ; but at the same time with that honest and unreserved freedom which be comes this place, and is suited to my halbits. Before we can be in a situation to decide whether this bill ought to pass, we must know pre cisely what it is ; what it is oot is obvious. It is not a bill which is auxiliary to the treaty. It does not deal with details which the treaty does not bear in its own bosom. It contains no snbsidiary eaactraents, no dependent provisions, flowing as VoroMaries from th« treaty. It is not to raise money, or to make appropriations, or to do any thing else beyond or out of the treaty. It acts simply as the echo of the treaty. I Jngeminat voces, auditaque verba reportat It may properly be called the twin brother of the tmeaty; its duplicate, its reflected image, for it re- ^mcts with a timid fidelity, somewhat inconsis tent with the boldness of its pretensions, all that the treaty stipulates, and having performed that Vork of supeferogation, stops. It once attempt ed 'S(»QSiethiDg more, indeed ; but that surplus has he^n expunged from it as a desperate intruder, as 'SQimething which might violate, by a misinterpre tation of the treaty, that very public faith which we [ 520 ] are now prepared to say the treaty has never plight ed in any the smallest degree. In a word, the bill is a fac-simile of the treaty in all its clauses. • I am warranted in concluding, then, that if it be any thing but an empty form of words, it is a confirmation or ratification of the treaty ; or, to speak with a more guarded accuracy, is an act to which only (if passed into law) the treaty can owe its being. If it does not spring from the pruritus leges ferendi, by which this body can never be afBicted, I am warranted in saying, that it springs, from an hypothesis (which may affict us with a worse disease) that no treaty of com merce can be made by any power in the state but Congress. It stands upon that postulate, or it is a mere bubble, which might be suffered to float through the forms of legislation, and then to burst without consequence or notice. That this postulate is utterly irreconcileable with the claims and port with which this conven tion comes before you, it is impossible to deny. Look at it! Has it the air or shape of a mere pledge that the President will recommend to Con gress the passage of such laws as will produce the effect at which it aims ? Does it profess to be preliminary, or provisional, or inchoate, or to re ly upon your instrumentality in the consumma tion of it, or to take any notice of you, however distant, as actual or eventual parties to it ? No, it pretends upon the face of it, and in the solem nities with which it has been accompanied and [521 ]. followed, to be a pact with a foreign state, com plete and self-efficient, from the obligarion of which this government cannot now escape, and to the perfection of which no more is necessary than has already been done. It contains the clause which is found in the treaty of 1794, and substantially in every other treaty made by the United States under the present constitution, so as to become a formula, that, when ratified by the Presideilt of the United States, by and with the advice and consent of the Senate, and by his Bri tannic majesty, and the respective, ratifications mutually exchanged, it shall be binding and obli gatory on the said states and his majesty. . It has been ratified in conformity with that clause. Its ratifications have been exchanged in the established and stipulated mode. It has been proclaimed, as other treaties have been proclaimed, by the executive government, as an integral portion ' of the law of the land, and our citizens at home and abroad, have been admonished to keep and ob serve it accordingly. It has been sent to the other contracting party, with the last stamp of the national faith upon it, after the manner of for mer treaties with the same power, and will have been received and acted upon by that party as a concluded contract, long before your loitering le gislation can overtake it. I protest. Sir, I am somewhat at a loss to understand what this con vention has been since its ratifications were ex- ehanged, and what it is now, if our bill be sound [ 522 ] in its principle. Has it not been, and 19 it not an unintelligible, unbaptized and unbaptizable thing, without attributes of any kind, bearing! the semblance of an executed compact, but in reali ty a hollow fiction ; a thing which no man is led to consider even as the germ of a treaty, entitled to be cherished in the vineyard of the constitution ; a thing which, professing to have done every thing that public honour demands, has done nothing but practise delusion ? You may ransack every diplomatic nomenclature, and run through every vocabulary, whether of diplomacy or law, and you shall not find a word by which you may distinguish, if our bill be correct in its hypothesis, this ' deed without a name.' A plain man who is not used to manage his phrases, may, therefore, presurne to say that if this convention with Eng land be not a valid treaty, which does not stand in need of your assistance, it is an usurpation on the part of those who have undertaken to make it ; that if it be not an act within the treaty^ making dapacity, confided to the President and Senate, it is an encroachment on the legislative rights of Congress. I am one of those who view the bill upon the table, as declaring that it is not within that capa^ city, as looking down upon the convention as the still-born progeny of arrogated power, as offering to it the paternity of Congress, and affecting by that paternity to give to it life and strength ; and as I think that the convention does not stand in [ 523 J need ©fr any sucli filiation, to make it either atrong or legitimate, that it is already all that it can become, and that useless legislation upon such a subject is vicious legislation, I shall vote against the bill. The correctness of these opi nions is what I propose to establish. I lay it down as an incontrovertible truth, that the Gonsitution has assumed (and, indeed, how could it do otherwise ?) that the government of the United States might and would have occasion, like the other governments of the, civilized world, to enter into treaties with foreign powers, upon the various ^subjects invcdved in their mutual re lations ; and further^ that it might be, and was proper to designate the department of the govern ment in which the capacity to make such treaties should be lodged. It has said, accordingly, that the President, with the concurrence of the Senate, shall possess this portion of the national sove reignty. It has, furthermore, given to the same magistrate, with the same concurrence, the exclu sive creation and control of the whole machinery of diplomacy. He only, with the approbation of the Senate, can appoint a negociator, or take any Step towards negociation. The constitution does not, in any part of it, even intimate that any other department shall possess either a constant or an occasional right to interpose in the preparation of any treaty, or in the final perfection of it. The President and Senate are explicitly pointed out as the sole actors in that sort of transacUon. The [ 524 ] prescribed concurrence of the Senate, and that too by a majority greater than the ordinary legis lative majority, plainly excludes the necessity of congressional concurrence. If the consent of Congress to any treaty had been intended, the constitution would not have been guilty of the ab surdity of first putting a treaty for ratification to the President and Senate exclusively, and again to the same President and Senate as portions of the legislature. It would have submitted the whole matter at once to Congress, and the more espe cially, as the ratification of a treaty by the Senate, as a branch of the legislature, hiay be by a smaller number than a ratification of it by the same body, as a branch of the executive government. If the ratification of any treaty by the President, with the advice and consent of the Senate, must be followed by a legislative ratification, it is a mere nonentity. It is good for all purposes, or for none. And if it be nothing in effect, it is a mockery by which nobody would be bound. The President and Senate would not themselves be bound by it — and the ratification would at last depend, not upon the will of the President and two-thirds of the Senate, but upon the will of a bare majority of the two branches of the legislature, subject to the qualified legislative control of the President. Upon the power of the President and Senate, therefore, there can be no doubt. The only ques tion is as to the extent of it, or in other words, as to the subject upon which it may be exerted. [ 525] The effect of the power, when exerted within its lawful sphere, is beyond the reach of controversy. The consriturion has declared, that whatsoever amounts to a treaty, made under the authority of the United States, shall immediately be supreme law. It has contradistinguished a treaty as law from an act of Congress as law. It has erected treaties, so contradistinguished, into a binding judicial rule. It has given them to our courts of justice, in defining their jurisdiction, as a portion of the lex terra, which they are to interpret and en force. In a word, it has co mmunicated to them, if ratified by the department which it has specially provided for the making of them, the rank of , law, or it has spoken without meaning. And if it has elevated them to that rank, it is idle to at tempt to raise them to it by ordinary legislation. Upon the extent of the power, or the subjects upon which it may act, there is as little room for controversy. The v power is to make treaties. The word treaties is nomen generalissimum, and will comprehend commercial treaties, unless there be a limit upon it by which they are excluded. It is the appellative, which will take in the whole species, if there be nothing to narrow its scope. There is no such limit. There is not a syllable in the context of the clause to restrict the natural import of its phraseology. The power is left to the force of the generic term, and is, therefore, as wide as a treaty-making power can be. It em braces all the varieties of trearies which it could 67 [ 526 ] be supposed this government could find it neces sary or proper to make, or it embraces none. It covers the whole treaty-making ground which this government could be expected to occupy, or not an inch of it. It is a just presumption, that it was designed to be co-extensive with all the exigencies of our affairs. Usage sanctions that presumption — ex pediency does the same. The omission of any exception to the power, the omission of the de^ signation of a mode by which a treaty, not intend ed to be included within it, might otherwise be made, confirms it. That a commercial treaty was, above all others, in the contemplation of the constitution, is manifest. The immemorial prac^ tice of Europe, and particularly of the natioii from which we emigrated, the consonance of en lightened theory to that practice, prove it. It may be said, indeed, that at the epoch of the birth of our constitution, the necessity for a pow er to make commercial treaties was scarcely visi ble, for that our trade was then in its infancy^ It was so ; but it was the infancy of another Hercu les, promising, not indeed a victory over the lion of IVemsea, or the boar of Frymanthus, but the peaceful conquest of every sea which could be subjected to the dominion of commercial enter prize. It was then as apparent as it is now, that the destinies ofthis great nation were irrevocably commercial ; that the ocean would be whitened by our sails, and the ultima Thule of the world com pelled to witness the more than Phoenician spirit [ 527 J and intelligence of our merchants. With this glorious anticipation dawning upon them — with this resplendent Aurora gilding the prospect of the future ; nay, with the risen orb of trade illu minating the vast horizon of American greatness, it cannot be supposed that the frapiers of tljj?. constitution did not look to, the finie when we shoilld be called upon to make commercial con ventions. It needs not the aid of the imagina tion to reject this disparaging and monstrous sup-. position. Dullness itself, throwing aside the le thargy of its character, and rising for a passing moment to the rapture of enthusiasm, will dis claim it with indignation. It is said, however, that the constitution has given to Congress the power to regulate com merce with foreign nations ; and that, since it would be inconsistent with that power, that the President, with the consent of the Senate, should do the same thing, it follows, that this power of Congress is an exception out of the ti^eaty- making power. Never were premises, as it ap pears to my understanding, less suited to the conclusion. The power of Congress to regulate our foreign trade, is a power of municipal legis lation, and was designed to operate as far as, up on such a subject, municipal legislation can reach. Without such a power, the government would be wholly inadequate to, the ends for which it was instituted. A power to regulate commerce by treaty alon?, would touch only a portion of the [ 528 ] subject. A wider and more general power was therefore indispensible, and it was properly de volved on Congress, as the legislature of the Union. On the other hand, a power of mere munici pal legislation, acting upon views exclusively our own, having no reference to a reciprocation of advantages by arrangements with a foreign state, would also fall short of the ends of government in a country of which the commercial relations are complex and extensive, and liable to be embar rassed by conflicts between its own interests and those of other nations. That the power of Con gress is simply legislative in the strictest sense, and calculated for ordinary domestic regulation only, is plain from the language in which it is communicated. There is nothing in that language which indicates regulation, by compact or compro mise, nothing which points to the co-operation of a foreign power, nothing which designates a trea ty-making faculty. It is not connected with any of the necessary accompaniments of that faculty; it is not furnished with any of those means, with out which it is impossible to make the smallest progress towards a treaty. It is self-evident, that a capacity to regulate commerce by treaty, was intended by the consti tution to be lodged somewhere. It is just as evi dent, that the legislative capacity of Congress does not amount to it ; and cannot be exerted to pro duce a tfeaty. It can produce only a statute, with which a foreign state cannot be made to concur. [ 529 ] and which will not yield to any modifications which a foreign state may desire to impress upon it for suitable equivalents. There is no way in whioh Congress, as such, can mould its laws into trea ties, if it respects the constitution. It may legis late and counter- legislate ; but it must foi* ever be beyond its capacity to combine in a law, emana ting from its separate domestic authority, its own views with those of other governments, and to produce a harmonious reconciliation of those jar ring purposes and discordant elements which it is the business of negociation to adjust, I reason thus, then, upon this part of the sub ject. It i^ clear that the power of Congress, as to foreign commerce, is only what it professes to be in the constitution, a legislative power, to be ex erted municipally without consultation or agree ment with those with whom we have an intercourse of trade ;. it is undeniable that the constitution meant to provide for the exercise of another pow er relatively to commerce, which should exert it self in concert with the analogous power in other countries, and should bring about its results, not by statute enacted by itself, but by an internation al compact called a treaty ; that it is manifest, that this other power is vested by the constitution in the President and Senate, the only department of the government which it authorises to make any to-eaty, and which it enables to make all treaties ; that if it be so vested, its regular exercise must re sult in that which, as far as it reaches, is law in itself, [ 530 ] and consequently repeals such municipal regula tions as stand in its way, since it is expressly de clared by the constitution that treaties regularly made shall have, as they ought to have, the force of law. In all this, I perceive nothing to perplex or alarm us. It exhibits a well digested and uni form plan of government, worthy of the excellent men by whom it was formed. The ordinary powel" to regulate commerce by statutory enact ments, could only be devolved upon Congress, possessing all the other legislative powers of the government. The extraordinary power to regu late it by treaty, could not be devolved upon Con gress, because from its composition, and the ab sence of all those authorities and functions which are essential to the activity and effect of a treaty- making power, it was not calculated to be the de pository of it. It was wise and consistent to place the extraordinary power to regulate commerce by treaty, where the residue of the treaty-making power was placed, where only the means of nego ciation could be found, and the skilful and bene ficial use of them could reasonably be expected. That Congress legislates upon commerce, sub ject to the treaty-making power, is a position per fectly intelligible ; but the understanding is in some degree confounded by the other proposition, that the legislative power of Congress is an ex ception out of the treaty-making power. It intro duces into the constitution a strange anomaly — a commercial state, with a written constitution, and [ 531 ] no po^ver in it to regulate its trade, in conjunction with other states, in the universal mode of conven tion. It will be in vain to urge, that this' anomaly is merely imaginary ; for thatthe President and •Senate may make a treaty of commerce for the consideration of Congress. The answer is, that the treaties which the President and Senate are entitled to make, are such, as when made, become law ; that it is no part of their functions simply to initiate treaties, but conclusively to make them ; and that where they have no power to make them, there is no provision in the constitution, how or by whom they shall be made. That there is nothing new in the idea of a se paration of the legislative and conventional pow ers upon commercial subjects, and of the neces sary control of the former by the latter, is known to all who are acquainted with the constitution of England. The Parliament of that country enacts the statutes by which its trade is regulated muni cipally. The Crown modifies them by a treaty. It has been imagined, indeed, that the Parliament is in the practice of confirming such treaties ; but the fact is undoubtedly otherwise. Commercial treaties are laid before Parliament, because the king's ministers are responsible for their advice in the making of them, and because the vast range and complication of the English laws of trade and revenue, render legislation unavoidable, not for the ratification, but the execution of their com mercial treaties. [ 5S2 ] It is suggested again, that the treaty-making power (unless we are tenants in common of il with the President and Senate, to the extent .at least of our legislative rights) is a pestilent monster, pregnant with all sorts of disasters ! — It teems with ' Gorgons, and Hydras, and Chimeras dire!' At any rate, I may take for granted that the case before us does not justify this array of metaphor and fable ; since we are all agreed that the con vention with England ^ is not only harmless but salutary. To put this particular case, however, out of the argument, what have we to do with considerations like these .'' are we here to form, er to submit to the constitution as it has been given to us for a rule by those who are our masters .'' Can we take upon ourselves the office of political casuists, and because we think that a power ought to be less than it is, compel it to shrink to bur standard ? Are we to bow with reverence before the national will as the constitution displays it, or te fashion it to our own, to quarrel with that charter, without which we ourselves are nothing ; or to take it as a guide which we cannot desert with innocence or safety .'' But why is the treaty- making power lodged, as I contend it is, in the President and Senate, likely to disaster us, as we are required to apprehend it will ? Sufficient checks have not, as it seems, been provided, either by the constitution or the nature of things, to pre vent the abuse of it. It is in the House of Re presentatives alone, that the amulet, which bids [ 533 ] defiance to the approaches of political disease, or cures it when it has commenced, can in all vi cissitudes be found. I hold that the checks are sufficient, without the charm of our legislative agency, for all those occasions which wisdom is bound to foresee and to guard against ; and that as