[ORDERS IN COUNCIL.] Lord Erskine | decision, have been put aside by the preIt has therefore been rose and spoke nearly as follows:-My vious question. lords; the Resolutions, which I had the thought right to prepare the Resolutions, honour on a former day to read in my which I am presently to propose to you, place to the house, and which I am pre- and to frame them in such a manner as to sently about to propose to your lordships embrace the whole subject: they therefore to adopt, involve a higher and more ex- declare the right of neutral nations to the tensive consideration than even the justice commerce secured to them by the general and effect of the late Orders in Council, law of the civilized world, and by the paras they regard the United States of Ame- ticular laws and statutes of this realm; rica, momentous as that consideration un- they deny the legality of the Order in doubtedly is. They involve no less a Council of the 11th of Nov. and the others question, (I speak most advisedly when I dependent upon it, as being a gross violasay it,)—they involve no less a question, tion of both, and they maintain these prothan the very existence of that whole positions, not in loose and general terms, system of conventional public law, which so as to lead again to the shelter of a dehas contributed so much to advance the sultory debate, but, in language most techcivilization, and to secure the happiness of nically precise, they point out the law as the world. They involve no less a question, it exists, and mark all the departures from than_whether the tyranny of revolution- it which they condemn.—When the matary France shall terminate its destructive ter is therefore brought to this direct issue career in the temporary sufferings of thei. e. whether the late Orders in Council nations now subject to its dominion; whether it shall exhaust its force upon the persons and properties of the present generation in the temporary exactions of conquest; or, whether that dominion shall extend itself over the human mind in all countries and in all ages; whether it shall repeal and trample in the dust all the sanctions of morals and policy, which the wisdom of ages has ripened into universal law, for universal security and peace. G. Britain alone can answer this question for the world: she alone can pronounce, whether the injustice of France shall be received as a warrant for universal injustice, or whether, standing as we do, upon this proud eminence, surrounded by that impregnable moat with which the Divine Providence has fortified this island, we can say, as the instrument of that providence, to the portentuous evils which so remarkably characterize this unexampled period, Thus far shall ye advance, and no farther.'-My lords, although this momentuous subject has been repeatedly, and in various shapes, presented for your consideration, I am sorry to be obliged to observe, that it has not as yet been received by his majesty's ministers in such a manner, as either the house or the pub-question were, what punishment I, who lic, but, above all, as other nations, had a have the honour of addressing your lordright to expect from a British parliament. ships, should receive from a court of jusThe breach of the law of nations by mi- tice, whose judgment was discretionary, nisters has been put aside by irrelevant for an offence against the law, of which I recriminations upon supposed breaches of had been convicted, every topic would the same law by others; and the facts, undoubtedly be relevant to shew that my from the establishment of which the legal mind was innocent, and that I had offended argument could alone be brought to a from ignorance of my duty: but if the VOL. X. 30

are justified by, or contrary to, the law of nations, and the law of the land, and when, as a peer of the realm, I arraign them in this great public council as a violation of both, can it possibly be any answer to such charges, that a former administration of the king's government was guilty of a similar violation? Can we, sitting here as statesmen representing the whole British people, so abuse their interests and insult their feelings in such distressing and perilous times?-If, indeed, the breach of the law had been established or admitted, and the question before us were the degree of blame imputable to ministers for having so mistaken the public interests and the law, it might deserve consideration whether they had been led into such error by the conduct of their predecessors, and the faith reposed in their administration. But when the question is thus brought to a precise legal issue, in which ministers and their predecessors are not the contending parties: but where the rights of the whole British empire, and of all nations, are to be settled by parliament, every man, I should think, must admit how inadmissible, or rather how perfectly frivolous, such an If, for instance, the argument must be.

called upon to consent to. For my own part, my lords, I would rather cast into the fire the patent which entitles me to sit among your lordships, than give my consent to any statute, even though I ap proved of its provisions, if I saw upon the face of it a distinct assumption of the dispensing power of the crown, not even assumed to be justified under the necessity of the case, but recited on the face of the act as a legal proceeding, requiring only the aid of parliament to give effect to additional enactments of revenue. If this should grow up into a practice, what have we gained by the revolution? No man, my lords, can be a greater enthusiast than I am upon every thing connected with that glorious æra, nor more attached to the establishment of his majesty's illustrious family, which stands for its support upon the principles which placed it on the throne; an attachment which I feel the stronger, from an affection for their persons; (for the illustrious person, among the rest, who sits so very near me). But, my lords, I had much rather that king William had never set his foot in England, than that the dispensing and suspending powers should lose all their former terrors, and that ministers should be permitted to trample upon the laws at their pleasure, without even the shadow of public neces→ sity, without even the trouble of consider

