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SOME ACCOUNT 



oa THK 



LIFE, WRITINGS, AND SPEECHES 



OF 



WILLIAM PINKNEY. 



BT HENRT WH£ATON. 



ArdebAt capiditate lie, «t ii avllo anqoam flag-raatiu ttiidiiim ▼iderioi, £nt Id tw^ 
bormn tpleadora elef uu, conpotitioM apcu, facaltsto eopiotui: ia diiMrando mira azpli- 
aailio ; t/um da jara eivillt can da •900 et boao ditptttaiatar. aifvm«atontai «t similitadi- 
aaifr#i»pia. Cie. BnUm. 



MEW-TORK: 

PUBLISHED BY COLLINS Ss Co. 

1826. 



J. ir. pMlmsr^C** Print. 
?. 



\ 



V ^ . , . t 









89uthem DUtrietof JVeiv- York, u. 

BR IT RKM KMBCRED, that on the 28th day of AprU, A. D. 1826, in the 
50th year of the independence of the United States of America, Heniy 
Wheaton, of the said District, hath deposited in this offic«> the title of a book, 
the right whereof he claims as proprietor, in the words following, to wit : 

** Some Account of the Life, Writings, and Speeches of William Pinknej." 
By Henry Wheaton. Ardebat cupiditate sic, ut in nuilo unquam flagran- 
tius studium riderim. Erat in Terborum splendore elegans, compositione 
aptus, facultate copiosus: in disserendo mira ezplicatio: cum dejure civili, 
cam de lequo ei bono disputaretur, argumeniorum et similiiudinum 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 Mapi| 
Charts, and Books, to the authors and proprietors o/ such copies during the 
time therein mentioned." And also to hu Act, entitled *' An Act supplemen- 
tary to An Act, entitled an Act for the encouragement of Learning, by se- 
curing the copies of Maps, Charts, and Books, to the authors and 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 
otiier prints." 

JAMES DILL. 
Clerk of the Souihem IHdrici of Jfevh- York. 












CONTENTS. 



PART FIRST. 

Pag* 
Blemoiri PriTate CorrespondeDce, kc • 6 

PART SECOND. 

No. L — Opinions delivered at the Board of C^ommiisionerf, qpder the 
7th Article of the Treaty of 1794, between the United States 

and Great Britain 198 

No. II.— Memorial on the Rule of the War of 1766 872 

No. III. — ^Private Correspondence with Mr. Madison • • .^ • 897 

Vo. IV. — Speech im the Case of the Nereide 466 

No. V. — Speech in the Mouse of ReprescntatiTes on the Treatj-Making 

Power 517 

No. y I.—- Argument on the Right of the States f o tas^ the National 

Bank 660 

No.Vn.'^Speech on the Missouri Question. •••• 578 

No. VUl.— Opinion in the Case of Cohens against the State of Vir- 
ginia... 612 



V 



ERRATA. 
Page 113, L 7— for " matter,'* read maaUrt. 

1. 15— for " unto," read into. 
Page 131, 1. 29— for « our," read an. 

DIRECTION TO THE BINDER* 

Portrait to face title-page. 
Fac-gimile to face Part II, page 103. 



SOME ACCOUNT 

OF THB 

LIFE, WRITINGS, AND SPEECHES 

OF 

WILLIAM PINKNEY. 



PART FIRST. 



William Pinknst 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 

2 



[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 was 
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 1 786, for the 
purpose of pursuing the practice of his profes- 
sion, and in April, 1 788, 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 1 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 ray 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 
continued 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, daughte'r of John 
RodgerSy 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 author 
rity to require other qualifications than those enu- 
merated in the constitution of the JJnited 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 1 788, he 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 enthusiaam 
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 friend 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." 

'^ Mr. Speaker — As I have formerly had the honour of giving 
no J sentiments to the House of Delegates, on the measures now un - 
der their consideration, and tho 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 Carejf*t iftueum, ro\. ri. p. 74. 



[9] 

^ That I htvc every possible reason to be discouraged from 
tbe prosecution of regulations of this sorty it would be foHy 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 iermeiity and 
Livished the blood of thousands in defence of its Uberties, against 
the encroachments of an arrogant and abandoned govern- 
tataif tbe cause of freedom was yet the most unpopular in which 
an advocate could apylear. 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 deieat, 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 far 
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. 

<<Slr — ^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 tb^ commu- 
nity, they ought to receive the peculiar attention, the impartial, 
deliberate decision of the legislature. 

'* But, while the illuMons 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 dogs 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 iU unportance 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 npon the pr<^pontions of the committee | and I call upon 



/ 

I 



[ 10] 

those who differ from me, to watch every asdertion and every 
argument I advance, and if they can refute the one, or contra- 
dict the other, I yield the point for ever. 

^* I ahall not detain you, ^r, 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 mere 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 jto 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 daring his last sickness, or at any time by last will and testa- 
ment ; that is when liberty (the great birdiright of every human 
creature) is to be restored to its plundered proprietor, you must 
be careAil 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 surely be no 
easy task ; to show that, let them be what they may, an enl^;hten- 



/ 




[ H ] 

ed i^ftlature should bhsh to own theoiy a school boy would have 
sufficient ability. 