to the rest (the eccentricities and portents which no ordinary checks can deal with) the occasions must provide for themselves. It is natural, here, to ask of gentlemen, what security they would have ? They cannot ' take a bond of Fate ;' and they have every pledge which is short of it. Have they not, as respects the President, all the security upon which they reJy from day to day for the discreet and upright dis charge of the whole of his other duties, many and various as they are ? What security have they that he will not appoint to office the refuse of the world ; that he will not pollute the sanctuary of justice by calling vagabonds to its holy ministry, instead of adorning it with men like those who now give to the bench more dignity than they re ceive from it : that he will not enter into a treaty of amnesty with every conspirator against law and order, and pardon culprits from mere enmity to virtue ? The security for all this, and infinitely more, is found in the constitution and in the order of nature ; and we are all satisfied with it. One should think that the same security, which thus far time has not discredited, might be sufficient 68 [ 534 ] to tranquillize us upon the score of the power which we are now considering. We talk of ourselves as if we only were the re presentatives of the people. But the iirst magis trate of this country is also the representative of the people, the creature of their sovereignty, the administrator of their power, their steward and servant, as you are — he comes fri)m the people, is lifted by them into place and authority, and after a short season returns to them for censure or apr plause. There is no analogy between such a ma gistrate and the hereditary monarchs of Europe. He is not born to the inheritance of office ; he cannot even be elected until he has reached an age at which he must pass for what he is ; until his habits have been formed, his integrity tried, his capacity ascertained, his character discussed and probed for a series of years, by a press, which knows none of the restraints of European policy. He acts, as you do, in the full view of his con stituents, and under the consciousness that on ac count of the singlenessof his station, all eyes are upon. him. He knows, too, as well as you can know, the temper and intelligence of those for whom he acts, and to whom he is amenable. He cannot hope that they will be blind to the vices of his administration on subjects of high concern ment and vital interest ; and in proportion as he acts upon his own responsibility,. unreheved and undiluted by the infusion of ours, is the danger [535 ] of ill-advised conduct likely to be present to hie mind. Of all the powers which have been entrusted to him, there is none to which the temptations to abuse belong so little as to the treaty-making power in all its branches ; none which can boast such mighty safeguards in the feelings, and views, and passions which even a misanthrope could at tribute to the foremost citizen of this republic- — He can have no motive to palsy by a commercial or any other treaty the prosperity of his country. Setting apart the restraints of honour and patriot ism, which are characteristic of public men in a nation habitually free, could he do so without subjecting himself as a member of the community (to say nothing of his immediate connections) to the evils of his own work .'' A commercial treaty, too, is always a conspicuous measure. It speaks for itself. It cannot lake the garb of hypocrisy, and shelter itself from the scrutiny of a vigilant and well instructed population. If it be bad, it will be condemned, and if dishonestly made, be execrated. The pride of country, moreover, which animates even the lowest of mankind, is here a peculiar pledge for the provident and wholesome exercise of power. There is not a consideration by which a cord in the human breast can be made to vibrate that is not in this case the ally of duty. Every hope either lofty or humble that springs forward to the future ; even the vanity which looks not beyond the moment ; the dread of shame and [ 536 ] the love of glory ; the instinct of ambition ; the domestic affections ; the cold ponderings of pru dence ; and the ardent instigations of sentiment and passion, are all on the side of duty. It is in the exercise of this power that responsibility to public opinion, which even despotism feels and truckles to, is of gigantic force. If it were pos sible, as I am sure it is not, that an American citi zen, raised, upon the credit of a long life of virtue, to a station so full of honour, could feel a dispo sition to mingle the little interests of a perverted ambition with the great concerns of his country, as embraced by a commercial treaty, and to sacri fice her happiness and power by the stipulations of that treaty, to flatter or aggrandize a foreign state, he would still be saved from the perdition of such a course, not only by constitutional checks, but by the irresistible efficacy of responsibility to public opinion, in a nation whose public opinion wears no mask, and will not be silenced. He would remember that his political career is but the thing of an hour, and that when it has passed he must descend to the private station from which he rose, the object either of love and veneration, or of scorn and horror. If we cast a glance at England, we shall not fail to see the influence of public opinion upon an hereditary king, an heredi tary nobility, and a House of Commons elected in a great degree by rotten boroughs and over flowing with placemen. And if this influence is potent there against all the efforts of independent [ 537 ] power and wide spread corruption, it must in this country be omnipotent. , But the treaty-making power of the President is further checked by the necessity of the concur rence of two-thirds of the Senate, consisting of men selected by the legislatures of the States, themselves elected by the people. They too must have passed through the probation of time before they can be chosen, and must bring with them every title to confidence. The duration of their ofiice is that of a few years; their numbers are considerable ; their constitutional responsibility as great as it can be ; and their moral responsibility beyond all calculation. The power of impeachment has b6en mention ed as a check upon the President in the exercise of the treaty-making capacity. I rely upon it less than upon others, of, as I think, a better class ; but as the constitution places some reliance upon it, so do I. It has been said, that impeachment has been tried and found wanting. Two impeachments have failed, as I have understood, (that of a judge was one) — but they may have failed for reasons consistent with the general efficacy of such a pro ceeding. I know nothing of their merits, but I am justified in supposing that the evidence was defective, or that the parties were innocent as they were pronounced to be : — Of this, however, I feel assured, that if it should ever happen that the Pre sident is found to deserve the punishment which impeachment seeks to inflict, (even for making a [ 538 ] treaty to which the judges have become parties,) and this body should accuse him in a constitution al way, he will not easily escape. But, be that as it may, I ask if it is nothing that you have power to arraign him as a culprit.'' Is it nothing that you can bring him to the bar, expose his mis conduct to the world, and bring down the indig nation of the public upon him and those who dare to acquit him ? If there be any power expliciUy granted by the constitution to Congress, it is that of declari^ig war ; and if there be any exercise of human le gislation more solemn and important than ano ther, it is a declaration of war. For expansion it is the largest, for effect the most awful of all the enactments to which Congress is competent ; and ' it always is, or ought to be, preceded by grave and anxious deliberation. This power, too, is connected with, or virtually involves, others of high import and efficacy ; among which may be ranked the power of granting letters of marque and reprisal, of regulating captures, of prohibit ing intercourse with, or the acceptance of protec tions or licenses from, the enemy. Yet farther ; a power to declare war implies, with peculiar em phasis, a negative upon all power, in any other branch of the government, inconsistent with the full and continuing effect of it. A power to make peace in any other branch of the government, is utterly inconsistent with that full and continuing effect. It may even prevent it from having any [ 539 ] effect at all ; since peace may follow almost imme diately (although it rarely does so follow) the commencement of a war. If, therefore, it be un deniable that the President, with the advice and consent of the Senate, has power to make a trea ty of peace, available ipso jure, it is undeniable that he has power to repeal, by the mere opera tion of such a treaty, the highest acts of congres sional legislation. And it will not be questioned that this repealing power is, from the eminent na ture of the war-declaring power, less fit to be made out by inference than the power of modifying by treaty the laws which regulate our foreign trade. Now the President, with the advice and consent of the Senate, has an incontestible and uncontest ed right to make a treaty of peace, of absolute inherent efficacy, and that toOi in virtue of the very same general provision in the constitution which the refinements of political speculation, rather than any known rules of construction, have led some of us to suppose excludes a treaty of commerce. By what process of reasoning will you be able to extract from the wide field of that general pro vision the obnoxious case of a commercial treaty, without forcing along with it the case of a treaty of .peace, and along with that again the case of every possible treaty ? Will you rest your distinc tion upon the favourite 'idea that a treaty cannot repeal laws competentiy enacted, or, as it is sometimes expressed, cannot trench upon the le- [ 540 ] gislative rights of Congress .'' S^uch a distinction not only seems to be reproached by all the theo ries, numerous as they are, to which this bill has given birth, but is against notorious fact and re cent experience. We have lately witnessed the operation in this respect of a treaty of peace, and could not fail to draw from it this lesson ; that no sooner does the President exert, with the consent of the Senate, his power to make such a treaty, than your war-denouncing law, your act for letters of marque, your prohibitory statutes as to inter course and licenses, and all the other concomitant and dependent statutes, so far as they affect the na tional relations with a foreign enemy, pass away as a dream, and in a moment are ' with years be yond the flood.' Your auxdiary agency was not required in the production of this effect ; and I have not heard that you even tendered it. You saw your laws departing as it were from the sta tute books, expelled from the strong hold of su premacy by the single force of a treaty of peace ; and you did not attempt to stay them ; you did not bid them linger until you should bid them go ; you neither put your shoulders to the wheel of ex pulsion nor made an effort to retard it. In a word, you did nothing. You suffered them to flee as a shadow, and you know that they were reduced to shadow, not by the necromancy of usurpation, but by the energy of constitutional power. Yet, you had every reason for interfer ence then which you can have now. The power [ 541 ] to make a treaty of peace stands upon the same constitutional footing with the power to make a commercial treaty. It is given by the same words. Itis exerted in the same manner. It produces the same conflict with municipal legislation. The in genuity of man cannot urge a consideration, whether upon the letter or the spirit of the consti tution, against the existence of a power in the President and Senate to make a valid commer cial treaty, which will not, if it be correct and sound, drive us to the negation of the pow er exercised by the President and Senate, with universal approbation, to make a valid treaty of peace. Nay^ the whole treaty-making power will be blotted from the constitution, and a new one, alien to its theory and practice, be made to sup plant it, if sanction and scope be given to the .principles of this bill. This bill may indeed be considered as the first of many assaults, not now intended perhaps, but not therefore the less likely to happen, by which the treaty-making power, 'as created and lodged by the constitution, will be pushed from its place, and compelled to abide with the power of ordinary legislation. The ex ample of this bill is beyond its ostensible limits. The pernicious principle, of which it is at once the child and the apostle, must work onward and to the right and the left until it has exhausted it self; and it never can exhaust itself until it has gathered into the vortex of the legislative powers 69 [ 542 ] of Congress the whole treaty-making capacity of the government. For if, notwithstanding the di rectness and precision with which the constitution has. marked out the department of the govern ment by which it wills that treaties shall be made, and has declared that treaties so made shall have the force and dignity of law, the House of Re presentatives can insist upon some participation in that high, faculty, upon the simple suggestion that they are sharers in legislative power upon the subjects embraced by any given treaty, what remains to be done, for the transfer to Congress of the entire treaty-making faculty, as it appears in the constitution, but to show that Congress have legislative power direct or indirect upon every matter which a treaty can touch.'' And what, are the matters within the practicable range of a treaty, which your laws cannot either mould, or qualify, or influence ? Imagination has been tasked for example, by which this question might be' answered. It is admitted that they must be fevf, and we have been told, as I think, of no more than one. It is the case of contraband of war. This case has, it seems, the double recom mendation of being what is called an interna tional case, and a case beyond the utmost grasp of congressional legislation. I remark upon it, that it is no more an international case than any matter of collision incident to the trade of two nations with each other. I remark farther, that a treaty upon the point of contraband of war may [ 543 ] interfere, as well as any other treaty, with an act of Congress. A law encouraging, by a bounty or otherwise, the exportation of certain commodi ties, would be counteracted by an insertion in to the list of contraband of war, in a treaty with England or France, any one of those commodi ties. The treaty would look one way, the law another. And various modes might readily be suggested in which Congress might so legislate as to lay the foundation of repugnancy between its laws and the treaties of the President and Senate with reference to contraband. I deceive myself greatly if a subject can be named upon which a like repugnancy might not occur. But even if it should be practicable to furnish, after laborious inquiry and meditation, a meagre and scanty in ventory of some half dozen topics, to which do mestic legislation cannot be made to extend, will it be pretended that such was the insignificant and narrow domain designed by the constitution for the treaty-making power ? It would appear that there is with some gentlemen a willingness tb dis tinguish between the legislative power expressly granted to Congress and that which is merely im plied, and to admit that a treaty may control the results of the latter. I reply to those gen tlemen that one legislative power is exactly equi valent to another, and that, moreover, the whole legislative power of Congress may justly be said to be expressly granted by the constitution, al though the constitution does not enumerate every [ 544 ] variety of its exercise, or indicate all the ramifi cations into which it may diverge to suit the exi gencies of the times. I reply, besides, that even with the qualification of this vague distinction, whatever may be its value or effect, the principle of the bill leaves no adequate sphere for the trea ty-making power. I reply, finally, that the ac knowledged operation of a treaty of peace in re pealing laws of singular strength and unbending character, enacted in virtue of powers communi cated in terminis to Congress, gives the distinc tion to the winds. And now that I have again adverted to the ex ample of a treaty of peace, let me call upon you to reflect on the answer which that example af fords to all the warnings we have received in this debate against the mighty danger of entrusting to the only department of the government, which the constitution supposes can make a treaty, the incidental prerogative of a repealing legislation. It is inconsistent, we are desired to believe, with the genius of the constitution^ and must be fatal to all that is dear to freemen, that an Executive magistrate and a Senate, who are not immediate ly elected by the people, should possess this autho rity. We hear from one quarter that if it be so, the public liberty is already in the grave ; and from another, that the public interest and honour are upon the verge of it. But do you not perceive that this picture of calamity and shame is the mere figment of excited fancy, disavowed by the consti- [ 545 ] tution as hysterical, and erroneous in the case of a treaty of peace ? Do you not see that if there be any thing in this high coloured peril, it is a treaty of peace that must realize it ] (^an we in this view compare with the power to make such a treaty, that of making a treaty of commerce .'' Are we unable to conjecture, while we are thus bfooding over anticipated evils which can never hdppeni that the lofty character of our country (which is but another name for strength and pow er) may be made to droop by a mere treaty of peace ; that the national pride may be humbled ; the just hopes of the people blasted ; their cou rage tamed and broken ; their prosperity struck to the heart ; their foreign rivals encouraged into arrogance and tutored into encroachment, by a mere treaty of peace ? I confidently trust that, as this never has been so, it never will be so ; but surely it is just as possible as that a treaty of com merce should ever be made to shackle the free dom of this nation, or check its march to the greatness and glory that await it. I know not, indeed, how it can seriously be thought that our liberties are in hazard from the small witchery of a treaty of commerce, and yet in none from the potent enchantments by which a treaty of peace ' may strive to enthral them. I am at a loss to conceive by what form of words, by what hitherto unheard-of stipulations, a commercial treaty is to barter away the freedom of United America, or ef any the smallest portion of it. I cannot figure [ 546 ] to myself the possibility that such a project can ever find its way into the head or heart of any man, or set of men, whom this nation may select as the depositories of its power ; but I am quite sure that an attempt to insert such a project in a commer cial treaty, or in any other treaty, or in any other mode, could work no other effect than the destruc tion of those who should venture to be parties to it, no matter whether a President, Senate, or a whole Congress. Many extreme cases have been put for illustration in this debate ; and this is one of them ; and I take the occasion which it offers to mention, that to argue from extreme cases is sel dom logical, and upon a question of interpreta tion, never so. We can only bring back the means of delusion, if we wander into the regions of fiction, and explore the wilds of bare possibi lity in search of rules for real life and actual or dinary cases. By arguing from the possible abuse of power against the use or existence of it, you may and must come to the conclusion, that there ought not be, and is not, any government in this' country, or in the world. Disorge^nization and anarchy are the sole consequences that can be de duced from such reasoning. Who is it that may not abuse the power that has been confided to him.'' May not we, as well as the other branches of the government .'' And, if we may, does not the ar gument from extreme cases prove that we ought to have no power, and that we have no power.'' And does it not, therefore, after having served [ 547 ] for an instant the purposes of this bill, turn short upon and condemn its whole theory, which at tributes to us, not merely the power which is our own, but inordinate power, to be gained only by wresting it from others ? Our constitutional and moral security against the abuses of the power of the executive government have already been explained. I will only add, that a great and ma nifest abuse of the delegated authority to make treaties would create no obligation any where. If ever it should occur, as I confidently believe it never will, the evil must find its corrective in the wisdom and firmness, not of this body only, but of the whole body of the people co-operating with it. It is, after all, in the people, upon whose Atlan- tean shoulders our whole republican system re poses, that you must expect that recuperative power, that redeeming and regenerating spirit, by which the constitution is to be purified and redin tegrated when extravagant abuse has cankered it. In addition to the example of a treaty of peace which I have just been considering, let me put another, of which none of us can question the rea lity. The President may exercise the power of pardoning, save only in the case of impeachments. The power of pardoning is not communicated by words more precise or comprehensive than the power to make treaties. But to what does it amount.'' Is not every pardon, pro hac vice, a re peal of the penal law against which it gives pro tection ? Does it not ride over the law, resist its [ 548 ] command, and extinguish its effect.