In cases, even where the tribunal has an equal relation to both the parties, it has ever been deemed proper, that the rules of decision should be as plain and as determinate as possible; in order not only, that they might be the surer guide to those who are to observe them; but also a better guard against the partialities and errors of those who are to apply them. Say, then, whether it be not an abandonment of every reasonable

belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question, exactly as he would determine the same question if sitting at Stockholm; to assert no pretension on the part of Great Britain, which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question."

Does the judge either sustain these lofty pretensions, or justify the declaration of his government to Prussia, when, a few months after, in the case of the Immanuel, [2 Rob., 169,] he observes to the bar, "that much argument has been employed on grounds of commercial analogy; this trade is allowed; that trade is not more injurious; why not that to be considered as equally permitted? The obvious answer is, that the true rule to this court is, the text of the instructions. What is not found therein permitted, is understood to be prohibited, upon this general plain principle, that the colony trade is generally prohibited, and whatever is not specially relaxed continues in a state of interdiction."

He is not extricated from these inconsistencies by alleging that the instructions, the text of which was taken as his rule, was a relaxation of the law of nations within the prerogative of the crown, and favorable to the interests of the netural parties.-1. Because it was incumbent on him, if he meant to keep himself above all executive interference with the course of justice, to have reserved to him the right to test the instructions by the law of nations, instead of professing so ready and so unqualified a submission to the text of them. 2. Because without examining the extent of the royal prerogative, which depends on the local constitution and laws, it has been shewn that, in some respects, the instructions have extended the belligerent claims against neutral commerce beyond the law of nations, as asserted on the part of Great Britain.

precaution, while the judges have in their national prejudices, in the tenure of their official emoluments, and in their hopes of personal advancements, an exclusive relation to one of the parties; say whether it be not unreasonable to leave to the opinion, perhaps to the conjectures of a tribunal so composed, the questions whether in a distant quarter of the globe a particular trade was or was not allowed before the war, whether

*How far the authority of this instructions has been pursued by the Hight court of Admiralty, in opposition to precedents of the Superior court settling the law of nations, is a fit subject of enquiry, for which the adequate means are not possessed.

The opinion has long and generally prevailed, that the Admiralty courts in England were not those independent and impartial expositors of the law of nations which they have professed to be; but rather the political organs of the government, so constituted as to deliver its occasional and shifting views, with reference to the occasional and shifting interests of the nation, belligerent and commercial. And it is to be regretted that this opinion is but too much countenanced by the series of royal orders and judicial decisions which the last and present war have produced. It would be an unjustifiable sacrifice of truth to complaisance, not to say, on the present occasion, that with all the merits of the illustrious civilian who presides in the high court of Admiralty, the Englishman at least is often discerned through the robes of the judge.

This want of confidence in the impartiality of the admiralty courts is the less surprizing, when it is considered that the Lords of Appeal, who decide in the last resort, are frequently statesmen, not jurists; that they not only hold their seats in that court at the most absolute pleasure of the crown, but are members of the cabinet, and it may be presumed, are, in that capacity, the original advisers and framers of the very instructions, which in their judicial capacity they are to carry into effect.

With respect to the inferior prize courts, orders directly addressed to them are neither unusual nor concealed. As an example, take the orders communicated to Mr. King by Lord Hawkesbury, above cited. Another example is furnished by the orders communicated to this government through Mr. Merry in 1804, as having been addressed to the vice admiralty courts in the West Indies, as a rule on the subject of blockades.

* See the case reported by Robinson, vol. 4, p. 267, of a vessel in the trade to Senegal, and the difficulty, expence, and delay in ascertaining

if not allowed before the war, its allowance during the war, proceeded from causes distinct from the war, or arising out of the war; whether the allowance had or had not been common to all wars; whether again, if resulting from the particular pressure of the war, the pressure amounted to a necessity; whether if amounting to a necessity, the necessity resulted from an impossibility, imposed by a decided predominance and superiority at sea, of the adverse party? These are not questions of fancy or of unfairness. They are questions which it has been seen, that the enlightened judge in the British high court of admiralty has himself recognized as involved in the principle for which he contends. But they are questions in their nature improper to be decided by any judicial authority whatever; and in their importance, they are questions too great to be left even to the sovereign authority of a country where the rights of other sovereigns are to be the object of the decision.