<' Sir, iniquitous, and most dishonourable to Maryland, is that 
dreary syston of partial bondage, which her laws have hitherto 
supported wldi a soliotude worthy of a better object, and her 
cMzens 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 inerehandise, its continuance is 
as shameful as its origin. 

'^ Eternal infamy await the abandoned miscreants, whose self- 
, ish souls could ever prompt them to rob unhappy Afiric of her 
sons, and freiglit them hither by thousands, to poison the'fair Eden 
of liberty with the rank weed 6i 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 fre ^jtm knew no votaries, and every pur- 
chaser would at once be both a master and a slave. 

^ In the dawn of time, when the rqugh feelings of- barbarism 
had got experienced the softening touches of refinement, such an 
unprincipled gjcpstration of the inherent rights of human nature 
would have needed the gloss of an apology ; but to the everiast- 
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- 
creati^res, and to -introduce an hereditary bondage in the bosom i 

of their country, which should widen with every successive ^ ; 
generation. 

^ For my own part, I would willingly draw the veil of obli- 
vion over this disgusting scene of iniquity, but that the present j 
abject state of those who are descended from these kidnapped 
sufferers, perpetually brings it forward to the memory. 

<^ But wherefore should we confine the edge of censure to onr 
ancestors, or those from whom they purchased ? Are not we 
equally guilty ? They strewed around the seeds of slavery ; we 
cherish and sustain the growth. They introduced the sjrstem ; 
we enlarge, invigorate, and confirm it« Yes, let it be handed 
down to posterity, that the people of Maryland, who could fly 



. [12] 

to arms with the promptitude of Roman cttieeos^ when the hand 
of oppression was lifted up against themselves ; who could be- 
hold their country desolated and their citisens glaughtered ; 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 M- 
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 immortalise their duration, so 
that a nation of slaves might fjpr 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 adr 
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 sttU 
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 commoitary. 

f< 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 yoitfh perhaps, 
bat 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 f 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 
aiteertor of human rights, and the patron of wanton oppression ? 
Here have emigrants from a land of tyranny found an asylum 



[ 13 ] 

from persecution, aad her« also have tkote who came as right* 
fully free as the winds -of heaven, found an eternal grave for the 
liberties of themselves and their posterity ! 

''In tlieoame of God, should we not attempt to wipe away this 
stigma, as far as the impressions of the times will ijlow ? If we 
dare not strain legislative authority «o as to root up the evil at 
once, let us do all we dare, and lop the exuberance of its 
branches, I would sooner temporise than do nothing. At least 
we should show our wishes by it. ^ 

^ But lest character should have no itiore than its usual weight 
with us, let us examine into the poKey of thus perpetuating slave- 
ry among us, |ind 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 experiqient 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 whioh 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 habifk 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 

m 

should glow with that generous ardour in the cause of freedom, 
which can alone save a government like ours from the lurking 
dsmon 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, wlien the 
talons of power w<tpe unclasped for our destruction ? HavcLyou 
no apprehensions left, that when the votaries of (freedom saerifice 
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 oyer others, will qpt in time be base enough to 



S 



I 



[ 14 ] 

let others lord it over ikem. If they resbt, it will be the struggle 
ofpritk and sdjishMesSy not oi principle. . 

^' There is do maxim in poHtics more evidently, just^ than that 
laws should he relative to the principle of governipent. But b 
the encouragement of dvil slavery^ by l^gnlative acts^ correspond- 
ent with the principle of a democracy ? Call that principle what 
.^ou will, the love of equality ^ as defined by some ; of liberty y as 
; understood by others ; such conduct is manifestly in violation of it. 

'^ To leave the principle of a governnlent to its own operatipni 
without attempting either to favour or undermine it, is often dan- 
gerous ; but tf) 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 itSs of the ut- 
^ most consequence that hutnan nature should not be debased or 

* dispirited ; there ought to be no slavery. In democracieM*y where 
< they are all upon an equality, and in aristocracies, where the 
^ laws ought to endeavour t<9 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 citiaens 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 
h^ve 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, iu commerce, 



^ 



[ 15] 

or its manufactures flourish, so long as they depend on ceiuctant 
bondsmen for their progress. 

<< ' Even the very earth itself/ (says the sam^ celebrated author) 
' which teems profusicm under the cultivating hi^ of the free- 
' bom 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 (ireedom 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 . 
efibrts 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. Th^ cause 
and'the efiect are too obvious to escape observation. 

^ HeBce, Mr. Speaker, instead of throwing obstacles and dis- 
couragements in the way of manumissions, prudence and policy 
dictate that nb 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 toob of usurpation ;' and I have heard allusions 
made to history for the confirmation of this opinion. Let, how- 
ever, the records. of ancient and modem events be scmtinized^ 
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-animated 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. 



^* How much more rational, Mr. Speaker, would it be to argue 
that slaves are the fit machines by which an usurper might effect 
bis purposes ! and Uiere is, therefore, nothing which a free go- 
vernment ou^ 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 raise 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^ith the Roman legions, that conquest 
should give them liberty, not a man disgraced himself by flight ; 
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 Inotives 
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 accomplbhed. Easy to be wrought upon, as 
well as powerful and active in its exertions, wherever it b not 
gratified there is danger. Gratify it, and you ensure your safety. 
Thus did SyUa think, who, before he abdicated the dictatorship, 
gave freedom to ten thousand slaves, and lands to a number of 
legions. By those 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 secui^d their fidelity and attachment 
for ever, and disposed them to support and revenge his' cause at 
every possible hazar^. Rome^knew Uiis, and therefore Sylla was 
secure in his retirement. 