^ Does it not even control the combined force of judicature and legislation .'' Yet, have we ever heard that your le gislative rights were an exception out of the pre rogative of mercy .'' Who has ever pretended that this faculty cannot, if regularly exerted, wrestle with the strongest of your statutes .'' I may be told, that the pardoning power necessarily im ports a control over the penal code, if it be exer cised in the form of a pardon. I answer, the power to make treaties equally imports a power to put out of the way such parts of the civil code as interfere with its operation, if that power be exerted in the form of a treaty. There is no dif ference in their essence. You legislate, in both cases, subject to the power. And this instance furnishes another answer, as I have already inti mated, to the predictions of abuse, with which, on this occasion, it has been endeavoured to appal us. The pardoning power is in the President alone. He is not even checked by the necessity of Sena torial concurrence. He may by his single^ai ex tract the sting from your proudest enactments — and save from their vengeance a convicted of fender. Sir, you have my general notions upon the bill before you. They have no claim to novelty. I imbibed them from some of the heroes and sages who survived the storm of that contest to which America was summoned in her cradle. I imbibed them from the father of his country. My under- [ 549 ] standing approved them, with'the full concurrence of my heart, when I was much younger than I am now ; and I feel no disposition to discard them now that age and .feebleness are about to over take me. I could say more^— much more — upon this high question ; but I want health and strength. It is, perhaps, fortunate for the House that I do ; as it prevents me from fatiguing them as, much as I fatigue myself. 70 [ 550 ] N°- VI. ARGUMENT ON THE RIGHT OF THE STATES TO TAX THE NATIONAL BANK. After the exordium,* which the reader will find in the First Part ofthis work, Mr. Pinkney proceeded to inquire whether the act of Congress establishing the Bank was repugnant to the Constitution. In order to determine this question, he contrasted the nature and organization of the old Confederation and the na tional constitution by which it had been superseded. The former was a mere federative league ; nothing more than a species of alliance offensive and defensive between the States, such as there had be?n many examples of in the history of the world. It had no power of coercion but by arms. Its fundamental prin ciple was a scheme of legislation for states or communities in their political capacities. This was its great and radical vice, which the new constitution was intended to reform. This last was a project of general discretionary superintendence. It was formed upon the reverse of the principle of the Confederacy. It carried its agency to the persons of the citizens : it provided for direct legislation upon the people, prec'tsely as in the State go vernments. But the change intended to be produced by thenew constitution consisted much less in the addition of new powers t» the Union, than in the invigoration of the original powers. The powerof regulating commerce was, indeed, a new power. But the powers relating to war and peace, fleets and armies, treaties and finance, with the other more considerable powers, were all " See Part First, p. 161. [551] vested in Congress by the articles of confederation. The propos ed change only substituted a more efifectual mode of administer ing them. Under the constitution, the powers belonging to the federal government, whatever may be their extent, are just as sovereign as those of the States. The State governments are not the authors and creators of the national constitution. It does not derive its powers from them. They are preceding in point of time to the national sovereignty, but are postponed to it in point of supre macy by the will of the people. The powers of the national government are the great imperial powders by which nations are known to one another. It acts upon the people as the State go vernments act upon them. Its powers are given by the people, as those of the State governments are given. The national consti tution was framed in the name of the people, and was ratified by the people as the State constitutions were. If the respective pow ers of these two governments interfere, those of the States must yield. But it is said that the powers of the national government are limited in number and extent, and that this want ol universality shows that they are not sovereign powers. But the State go vernments are not unlimited in the number, or unrestrained in the exercise of their powers. They are limited by the declara tions of rights contained in the State constitutions ; by the nature and ends of all government ; and by the restraints upon state legislation contained in the constitution of the United States. It is said, too, that the powers of the State governments are original, and therefore more emphatically sovereign than those of the national government. But the State powers are no more original than those belonging to the Union. There is no original power but in the people, who are the fountain and source of all political power. 'I he means of giving efficacy to the sovereign authorities vest ed by the people in the national government, are those adapted to the end ; fitted to promote, and having a natural relation and connexion with, the objects of that government. The constitu tion by which these authorities and the means of executing them are given, and the laws made in pursuance of it, are declared to [ 552 ] be the supreme law of the land. The legislatures and judges of the States are to bs bound by oath to support that constitution. Taking these leading principles along with us, the question, of the constitutionality of the Bank is to be considered as a question of authority ; and considered as such a question, it has been long since settled by the most revered authorities, legislative, exe cutive, and judicial. It is not pretended that a manifest en croachment and usurpation can be sanctioned in this mode. But on a doubtful point — vetustatis et consuetudinis maxima est. This is such a doubtful case, that Congress may expound the na- tur.e and extent of the authority under which it acts, and this practicable interpretation become incorporated into the constitu.- tion. They did expound it by the act establishing the first Bank in irai. There are two distinguishing points which entitle this prece dent to great respect. The first is, that it was a cotemporaneous interpretation ; the second is, that it was made by the authors of the constitution themselves. The authors of the Letters of Publius, or the Federalist, (themselves the principal authors of the constitution,) in every part of their admirable commentary, assert the entire doctrine maintained by us. They assert the doctrine of implied, involved, and constructive powers ; of powers implied as the necessary means of executing the principal powers granted, and as having a relatiop to them. They maintain this, 1st, upon general principles, and, 2dly, upon the clause in the constitution granting the power to make all laws necessary and proper to carry into effect the other powers. They maintain the necessity of making supreme, the powers of every kind granted to Congress — and that all the laws of Congress should be the supreme law of the land when made in pursuance of the constitution. The principal members of the convention who framed the con stitution, passed into the new government organized under it. The first Congress enacted the law for incorporating the Bank, after the most mature deliberation and full discussion. President Washington deliberated upon the bill with his usual caution, and before he decided, consulted his cabinet. General Hamilton, the principal author of the Federalist, made a report upon the subject, which after the passions and prejudices of the day have [ 553 ] subsided, it may be allowed to call a masterly and conclusive ar gument in favour of the validity of the act. Both the people and the States witnessed all this discussion, and acquiesced in the resuh. The President was re-elected, and no man lost his seat in Congress for his vote on this momentous question. The courts of justice executed the law, with all its penal sanctions ; and in the numerous questions arising under it, no lawyer ever thought of questioning its constitutionality. There was this unanimous toncurrence of the national will until the charter expired in 1811. Political considerations alone might have produced the refusal to renew the charter at that period ; at any rate, we k,now that they mingled themselves inthe debate, and the determiiiation. In 1815, a bill was passed in the two Houses incorporating a national Bank ; to which Mr. Madison refused his assent, but upon considerations of expediency alone, waiving the question of constitutionality as having been settled by cotemporaneous ex position, repeated subsequent recognitions, and general acquies cence for twenty years. Mr. Madison well knew what title to re spect the decision in 1791 possessed. He was intimately ac quainted with all the circumstances attending the formation and adoption of the constitution in which he had so large a share. In'18l6, all branches of the legislature concurred in establish ing the corporation, whose chartered rights are now in judgment before the court. Such a body of authority must be conclusive upon a doubtful and speculative question like this. It would be unfortunate if it were otherwise. The government could never acquire that sta bility which can alone give it strength at home and respect abroad, unless such delicate questions were considered as finally settled when thus determined. Congress is, prima facie, a competent judge of its own ctmstitutional powers. It is not, indeed, as in questions of breach of privilege, the exclusive and final judge ; but it must first decide, and that in a proper judicial character, upon the interpretation of the constitution, as well as the considera tions of political expediency which might justify the measure. It had repeated opportunities of exercising its judgment in this respect, upon the present subject, not only in the principal acts, [ 554 ] incorporating the former and the present Bank, but in the vai'i- ous incidental statutes subsequently enacted on the samp subject. On all these occasions, the question of constitutionality was equally open to debate. There can be little danger in the Court receiving the decisions of Congress as strong, though not conclusive evidence, of the extent of its own constitutional powers. Experience has shown, what wisdom had anticipated, that its inclination is to abstain from the exercise of doubtful powers. Many of its express and unquestionable authorities it has omitted to exercise. In tres passing upon State rights, or those of the people, its responsibi lity is strong and direct. All its own prejudices and attachments are so many pledges of its virtue in this respect. But, surely, as to the question of necessity, (which relates to political economy,) the repeated decisions of Congress and the executive government are entitled to peculiar consideration, as the general question of constitutionality is mixed and complicated with the other question, whether the establishment of a Bank is a natural means of car rying into effect other powers expressly given. The abstract question then reverts, has Congress authority to erect any corporation? It has been already shown that the powers of the national go vernment are sovereign powers fbr sovereign objects. These objects are generalized in the preamble to the constitution, and are afterwards more specifically enumerated. A more perfect union is to be formed ; justice established ; domestic tranquillity insured ; the common defence provided foi ; the general welfare promoted ; the blessings of liberty secured to the present genera tion and to posterity. The powers are suited to'those ends. For the attainment of these vast objects, the government is armed whh powers and faculties corresponding in magnitude. The means were intended to be commensurate with the ends, or the consti tution was not intended to accomplish its own purposes — which is an inadmissible supposition. The security against abuse was provided by the structure of the government. All power en trusted for salutary ends, may be abused ; but if the government is well constituted, the abuse cannot be permanent. The people' will redress it. [ 555 ] To deal more in detail. The objects of the powers of the national government were, 1st. Security against foreign danger. 2d. Regulation of the intercourse, of every kind (diplomatic and commercial) with foreign' nations. 3d. The maintenance of harmony, and free and friendly inter course among the states. 4th. Certain miscellaneous objects of general utility. Sth. Restraint of the States from certain injurious acts. 6th. An express provision for giving efficacy to all these powers. 1. Security against foreign danger is one of the primitive ob jects of civil society, and an avowed and essential object of the Union. The powers requisite for attaining it must be eflfectu- ally confided to the federal councils. They can have no other limit than the necessity of their employment, and their adapta tion to promote the end. Thus the powers of making war and peace, of raising and supporting armies, and of providing and maintaining a navy, are given without stint or measure. They are indefinite, unlimited, and absolutely sovereign. So also the powers of laying and collecting taxes and duties, imposts and excises, of paying the debts of the nation, and of borrowing money on its credit, have no other limit (except as to export duties) than the objects for which they are conferred. 2. Intercourse with foreign nations is one of the most impor tant objects of all national government, and was a principal mo- five for the formation of the new constitution. The power over this too is given without limit. It includes, besides the authority of regulating commerce, and forming treaties of commerce and other conventions with foreign States, that of sending and re ceiving ambassadors, and of defining and punishing offences against the law of nations. The States are prohibited from in terfering with the exercise of those authorities. 3. For the maintenance of harmony and of friendly intercourse among the different States of the Union, are given the power of establishing uniform naturalizfttion and bankrupt laws ; to coin money, and regulate the circulating medium, and the standard of weights and measures ; to regulate commerce among the States j [556 ] to establish post-offices and post-roads ; to prescribe the manner in which the records of one State shall bp proved and their effect in other States. _ 4. The miscellaneous objects of general utility were to be at tained by the power to gram patents and copy-rights ; to' exercise ' exclusive legislation over the District of Columbia,. and places purchased for the use of fortifications and- dock-yards ; to declare the punishment of treason ; to admit new States inte the Union ; to dispose of and make all needful rules and regulations respect ing the territory and other property belonging to the Union; to guarantee to every State, a republican form of government. 5. The provisions of restriction upon the States are, as to making treaties, and, alliances with foreign states or with each other ; granting letters of marqiie and reprisal ; emitting bills of credit ; making any thing but gold and silver a tender ; in pass ing any bill of attainder, ex post facto law, or law impairing the obhgation of contracts ; granting any title of nobility ; laying any duty on imports or exports ; keeping troops or ships of war, in lime of peace ; engaging in war, &c. 6. The provisions for giving efficacy to all those powers, are the power to make all laws necessary and proper for carrying in to execution the other powers vested in Congress, or in the go vernment of the United States, or jn any department or offices thereof; that the constitution and the laws and treaties made in pursuance of it shall be the supreme law of the land ; that the judges in every State shall be bound thereby ; and thatthe mem- . bers of the State legislatures and all other officers shall take an oath to support the same. And the question is, whether a government with all these pow ers and faculties has authority to erect a corporation, which is a power inherent in and inseparable from all idea of sovereign power ? There is no express prohibition in the constitution to prevent Congress from creating a corporation. It is admitted that the States possess the authority as a distinct, substantive power, of sovereignty, which remains entire in them because not expressly granted tc the national government. But the power of legisla tion in the State governments is not unUmited. There are several [ 557 ] limitations to it. 1st, From the nature of all government, espe cially of republican government, in which the residuary, powers of sovereignty, not granted specifically, or by inevitable impli cation, are reserved to the people. 2dly, From the express limi tations contained in the State constitutions : and, 3dly, From the express prohibiti'ons to the States contained in the national consti tution. Admit that the State governments have the right of esta blishing corporations : the question is, whence did they derive it ? It is no where expressly granted to the State legislatures in their several constitutions. It is taken by implication as a ne cessary means of giving effect to the general powers of legislation : but it cannot be exercised to accomplish any of the ends which are beyond the sphere of their constitutional-authority. Every legislative enactment, without exception, is a mean for accom plishing some of the ends of government. Laws are not ends ; they are means for accomplishing ends. A corporation is crea ted by a legislative act, not because the corporation is an end valuable in itself, but because it is a necessary and proper means towards the accoraplishmeni of a valuable end. Some public convenience — some beneficial result, is aimed at by it ; and be cause the beneficial result is within the power of the State go vernment, so is the establishment of the corporation If it be inquired whence the first legislature that exercised the authority of erecting a corporation acquired that power, the answer must be from the right to accomplish that purpose or result for which the corporation is used as an instrument or means. Upon the same foundation rests the authority of Congress to creEtte a cor poration. It has not a right to create a corporation in all cases, but only in cases within the scope of its general powers of legis lation — as means of executing those powers. ¦ A State govern ment has no right to make a corporation for all purposes indis- criminately. A State government could no more make a corpo ration, and to effect a purpose exclusively belonging to the na tional government, than Congress can make a corporation to fulfil a State object. Neither can the State, legislatures make a corporation to eflfect any object on which they are prohibited from legislating by their own constitutions or the constitution of the United States. 