nifter with indifference that juftice which the law of nations holds out without diftinction to independent ftates, fome happening to be neutral, and fome to be belligerent. The feat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations: but the law itfelf has no locality. It is the duty of the perfon who fits here to determine this queftion exactly as he would determine the fame queftion if fitting at Stockholm; to affert no pretenfions on the part of Great Britain which he would not allow to Sweden in the fame circumftances; and to impofe no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the fame character. If, therefore, I mistake the law in this matter, I mistake that which I confider, and which I mean fhould be confidered, as the univerfal law upon the queftion; a question regarding one of the most important rights of belligerent nations relatively to neutrals.

The only special confideration which I fhall notice in favour of Great Britain (and which I am entirely defirous of allowing to Sweden in the fame or fimilar circumftances) is, that the nature of the prefent war does give this country the rights of war, relatively to neutral ftates, in as large a measure as they have been regularly and legally exercised at any period of modern and civilized times. Whether I eftimate the nature of the war juftly, I leave to the judgment of Europe, when I declare that I confider this as a war in which neutral ftates themselves have an interest much more direct and fubftantial than they have in the ordinary, limited, and private quarrels (if I may fo call them) of Great Britain and its great public enemy. That I have a right to advert to fuch confiderations, provided it be done with sobriety and truth, cannot, I think, reafonably be doubted; and if authority is required, I have authority, and not the lefs weighty in this queftion for being Swedish authority; I mean the opinion of that diftinguished perfon, one of the moft diftinguished which that country (fertile as it has been of eminent men) has ever produced-I mean Baron Puffendorff: the paffage to which I allude is to be found in a note of Barbeyrac's on his larger work, l. viii. c. 6. f. 8. Puffendorff had been confulted in the beginning of the prefent century, when England and other ftates were engaged in the confederacy against Louis XIV. by a lawyer upon the continent, Groningius, who was defirous of fupporting the claims of neutral commerce, in a treatife which he was then projecting. Puffendorff concludes his answer to him in thefe words:

"I am not surprised that the northern powers fhould confult the general interefts of all Europe, without regard to the complaints of fome greedy merchants, who care not how things go, provided they can but fatisfy their thirft of gain. Those princes wifely judge that it would not become them to take precipitate measures,

measures, whilst other nations are combining their whole force to reduce within bounds an infolent and exorbitant power which threatens Europe with flavery, and the Proteftant religion with deftruction. This being the interest of the northern crowns themfelves, it is neither juft nor neceffary, that, for the present advantage, they should interrupt fo falutary a defign, especially as they are at no expense in the affair, and run no hazard."

In confidering the cafe, I think it will be advifable for me, first, to state the facts as they appear in the evidence; fecondly, to lay down the principles of law which apply generally to fuch a ftate of facts; thirdly, to examine whether any special circumftances attended the tranfaction in any part of it, which ought in any manner or degree to affect the application of these principles. [For the facts, fee cafe, p. 3 of this volume.]

What do thefe atteftations (uncontradicted atteftations) prove? To my apprehenfion they prove most clearly thefe facts: That a large number of veffels, connected altogether with each other, and with a frigate which convoyed them, being bound to different ports in the Mediterranean, fome declared to be enemy's ports and others not, with cargoes confifting, among other things, of naval stores, were met with, clofe upon the British coaft, by his Britannic Majefty's cruifers: that a continued resistance was given by the frigate to the act of boarding any of these veffels by the British cruifers; and that extreme violence was threatened, in order to prevent it; and that the violence was prevented from proceeding to extremities only by the fuperior British force which overawed it: that the act being effected in the night, by the prudence of the British commander, the purpose of hoftile refiftance, fo far from being difaɣowed, was maintained to the last, and complaint made that it had been eluded by a stratagem of the night that a forcible recapture of one veffel took place, and a forcible capture and detention of one British officer who was on board her, and who, as I understand the evidence, was not releafed till the fuperiority of the British force had awed this Swedish frigate into fomething of a ftipulated fubmiffion.

So far to the general facts. But all this, it is faid, might be the ignorance or perverfenefs of the Swedish officer of the frigate; the folly or the fault of the individual alone. This fuggeftion is contradicted most forcibly by the two fets of inftructions, those belonging to the frigate, and thofe belonging to the merchantvellels.

It is faid, that the inftructions to the frigate are intended only against cruifers of Tripoli, and an affidavit has been brought in to fhow that that government had begun hoftilities against the Swedes. The language,, however, of thefe inftructions is as univerfal as language poffibly can be; it is pointed against the "fleets of any nation whatever." It is, however, faid that this was merely to

avoid giving offence to the Tripoline government. But is the Tripoline government the only government whofe delicacy is to be confulted in fuch matters? Are terms to be used alarming to every other ftate, merely to fave appearances with a government which, they allege in the affidavit referred to, had already engaged in unjust hostility against them? There is, however, no neceffity for me to notice this fuggeftion very particularly, and for this plain reason, that it is merely a fuggeftion neither proved nor attempted to be proved in any manner whatever; and the res gefta completely proves the fact to be otherwife, because it is clear that if it had been so, the commander of the frigate must have had the moft explicit instructions to that effect.

The terms of the inftructions are these; they are incapable of being misunderstood: "In case the commander should meet with any ships of war of other nations, one or more of any fleet whatever, then the commander is to treat them with all poflible friendship, and not to give any occafion of enmity; but if you meet with a foreign armed vessel which thould be defirous of having further affurance that your frigate belongs to the King of Sweden, then the commander is by the Swedith flag and falute to make known that it is fo; or if they would make any search amongst the merchant-veffels under your convoy, which ought to be endeavoured to be prevented as much as poffible, then the commander is, in case such thing should be insisted upon, and that remonftrances could not be amicably made, 'and that notwithstanding your amicable comportment the merchant-ships should neverthelefs be violently attacked, then violence must be oppofed against violence." Removing mere civility of expreffion, what is the real import of these instructions? Neither more nor less than this, according to my apprehenfion: "If you meet with the cruifers of the belligerent ftates, and they express an intention of visiting and searching the merchant-ships, you are to talk them out of their purpose if you can; and if you can't, you are to fight them out of it." That is the plain English, and, I prefume, the plain Swedish of the matter.