^ This example shows that slaves arc 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, they have no fears of consequences. De- 
spoiled of their rights by tlie acts of goveniment 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 dq/solation, 



j^ 



^ 



[ 17 ] 

and to subvert the foundations of that liberty of vbich they have 
never pardcipated, and which they have only been permitted to 
envy in others. * 

^^ But where slaves are manumitted by governlhenty or in con*- 
sequence of its provisions^ the same motives which have attach- 
ed them to tyrants, when the act «)f emancipatioB has flowed 
from them, would then attadi them to government. They are 
then no longer the creatures of despotism. They ^fe bound by 
gratitude, as well as by interest, to seek the welfare of that coun- 
try from which they have d^iv^d the restoration of their plun- j 

. dered rights, and with whose prosperity their own is insepara- I 

bly involved. An apostacy from these principles, which form 
the good citizen, would, under such circumstances, be Aext to im- 
pbssible. When we see freed-men scrupulously faithfiil lo a law« 
less, abandoned villain, from whom they have received tiMir ■ 
liberty, can we suppose that they wlU reward the like bouiity of 
a free government with the turbulence of faction, or the seditious 
plots of treason ? He who best knows the value of a blessing, 
18 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 die 
number of slaves in a free g6vernment is no novdty in pieties, 
permit me once more to read a passage from Montesquieu. 

^* ' The multitude of slaves Is n6 grievance in a despotic state, - 
1 where the political slavery of the whole body takes awa^ the 
' sense of civU slavery. But in moderate states it is a point of die' 
^highest importance' that there should not Be a great numl»er of 
'slaves. The poHtiedl 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, liifnself withovtt any protection. He sees 
' his master has a soul that can enlarge itself, while his own b 
^ 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.' 



f 



[ 18 ] 

^' Not gradua} emancipatioos, therefore, but the extension of 
civil slavery, ought to cdarm us ; and in truth we are the only na- 
tion upon earth tliat ever considered the first as a ground of ap- 
prehension, or Ae last as a political desideratum. 

<< In £nglandy while bondage existed among that enlightened 
peopte, enfranchisements w^ie always encouraged by Parliament, 
and those who were entrusted with the administration of justice ; 
and throughput ail Europe indeed, after the introduction of Chris- 
tianity, the gloom of civil slavery gradually receded, as thiir 
horizon was enlightened by the dawn of political liberty. Even 
in India, where climate and the natur^ 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 era when the rulers, in a republic produced by 
the perfection of human reason, should forget the principles of 
thdr constitution, of that religion they profess, of the eternal. 

• 

laws of nature, nay, the suggestions of common prudence. When 
Eastern despots surpass us in humanitj^, when 'India affords an 
evidence of justice wliich 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 ha^e its advocates f ) ^^ thai nature has black-balled 
these wretches out of society." 

'^ Gracioos God ! can it be supposed that thy almighty Provi- 
dence intended to proscribe these victims of fraud and power 
jroi9 the pale of society, because ^ou hast denied them the deli- 
' cacy of an Europeiyn complexion ! Is this colour the mark oY 
divihe 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 persecuted every dissenter 
from his creed in the name of God, and even rears the horrid 
fabric of an inquisition upon heavenly foundations. 

tf I like 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 diese shackled wretches are men as well 
^ we are^ sprung from the same common parent, and endued 
wHh equal facdties of mind and body, is to know enough to 
make us disdain to turn casuists on thcjr complexions^ to the 
destmotion of their ^gfats. 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 vagile, 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-nii^ulating 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 mtrner. That an 
bumble, dusky, unlettered wretch that drags the chain of bondage 
through the weary round of life, with.no other privilege but that 
of existing for ajiother^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 out* 
inferiors ? ^Though they have never been taught to tread the 
path*s 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 thai they want the power, if tKe yoke of slavery did not 
check each aspiring eflbrt, and clog the springs of action ? Let 
the kind Iiapd of' an assiduous care mature their powers, let the 
genius of freedom excite to ma^ly 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 o{ virtuous im{Mressions 
as our own, and with mmds 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, 
mayperjsh 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 ighoranceand the vices of these wretches 
are solely the result of situation, and therelpre no evidence of 
theur inferiority. Like the flower whose culture 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, 

" f Tis liberty alone which gives the ifower 
" * Ot fleeting life iti lustre and perfuQie, 
" * And we are weeds wiihoat it.' 

9 

'* Again, it has been urged, ' that manumitted slaves will be, 
' as in manyinstances 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 of the 
blacks : but evenrif 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 pretena 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 hn^m 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 
too 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 
foct of assets; and let all manumissions of ^aves above fifly 
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 manumission 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 vnth 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 
children 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 man^imissions 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 J 

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 alleged, * that such humane provi- 
sions in favour of slaves will diminish their value, by rendering 
them turbulent, disobedient, and unruly.' Far difierent was 
the idea of a man whose name und 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 Sjjitii of Lcaos, 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- 
liation ; 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 tlie 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 slaves^ 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 afiect to 
be so alarmed ? » 



[ 23 ] 

** I have heard of no objections, except those I have already 
noticed) against the report unon the table, and I can foresee no 
more. If there are any not yet stated^ I request the enemies to 
this measure to disclose them now^. I offer myself ready to 
answer them, or to yield to be a proselyte to their opinion if I 
cannot. 