71 [ 558 ] But why is the power of creating a corporation considered a distinct, substantive act of sovereignty, so that it cannot be taken by implication? Is it on account of its superior dignity and im portance ? If so, then it must necessarily belong to the national government, which is supreme within the sphere of its constitu tional authority, and whose general' legislative powers are of much greater magnitude than those of the States. The power of creating corporations is not an end of any government, whether supreme or subordinate, general or limited in its ordinary powers : it is one of the necessary means of accomplishing the ends of all governments. It is an authority inherent in, and incident to, all sovereignty. That it is an exertion of sovereign power, is admitted ; but not more so than any other act which requires a law or a clause in a law. It is no more a distinct exercise of so vereign power than that of inflicting capitalpunishments. The history of corporations will illustrate this position. They are the growth of the Roman law, and were transplanted into the common law of England and all the municipal codes of mo dern Europe From England they were derived to this country. But, in the civil law, a corporation could be created by a mere voluntary association of individuals. And, in England, the au thority of Parliament is not necessary to create a corporate bo dy. The king may do il, and may communicate his prerogative power to a subject; so little is this regarded as a transcendent power of sovereignty in the British constitution. So also in our constitution, although it can only be exercised by the legislative department, it ought to be regarded as a ^subordinate mean to carry into effect the great ends of government. What reason can there be why this power should not be used by the National government, as well as by the State governments, as the means of executing other powers, sovereign in-their nature, if suited to that purpose? It is not now necessary to prove that it is suited to any such purpose. It may be assumed, argumenti gratia; and supposing it to be so, it is impossible to iinagine a reason why it should not be thus used, unless it could be shown that there was something of a singular character in this power, so that no government could assume it without an express grant. If this were the nature of the power, the State governments eould not exercise it without such a grant. No government can [ 559 ] ¦use it otherwise than as a process towards a result. It is always an incidental and auxiliary power. It had been said by one of the counsel on the other side, that there are no, implied powers under the idea of means to an end. The constitution has defined both ends' and metns, and this is not enumerated among either : it is not to be taken by implication, as a mean of executing any or all of the powers expressly grant ed ; because other means, not more important or more sovereign in their character, are expressly enumerated. For example : one of the great ends of the Union is to provide for the com mon defence ; but the means of accompli.shing this object, are expressly given, such as "the power of laying and collecting taxes, &c. The answer to this argument, and the example put to illustrate it, is, (hat those means which are expressly defined, involve other means which must be taken by implication, and thus the princi pal means become, with reference to those other means, ends. Many particular means are of course involved in the .general means, and, in that case, the general means become the end, and the smaller objects the means. Thus : I am to gain a sum of money 'by going to Rome. The end is the money ; the general means, the going to Rome. But these tneans involve other par ticular means, such as providing post-horses, &c, The going to Rome now becomes the end, and the post-horses, &c. the means. But I cannot get those post-horses without borrowing money to pay for thera. The post-horses are now the end, and the bor rowing, the means. So that here is a regular connexion and subordination of means to ends, until the principal purpose is accomplished. What is the use of a naked power to lay and collect taxes, if you cannot do every thing necessary to accomplish the purpose ? And if you can do all that is necessary for that purpose, you have involved powers, detailed powers, not expressed by name, but wrapped up in a general power. These are implied powers. It was impossible for the framers of the constitution to specify prospectively all the powers, necessary as means to ends, both because it would have involved an immense variety of details, and because it was impossible for them to anticipate the infinite variety of circumstances arising in such an unexampled state of [ 560 ] political society as ours, for ever changing .and fpr ever improv ing. How unwise would it have been to attempt to legislate im mutably for occasions which had not then occurred, and which could have been foreseen but dimly and imperfectly ! The con stitution is a concise instrument consisting of a few pages only. . The exigencies upon which it must act, are almost infinite : in cluding all the complicated concerns of a great nation, diversi fied from year to year, with new circumstances, and new combi nations of old circumstances, new subjects rising into existence, old disappearing. If there be no implied powers, consider the details which must have entered into the constitution itself. It would become a vast and voluminous digest, to which s&me people's speeches would be as short as a single stanza compared to the ballad of the twen ty thousand virgins mentioned in the Spectator. T he constitu tion must have contained a distinct power for every clause of every act of Congress. The whole statute book of the United States is a record of implied powers, without the use of which the constitution would be a dead letter. It is filled with powers derived from implication. The power to lay and collect taxes will not execute itself. Congress must designate in detail all the means of execution, which must necessarily involve a vast varie ty of regulations no where specified in the constitution. So also the power of establishing post-offices and post-roads involves that of punishing the offence of robbing the mail. But there is no more necessary connexion between the punishment of mail rpbbers, and the power of establishing post-offices andpost-roads, than there is between the institution of a Bank, and the collec tion of the revenue and payment of the public debts and ex penses. And consider the absurdity of supposing that the pow er of taking away life may be implied, or used as a means, and yet that the creation of a corporation cannot ! So, light-houses, beacons, buoys, and public piers, have all been established under the general power to regulate commerce. But they are not in dispensably nec<-ssary to commerce. It might linger on without these aids, though exposed to more perils and losses. So, Con gress has express authority to coin money, and to guard the pu rity of the circulating medium, by providing for the punishment of counterfeiting the current coin : but laws are also madd for [ 561 ] punishing the offence of uttering and passing the -coin thus counterfeited. Here one of the means of accompUshing the end is expressed, and the other is implied. The law which punishes the oflTering of a bribe to a judge of the United States ; the law which punishes the embezzling and alteration of records ; the law which punishes smuggling — whence are they derived but from implication as means necessary and proper to carry into eflfect powers expressly granted ? Powers, as means, may then be implied in many cases. And if so, why not in this case as well as any other ? The power of making all needful rules and regulations respecting the territory of the UnitecJ States, is one of the specified powers of Congress. Un der this power, it has never been doubted that Congress had au thority to establish corporations within the territorial govern ments. But this power is derived entirely from implication It is assumed as an incident to the principal power. If it may be assume Jin that case upon the ground that it is a necessary means of carrying into effect the power expressly granted, why may it not be assumed in the present case upon a similar ground ? But it is said, that the end, or principal means, may be sove reign, and still Congress is not at liberty to use any subordinate means it chooses : it has not a sovereign discretion to adopt all or any means. The- means or law must be an absolutely neces sary means or law. It is readily admitted that there must be a relation in the na ture and fitness of things, between the means used and the end to be accomplished. But the question is, whether the necessity which will justify a resort to a certain mean, rausit be an absolute, indispensable, inevhable necessity ? The power of passing all laws necessary and proper to carry into eflfect the other powers specifically granted, is a political power. It is a matter of legisla tive discretion, and those who are to exercise it have a wide range of choice in selecting means. In its exercise, the mind must compare different means with each other. It addresses itself to a deliberative assembly empowered to accomplish certain general objects by what it deems the most appropriate means. In the choice of these means a considerable latitude would be allowed. Tn accomplishing a polUical object, the mind is employed in a [ 562 ] selection of means. But absolute necessity excludes all choice. The necessity which is required, can never be the subject of mathematical demonstration. It is a question of polhical and moral science, in which moral certainty only can be arrived at.. It is the peculiar province of a legislative assembly to judge of such questions. Congress is appointed for that purpose. ¦ It alone has the fit means of inquiry and decision. The security' against abuse is to be found in the constitution and nature of the government, in its popular character and structure. To make the validity of a law depend upon the more or less of necessity for passing it, would be absurd and ridiculous. A law would never be sure of validity. The judiciary has no means of determining by such a criterion. Even absolute ne cessity cannot be judged of here ; still less can practical necessity be determined in a judicial forum. The natural place for the inquiry is in the legislature, where a comparison of different means may be instituted. Not that the legislature is at liberty to adopt any and all means. It cannot adopt prohibited means. The judiciary must see that what is done is not a mere evasive pretext for usurping substantive powers not intended to be granted. For this purpose it must inquire whether the means assumed have a connexion and relation in the nature and fitness of things with the end to be accomplished. The vast variety of possible means excludes the practicability of judicial determination of the fitness and policy of a particular mean. It is sufficient that it does not appear to be violently and unnaturally forced into the service, or fraudulently assumed, in order to usurp a new substan tive power of sovereignty. The criterion of absolute necessity wuuld drive Congress to the exercise ot the feeblest means only. The true rule, therefore, must be, the use of such means as are adapted to effect the object in the most advantageous manner for the general purposes of the constitution, with a discretion in Con gress to judee of that question. The doctrine of implied powers is stated by the authors of the Federalist in this way : " Shall the Union be constituted the guardian of the common safety ? Are fleets, and armies, and revenues, necessary to this purpose ? The government of the Union must be empowered to pass all laws, and to make all [ 563 ] regulations which have relation to them." No. 23. ''^It must, in short, possess all the means and have a right to resort to all the methods of e.xecu'ting the powers with which it is entrusted, that are possessed by the government of the particular States." No. 16. The subject is more fully discussed in the 44th No., where in considering the clause by which Congress has power to make all laws necessary and proper for carrying into eflfect the other powers granted, it is said, " Had the constitution been silent on this head,, there can be no doubt that all the particular powers requisite as means of executing the general powers, would have resulted to the government by unavoidable implication. No axiom is more clearly established in law, or in reason, that where- ever the end is required, the means are authorized ; wherever a getieral power to do any thing is given, every particular power ne cessary for doing it, is included." And yet we are told that the framers of the constitution did not understand their own work, and that this grant of means excludes all such as are nut strictly and absolutely necessary. But it is certajn that this clause is not restrictive. It professes to give capacity, not to take it away. It did neither the one nor the other. It was merely inserted ez ahundanti cautela ; ahd it now appears to have been wisely done, as the implied powers are denied to exist. It has already been shown what is the general theory it was intended to enforce. It will be as easy to show that the clause is in exact conformity with that theory. Compare these terms as they are used in that part of the con stitution now in question, with the qualified manner in which they are used in the 1 0th section of the same article. In the latter, it is provided that " No State shall, whhout the consent of Con gress, lay any imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." In the clause in question, " Congress is invested with the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, ' &c. There is here then, no qualification of the necessity. It need not be ab solute. It may be taken in its ordinary grammatical sense. The word necessary, standing by itself, has no inflexible mean ing ; it is used in a sense more or less strict, according to the sub- [ 564 ] ject. This, like many other words, has a primitive sense, and another figurative and more relaxed. It may be qualified by the addition of adverbs of' diminution or enlargement, such as very, indispensably, more, less, or absolutely necessary ; which last is the sense in which it is used in the 10th section of thc same article. But that it is not always used in this strict and rigorous sense, may be proved by tracing its definition and ety mology in every human language. If then all the powers of the national government are sove reign and supreme ; if the power of incorporation is incidental, and involved in the others ; if the degree of political necessity which will justify a resort to a particular means to carry into effect the general powers of the government, can never be a cri terion of judicial determination, but must be left to legislative discretion — it only remains to inquire, whether a Bank has a natural and obvious connexion with other express or implied powers, so as to become a necessary and proper mean of carry ing them into execution. A Bank might be established as a branch of the public admi nistration without incorporation. The government might issue paper upon the credit of the public faith pledged for its redemp tion, or upon the credit of its property and funds. Let the of fice where this paper is issued, be made a place of deposit for the money of individuals and authorize its officers to discount, and a Bank is created. It only wants the forms of incorporation. But surely it will not be pretended that clothing it with these forms would make such an establishment unconstitutional. In the Bank which is actually established and incorporated, the United States are joint stockholders and appoint joint directors ; the secretary of the treasury has a supervising authority over its affairs ; it is bound, upon his requisition, to transfer the funds of the government wherever they may be wanted ; it performs all the duties of commissioners of the loan-office'; it is bound to loan the government a certain amount on demand ; its notes are receivable in payment of public debts, duties, and taxes; itis intimately connected, according to the usage of the whole world, with the power of borrowing money, and with all the financial operations of the government. It is especially connected with [ 565 ] the power of laying and collecting taxes. That power implies the authority, not only to impose the tax, but to prescribe in what medium it shall be paid, and to adopt measures which may pro duce ability to pay with promptitude. Times may exist, and have existed, when it would be impossible to collect the taxes in specie, and the national government would be compelled to receive the paper of State Banks, which Banks refused to pay specie, and w ere wholly irresponsible to that government. There may be many emergencies, such as insurrection, sudden war, or invasion, when the aid <>f a great monied corporation would be essentially necessary. The resources derived from taxation are only suited to the ordinary state of things. The government must occa sionally resort to loans. The establishment of such a corporation is also closely con nected with the power to coin money, and regulate the value. thereof, and of foreign coin, and to regulate foreign commerce and that between the States ; especially when it is considered that the States are prohibited from coining money, emitting bills of credit, or making any, thing but gold and silver coin a tender in the payment of debts. It provides a circulating; medium by which foreif B commerce and that between the States may be more conveniently carried on, and exchanges &t«ilitated. It is. true, there are State Banks incorporated by which a circu lating medium to a certain extent is provided. But that only di minishes the quantum of necessity. Besides, there is danger that this power of establishing local Banks may be abused. Some of the States have already crea,ted Banks with the pledge of their own pubhc credit for the redemption of the notes issu ed. This seems to be within the constitutional prohibition as to bills of credit, and certainly Congress may counteract the evils of these local currencies by a national currency. It is more la the.spirit of the constitution that Congress should influence the medium of commerce, the substitute of coin, than that the States should control it, who are forbidden from coining or from issuing paper money. It is also connected with the power of making all needful re gulations for the government of the territory and other property 72 [ 566 ] of the United States. If they may establish a corporation to regulate their territory, they may establish one to regulate their property. ; heir treasure is their property, and may be invested in this mode. It is put in as a joint stock in partnership ; but not for the purpose of carrying on the trade of banking as one of the ends for which the government was established ; but only as an instrument or means for executing its sovereign political powers. This instrumeni could be rendered effectual for this purpose in no other way tha,n by mixing the property of indivi duals with that of the public. The Bank could not otherwise acquire a credit for its holes. But the greatest and only quiestion of real difficulty in the cause, is that which respects the assumed right of the States to tax this Bank thus established by Congress as an instrument to give effect to the general powers of the government. This is a question comparatively of no importance to the indi vidual States, but of vital importance to the Union. Deny this exemption of the Bank, and what is the consequence ? There Is no express provision in the constitution, which' exempts any of the national institutions or property from taxation by the States. It is only by implication that the army, and navy, and treasure, and judicature of the, Union, are exempt from State taxation. Yet they are practically ex^:mpt ; and they must be, or it would be in the power of any one State to destroy their use. Whatever the United States have a right to do, the individual States have no right to undo. All the sovereign powers of Congress,, whether express or implied, are upon a level. Its power to establish a Bank, like its other powers, is supreme, or it would be nothing. Rising out of an exertion of paramount authority, it cannot be subject to any other power. Such a power in the States, as that now con tended for, is manifestly repugnant to the power of Congress ; since a power to establish, implies a power to continue and pre serve. There is a ma/iifest repugnancy between the power of Maryland to tax, and the power of Congress to preserve, this in stitution. \ power to build up what another may pull down at pleasure, is a power which may provoke derision, but can do nothing else. [ 567 j But we are told that it is enough for the State to show its co equal taxing power on internal objects. The equality uf that power is not denied ; but it is nothing to the purpose of the argu ment, because this case is an exception out of it. The concur rent power of the States to tax is consistent with the power of Congress to tax the same objects. There is no repugnancy. But the exemption now insisted on is an exception by reason of evi dent inc.impatibility. It is an exception, 1. Because the tax operates upon the legislative faculty of Congress. It is a tax upon the charter or law. It is, or may be (in the discretion of the State) a prohibition against the exercise of legislative power. 