Finally: The belligerent claim, to intercept a neutral trade in war not open in peace, is rendered still more extravagantly preposterous and pernicious, by the latitude which it is now assuming. According to late decisions in the British courts, it is in future to be a rule, that produce of an enemy's colony, lawfully imported into a neutral country, and incorporated into its commercial stock, as far as the ordinary regulations of a sovereign State can work such an effect, is to be subject on re-exportation to capture and condemnation; unless it can. be shewn that it was imported in the preceeding voyage, with

whether the trade was or was not open before the war. A case (of Coffin, an American citizen) is now depending, which involves the question, whether the trade from the island of Java in the East Indies, to Muscat in the Persian gulph, was or was not open before the war. This question was decided in the first instance by a vice-admiralty court at Ceylon; and will probably be removed to Great Britain for a re-examination. The case, therefore, will have for its space three quarters of the globe. Through what period of time it may extend is a problem to be decided. There are precedents, as has been already seen, for ten years at least.

an intention that it should not be re-exported. Consider for a moment the indignity offered to a neutral sovereign in subjecting the integrity of its internal regulations to the scrutiny of foreign courts, and to the interested suspicions of belligerent cruizers; consider the oppression on the individual traders, inseparable from a trial in a distant court, and perhaps an appeal to another court still more distant, where the intention of an antecedent voyage is to be traced through all the labyrinth of mercantile transactions. A neutral vessel goes to sea, with a cargo consisting, in whole or in part, of colonial produce. It may be the produce of a neutral colony. It may be the produce of the country exporting it: The United States already produce cotton, sugar, rice, &c., as well as the West Indies. The cruizer does not forget, that the proof will probably be thrown on the claimants; that besides the possibility that it may be a licensed capture, the difficulty of proof may have the same effect in producing condemnation. He recollects also that in the event of an acquittal the costs* will, where there is the least color for seizure, be thrown on the claimants; and that, at the worst, he can only be put to the inconvenience of giving up a few men to take charge of the prize, in exchange for a few others, not unfrequently impressed into the vacancy. In a word, his calculation is, that he may gain, and cannot lose. Will not, under such circumstances, every hogshead of sugar, or bale of cotton, or barrel of rum, &c., be a signal for detention? Could ingenuity devise a project holding out a more effectual premium for the multiplication of vexations searches and seizures, beyond even the ordinary proportion of condemnations? A project, in fact, more unjust in itself, more disre

* It is well known to be the practice to favor the activity of cruizers against the colonial trade. Sir William Scott in the case of the Providentia, in which the ship and cargo were restored-2 Rob., 128, says,

Cases respecting the trade of neutrals with the colonies of the enemy are of considerable delicacy; and I therefore think it has been properly brought before the court."

spectful to neutral notions, or more fatal to the liberty and interests of neutral commerce? Would Great Britain be patient under such proceedings against her, if she held in her hands, the means of controuling them? If she will not answer for herself all the world will answer for her, that she would not, and what is more, that she ought not.

TO JAMES MONROE AND WILLIAM PINKNEY.

GENTLEMEN,

D. OF S. MSS. INSTR.

DEPARTMENT OF STATE May 17-1806.

I herewith enclose a Commission and letters of credence authorizing you to treat with the British Government concerning the maritime wrongs which have been committed, and the regulation of commerce and navigation, between the parties. Your authority is made several as well as joint, as a provision for any contingency depriving either of the co-operation of the other.

The importance of the trust is evinced by its being made the occasion of an Extraordinary Mission, as well as by the subjects which it embraces. And I have great pleasure in expressing the confidence which the President feels in the prudence and talents to which the business is committed.

It is his particular wish that the British Government should be made fully to understand that the United States are sincerely and anxiously disposed to cherish good will and liberal intercourse between the two nations, that an unwillingness alone to take measures not congenial with that disposition has made them so long patient under violations of their rights and of the rules of a friendly reciprocity; and when forced at length by accumulating wrongs to depart from an absolute forbearance, they have not only selected a mode strictly pacific, but in demonstration of their friendly policy,