^ Here Aen, 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 emancipatioii 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, when the bounty of govemmet«t 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 millions 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 LiBxaTT and sociAXi happiness !" 



In 1 792, 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 acuteness, 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,"* weirie 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. Walih. 



i. 



[25 ] 

preserved in the fleeting recollection of his co- 
temporaries, in the jfritten 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 from 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 fiiends, he reluctantly determined to 
accept this appointment, which had heen spon- 
taneously tendered to him. He accordingly em- 
barked for London with bis 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. Nicholl 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 exacnination, respecting the 
law of contraband, domicijl; 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 eopious, pure, and energetic diction.* 

He was also engaged, during his residence 
abroad, 19 attending to the claim of the State of 
Maryland t^ a larg^ 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 
lyas (with his consent) adjudged to the crown, 
with an understanding that afler 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 aifld pursuits during his residence in 
England. 

^ London, 2Gih August y 1790- 
^^DiaaJ.^ — ^We are now London house-keepers. I found 
it would not answer to take lodgings unless we meant to do 
penance instead of being comlbrtable. Our present residence 



i^Ja 



* See Part Sbcokp, No. I. 




is n^elj temporary. I kipre >^en a short leaae ofa new house 
io Upper Guilford-atreety Jlj^J 5,, to which we shall remove in 
about six weeks. Th^'s^ation is airy, genteel, and convenient 
enough to the Commissioners' ofiice. . We are compelled to live 
handsomely, to ^bid singularity ; but our view is still to be as 
economioal as the requisite s^le of living will admit. We do 
not and shall not want for the most respectaUe and agreeable 
society. The American families here are on the most friendly 
and intimate footing with us, and we have as many Er^lish ae- 
qnaintances as we desj^. In short, we may pass our time here 
(for a few years to come) with considerable satisfaction — not so 
Atqspifyy indeed, as at Annapolis, but still with much comfort and 
many gratifications* My health is apparently bettered, and 
Airs. P. is evidently mending, — but we have not yet had suffi- 
cient experience of the climate to be able to conjecture its f)fture 
effects on va. 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 telb 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 by lot. He 

is an Asnerican ( Colonel J(^n Trumbull,) and was Secretary to 

Mr. Jay, when envoy at this cout t. I made the draft. We all 

qualified this morning before tlie Lord Mayor, and shall com- 

. ' mence business very soon. Every thing in relation to the com>- 

mission w^rs q^ preient a favourable aspect, and I have now 

expecta)it!in of being able to return to my friends within a pe- 

riod^uch shorter than I had ventured to hope for. 

yy^d Sept ireO. P. S. Your letter of the ^h June has just 

/^ reached me. Be assured that nothing can diminish my attacl^ 

ment to Annapolis. I have nothing to complain of from the in- 

habitants-Km the contrary, they have done me honour beyond 



[28] 

my merit I feel die worth of their attentions/ and shall neTer 
lose the grateful recollection of them. They ha^e 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 luiow not where the wish 
of procuring a competence may hereafter fix me ; but if that 
competence can be obtained at AnnapoUif 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 offices 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. 1 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 lOth 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 j 

hardly an exhibition in London which report does not exag- 
gerate to OS. I was led to expect more than I have been able 
to find. There are subjects, however, upon which I have not 
lieen disappointed — the beauty and flourishing appearance of the 
country — ^the excellence of the roads — the extent and perfection 
of thdr various manufactures — the enormous stock of indivi- 
dual wealth which town and country exhibits, &c. &c. cannot be 
too strongly anticipated/' 

<< London, 26ih Aprilj 1799. 

" DxiiR J., — I have received yeur 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 yoinr letter. If I have neglect- 
ed you, it has not been from want of aflection or forgetfulness 
of what I owe io your worth. 1 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 ynu 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 



[80] 

impresaions as they are made upon his mind by a tiate 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 
I could wish tiiat some of these conclusions did not show them- 
selves in more than one of the letter^ I have occasit«|ially 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 1 do feel some little regret, when I 
remember that I have sent a few (though to say the truth, eery 
ftw) of t^ose 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 I 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 aAex 
all, I must in great measure rely upon your disposition to bear 
with my 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 intentness 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 



[ SI ] 

commiasioii does not occupy me sulBcieiidy^ and Tithing^ &c. 
with the aid of much reading, cannot supply the deficiency. My 
tune is always filled in some way or other ; bat I think I should 
be the better for a speech now and then. Perhaps another 
tweWemonth may give me the opportunity of making spMeAei 
till I get tired of then>^and tire others too. 

** There are some respects in whidi it may be better that, I 
should remain here a little lons;er ; my health, though greatly 
mendedy n still delicate— I i9ok better than I am ; and perhaps 
a summer at Brighi&m or Chdienham may nmke 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 slaves — It is now about eighteen months nnce I 
have tasted this pernicious weed ; but I did not forbear the use 
of it soldy on account of my health ; I found that it was consi* 
dend here as a vulgar habit, which he who desured society must 
dbcard." 