the alliance of a powerful and numerous those communications, instead of dependpeople, and thereby complete the combi-ing, as I fear they have, upon the flatteries nation of the whole world against our coun- and deceptions of the interested and the try: yet they not only did not call parlia- ignorant.-But, my lords, the worst is still ment together for its counsel, on an occa- behind. Ministers, instead of asking insion so new and so difficult, but even pre-demnity for these illegal acts, upon the vented it from assembling, by repeated footing of their necessity and justice, make prorogations. Was parliament thus re- them the foundation of an act of parliapeatedly prorogued because the measurement, which we may expect soon to be was within the king's power, and because they had so considered it in all its bearings that the assistance of parliament was unnecessary? My lords, it was a manifest extension of the king's power, as I shall soon demonstrate to your lordships; and had it even been clearly within it, the subject was not only too complicated for the private councils of the crown, but ministers had not at all considered even its certain consequences and effects, nor was the subject indeed within the reach of the most enlightened statesman, without the aids which committees of parliament could have furnished:-the truth of this observation is best supported by the fact. They issued the first Order, though it was to have its operation upon distant nations, without the notices which, in less than week afterwards, they acknowledged to have been indispensible; and they suffered it to find its way, in the gazettes, in that unjust and imperfect state, to every port in America. They were then surrounded by the merchants of London (I wish the siege had been continued), and were obliged to issue new Orders, which were styled Supplemental, but which were manifestly repugnant and inconsistent: these were afterwards illustrated by explanations, which, in their turn, required explanation; and when parliament was, at last, permitted to assemble, after so many public marks of rashness and pre-ing whether they were breaking them or cipitation, ministers have been obliged, no; and that it should become a mere day after day, to abandon some of the most matter of course, without even the form of essential parts of their system, after they an indemnity, to recite their usurpations had but too probably increased the irrita- upon the face of our statutes, eking out tion which they were at that very moment their measures, through the forms of parendeavouring, by public embassy, to com- liament, just at any point they may choose, pose.My lords, if parliament, had been in their, moderation, to stop at, in their assembled, how different might have been fearless encroachments on the constitu→ our present situation, Ministers would tion. My lords, I would rather have an then have had only to propose their sys- arbitrary king, with a jealous and a free tem, without being committed to it, and, parliament, than see such an habitual deperhaps, fatally committed to other na-parture from all the securities which have tions. The most eminent merchants would then have furnished independent lights to the committees of parliament, and the councils of the country would then have been governed by the public results of

characterised for ages the government of our country. My lords, I will now read the third Resolution, which brings us to the great subject of deliberation." That the law of nations is a part of the law of

*

become fixed and settled by usage, con-
firmed by precedents, and illustrated by
the writings of learned men. These prin-
ciples have also been adverted to, and
ratified by treaties between civilized na-
tions in all ages, and it seems admitted to
me that this public law, (but for the con-
juncture under which the late Orders in
Council are sought to be justified,) esta-
blishes that countries not engaged in war,
nor interposing in it, shall not be affected
by the differences of contending nations:
but, to use the very words of the eminent
judge who now presides with so much
learning in the Court of Admiralty,
the breaking out of a war," I read from
the first volume of Dr. Robinson's Reports,

upon.

the land, and that neutral nations, not interposing in the war between his majesty and his enemies, have a legal right to such freedom of commerce and navigation, as is secured to them by the law of nations."-This Resolution I might also assume without argument, because the law and practice of nations, as they regard the commerce of neutrals in ordinary wars, have been repeatedly and distinctly admitted by the authors of the Orders in question, who have justified them only by the necessity of the extraordinary conjuncture. But as a kind of distinction appeared to me to have been taken the other night between the law of nations and the practice of nations, which last I consider to be but the evidence of the former," it is the right of neutrals to carry on though probably this distinction exists their accustomed trade, with an exception only in my misapprehension of what was of the particular cases of a trade to blocksaid, I think it my duty to state not only aded places, or in contraband articles, and the rights of neutrals, as they are secured of their ships being liable to visitation and by the law of nations, but also the foun- search." The learned judge afterwards dation of the law itself which secures explains the meaning of an accustomed them; because this course of pursuing the trade in the most correct and satisfactory subject will enable me to establish a prin- manner, and which will be found hereciple which will protect the whole argu- after to be a most material explanation. ment we are engaged in, that the law of After stating the inconveniences which nations, whatever its provisions shall be war brings upon neutrals, under the most found to be, as applicable to the subject impartial administration of the public law, before us, cannot, when once settled, be he remarks, that still the inconveniences altered or dispensed with by any particu- are more than fully balanced by the enlar state. In addressing ourselves to this largement of their commerce; "because, great question, let it be remembered, first from the interruption to the trade of belliof all, because it will greatly shorten the gerents, it falls in some degree into the discussion, that the law of nations, as it lap of neutrals.' He says also, that applies to the matter before us, grows en- though a neutral has a right to carry on tirely out of war: that it can have no in time of war his accustomed trade, " yet existence but in consequence of war, nor he is not to enlarge it by carrying on a any possible application but to a state of trade which he holds by no use or habit in war, and, therefore, to say that by a war time of peace." Subject, then, to these prerogative in the constitution of any par- exceptions, the commerce of neutral naticular government, its executive power, tions stands upon this high and most mobeing no more than a branch of that go- dern authority in our own country, in the vernment and without legislative authority midst of the war with revolutionary France, (if legislation itself could reach it), to say untouched by the contentions, or particuthat its executive power becomes absolute lar interests, or conveniences of belligerent over the rights of neutrals, and may, dur-powers.-I am ready, however, to admit ing war, disregard that conventional law established amongst nations only as a rule during war, would be not only not sound reasoning, but downright vulgar nonsense. The law of nations, as it regards this subject, is shortly and simply this-That to mitigate as much as possible the cala-principles of reason and justice. It is mities and sufferings of warfare, and to confine them to powers belligerent, nations have found it convenient mutually to adopt certain principles, which, like the common law of our own country, have