2. Because it operates upon the public or national property, so far as it operates upon property at all Are there no exceptions out of the internal taxing power of the States, because the taxing power of Congress on those ob jects is not exclusive ? All that can be said is, that the co-equal taxing power of Congress does not make an exception in this case. It is still a question whether any other consideration does. If the States may lay a tax upon the Bank to the amount pro vided in this act of Maryland, they may lay a tax to any amount. If they may tax for revenue, they may lay a tax amounting to a prohibition under the pretext of revenue. The law now in ques tion acts directly on the operations of the Bank, and may destroy it. There is no limitation or check in this respect, but in the discretion of the State legislature. That discretion cannot be controlled by the national legislature. Whenever the local coun cils of Maryland will it, the Bank must be expelled from that State. What one State can do, all can do. If one national in stitution may be destroyed in this manner, all may be destroyed in the same manner. A right to tax without limit or control, is essentially a power to destroy. If this power to tax the national property and institutions exists in the State of Maryland, it is unbounded in extent. There can be no check upon it, either by Congress or the people of the other States. Is there then any intelligible, fixed, defined boundary of this taxing power ? If any, it must be found in the controlling au thority of this Court. If it does not exist here, it is a nonentity. [ 568 ) But the Court cannot say what is an abuse, and what is a legiti- male use of the power. The legislative intention may be so masked, as to defy the scrutiny of the Court. How will the Court ascertain, & priori, that a given amount of tax will crush the Bank ? It is essentially a question of political economy, and there are always a vast variety of facts bearing upon it. The facts may be mistaken. Some important considerations belong ing to the subject may be kept out of sight. They must all vary with times and circumstances. The result, then, must determine whether the tax is destructive. But the Baiik may linger on for some time, and that result not be known until the work of de struction is consummated. A criterion which has been proposed, is to see whether the tax has been laid impartially upon the State Banks, as well as the Bank,,of the United States. Even this is an unsafe test ; for the State governments may. wish and intend to destroy their own banks. Thi- existence of any national institu tion ought not to depend upon so frail a security. But the tax now in question, is levelled exclusively at the Branch of the United States Bank, established in Maryland. There is, in point of fact, a branch of no other Bank within that State, and there can le gally be no other. It is a fundamental article of the State con stitution of Maryland, that taxes shall operate on all the citizens^ impartially and uniformly, in proportion to their property ; with the exception, however, of taxes laid/or political purposes. This is a tax laid for a political purpose ; for the purpose of destroy ing a great institution of the national government ; and if h were not imposed for that purpose, it would be repugnant to the State constitution — as not being laid uniformly on all the citizens in proportion to their property. So that the legislature cannot dis avow this to be its object, without at the same time confessing a flagrant violation of the State constitution. Compare this act wilh that of Kentucky, which is yet to come before the Court, and the absolute necessity of repressing such attempts in their infancy will ¦ be evident. Admit the validity of the Maryland tax, and that of the Kentucky law follows inevhably. How can it be said that the office of discount and deposh in Kentucky cannot bear a tax of sixty thousand dollars per annum, payable monthly ? Probably it could not ; but judicial certaihty is essen tial ; and the Court has no means of arriving at that certainty. [ 569 ] There is, then, here an absolute repugnancy of power to power. We are not bound to show that the particular exercise of the power in the present case, is absolutely repugnant. It is sufficient to show that the same power may be thus exercised. Judicial proceedings are practically a subject of taxation in many countries, and in some of the States of this Union. The States are not expressly prohibited in the constitution from taxing tht- judicial proceedings of the United States. Yet such a pro hibition must be implied, or the administration of justice in the national Courts might be obstructed by a prohibitory tax. But such a tax is no more a tax on the legislative. faculty of Congress than this. The Branch Bank in Maryland is as much an institu tion of the sovereign power of the Union, as the Circuit Court of Maryland. One is established in virtue of an implied power ; the other by an express authority; but both are equal' and equally supreme. The Bank and its branches are -no more within the jurisdiction of the States than the Courts of the Union. All the property, and all the institutions of the United States, are, con structively, without the local, territorial jurisdiction of the'indi- vidnal "states, in every respect ,and for every purpose, including that of taxation. And why is it that the judicial tribunals are not within the local jurisdiction of the States ? Because it would defeat the power to estabhsh them. Their exemption from that jurisdiction is entirely matter of construction and implication. The Courts of the Union are paramount to the power of taxa tion in the States, because tliey might be crushed by any State that, quarrelled with them. The same reason applies to the case of the Bank. The immunity must extend to this case, because the power of taxation imports the power of taxation for the pur pose of prohibition and destruction. The Bank is as much a na tional institution and an instrument of government for fiscal pur poses, as the Courts are for judicial purposes. They both proceed from the supreme power, and equally claim its protection. There is the same 'necessity for rescuing them both from the taxing pow er of the States. A tax by the States would have, or might have, the ^arae mischievous efifects on either. And if a lax ever so ligTit were to be imposed by a State upon the Courts of the Union, would it be submitted to, because it was light ? or because it was laid at the same time upon the State Courts ? [ 570 ] There is in all these cases extra-territoriality, so far as is ne cessary to give full effect to the power to which the institution owes its being. The immunity of foreign public vessels from local jurisdiction, whether State or national, wm established in the case of the Exchange, not upon positive municipal law, nor upon the conventional law ; but it was implied from the usage of nations, and the necessity of the case. It was impUed upon the same ground witli the fiction which exempts a foreign sovereign, or his minister, from the local jurisdiction. If in favour of foreign governments, such an edifice of exemption has been built up, in dependent of the letter of the constitution, or of any other writ ten law, shall not a similar edifice be raised on the same founda tions for the security of our own national government ? If a fo reign ship of war, or foreign troops, coming into the territory of the country, by permission, would he exempt from the local ju risdiction, shall not the army, and navy, and fiscal institutions of the Union be equally exempt ? The^e analogies show that there may be , exemptions from State jurisdiction which are not detailed in the cimstitution, but arising out of general considerations. If Congress has power to do a particular act, no State cart impede, retard, or burden it. If some of the powers of Congress necessarily involve incompati bility with the taxing power of the States, this power may be in compatible This ii- mcompatible ; for a power to impose a tax ad libitum upon the notes of the Bank is a power to repeal the law by which the Bank was created. The Bank cannot be use ful, it cannot act at all unless it issues notes. If the present tax does not disable the Bank from issuing its notes, another may ; and it is the authority itself which is questioned as being entirely repugnant to the power which established and pre serves the Bank. Two powers thus hostile and incompatible cannot cd -exist. Though every State in the Union] may impose a stamp tax, yet no State can impose a stamp tax upon the judicial proceed ings, the public records, the custom-house papers of the United States. But there is no such express exception to the general tax ing power of the States contained in the constitution. It stands upon plain implication. It arises from the general nature of the government, and from the principle of the supremacy of the na- [571 ] tional powers, and the laws made to execute them, over the State authorities and State laws. It is, however, objected that jthe act of Congress incorporating the Bank withdraws property from taxation by the State, which would be otherwise hable to State taxation. The answer is, that it is immaterial if it does thus withdraw certain property from State taxation, if Congress had authority to establish the Bank ; since the power of Congress is supreme. But in filet, it withdraws nothing from the mass of taxable property in Maryland, which that State could tax The whole capital of the Bank belonging to private stockholders is drawn from every State in the Union, and the stock belonging to the United States previously consti tuted a part of the public treasure. Nehher the stock belonging to citizens of 'other States, nor the privileged treasure of the Uni ted States mixed up with this private property, were previously liable to taxation in Maryland ; and as to the stock belonging to its own citizens, it still continues liable to State taxation, as a portion of their individual property, in common with all the other private property in the State. The establishment of the Bank, so far from withdrawing any thing from taxation by the States, brings something into Maryland which the State may tax. The charter creates the capital stock, which is the thing taxed : and as to its dividends, so far as tliey belong to citizens of Maryland, they will fall within the grasp of taxation in due season when separated from the institution. But this tax has no reference to any thing but the institution. But what if it does withdraw property from State taxation ? The materials of which the ships of war belonging to the United States are constructed were previously 'liable to State taxation. But the instant they are converted into public property for the public defence, they cease to be subject to State taxation. , So money paid to the government of the United States in duties and taxes is withdrawn from '^tate taxation. Here the treasure of the United States ahd that of individuals, citizens of Maryland and of other States, are undistinauishably confounded in the capital stock of this great national insthution, which, it has been before shown, could be m ide useful as an instrument of finance in no other mode than by thus blending together the property of [ 572 ] the government and of private merchants. This partnership is, therelbre, one of necessity-on the part of the United States. Either this tax operates upon the franchise of the Bank, or upon its property. If upon the former, then it comes directly in con flict with the exercise of a great sovereign authority of Congress ; if upon the latter, then it is a tax upon the property of the United States ; since the law does not, and cannot, in imposing a stamp tax, distinguish between their property and that of individuals. But it is said that Congress possesses and has exercised the unlimited authority of taxing the State Banks; and therefore, the States ought to have a correspondent right to tax the Bank of the United Stales. The answer to this objection is, that in taxing the State Banks, the States in Congress assembled, exercise their power of taxation. Congress exercises the power of the People. The whole acts on the whole. But the State tax is a part acting on the whole. Even if the two cases were precisely the same, the consequence would be rather to exempt the State Banks from federal taxation, than to subject the national Bank to taxa tion by a particular State. But the State Banks are not machines essential to execute the powers of the State sovereignties, and,' therefore, such a consequence cannot follow. The people of the Union, and the sovereignties of the several States, have no con trol over the taxing power of a particular State. But they have a control over the taxing power of the United States, in the re sponsibility of the members of the H;)use of Representatives to the people of the State which sends thera, and of the Senators to the legislature by whom they are chosen. But there is no cor- respondent responsibility of the local legislature of Maryland, for example, to the people of the other States of the Union. The people of the other States are not represented in the legislature of Maryland, and can have no control, directly or indirectly, over its proceedings. The legislature of Maryland is responsible on ly to the people of that State. The national government can withdraw nothing from the taxing power of the States, which is not for the purpose of national benefit and the common welfare, and within its defined powers. But the local interests of the particular States are in p-rpetSal conflict with the interests of the Union ; which shows the danger of adding increased power to the [ 573 ] partial views and local prejudices of the States. If the tax imposed by this law be not a tax on the property of the Unit-d States, it is not a tax on any property ; and it must, conseniiently, be a tax on the faculty or franchise. It is then a tax on the legis lative faculty of the Union, on the charter of the Bank. It im poses a stamp duty upon the notes of the Bank, and thus stops the very source of its circulation and life. It is as much a direct interference with the legislative faculiy of Consjress, as would be a tax on patfiits, or copy-rights, or custom-house papers, or judi cial proceedings. N°- VII. SPEECH ON THE MISSOURI QUESTION. As I am not a very frequent speaker in this Assembly, and have shown a desire, I trust, rather to listen to the wisdom of others than to lay claim to superior knowledge by undertaking to advise, even when advice, by being seasonable in point of time, might have some chance of being profitable, you will, per haps, bear with me if I venture to trouble you once more on that eternal subject which has lingered here, until all its natural interest is exhausted, and every topic connected with it is literally worn to tatters. I shall, I assure you. Sir, speak with laudable brevity— -not merely on account of the fepble state of my health, and from some reverence for the laws of good taste which for bid me to speak otherwise, but also from a sense of justice to those who honour me with their attention. My single purpose, as I suggested yesterday, is to subject to a friendly, yet close ex amination, some portions of a speech, imposing certainly on ac count of the distinguished quarter from whence it came — aot 73 [ 574 ] very imposing (if I may so say. without departing from that respect which I sincerely feel and intend to manifest for eminent abilities and long experience) for any otherr reason. I believe, Mr. President, that 1 am about as likely to retract an opinion which I have formed, as any member of this Body, who, being a lover of ti'uth, inquires after it with diligence be fore he ima};ines that he has found it ; but I suspect that we are all of us so constituted as that neither argument nor declamation, levi^lled against recorded and published decision, can easily dis cover a practicable avenue through which it may hope to reach either our heads or our hearts I mention this, lest it may excite surprise, when I take the Hberty to add, that the speech of the honourable gentleman from New-Vor,k, upon the great subject with which it was principally occupied, has left me as great an infidel as it found me. It is possible, indeed, that if I had had the- good fortune to hear that speech at an earlier stage of this de bate, when all was fresh and new, although I feel confident that the analysis which it contained of the constitution, illustrated as it was by historical anecdote rather than by reasoning, would have been just as unsatisfactory to me then as it is now, I might- not have been altogether unmoved by those warnings of ap proaching evil which it seemed to intimate, especially when taken in connexion with the observations of the same honourable gen tleman on a preceding day, "that delays in disposing ofthis- " subject, in the manner he desires, are dangerous; and that we "stand on slippery ground." I must be permitted, however, (speaking only for myself,) to say, that the hour of dismay is passed. I have heard the tones of thf larum bell on all sides, until they have become familiar to my ear, and have lost their , power to appal, if, indeed, they ever possessed it. Notwith. standing occasional appearances of rather an unfavourable des cription, I have long since persuaded myself that the Missouri Question, as it is called, might be laid to rest, with innocence and safety, by some conciliatory compromise at least, by which,, as is our duty, we might reccuicile the extremes of conflicting views and feelings, without any sacrifice of constitutional princi ple; and in any event, that the Union would easily and trium- phri.iily emerge from those portentous clouds with which this controversy is supposed to have environed it. [ 575 ] I confess to you, nevertheless, that some of the principles an nounced by the honourable gentleman from "^ ew-York,* with an explicitness that reflected the highest credit "ti his can dor, did, when they were first presented, startle me not a little. They were not perhaps entirely new. Perhaps I had seen them ' before in some shadowy and doubtful shape. If shape it might be called, that shape had none Distinguishable in member, joint, or limb. But in the honourable gentleman's speech they were shadowy and doubtful no longer. He exhibited them in forms so boldly and accurately defined — with contours so distinctly traced — with features so pronounced tnd striking, that I was unconscious for a moment that they might be old acquaintances. I received them as novi hospites within these walls, and gazed upon them with astonishment and alarm. I have recovered, however, thank God, from this paroxysm of terror, although not from that of astonishment. I have sought and found tranquillity and courage in my former consolatory faith. My reliance is that these prin ciples will obtain no general currency ; for, if they should, it re quires no gloomy imagination to sadden the perspective of the future. My reliance is upon the unsophisticated good sense and noble spirit of the American people. I have what I may be al lowed to call a proud and patriotic trust, that they will give countenance to no principles, which, if followed out to their ob vious consequences, will not only shake the goodly fabric ol the Union to its foundations, but reduce it to a melancholy ruin. The people of this country, if I do not wholly mistake their character, are wise as well as virtuous. They know the value of that federal association which is to them the single pledge and guarantee of power and peace. Their warm and pious aflfections will cling to it as to their only hope of prosperity and happiness, in defiance ot pernicious abstractions, by whomsoever inculcated, or howsoever seductive and alluring in their aspect. Sir it is not an occasion like this, although connected, as con trary 'to all reasonable expectation it has been, with fearful and disorganizing theories, which would make our estimates, whether ' Mr. King. [576 1 fanciful or sound, of Natural Law, the measure of civil rights and political sovereignty in the social State, that can harm the Union. It must, indeed, be a mighty storm that can push from its moorings this sacred ark of the common safety. It is not every trifling breeze, however it may be made to sob and howl in imitation of the tempest, by the auxiliary breath of the am bitious, the timid, or the discontented, that can drive this^gallant vessel, freighted with every thing that is dear to an American bosom, upon the rocks, or lay it a sheer hulk upon the ocean. I may perhaps mistake the flattering suggestions of hope, (the greatest of all flatterers, as we are told) for the conclusions of sober reason. Yet it is a pleasing error, if it be an error, and no man shall take it from me. I will continue to cherish the belief, in defiance of the public patronage given by the honour able gentleman from ^ew-York, with more than his ordinary zeal and solemnity, to deadly speculations, which, invoking