^' LoNOON, 14/A February^ 1800. 

^ Dear J.,— *It is now so long since I have had a line from you, 
diat I must conclude I have been unlucky enough to give you 
oiencc for which it is necessary I shoidd atone. What it can 
be I have no means of conjecturing ; but let it be what it may, 
you craght to believe that it has been wholly accidental. Vou 
complained to me some time ago that I was a negligent corres* 
pondent ; I ezphiined the cause, and asked to be forgiven. Xf 
that explanation did not satisfy you, at least my prayer of pardon 
had some daim to be well received. I think I know you so 
well that I may venture to be certain you are not still angry with 
aie for the M reason. There must be some new ground of 
exception. Let me know it, I entreat you, and I will make 
mnends 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 
JriendMpj if not your affection, I had supposed that you would 
not li^ly 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 disappohked in expectations so 
reasonable, and so justly founded on the natural goodness of 
your disposition, and the soundness of yonr 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 yon have made this 
supposition, you have been unjust both to yomrself and me. There 
18 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 «-^Bat* if, after 
all, you are so different from yourself as to persist in regarding 
me as one who has no better ties upon you than the reist 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 hnve 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 eloqoent a speech as Mr. Pittas 
on that occasion, I never witnessed. Experience only can de*- 
cide how far the conduct he vindicated was ' wise. AdniinistnH 
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 w91 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 (hai 
country with all the consequences inseperable from it. The- 
present government of that ilUfated nation is a mockery— a rank 
usurpation by which fjolitical freedom is annihilated ; but it is » 
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 ray opinion ; but the war in £urope has 



[SS] 

sa ohen changed in aspect against oil calculation tliat prophe- 
cies abont its future resuHs, are faardljr 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 &ut ; b«t I wish most ardently to revisit 
my country and my ftiends. I think it likely 4bat my brother 
Commissioner, Gore, will take a trip to America next summer, 
and come back in the course of the autumn* 1 am afraid we 
shall both have Uisure enough for a voyage to the Blast Indies. 
I have nothing to do here but to visit, read, write, and so fbrtit — 
In this idle course! 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 icigars ? 
If you can, I will thank you ; for I ind 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 smoking here ia considered a 
most ungentlemanlSke prac^ce. Haying left off chewing tobac^o^ 
which was prejudicial to me, I have taken up the habit of smoking 
to a very limited extent tnjJieu of it; and as I find it .serviceable 
to me, and nebadf/ knows tl, I think I'Shall dontinue it.. Remem- 
ber me affec^ ona tely ito Ninian, and tell him I mean .to wriio to 
faim. soon. Mrs. Pinkney hears thai William is able to write 
somethittg like a letter. U this be so* she begs you. will request 
T^iakui to make him write- to her. ^ ^ .* • ,♦ • • v . 

" LONOON, ^I^M5/ 27./A,,18Q0. 

^iDsAn J.y-*^I reoeinred.yovr: letter of the 27tfa, May-, while in 
the country, asid delayed ahswefing it tiU my return, to' towiw £or 
your good intentions relative to the cigars, I am •»uch..obli§9d.to 
you, and I heartily • wish it- was in my power to thantfi y<m fqr tbj^ 
eigarf ihemsehegy of which I have- heard .nothing otfaerwife 
than in your letter. Perhaps I may still get tbemr-but I;bave 



[34] 

not much hopes. Make my ackiioirkdgOMlrtf to Mr. WiUams 
lor the box you speak of as being a present from him. As there 
is no person for whom X feel a more irann and sincere regard, 
and upon whose friendship- 1 more value myself, you may be ai^ 
sured that this little proof of his recollection^ gives me the greats 
est pleasure. I shall not easily forget the many kind attentions 
I have received from him — nor can ever be asore happy than 
when an opportunity shall occur of showing the sense I entertain 
of tliem. 

^' Whether the justification you offer for ceasing to write me 
is a sound one or not^ It b not wmrth while to inquire. You hone 
written at last^aM this pots out of the question all past omissions. 
Perhaps we have been both to blame— or perhaps the fiuilt has 
bean 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 otur regard for 
eaieh 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 yumy 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 Iray. I have 
had no ccnrrespoadent in America (I have ahready excepted pw) 
who has not generally been in my debt. The truth is, my friends 
have overlooked aae in a strange way---«nd I have been compel- 
hni to jog their memories more than perhaps i cmght 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 should make two letteri, which should be little 
more than dupUcates, 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 thb score. • • • 

^ It is my most earnest wish to retora home without loss of time, 
and to apply in earnest to my profession for the purpose of ae* 
curing, while my faculties are unimpaired, a competence for my 
helpless fomyy. For several months past 1 have thought of desiring 
from my government to be recalled, and if the prospect of our 
resuming our (unctions does not greatly change for the better be- 



fort mtxt wpdogy I dbtU uodMibtedly liav« recourst to this step. 
At presenti it is not practicable to form even a conjecture upon 
this subject. We have been stopped by the difficulties that have 
ooeurred under the €th 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 fiwthest by Christmas, to the satisfaction 
of all parties. The arrangement under the Gth article will be ac- 
complished, I am afraid, very slowly, if at all-Hind even when 
that arrangement shall be made, the eiecotion 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 Uttie room to doubt 
that I shall be driven to this expedient. So much for the mis- 
management and folly of other people ! 