that this is only the ordinary condition of neutrals, whilst belligerents observe the law of nations towards one another. I admit that a different state of things may arise, concerning which, however, the public law is not silent, but observes the same

better at once to state the very case which produces the whole controversy, rather than imagine others, the application of which may be disputed.-France issued her decree of the 21st of Nov. 1806, which

(taking it, for the present, in its severest | give me not merely the same path through
interpretation, untouched by any subse-
quent constructions), announced a resolu-
tion to distress this country in a manner
unauthorized by public law; subjecting to
capture the ships and cargoes of neutrals
carrying British commodities and manu-
factures, or going to, or coming from G.
Britain, with their accustomed trade. Such
a decree undoubtedly announced a rule
which the law of nations forbids, as being,
even as between belligerents, (indepen-
dently of the rights of neutrals) an aggrava-
tion of the sufferings of war which humanity
and wise policy equally forbid, and which
is, therefore, unauthorised by the practice
of civilized states; such a decree (if carried
into execution) would invest the bellige-
rent with a right of retaliation; and, in-
deed, as between the belligerents only, I
am not at all anxious to dispute whether
the very publication of such an unjust or-
dinance would not authorize the bellige-
rent, so offended, to disregard the law of
nations towards the adversary as far as it
touched him only: but it would be an
utter perversion of the very term retalia-
tion, to carry it a hair's breadth further,
until some act was done under the decree,
as against a neutral, by which the wrong
done to, and suffered by, the neutral, be-
came injurious in its effect to the offended
belligerent. It is, indeed, quite astonish-
ing to hear the word 'retaliation' twisted
and perverted in a manner equally repug-
nant to grammar and common sense. Re-
taliation, in the strict, and literal, inter-
pretation of the word, from re and talio, as
you have it in all your dictionaries, signi-
fies to return like for like. Therefore, but
for the particularity of the case, the term
retaliation could apply only to the return
of like for like upon the enemy
who com-
mitted the injurious act: by like for like,
I do not mean that the act of retaliation,
as against the enemy, must be the same as
the enemy's, which would be quibbling
with the subject; because, as against him
who injures me, I may return whatever
is necessary to repel the injury suffered,
and to secure me against its consequences.
It was never, therefore, contended, as was
lately supposed by a noble lord, that if an
enemy violated a neutral territory in the
prosecution of his hostility, the other bel-
ligerent could only follow him as if he
were hunting him upon the scent: cer-
tainly not. There the neutral, from wrong
or from weakness, is made the direct in-
strument of attack, and he is bound to

his territory, thus violated, but any path
which will best enable me to avert the
danger arising from the former violation.
-All that argument, therefore, is wholly
beside the question, and tends only to con-
found it. So if A strikes me, I may reta-
liate by striking A; and my noble and
learned friend, who sits near me, knows
that the law does not restrict my blow to
the weight of the adversary's, but allows
me to justify whatever is necessary to
repel it, and to save me harmless. But it
is a new application of the term retalia-
tion, that if A strikes me, I may retaliate
by striking B. Here the phrase cannot
apply, either in grammar, common sense,
or justice; unless B can some how or
other be justly implicated in the offence
committed upon me by A: the thing is
really so self-evident, that the mind gets
entangled and darkened by endeavouring
to make it plainer.—If the Decree, inter-
dicting neutrals from trading with us, or
visiting our ports, is executed upon a neu-
tral, it is an interdiction which he has no
right to submit to, because the moment it
is executed we are injured by the inter-
ruption of his commerce with us. If he
submits from favour to the unjust bellige
rent, he directly interposes in the war,
and the neutral character is at an end
retaliation then would not only be strictly
applicable, but just and legal, and if he
submits from weakness, or from any other
cause not hostile or fraudulent, we have
an unquestionable right, without any in-
vasion of neutrality, to insist, that what he
suffers from the enemy he shall consent to
suffer from us, otherwise he would keep
an open trade with the enemy at our ex-
pence, relieving him from the pressure of
the war, and becoming an instrument of
its illegal pressure upon us.
In that case
also the term retaliation, though not ap-
plicable perhaps in literal strictness, as it
applies to the neutral, is substantially and
justly applicable to him; because it is in
fact retaliation upon the enemy, through
the sides of the neutral, in a case where
the injury to us cannot exist without the
participation of the neutral, in doing or
suffering, by either of which our com-
merce is alike interrupted. But I cannot,
my lords, conceive any thing more pre-
posterous and senseless, than the idea of
retaliation upon a neutral on whom the
decree has never been executed, because
it is only by its execution on him, that we
can be injured: what possible right then