the name of God to aid their faculties for mischief, strike at all establishments, that the union of these States is tormed to bear up against far greater shocks than, through all vicissitudes, it is ever likely to encounter I will continue to cherish the belief, that, although like all other human institutions it may for a season be disturbed, or suffer momentary eclipse by the transit across its disk of some malignant planet, it possesses a recupera tive force, a redeeming energy in the hearts of the people, that will soon restore it to its wonted calm, and give it back its accus tomed splendour On such a subject I will discard all hysterical apprehension.s — 1 will deal in no sinister auguries — I will indulge in no hypocondriacal forebodings. I will look forward to the future with gay and cheerful hope ; and will' make the prospect smile, in fancy at least, until overwhelming reality shall render it no longer possible. I have said thus much. Sir, in order that I may be understood as meeting the constitutional question as a mere question of interpretation, and as disdaining to press into the service of my argument upon it prophetic fears of any sort, however they may be countenanced by an avowal, formidable by reason of the high reputation of the individual by whom it has been hazarded, of sentiments the most destructive, which if not borrowed from. [ 577 ] Ure identical with, the worst visions of the political philosophy of France when all the elements of discord and misrule were let loose upon that devoted nation. I mean " the infinite perfecti- « bility of man and his institutions," and the resolution of every thing into a state of nature. I have another ihotive, which at the risk of being misconstrued, I will declare without reserve. With my convictions, and with my feelings, I never will consent to hold confederated America as bound together by a silken cord, which any instrument of mischief may sever, to the view of monarchical foreigners, who look with a jealous eye upon that glorious experiment which is now in progress amongst us in favour of i epublican freedom. Let them make such prophecies as they will, and nourish such feelings as they may : I will not contribute to the fulfilment of the former, nor minister to the gratification of the latter. '¦ Sir, it was but the other day that we were forbidden, (properly forbidden I am sure, for the prohibition came from you,) to assume that there existed any intention to impose a prospective restraint on the domestic legislation of Missouri — a restraint to act upon it cotemporaneously with its origin as a State, and to continue adhesive to it through all the stages of its political ex istence. We are now, however, permitted to know that it is determined by a sort of political surgery to amputate one of the limbs of its local sovereignty, and thus mangled and disparaged, and thus only, to receive it into the bosom of the constitution. It is now avowed that, while Maine is to be ushered into the Union with every possible demonstration of studious reverence on our part, and on hers whh colours flying, and all the other graceful accompaniments of honourable triumph, this ill-con ditioned upstart of the West, this obscure foundling of a wilder ness that was but yesterday the hunting ground of the savage, is to find her way into the American family as she can, with an humiliating badge of remediless inferiority patched upon her garments, with the mark of recept, qualified manumission upon her, or rather with a brand upon her forehead to tell the story of her territorial vassalage, and to perpetuate the memory of her evil propensities. It is now avowed that, while the robu.st Dis trict of Maine is to be seated by the side other truly respectable ¦ [ 578 ] parent, co-ordinate in authority aiid honour, and is to be dandled into that power and dignily of w^ich she doe.s not stand in need, bui which undoubtedly she deserves, the more infantine and feeble Missouri is to be repelled with harshness, and forbidden to come at all, unless with the iron collar of servitude about her neck, instead of the civic crown of republican freedom upon her brows, and is to be doomed fi)r ever to leading strings, unless she will exchange those leading strings for shackles. I am told tha,t you have the power to establish thjs odious and revohing distinction, and 1 am refe.Ted tor the proofs of ihat power to various parts of the constitution, but principally to that part of it which authorizes the admission of new States into the Union. I am myself of opinion that it is in that part only that the advocates Ibr this restriction can, with any hope of suc cess, apply for a license to impose it ; and that the efforts which have been made to find it in other portions of that instrument, are too desperate to require to be encountered. I shall however examine those oiher portions before I have, done, lest it should be suppo.sed by those who have relied upon them, that what I omit to answer I believe to be unanswerable The clause of the constitution which relates fo the admission of new States Is in these words : " The Congress may admit " new States into this Uni<'n," &c., and the advocates for re striction maintain that the use of the word " may" imports dis cretion to admit or to reject ; and that in this discretion is wrapped up another — that of prescribing the terms and con ditions of admission in case you are willing to admit : Cujus est dare ejus est disponere. I will not for the present inquire whether this involved discretion to dictate the terms of admission belongs to you or not. It is fit that I should first look to the nature and extent of it. I think I may assume that if such a power be any thing but nominal, it is much more than adequate to the present object — that it is a power of vast expansion, to which human sagacity can assign no reasonable limits — that it is a capacious reservoir of authority, from which you may take, in all time to come, as occasion may serve, the means of oppression as well as of bene faction. I know that it professes at this moment to be the [ 579 1 chosen instrument of protecting mercy, and would win upon us by its benignant smiles : but I know too it can frown, and (day the tyrant, if it be so disposed, .Notwithstanding the softness which it now assumes, and the care with which it conceals its giant proportions beneath the decehful drapery, of sentiment, when it next appears before you it may show itself with a sterner countenance and in more awful dimensions. It is, to speak the truth. Sir, a power of colossal size — if indeed it be not an abuse of language to call it by the gentle name of a power. Sir, it is a wilderness of powers, of which fancy in her happiest mood is unable to perceive the far distant and shadowy boundary. Armed with such a power, with Religion in one hand and Phi lanthropy in the other, and followed with a goodly train of public and private virtues, you may achieve more conquests over sovereignties not your own than falls to the common lot of even uncommon ambition. By the aid of such a power, skilfully em ployed, you may " bridge your way" over the Hellespont- that separates State legislation from that of Congress ; and you may do so for pretty much the same purpose with which Xerxes once bridged his way across the Hellespont, that separates Asia from Lurope. He did se, in the language of Milton, " the liber- " ties of Greece to yoke." You may do so for the analogous pur pose of subjugating and reducing the sovereignties of States^ as your taste or convenience may suggest, and fashioning them to your imperial will. There are those in this House who appear to think, and I doubt not sincerely, that the particular restraint now under <;onsideration is wise, and benevolent, and good : wise as' respects the Union-r-good as respects Missouri — benevo lent as respects the unhappy victims whom with a novel kind ness it would incarcerate in the South, and bless by decay and extirpation. Let all such beware, lest in their desire for the effect which they beheve the restriction will produce, they are too easily satisfiexl that they have the right to impose it. The moral btauty of the present purpose, or even its political recom mendations, (whatever they may be,) can do nothing for a power like this, which claims to prescribe conditions ad libitum, and to be competent" to this purpose, because it is competent to all. This restriction, if it be not smothered in its birth, will be [ 580 t , but a small part of the progeny of that prolific power. It teems with a mighty brood, of which this may be entitled to the dis tinction of comeliness as well as of primogeniture. The rest may want the boasted loveliness of their predecessor, and be even uglier than " Lapland witches." Perhaps, Si -, you will permit me to remind you that it is al most always in company with those considerations that interest the heart in some way or other, that encroachment steals into the world. A bad purpo.se throws no veil over the licenses of pow er. It leaves them to be seen as they are. It affords them no pro tection from the inquiring eye of jeUousy. The danger is when a tremendous discretion like the present is attempted to be. as sumed, as on this occasion, in the names of Pity, of Religion, of National Honour and National Prosperity ; when encroachment tricks itself out in the robes of Piety, or Humanity, or addresses itself to pride of country, with all its kindred passions and mo tives. It is then that the guardians of the constitution are apt to slumber on their watch, or, if awake, to mistake for lawful rule some pernicious arrogation of power. I would not discourage authorized legislation upon those kind ly, generous, and. noble feelings which Providence has given to us for the best of purposes : but when power to act is under dis cussion, I will not look to the end in view, lest I should become indifferent to the lawfulness of the means. Let us discard from this high constitutional question, all those extrinsic considerations which have been forced into its discussion. I .et us endeavour to approach it with a philosophic impartiality of temper — wilh a sincere desire to ascertain the boundaries of our authority, and a determination to keep our wishes in subjection to our allegi ance to the constitution. Slavery, we are told in many a pamphlet, memorial, and speech, with which the press has lately groaned, is a foul blot upon our otherwise immaculate reputation. Let this be con ceded — yet you are no nearer than before to the conclusion that you possess power which may deal with other subjects as effec tually as with this. Slavery, we are further told, with some pomp of metaphor, is a canker at the root of all that is excellent in this republican empire, a pestilent disease that is snatching the [ .581 ] youthftd bloom from its cheek, prostrating its honour and wither ing Its strength. Be it so_yet if you have power to medicine to It in the way proposed, and in virtue of the diploma which you claim, you have also power in the distribution of your political alexipharmics to present the deadliest drugs to every territory that would become a Stale, and bid it drink or remain a colony forever. Slavery, we are also told, is now « rolling onward with « a rapid tide towards the boundless regions of the West," threat- eiiing to doom them to sterility and sorrow, unelss some potent voice can say to it— thus far shalt thou go and no farther. Slave ry engenders pride and indolence in him who commands, and inflicts intellectual and moral degradation 'on him who serves. Slavery, in fine, is unchristian and abominable. Sir, I shall not stop to deny that slavery is all this and more ; but I shall not think myself the less authorized to deny that it is for you to stay the course of this dark torrent, by opposing to it a mound raised up by the labours of this portentous discretion on the domain of others — a mound which you cannot erect but through the instru- mentahty of a trespass of no ordinary kind — not the compara tively innocent trespass that beats down a few blades of grass which the first kind sun or the next refreshing shower may cause to spring again — but that which levels with the ground the lord liest trees of the forest, and claims immortahty for the destruc tion which it inflicts. I shall not, I am sure, be told that I exaggerate this power. It has been admitted here and elsewhere that I do not. But I want no such concession. It is manifest that as a discretionary power it is every thing or nothing — that its head is in the clouds, or that it is a mere figment of enthusiastic speculation — that it has no ex istence, or that it is an alarming vortex ready to swallow up all such portions of the sovereignty of an infant State as you may think fit to cast into it as preparatory to the introduction into the union of the miserable residue. No man can contradict me when I say, that if you have this power, you may squeeze down a new-born sovereign State to the size of a pigmy, and then taking it between finger and thumb, stick it into some nitch of the Union, and still continue by way of mockery to call it a State in the sense of the' constitution. You may waste it to a shadow, and 74 [ 582 ¦] then introduce it into the society of flesh and blood an object of scorn and derision. You may sweat and reduce it to a thing of skin and bone, and then place the ominous skeleton beside the ruddy and healthful members of the Union, that it may have lei sure to mourn the lamentable difference between itself and its companions, to brood over its disastrous promotion, and to seek in justifiable discontent an opportunity for separation, and insur rection, and rebellion. What may you not do by dexterity and perseverance with this terrific power ? You may give to a new State, in the form of terms which it cannot refuse, (as I shall show you hereafter,) a statute book of a thousand volumes — providing not for ordinary cases only, but even for possibilities ; you may lay the yoke, no matter whether light or heavy, upon the necks of the latest posterity ; you may send this searching power into every hamlet for centuries to come, by laws enacted in the spirit of prophecy, and regulating all those dear relations of domestic concern which belong to local legislation, and which even local legislation touches wilh a delicate and sparing hand. This is the first inroad. But will it be the last ? This provision is but a pioneer for others of a more desolating aspect. It is that fatal bridge of which Milton speaks, and when once firmly built, what shall hinder you to pass it when you please for the purpose of plundering power after power at the expense of new States, as you will still continue to call them, and raising up prospective codes irrevocable and immortal, which shall leave lo those States the empty shadows of domestic sovereignty, and con vert them into petty pageants, in themselves contemptible, but rendered infinitely more so by the contrast of their humble facul ties with the proud and admitted pretensions of those who having doomed them to the inferiority of vassals, have condescended to take them into their society and under their protection ? I shall be told, perhaps, that you can have no temptation to do all or any part pf this, and, moreover, that you can do no thing of yourselves, or, in oiher words, without the concurrence of the new State. The last of these suggestions I shall examine by and by. To the first I answer, that it is not incumbent upon me to prove that this discretion will be abused. It is enough for me to prove the vastness of the power as an inducement to [ 583 ] make us pause upon it, and to inquire with attention whether there is any apartment in the constitution large enough to give it entertainment. It is more than enough for me to show that vast as is this power, it is with reference to mere territories an irrer sponsible power. Power is irresponsible when it acts upon those who are defenceless against it— who cannot check it, or contri bute to check it, in its exercise— who can resist it only by force. The territory of Missouri has no check upon this power. It has no share in the government of the Union. In this body h has no representative. In' the other House it has, by courtesy, an agent, who may remonstrate, but cannot vote. That such an irresponsible power is not likely to be abused, who will under take to assert ? If it is not, " Experience is a cheat, and fact a " liar." The power which England claimed over the colonies was such a power, and it was abused — and hence the Revolution. Such a power is always perilous to those who wield it, as well as to those on whom it is exerted. Oppression is but another name for irresponsible power, if History is to be trusted. The free spirit of our constitution and, of our people, is no as surance against the pf-opension of unbridled power to abuse, when it acts upon colonial dependants rather than upon ourselves. Free States, as well as despots, have oppressed those whom they were bound to foster — and it is the nature of man that it should be so. The love of power, and the desire to display it when it can be done with impunity, is inherent in the human heart. Turn it out at the door, and it will in again at the window. Power is displayed in its fullest measure, and with a captivating dignity, by restraints and conditions. The pruritas leges ferendi is an uni versal disease ; and conditions are laws as far as they go. The vanity of human wisdom, and the presumption of human reason, are proverbial. This vanity and this presumption are often neither reasonable nor wise. Humanity, too, sometimes plays fantastic tricks with power. Time, moreover, is fruitful in temp tations to convert discretionary power to all sorts of purposes. Time, that withers the strength of man and " strews around him « like autumnal leaves the ruins of his proudest monuments," produces great vicissitudes in modes of thinking and feeling. It brings a long with it, in its progress, new circumstances— new [ 584 ] combinations and modifications of the old — generating new views, motives, and caprices— i-new fanaticisms of endless variety — in short, new every thing. We ourselves are always changing — aud what to-day we have but a small desire to attempt, to-morrow becomes the object of our passionate aspirations. There is such a thing as Enthusiasm, moral, religious, or poli tical, or a compound of all three ; — and it is wonderful what it will attempt, and from what imperceptible beginnings it sometimes rises into a mighiy agent. Rising from some obscure or unknown source, it first shows itself a petty rivulet, ayhich scarcely mur murs over the pebbles that obstruct its way — then it swells into a fierce torrent bearing all before it — and then again, like some mountain stream which occasional rains have precipitated upon the valley, it sinks once more into a rivulet, and finally leaves its channel dry. Such a thing has happened. I do not say that it is now happening. It would not become me to say so. But ' if it should occur, wo to the unlucky territory that should be straggling to make its way into the Union at the moment when the opposing inundation was at its height, and at the same in stant this wide Mediterranean of discretionary powers, which it seems is ours, should open up all its sluices, and with a consen taneous rush, mingle wilh the turbid waters of the others ! " New States may be admitted by the Congress into this Union." It is objected that the word " may" imports power, not obligation — a right to decide — a discretion to grant or refuse. To this it might be answered that power is duty on many oc- casons. But let il be conceded that it is discretionary. What consequence follows? A power to refuse, in a case like this, does not necessarily involve a power to exact terms. Vou must look to the result which is the declared object of the power. Whether you will arrive at it, or not, may depend on your will ; but you cannot compromise wilh the result intended and professed. What then is the professed result? To admit a ^ right of the master to the services of his slave as derived under the local laws of the States. The phraseology in which it is wrapped up still leaves the intention clear, and the words, " persons held to " service or labour in one State under the laws thereof,'? have always' been interpreted to extend to the case of slaves, in the various acts of Congress which have been passed to give effi cacy to the provision, and in the judicial application of those laws. So also in the clause prescribing the ratio of representa tion — the phrase, " three-fiflhs of all other persons," is equivalent to slaves, or it means nothing, .