*^ The comnussion 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 yeUow kttf of Ufe ; and if I do 

not begin speedily, I shall begin too late. To commence the 

world at fwiy 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 impoitance 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, and 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 gahied 

something-^ow much, my friends must judge. But I am wea- 



[36] 

rjing you with prattld about myselfy for wUich I ask you to 
excuse me. 

• • • • « I received Ninian's letter by Mr. Gote, but 
have not now time to answer it I wrote him very lately. Re- 
quest him to get from Mr. Yanhorne 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. Liet 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 dmtinenial 
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. iV'inian Pinkney, dated July 21 st^ 
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- 
temative, I have said that, whatsoever may have been my wishes, 
I felt no alarms at the idea of Mr. 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. Jefierson, and have 
never been backward to say so. I have never seen, or fancied I 
saw, in the perspective of his administration the calamities 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 $ueh 
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 United 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-7-an enemy to all 
efficient govemment^-^ii demucrat-^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** 
tiona — 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 talents, knowledge, integrity, and stake in 
the country sufficient to give us well-foimded confidence, that our 
afiairs 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 p^alities 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 difiierent 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 brought 
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 Annapolb, 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 Deiegates 
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 parcizans or opposers, will manifest the 
same soundness of mind and firmness of conduct. I proiess 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 establisb* 
m^'Uts. For my part, 1 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 justicei 
cannot fail to oppose. By making a party question of it, you are 
in s^reater danger of a defeat than you otherwise would be, be- 
cause you may give party men inducements to vote for it, who 
in a different and more correct view of the subject might vote 



[89] 

the otfier way. You are on the spot, boireirery and must have 
better means of jiidging on this head than I have. No man 
vould 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 would 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 tibat I was promoting my object by putting in array 
against me, and insisting on considering and treating as adver- 
sariesy a numerous and scalous body of men with whom I hap- 
p«ied 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 2 1st, 1803. 

*^ Dbab N.,— I received your kind letter of the 3 1st of May 
on yesterday. Tou had omitted to write to me for so great a 
length of time, that i had despaired of again hearing from you 
dariii^ my stay in £ngland. Your letter has, of course, given 
ase 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 happhiess 
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 menlion, 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 of^ce-huuter. Without professing 
to shun public employment when it seeks me, I can truly say 
that I disdain to seek it. My reliance, both for character and 



[40] 

fortune, is, und^r Providen€e, on my profession, to which I shall 
immediately return, and in the practice of which I do not fear to 
silence those insinuators. What I am most soon be seen and 
known. The bar is not a place to acquire or preserve a false 
or fraudulent reputation for talents ; and I feel what 19, 1 hope, 
no mure than a just and honourable confidence, in which I may 
indulge without vanity, that on that theatre I shall be able to 
make ray depredators acknowledge that they have undervalued 
me. 

^' I shall mingle too in the politics of ray country on my re- 
turn ; (I mean as a private citizen only ;) and then I shall not fail 
to give the world an opportunity of judging both of my head and 
my heart. Enough of this. 

• ••#•••••• • 

<^ I have constantly believed that America has nothing to fear 
from the men now at the head of our afiairs — and in this I 
think you will soon agree with me, notwithstanding the interested 
clamour of their adversaries. * * * Time will show'in whi|t 
hands the public power in America can be most safely deposited* 
To that test you will do well to refer yourself. In the mean 
time it appears to be a rational confidence that no party can kmg 
abuse that power with impunity.'' 

The following are extracts from letters to his 
friend, Mr. Cooke, an eminent lawyer in Mary- 
land. 

<^ London, August 8M, 180S« 

^ My Dear Sir, — ^The kindness of your last letter, which I 
received about a week ago, and which I shall long bear in mind, 
will not allow me to forego the pleasure of writing you once 
more (though but a few lines) during my stay in England. I 
say once more, because I trust that early in the spring I shall com- 
mence my voyage for America, and of course shall have no 
inducement to write again. I was entirely convinced before the 



C41 ] 

recdpt of your lait, tint your letter of December, on the subject 
of tbe Maryland business, was dictatpd as you say, by friendship ; 
and I not only felt all the value of the motive, but thanked you 
sincerely for the communication itself. 

<< I had not heard of your rejection of the appointment to the 
Court of Appeals, and I am truly sorry that you have rejected it. 
Of the circumstances attending the ofler or the views by which 
it was either influenced or resisted, I know nothing ; but I know 
that the appointment would have been the best that could have 
beea made ; and I believe that the public have a right to your 
services, now that it is no longer necessary that you should 
labour for yourself I have, however, so much reliance on the 
correctness of your judgment, that I must presume you have 
done right, and that I see only half the subject. 