Whatever then was done upon this occafion, was not done by the unadvised rafhness of one individual, but it was an inftructed and premeditated act; an act common to all the parties concerned in it, and of which every part belongs to all; and for which all the parties, being affociated with one common intent, are legally and equitably answerable.

This being the actual state of the fact, it is proper for me to examine, 2dly, what is their legal ftate, or, in other words, to what confiderations they are juftly fubject according to the law of nations; for which purpose I ftate a few principles of that fyftem of law which I take to be incontrovertible.

It, That the right of visiting and fearching merchant-fhips upon the high feas, whatever be the fhips, whatever be the cargoes, whatever be the deftinations, is an inconteftable right of the lawfully commiffioned cruifers of a belligerent nation. I fay, be the fhips, the cargoes, and the deftinations what they inay, becaufe, till they are vifited and fearched, it does not appear what the fhips, or the cargoes, or the deftinations are; and it is for the purpofe of afcertaining thefe points that the neceflity of this right of vifitation and search exilts. This right is fo clear in principle, that no man can deny it who admits the legality of ma ritime capture; because, if you are not at liberty to afcertain by fufficient inquiry whether there is property that can legally be captured, it is impoffible to capture. Even thofe who contend for the inadmiffible rule, that "free fhips make free goods," muft admit the exercife of this right, at least for the purpose of afcertaining whether the fhips are free thips or not. The right is equally clear in practice; for practice is uniform and univerfal upon the fubject. The many European treaties which refer to this right, refer to it as pre-exifting, and merely regulate the exercife of it. All writers upon the law of nations unanimoufly acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In fhort, no man in the leaft degree converfant in fubjects of this kind has ever, that I know of, breathed a doubt upon it.

The right muft unquestionably be exercifed with as little of perfonal harfhnefs and of vexation in the mode as poflible; but foften it as much as you can, it is ftill a right of force, though of lawful force; fomething in the nature of civil procefs, where force is employed, but a lawful force, which cannot lawfully be refifted. For it is a wild conceit, that whatever force is ufed, it may be forcibly refifted: a lawful force cannot lawfully be refifted. The only cafe where it can be fo, in matters of this nature, is in the ftate of war and conflict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force. But in the relative fituation of two countries at peace with each other, no fuch conflicting rights can poflibly co-exist.

2dly, That the authority of the fovereign of the neutral country being interpofed in any manner of mere force, cannot legally vary the rights of a lawfully commiffioned belligerent cruifer; [ fay legally, becaufe what may be given, or be fit to be given, in the administration of this fpecies of law, to considerations of comity or of national policy, are views of the matter which, fitting in this court, I have no right to entertain. All that I affert is, that legally it cannot be maintained, that if a Swedish commillioned cruifer, during the wars of his own country, has a right by the law of nations to vifit and examine neutral hips, the

King of England being neutral to Sweden, is authorized by that Jaw to obftruct the exercife of that right with refpect to the merchant-fhips of his country. I add this, that I cannot but think that, if he obftructed it by force, it would very much refemble (with all due reverence be it spoken) an oppofition of illegal violence to legal right. Two fovereigns may unquestionably agree, if they think fit (as in fome late inftances they have agreed), by fpecial covenant, that the prefence of one of their armed fhips along with their merchant-hips, fhall be mutually understood to imply that nothing is to be found in that convoy of merchantfhips inconfiftent with amity or neutrality; and if they confent to accept this pledge, no third party has a right to quarrel with it any more than with any other pledge which they may agree mutually to accept. But furely no fovereign can legally compel the acceptance of fuch a fecurity by mere force. The only fecurity known to the law of nations upon this fubject, independent of all fpecial covenant, is the right of perfonal vifitation and fearch, to be exercifed by thofe who have the intereft in making it. I am not ignorant, that amongst the loofe doctrines which modern fancy, under the various denominations of philofophy and philanthropy, and I know not what, has thrown upon the world, it has been within thefe few years advanced, or rather infinuated, that it might poffibly be well if fuch a fecurity were accepted. Upon fuch unauthorized speculations it is not neceffary for me to defcant the law and practice of nations (I include particularly the practice of Sweden when it happens to be belligerent) give them no fort of countenance; and until that law and practice are new-modelled in fuch a way as may furrender the known and ancient rights of fome nations to the prefent convenience of other nations (which nations may perhaps remember to forget them, when they happen to be themfelves belligerent), no reverence is due to them; they are the elements of that fyftem which, if it is confulent, has for its real purpofe an entire abolition of capture in war; that is, in other words, to change the nature of hoftility, as it has ever exifted amongst mankind, and to introduce a ftate of things not yet feen in the world, that of a military war and a commercial peace. If it were fit that fuch a ftate fhould be introduced, it is at least neceffary that it fhould be introduced in an avowed and intelligible manner, and not in a way which, profelling gravely to adhere to that fyftem which has for centuries prevailed among civilized ftates, and urging at the fame time a pretenfion utterly inconfiftent with all its known principles, delivers over the whole matter at once to eternal controverfy and conflict, at the expenfe of the conftant hazard of the harmony of ftates, and of the lives and fafeties of innocent individuals.

3dly, That the penalty for the violent contravention of this right, is the confifcation of the property fa withheld from vifita