^nd yet we are told that those who are acting under a constitution which sanctions the exist ence of slavery in those Stales which choose to tolerate it, are at liberty to hold that no law can sanction its existence ! Il is idle to make the rightfulness of an act the measure of sovereign power. The distinction between sovereign power and the moral right lo exercise it, has always been recognized. All political power may be abused, but is it to stop where abuse may begin ? The power of declaring war is a power of vast capacity for mischief, and capable of inflicting the most wide-spread deso lation. But it is given to Congress without stint and without measure Is a citizen, or are the courts of justice to inquire whether that, or any other law, is just, before they obey or exe cute it ? And are there any degrees of injustice which will withdraw from sovereign power the capacity of making a given law ? But sovereignty is said to be deputed power. Deputed — by whom ? By the People, because the power is theirs. And if it be theirs, does not the restrictioin take it away ? Examine the Constitution of the Union, and it will be seen that the People of [ 597 ] the States are regarded as well as the States themselves. The constitution was made by the People, and ratified by the People. Is It fit, then, to hold that all the sovereignty of a State is in the government of the State ? So much is there as the People grant : and the People can take it away, or give more, or new model what they have already granted. It is this right which the pro posed restriction takes from Missouri. You give them an immor tal constitution, depending^ on your will, not on theirs. The People and their posterity are to be bound for ever by this re striction ; and upon the same principle, any other restriction may be imposed. Where then is their power to change the constitu tion, and to devolve new sovereignty upon the State government ? You limit their sovereign capacity to do it ; and when you talk of a State, you mean the People as well as the Government. The People are the source of all power— you dry up that so-jrce. They are the reservoir— you take out of it what suits you. It is said that this government is a government of deputed pow ers. So is evei-y government— and what power is noi deputed remains. But the people of the United States can give it more if they please, as the people of each State can do in respect to its own government. And here it is well to remember that this is a government of enumerated, as well as deputed powers ; and to examine the clause as to the admission of new States, with that principle in view. Now assume that it is a part of t^ie sovereign powerof the people of Missouri to continue slavery, and to de volve that power upon its government — and then to take it away —and then to give it again. The government is their creature the means of exercising their sovereignty, and they can vary those means at their pleasure. Independently of the Union, their power would be unHmifed. By coming into the Union, they part with some of it, and are thus less sovereign. Let us then see whether they part with this power. If they have parted with this portion of sovereign power, it must be under that clause of the national constitution which gives to Congress " powei: to admit new States into this Union." And it is said that this necessarily implies the authority of prescribing the conditions, upon which such new States shall be admitted. This has been put into the form ofa syllogism which is thus stated : 76 [ 598 ] Major. Every universal proposition includes all the means, manner, apd terms of the act to vi>hich it ^elates. Minor. But this is a universal proposition. Conclusion. Therefore, the means, manner, and terms are in volved in it. Bat this syllogism is fallacious, and any thing else may be proved by il, by assuming one of its members which involves the conclusion. The minor is a mere postulate. Take it in this way : Major. None but a universal proposition includes in itself the terms and conditions of the act to be done. Minor. But this is not such a universal proposition. Conclusion Therefore, it does not contain in itself the terms and conditions of the act. In both cases the minor is a gratuitous postulate. But I deny that a universal proposition as to a specific act, in volves the terras and conditions of that act, so as to vary h and sub.sliiute another and a different act in its place. The propo.-iition contained in the clause is universal in one sense only. It is par ticular in another It is universal as to the power to admit or refuse. It is particular as to the being or thing lo be ad mitted, and the cjmpact by which it is to be admitted. The sophistry consists in extending the universal part of the propo sition in such a manner as to make out of it another universal proposhion. It consists in confounding the right to produce or to refu-se to produce a certain defined effect, with a right to pro duce a different effect by refusing otherwise to produce any ef fect at ill. It makeij the actual right the instrument of obtain ing another right with which the actual right is incompatible. It makes, in a word, lawful power the instrumeni of unUwful usur pation. The result is kept out of sight by this mode of reason ing. The discretion to decline that result, which is called a uni versal proposition, is singly obtruded upon us. Bul in order to rea-son correctly,, you must keep in view the defined result, as well as the discretion to produce or lo decline to produce it. The re sult is the particular part of the proposition ; therefore, the dis cretion to produce or decline il, is the universal part ol it. But because the last is found lo be universal, it is taken for granted [ 569 ] that theirs* is also universal. This is a sophism too ' manifest to impose. But discarding the machinery of syllogisms as unfit for such a disctjssion as this, let us look al the clause with a view of inter preting it by the rules of sound logic and common sense. The power is " to admit new States into this Union ;" and it may be safely conceded that here is discretion to admit or refuse^ The question is, what must we do if we do any thing ? What must we admit, and into what ? The answer is a State — and into this Union, The distinction between federal rights and local rights, is an idle distinction. Because the new State acquires federal rights, it is not, therefore, in this Union. Phe Union is a conpact ; and is it an equal party to that compact, because it has equal federal rights ? How is the Union formed? By equal contributions of power. Make one member sacrifice more than other, and it becomes un equal. The compact is of two parts, 1. The thing obtained — federal rights. 2. The price paid — local sovereignty. You may disturb the balance of the Union, either by diminishing the thing acquired, or increasing the sacrifice paid. What were the purfioses of coming into the Union among the original States ? The States were originally sovereign without limit, as to foreign and domestic concerns. But being incapable of protecting themselves singly, they entered into the Union to de fend themselves against foreign violence. The domestic concerns of the people were not, in general, to be acted on by it. The se curity of the power of managing them by domestic legislature, is one of the great objects of the Union. The Union is a means, not an end By requiring greater sacrifices of domestic power, the end is sacrificed to the means. Suppose the surrender of all, or nearly all, the domestic powers of legislation were required : the means would there have swallowed up the end. The argument that the compact may be enforced, shows that the federal predicament is changed. The power of the Union not only acts on persons or citizens, bnt on the facuhy of the government, and restrains it in a way which the constitution no [ 600 ] where authorizes. This new obligation takes away a right which is expressly " reserved lo the people or the States," .since it is no where granted to the government of the Union. You,cannot do mdiiectly what you cannot do directly. It is said that this Union is competent to make compacts. Who doubts it ? But can you make this' compact f I insist that you cannot make il, because il is repugnant to the thini; to be done. The effect of such a compact would be to produce tliat ine quality iu the Union, to which the constitution, in all its provisions, is adverse. E-very thing in it looks to equality among the mem bers of the Union. Under it, you cannot produce inequality. Nor can you get beforehand of the constitution, and do it by an ticipation. Wait until a State is in the Union, and you cannot do it : yet it is only upon the State in the Union that what you do begins to act. , »:****#*ie* But it seems, that although the proposed restriction may not be justified by the clause of the constitution which gives power to admit new Stales into the Union, separalelj' considered, there aie other parts of the constitution which combined with that clause will warrant it. And first we are informed that there is a clause iu this instrument whirii declares that Congress shall gua-- rantee to every State a republican fbrm of government ; that slavery and such a form of government are jncompatible ; and finally, as a conclusion from these premises, that Congress not only have a rigid, bul are bound to exclude slavery from a new State. Here again, Sir,.-there is an edifying inconsistency be tween the argument and the measure which it professes to vindi cate. By the argument il is maintained that Missouri cannot hiive a republican form of government, and at the same time' to lerate negro slavery. By the measure it is admitted that Mis souri may tolerate slavery, as to persons already in bondage there, and be nevertheless fit to be received into the Union. What sort of constitutional mandate is this which can thus be made to bend, and truckle, and compromise as if it were a simple rulfe of expe diency that might admit of exceptions upon motives of counter vailing expediency. There can be no such pliancy in the peremp tory provisions of the constitution. They cannot be obeyed by [ 601 ] moieties and violated in the same ratio. They must be followed out to their full extent, or treated with that decent neglect which has at least the merit of forbearing lo render contumacy obtru sive by an ostentatious display of the very duly which we in part abandon. If the decalogue could be observed in this casuisti cal manner, we might be grievous sinners, and yet be liable to no reproach. We might persist in all our habitual irregularities, and still be spotless. We might, for example, continue to covet our neighbours' goods, provided they were the same neighbour^ whose goods we had before coveted— and so of all the other commandments. Will the gentlemen tell us that it is the quantity of sUves, not the quality of slavery, which takes from a government the repub lican form ? Will they tell us (for they have not yet told us) that there are constitutional grounds (to say nothing of common sense,) upon which the slavery which now exists in Missouri may be reconciled with a republican form of government, while any addition to the number of its slaves (the quality of slavery re maining the same) from the other States, will be repugnant to that form, and metamorphose it into some non-descript govern ment disowned by the constitution ? They cannot have recourse to the treaty of 1803 for such a distinction, since independently of what I have before observed on that head, the gentlemen have contended that the treaty has nothing to do with the matter. They have cut themselves oflf from all chance of a convenient distinction in or out of that treaty, by insisting that slavery be yond the old United States is rejected by the constitution, and by the law of God as discoverable by the aid of either reason or revelation ; and moreover that the treaty does not include the case, and if it did could not make it better. They have therefore completely discredited their own theory by their own practice, and left us no theory worthy of being seriously controverted. This peculiarity in reasoning of giving out a universal princi])le, and coupling with it a practical concession that it is wholly falla cious, has indeed run through the gi eater part of the arguments on the other side; but it is not, as I think, the more imposing on that account, or the less liable to the criticism which I have here bestowed upon it. ¦' i [ 602 ] There is a remarkable inaccuracy on this branch of the subject into which the gentlemen have fallen, and to which 1 will give a moment's attention without laying unnecessary stress upon it. The government ofa new Stale, as well as of an old State, must, I agree, be republican in its form. But it has not been very clearly explained what the laws which such a government may enact can have lo do with its form. The form of the govern ment is material only as it furnishes a security that those laws will protect and promote the public happiness, and be made in a republican spirit. i he people being, in such a government, the fountain of all power, and their servants being periodically re sponsible lo them for its exercise, the constitution of the Union takes for granted, (except so far as it imposes limitations,) that every such exercise will be just and salutary. The introduction or ccmtinuance of civil slavery is manifestly the mere resuh of the power of making laws. It does not in any degree enter into the form of the government. It presupposes that form already settled, and takes its rise not from the- particular frame »l the government, but from the general power which every govern ment involves. Make the government what you will in hs or ganization and in the distribution of its authorities, the introduc tion or continuance of involuntary servitude by the legisladve power which it has created can have no influence on its pre- established form, whether monarchical, aristrocratical, or repub lican. The form of government is still one thing, and the law, being a simple exertion of the ordinary faculty of legislation by those to whohi that form of government has entrusted it, another. The gentlemen, however, identify an act of legislation sanction ing involuntary servitude with the form of government itself, and then assure us that the last is changed retroactively by the first, and is no longer republican ! But let us proceed to take a rapid glance al the reasons which have been assigned for this notion that involuntary servitude and a repubUcan form of government are perfect antipathies. The gentleman from Mew-Hampshire* has defined a republican government to be that in which all the men participate in its * Mr. Morril. [ 603 ] power and privileges : from whence it follows that where there are slaves, it can have nO existence. \ definition is no proof,- however, and even if h be dignified (as I think it was) wilh the name of a maxim, the matter is not much mended. It is Lord Bacon who says " that nothing is so easily made as a maxim ;" and certainly a definition is manufactured with equal facility. Apolitical maxim is the'work of induction, and cannot stand against experience, or stand on any thing but experience. But this maxim, or definition, dr whatever else it may be, sets fact at defiance. If you go back to antiquity, you will obtain no coun tenance for this hypothesis ; and if you look at home you will gain still less. I have read that Sparta, and Rome, and Athens, and many others of the ancient family, were Republics. They were so in form undoubtedly— the last approaching nearer to a perfect Democracy than any other government which ha» yet been known in the world. Judging of them also by their fruits, they were of the highest order of Republics. Sparta could scarcely be any other than a Republic, when a Spartan matron could say to her son ju.st marching to battle. Return victori ous, OR RETURN NO MORE. It was the unconquerable spirit of Liberty, nurtured ,by Republican habits and institutions, that illustrated the pass of Thermopylae. Yet slavery was not only tolerated in Sparta, but was established by one of the funda mental laws of Lycurgus, having fpr its object the encouragement of that very spirit. Attica was full of slaves — yet the love of liberty was its characteristic. What else was it that foiled the whole power of Persia at Marathon and Salamis ? What other soil than that which the genial Sun of RepubUcan freedom illu- ,,, minated and warmed, could have produced such men as Leo- nidas and Miltiades, Themistocles and Epaminondas ? Of Rome it would be superfluous to speak at large. It is suflScient to name the mighty mistress of the world, before' Sylla gave the first stab to her liberties and the great dictator accomplished their final ruin, to be reminded of the practicability of union be tween civil slavery and an ardent love of liberty cherished by republican establishments. If we return home for instruction upon this point, we perceive that same union exemplified in many a State, in which " Liberty [ 604 ] " has a temple iir every house, an altar in every heart," while involuntary servitude is seen in every direction. Is it denied that those States possess a republican form of government ? If it is, why does our power of correction sleep ? Why is the constitutional guaranty suffered to be inactive ? Why am I permitted to fatigue you, as the representative of a slave- holding State with the discussion of the nugx canorce (for so I think them) that have been forced into this debate contrary to all the remonstrances of taste and prudence ? Do gentle men perceive the consequences to whirh their arguments must lead if they are of any value ? Do they reflect that they lead to emancipation in the old United States — or to an exclu sion of Delaware, Maryland, and all the South, and a great portion of the West from the Union ? My honourable friend from Virginia has no business here, if this, disorganizing creed be any thing but the production of a heated brain. The State to which I belong, must " perform a lustration" — must purge and purify herself from the feculence of civil slavery, and emnlate the States of the north in their zeal for throwing down the gloomy idol which we are said to worship, before her senators can ha"ve any title to appear in this hisih assembly. Il will be in vain lo urge that the old United- States are exceptions to the rule — or rather (as the gentlemen express it,) that they have no disposition to apply the fule to them. There can be no excep tions, by implication only, to such a rule ; and expressions which justify the exemption of the old States by inference, will justify the like exemption of Missouri, unless they point exclusively to them, as I have shown they do not. The guarded manner, loo, in which some of the gentlemen have occasionally expressed themselves on this subject, is somewhat alarming. They have no disposition to meddle with slavery in the old United Slates. Per haps not — but who shall answer for their successors ? Who shall furnish a pledge that the principle once engrafted into the constitution, will not grow, and spread, and fructify, and over shadow the whole land ? It is the natural office of such a prin ciple to wrestle with slavery, wheresoever it finds it. New States, colonized by the apostles of this principle, will enable it to set on foot a fanatical crusade against all who still continue to [ 605 ] tolerate it, although no practicable means are pointed out by which they can get rid of it consistentlv with their own safety. At any rate, a present forbearint' disposhion, in a few or in many, is not a security upon which much reliance can be placed upon a subject as to which so many selfish interests and ardent feelings are connected with the cold calculations of policy. Admitting, however, that the eld United States are in no danger from this principle — why is it so ? There can be no other answer (which these zealous enemies of slaveiy can use) than that the constitu tion recognizes slavery as exi.sting or capable of existing- in those States. The constitution, then, admits that slavery and a repub lican form of government are not incongruous. It associates and binds them up. together, and repudiates this wild imagination which the gentlemen have pressed upon us with such an air of triumph. But the constitution does more, as I have heretofore proved. It concedes that slavery may exist in a new State, as well as in an old one — since the language in which it recognizes slavery com prehends new States as well as actual. I trust then that I shall be forgiven if I suggest, that no eccentricity in argument can be more trying to human patience, than a formal assertion that a constitution, to which slave-holding States were the most nume rous parties, in which slaves are treated as property as well as persons, and provision is made for the security of that property, and even for an augmentation of it, by a temporary importation from Africa, a clause commanding Congress to guarantee a republican form of government to those very States, as well as to others, authorizes you to determine that slavery and a republican form of government cannot co-exist. '' But if a republican form of government is that in which all the men have a share in the public power, the slave holding States will not alone retire from the Union. The constitutions of some