^^ I am prepared on my return to find the spirit of party as 
high and phrenzied as the most turbulent would have it I am 
even prepared to find a Inrutality in that spisk which in this 
country either does not exist, or is kept down by the predomi- 
nance of a better feeling. I lament with you that this is so $ and 
J watukr that it is so— for the American people are generous, 
and liberal, and entiglitened. We are not, I hope, to have this 
inordinate zeal, this extravagant fanaticism, entailed upon us— - 
although really one might almost suppose it to be a part of our 
political creed that internal tranquillity, or rather the absence of 
domestic discord, and a rancorous contention for power, was 
incompatible with the health of the state, and the liberty of the 
citizen. I profete to be temperate in my opinions, and shall put 
in my claim to freedom of conscience ; but when both sides are 
intolerant, what hope can 1 have that this claim will be respected r 
At the bar I must contrive as well as I can, for / must return to 
it* I have no alternative ; and if I had, choice would carry me 
back to the profession. I do not desire oficey although I have 
no such objections to the present administration, as, on what are 
called party principles, would induce me to decline public em- 
ployment. It in my wish to be a mere professional labourer—- 
to cultivate my friends and my family, and to secure an honour- 
able independence before I am overtaken by age and infirmity. 
My present mtention is to fix in Baltimore, where I will flatter 



[42] 

myseU I shall find some who will not regret my choice of 
iience* I had understood with unfeigned concern the severe loss 
you allude to, and knew the pain it would occasion* You have^ 
however, the best of consolations in those whom she has left 
behind ; and it is my most earnest wish that they may be long 
spared to you, and you to them. In a family like yours every 
loss must be deeply felt ; for none can be taken away without 
diminishing the stock of worth and happiness to which each is so 
well calculated to contribute. But you have still about you 
enough to preserve to life all that belongs to it, of interest and 
value, to which, my dear Sir, you can add that which many 
cannot, the perfect consciousness of having deserved it. I beg 
you to remember me in the most friendly terms to your sons^ and 
to present our affectionate compliments to Mrs, Cooke.'' 

^^ London, February 15/A, 1804. 

<^ Mt Dka& Sm, — Yoar letter of the 2d of December, which 
I received on the 23d of last month, is among the most pleasing 
of the many proofs which my long absence from America has 
procured me of your vduable friendship, it is net in my pow- 
er to manifest by words the sensibility which such kindness ex- 
cites in my heart. I must leave it to time therefore to offer me 
other means* 

^^ The application to the government of the United States, for 
an outfit, was the joint application of Mr. Gore and myself ; and 
as it was addressed wholly to x\ie justice of the government, and 
asked no favour, I did not suppose that it would be proper to 
endeavour to interest my friends generally in its success* It 
seemed to me that this would have argued a distrust either of the 
claim itself, or of those to whom it was preferred ; and as I really 
had the most periiect confidence in both, I was not disposed to 
act as if I had none. Accordingly, I mentioned the subject 
only to Greneral Smith, as a senator of the United States, re* 
questing of him, in case the President should lay it before Con- 
gress, such explanations and support as it might seem to him to 
require, and his view of it, (as a demand of rights) would jus- 
tify. More than this, I could not prevail upon myself to do, 
akhougfa I began several letters to different persons whose good 



[4S] 

dfliees I thought I might venture to ask. General Snikh has 
answered my letter, and otherwise acted on this occasion in a 
way to deserve my particular thanks. I have no doubt, however, 
that the clum has been rejected ; and I understand that I am not 
likely to <krive much consolation for this rejection, from the 
manner in which our application has been received and treated. 
It would not be proper to say more upon a transaction of which 
I have at present such scanty knowledge, and the result of which 
may not be such as I conjecture it to be. 

^ General Smith mentions another matter, of which you also 
take notice — I mean the desire expressed by some gentlemen of 
Baltimore, who have been benefitted by my services in England, 
to make me some pecuniary acknowledgment. My answer, 
written in a hurry, and therefore, perhaps, not exactly what it 
ought to be, declines thb proposal, for which, however, I cannot 
but be sincerely thankful to those from whom it proceeds. Gene- 
ral Smith will probably show you my letter, and I should be glad 
that you would even ask him to do so. 

<< As to the arrangement of a loan, it is liable, in substance, to 
all the objections applicable to the other, and consequently inad. 
missible. I must, therefore, do as well as I can with my own 
resources — and I have the satisfaction to know that I shall leave 
England with my credit untouched, and in no tradesman's debt. 
If it will distress me to return to Maryland, with my large family, 
(as I am not ashamed to confess it will,) I shall at least have to 
sustain me under it, the consciousness that no vice has contri-' 
bttted to produce it — that my honour has no stain upon it*— and 
that although it may be a misfortune to become poor in the pub- 
lic service, it is no crime. For the rest, I rely upon Providence 
and my own efforts in my profession. 

'M am ashamed, my dear Sir, that abnost every word of this 
letter has myself for its subject ; and I should be yet more so, if I 
<Ud not recollect that it is to you who have encouraged me thus to 
play the egotist. I am not likdy, however, to sin in this respect, 
at least for some time, as I hope to leave this country in March, 
for the United States, and shall of course be under no temptaticm 
to write again, even to you. 

^< The afiair of the Maryland stock is in train, and I have now 
a fair prospect of settling it (as I hope satis&ctarily) after much 



[44] 

anxiety^ vexatioiiy and difficulty. A week or two mote wiU, I 
trust, conclude it. I shall not make any communication on this 
subject to the government of the United States, or of Maryland, 
until I am enabled to say that the stock has been transferred. 
Some sacrifice on our part has been found indispensable — ^but if 
with that sacrifice the residue can be immediately secured, we 
ought, in my opinion, to rejoice. That business closed, I shall 
only wait for a vessel sufficient to accommodate my fomily, 
bound to Baltimore. None has yet ofiered — and I begin to have 
some fears on that score. I must have patience." 