of the other States do not sanction universal suffrage, or universal eligibility. They require citizenship, and age, and a certain amount of property, to give a title to vote or to be voted for ; and they who have not those qualifications are just as much dis franchised, whh regard to the government and its power, as if they were slaves. They have civil rights indeed (and so have slaves in a less degree ;) but they have no share in the govern- 77 [ 606 ] ment. Their province is to obey the laws, not to assist in making them. All such States must therefore be forisfamiliated with Virginia and the rest, or change their system : For the constitu tion being absolutely silent on those subjects, will afford them no protection. The Union might thus be reduced from an Union to an unit. Who does not see that such conclusions flow from false notions — that the true theory of a republican government is mistaken — and that in such a government, rights political and civil, may be,qualified by the fundamental law, upon such induce ments as the freemen of the country deem sufficient ? That civil rights may be qualified as well as political, is proved by a thou sand examples. Minors, resident aliens, who are in a course of naturalization — the other sex, whether maids, or wives, or widows, furnish sufficient practical proofs, of this. Again — if we are to entertain these hopeful abstractions, and to resolve all establishments into their imaginary elements in order to recast them upon some Utopian plan, and if it be true that all the men in a republican government must help to wield its power, and be equal in rights, I beg leave to ask the honourable gentleman from New-Hampshire — and why not all the women ? They too are God's creatures, and not only very fair but very rational creatures ; and our great ancestor, if we are to give credit to_ Milton, accounted them the " wisest, virtousest, " discreetesl, best ;" although to say the truth he had but one specimen from which to draw bis, conclusion, and possibly if he had had more, would not have drawn it at all. They have, moreover, acknowledged civil rights in abundance, and upon abstract principles more than their masculine rulers allow them in fact. Some monarchies, too, do not exclude them from the throne. We have all read of Elizabeth of England, of Catharine of Russia, of Semiramis, and Zenobia, and a long list of royal and imperial dames, about as good as an equal list of royal and imperial lords. W hy is it that their exclusion from the power of a popujar government is not destructive of its republican charac ter ? I do not address this question to the honourable gentle man's gallantry, but to his abstraction, and his theories, and his notions of the infinite perfectibility of human institutions, bor rowed from Godwin aud the turbulent philosophers of France. [ 607 ] For my own part. Sir, if I may have leave to say so much in the presence of this mixed uncommon audience, 1 confess I am no friend to female government, unless indeed' it be that which reposes on gentleness, and modesty, and virtue, and feminine grace and delicacy— and how powerful a government that is, we have all of us, as I suspect, at some time or other experienced ! But if the ultra republican doctrines which have now been broached should ever gain ground among us, I should not be surprized if some romantic reformer, treading in the footsteps of Mrs. Wolstoncraft, should propose to repeal our republican law salique, and claim for our wives and daughters a full participa tion in political power, and to add to it that domestic power, which in some families, as I have heard, is as absolute and un- republican as any power can be. I have thus far allowed the honourable gentlemen to avail themselves of their assumption that the constitutional command to guarantee to the States a republican form of government, gives power to coerce those States in the adjustment of the details of their constitutions upon theoretical speculations. But surely it is passing strange that any man, who thinks at all, can \iey/ this salutary command as the grant of a pcfwer so monstrous; or look at it in any other light than as a protecting mandate to Congress to interpose with the force and authority of the Union against that violence and usurpation, by which a member of it might otherwise be oppressed by profligate and powerful indivi duals, or ambitious and unprincipled factions. In a word, the resort to this portion of the constitution for an argument in favour of the proposed restriction, is one of those extravagancies (I hope I shall not offend by this expression) which may excite our admiration, but cannot call for a very rigorous refutation. I have dealt with it accordingly, and have now done with it. We are next invited to study thfit clause of the constitutioy which relates to the migration or importation, before the ye^t 1808, of such persons as any of the States then existing should think proper to admit. It runs thus : « The migration or im- « portation of snrh persons as any of the States now existing « shall think proper to admit, shall not be prohibited by the [ 608 ] « Congress prior to the year one thousand eight hundred and « eight, but a tax or duty may be imposed on such importation " not exceeding ten dollars for each person." It is said that this clause empowers Congress, after the year 1 808, to prohibit the passage of slaves from State to State, and the word " migration" is relied upon for that purpose. I will not say that the proof of the existence of a power by a clause which, as far il goes, denies it, is always inadmissible; but I will say that it is always feeble. On this occasion, it is singu- laiy so. The power, in an affirmative shape, cannot be found in the constituiion ; or if it can, it is equivocal and unsatisfactory. How do the gentlemen supply this deficiency ? by the aid of a negative provision in an article of the constitution in which many restrictions are inserted ex ahundanti cautela, from which it is plainly impossible to infer that the power to which they apply would otherwise have existed. Thus—" No bill of attainder or ex post facto law shall be passed." fake away the restriction — could Congress pass a bill of attainder, the trial by jury in cri minal cases being expressly secured by the constitution ? The inference, therefore, from the prohibition in question, whatever may be its meaning, to the power which it is supposed to re strain, but which you cannot lay your finger upon with any pre tensions to certainty, must be a very doubtful one. But the import of the prohibition is also doubtful, as the gentlemen them selves admit So that a doubtful power is lo be made certain by a yet more doubtful negative upon power — or rather a doubtful negative, where there is no evidence of the corresponding affir mative, is lo make out the affirmative and to justify us in acting upon it, in a matter of such high moment, X)^at questionable 'pow- er should not dare to approach it. If the negative were perfect ly clear in its import, the conclusion which has been drawn from il would be rash, because it might have proceeded, as some of the negatives in whose company it is found evidently did pro ceed, from great anxiety to prevent such assumptions of autho rity as are now attempted. Bul when il is conceded, that the supposed import of this negative (as to the term migration) is ambiguous, and that il may have been used In => very different sense from that which is imputed to it, the conclusion acquires a [ 609 ] character of boldness, which, however some may admire, the wise and reflecting will not fail to condemn. In the construction of this clause, the first remark that oc curs is, that the word biigration is associated with the word IMPORTATION. I do not insist that noscitur a suciis is as good a rule in matters of interpi^etation as in common life — but it is, nevertheless, of considerable weight when the associated words are not qualified by any phrases that disturb the effect of their fellowship ; and unless it announces, (as in this case it does not,) by specific phrases combined with the associated term, a different intention. Moreover, the ordinary unrest! icfed import of the word migration is what I have here supposed. A removal from district to district, within the same jurisdiction, is never denomi nated a migration ot> persons. 1 will concede to the honourable gentlemen, if they will accept the concession, that ants may be said to migrate when they go from one ant hill to another at no great distance from it. But even then they could not be said to migrate, if each ant-hill was their home in virtue of some federal compact with insects like theimselves. But, however this may be, it should seem to be certain that human beings do not mi grate, in the sense of a constitution, simply because they trans plant themselves, from one place, to which that constitution ex tends, to another which it equally covers. If this word migration applied to freemen, and not to slaves, it would be clear that removal from State to State would not be comprehended within it. Why then, if you choose to apply it to slaves, does it take another meaning as to the place from whence they are to come ? Sir, if we once depart from the usual acceptation of this term, fortified as it is by its union with another in which there is nothing in this respect equivocal, will gentlemen please to intimate the point at which we are to stop ? Migration means, as they con tend, a removal from State to State, within the pale of the com mon government. Why not a removal also from county to county within a particular State— from plantation to plantation —from farm to farm— from hovel to hovel ? Why not any exer tion of the power of locomotion ? I protest I do not see, if this arbitrary limitation of the natural sense of the term migration [ 612 ] accustomed jurare in verba magistri, I shall take the clause as I find it, and do my best to interpret it." * * * * [After going through with that part of his argument relating to this clause of the constitution, which I have not been able to restore from the imperfect notes in my possession, Mr. Pinkney concluded his speech by expressing a hope that fwhat he deemed) the perilous principles urged by those in favour of the restriction upon the new State would be disavowed or explained, or that at all events the application of them to the subject under discussion would not be pressed, but that it might be disposed of in a manner satisfactory to all by a prospective prohibition of slavery in the territory to the north and west of Missouri.} N°- VIII. OPINION IN THE CASE OF COHENS AGAINST THE STATE OF VIRGINIA. By the constitution of the United States, power is given to Congress " to exercise exclusive legislation, in all cases wbatso- " ever, over such District (not exceeding ten miles square) as " may, by cession of particular States, and the acceptance of " Congress, become the seat of the government of the United « States." This clause was no doubt inserted in the constitution from the indispensible necessity which was felt to exist, that the national government should have entire authority in the place where it was to be located. It was a government established for national purposes, and it was fit and proper that the national legislature, and the members of it, should be entirely free from, and unmo lested by, the authority or power of any State legislature. By an act of Congress power is given to the corporation of the City of Washington, to authorize the drawing of lotteries for ef fecting any important improvement in the city, which the ordi nary funds or revenue thereof will not accomplish : Provided, that the amount to be raised in each year shall not exceed the [ 613 ] sum of ten thousand dollars ; and provided, also, that the object for which thp money is intended to be raised, shall be first sub-, mitted to the President of the United States, and shall be ap proved by him. - Under the power given by this act of Congress, the corpora tion of the city ol Washington have established lotteries for the purpose of effecting important improvements in the said city, which theordinary funds or revenue thereof will not accomplish; and the object for which the money intended to be raised by the said lotteries is to be applied, has been submitted to the Presi dent of the United States, and has been approved by him. Have the legislatures of the individual States power, by any laws whicn they can pass, to prohibit the sale of the tickets in the lotteries thus established in the city of Washington ? We think the State legislatures have no such power. This is a lottery authorized by Congress, for the purpose of making important improvements in the city, which may be styled the iNational City, in the improvement of which the na tion is concerned. It is therefore a national lottery, authorized by the national legislature ; and it would be monstrous if any State legislature could impede the execution of a law made for national purposes, relative to a District over .which the national legislature have the exclusive right of legislation. Congress have the right to judge of the proper means of improving the-seat of government ; they have the power of raising those means, by any law not forbidden by the constituiion, and no State legislature caa, consistently either with the letter or spirit of the constituiion, interfere with the exercise of this power. It may be conceded, that the power of le)jislation,over the district, vested in Congress by the 17th clause of the Sth section and first article of the con stitution, is local and territorial with reference to the sphere of its direct O'ld immediate action, but this concession leaves the matter of the present inquiry as much at large as it was before : Since it is still certain that the power it.-self is the power of the nation, that the whole Union are at once the grantors and (by their representatives) the depositories of it ; that the District upon which, or with a view to which, it is exerted, is entirely a na tional District, aud that the sovereignty of Congress over it, was communicated for national ends. 78 [ 614 ] But for the above-mentioned clause in the constitution, the territory included wiihin the District of Columbia would be liable to no other legislation by Congress than that which it may exer cise over the Stales. With views of general policy, that clause invests Congress with complete dominion over the District, in addition to, or involving and blended with, the other enumerated or general powers of Congress, which it was intended to assist and fortify. As'this dominion flows from the same source wilh every other power possessed by the government of the Union ; as it is ex- eried by the same Congress ; as it was created for the common good and for universal purposes, it is impossible that it should not be of equal obiitation, throughout the Union, in its effects and consequences, with any power whatever known to the con stitution. The government of the United States is a government of enu merated powers, all of which are upon the same level. The power to raise and support armies (with all its dependent powers) may be of higher dignity than the power to legislate over the seal of the general government, but it is not of greater force, or more binding upon the States or the people. The power to raise and support armies may, and almost always vvill, operate more expansively, but-legislation over and for the District of Colum bia m-ay, in the progress of its consequences, reach as far as legislation for military objects, and when it does so, will be of equivalent efficacy. If Congress had deemed il expedient it might have established this lottery directly, instead of authorizing il by a substitute, and might have afterwards applied the avails- (so as to bind the States) to this improvement of the District. Had il done so, who can doubt that the tickets might have been sold in each of the United Slates ? And yet where is the difference in the sub- tance of the thing, and in com"inon sense, between the two cases? Where ran be the difference whether Congress exercise their power directly themselves, or authorize others to exercise it for them ? It is still, in either case, their power and authority which is acting. U will be admilted by every body, that it is in the nature of a lottery that the tickets must be sold, and that they must be (as [ 615 ] they always are) transferable from hand to hand by sale ; and it results, from the interest every citizen of the United States has in that which is well established or created for general purposes, under the authority of Congress, and within the scope of the constitution, that he is entitled to avail himself of what is so es tabUshed or created. But surely a State law which forbids a citizen to sell or to buy a ticket in a lottery, (well established un der the authority of the Union, within the scope of the consti tution, and for national purposes,) trespasses upon this right of the citizen, so far as it goes, interferes with the general purposes for which the lottery is established, and changes the qualities of the ticket by impairing that saleable and transferable faculty to which if owes its value, and without which the lottery itself may be wholly defeated, and must be greatly injured and delayed. It would indeed be a strange anomaly, if what Congress had i created, or authorized to be created, in a valid manner, and which entirely derives its capacity of answering the general pur poses for which it was so created, from its faculty of being sold and transferred, could be considered and treated by a State as the subject of a criminal traffic ; or, in other words, if a citizen could be punished by a State for selling or buying that which Congress had, for the purpose of being bought and sold, sent, or caused to be sent, into the market of the Union, conformably to, and under the sanction of the constitution, and for a national object. If a lottery ticket has a lawful origin under the constitution of the Union, it is a lawful lottery ticket wherever the power of the Union is acknowledged. The power of the Union, constitutionally exerted, knows no locality whhin the boundaries of the Union, and can encounter there no geographical impediments. Its march is through the Union, or it is nothing but a narfie. The States have no existence relatively to the effect of the powers delegated to Congress, save only where their assent or instrumentahty is required or permitted by the constitution itself. In every other case the effect of constitutional congressional legislation is com mensurate with united America; and State legislation in oppo- shion to it is but a shadow. Nor is there any danaer to be apprehended from allowing to congressional legislation, whh regard to the District of Colum- [ 616 ] bia, its fullest effect. Qongress is responsible to the States and to the people for that legislation. It is in truth the legislation of the Stales, and the people, over a District, placed under their control for their own benefit, not for that of the District, except as the prosperity of the District is involved, and is necessary to the general advantage. The Stales, or the people, can only resist the natural effect of such legislation by resisting the exercise of their own sovereign ty, created npon high inducements of constiiutional policy. A case of this sort bears no resemblance to that of one .State repelling, within its limits, by penal sanctions, the effect of the laws of any other State, upon considerations of local expedience, or otherwise. What on such occasions one State may properly and regularly do with regard to the laws of another State, it is not fit to discuss in this place ; but whatever il may do on such occasions, there is no analogy between those and the present. A State that repels the effects of the laws of another State within its territory, is no party to those laws. Ithas no direct interest in them. It did not assist in making them immediately, or deriva tively, or constructively. It cannot assist in repeahftg or modi fying them. But here the law is its own law, as being a member of the Union, although irrevocable by il, without the concurrence of others. The effect is for its own advantage in the eye of the constitution. It can contribute to revoke the law by its repre sentatives in Congress, and it is bound by the constitutional grant of power, in virtue of which it has been enacted, since it participated in that grant, as in every other grant of power to the government of the Union. Upon the whole', we are of opinion that the legislature of no individual Slate in the Union can, consiitutionally, prohibit the sale of tickets in the lotteries established in the city of Washing- , ton, under the authority of Congress. WM. PINKNEY, DAVID B. OGDEN, THOMAS ADDIS EMMET, JOHN WELLS, ,W. JONES, JOS. OGDEN HOFFMAN. •'¦.•''•M ll'r,.'-'i-r. "¦ ¦;:,,-;¦ ¦¦'¦ • ¦ '¦ • i ¦¦i*i!-i]rM";!Ar'-';!''Mi.i'' '" "i--" ' "^ '"' A '?'«'. 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