Mr. Pinkney's services in the business of the 
Bank Stock were suitably acknowledged by the 
State of Maryland, after his return to this coun- 
try, as will appear by the following extract from 
a letter to his brother, Mr. Ninian Pinkney. 

** Baltibcobb, Thursday nigkL 

^ DsAK N., — I have received your letter by W., and the others 
of a prior date. I am perfectly satisfied with the resolution, and 
have no wish that more should be done. I am grateful to the 
House of Delegates for their kind and liberal attention to my 
fortune and character, and should be sorry that any of my parti- 
cular friends should express any dissatisfaction, or endeavour to 
procure any addition to the compensation. My desire has al- 
ways been that the act of the Legislature should not only ap- 
pear to be, but should, infacty be perfectly voluntary — unsoB- 
cited on my part, or on the part of my famUy or fiiends. In^this 
light I consider the resolutions of which you have enclosed me 
copies ; and in this light, I think I cannot but approve of them. 

** I thank you for your observations as to Col. Mercer — I 
have the utmost confidence in his friendly disposition. Tell Mr. 
Montgomery that I have received his kind letter, and am more 
obliged to him than I am able to say, for that and other proofii of 
his regard — which I shall ever bear in mind. 1 think I shall go 
to Annapolis on Monday next, but am not sure* The resolations, 
however, oug^ not to be dehtyed.'' 



[46] 

. On ki« rMurn to the United States, ia Aiif uat, 
1804, Mr. Pinkney immediately resumed with 
renewed ardour bis professional pursuits. Dur- 
ing his long residence in England, he had never 
laid aside his habits of diligent study, and had 
availed himself of bis opportunities of intercourse 
with the accomplished lawyers of that country, 
iund of frequenting the courts of justice, to enlarge 
.and improve his legal attainments. He was, by 
bis public station, brought into immediate contact 
with most of the eminent Englisjli civilians, and 
was muoh in the society of that accomplished and 
highly gi&ed man, Bir WtlKam Scott. He bad 
occasion to witaess some of the powerful exer- 
tions at the bar, of Mr. Elrskine, who was then ia 
the meridian of his fame. He was in the con- 
stant habit of attending the debates in the two 
houses of Parliament ; a higher standard of lite- 
rary attainments than had been thought necessary, 
to embellish and adorn the eloquence of (he bar 
in his own country was held up to his observa- 
tion. He employed his leisure hours in eudea- 
Touring to supply what he now found to be the 
defects of his early education, by extending his 
knowledge of English and classical literature. 
He devoted peculiar attention to the subject of 
Latin prosody, and English elocution ; aiming, 
above all, to acquire a critical knowledge of his 
own language — its pronunciation — its terms and 
significations — its synonymes ; and in short, its 
whole structure and vocabulary. By these means 

7 



£463 

he added to his natural facility and fluency, a 
copiousness and variety of elegant and appro- 
priate diction, which graced even his colloquial 
intercourse, and imparted new strength and beauty 
to his forensic style* 

Soon after his return from England, he sought 
a more ample field for his professional labours^ 
by removing from Annapolis to Baltimore, and 
by attending the Supreme Court at Washington. 
In 1805, he was appointed to the office of Attor- 
ney-General of the state of Maryland, which he 
accepted, upon the conditions mentioned in the 
following letter ; and with the view of consulting 
the feelings, and (as far as possible) reconciling 
the conflicting claims of two of his friends. 



** Baltimork, December 22, 1805. 

^^ Dkak N.,-~I send by Mr. Wtlraot my answer to the letter 
of the Board, wiiich will of course be considered as ao acceptance 
of the office of Attorney-General. 

^ I cannot now refuse this office, although personally incon- 
venient and disadvantageous. My intent ion is not to touch a far* 
thing of the emoluments of it, but to give them to Mr. Scott; and 
as soi)n as Mr. Johnson is constitutionally capable of holding it, 
to r<^sign the appointment into the hands of those who now offer it 
to me, to be then disposed of as they shall think proper. 

" I trust that this course of conduct has nothing in it which 
can be disapproved. It is at least dbinterested— -for I can de- 
rive no possible advantage from it, and shall necessarily sacrifice 
what I might otherwise gain by appi'aring against the State.. 
I shall take care that the duties of the office are properly dis- 
charged by myself personally, when necessary." 



[47] 

Mr. Pinkney continued to prosecute his pro- 
fessional pursuits with unwearied assiduity, until 
the year 1 806, when he was again called into the 
service of his country by events which were even 
then thought to be of great concern, and which 
ultimately involved the United States in war with 
Great Britain. 

In the course of the ensuing year after his 
return from England, several cases of eapture of 
our merchant vessels, engaged in carrying the 
produce of the colonies of the enemies of Great 
Britain to Europe had occurred, which threat- 
ened the total destruction of that important 
branch of our carrying trade. These seizures 
were grounded upon a revival, by the British 
government of a doctrine which had acquired the 
denomination of the Rule of the War of i 756, 
from the circumstance of its having been first 
applied by the Courts of Prize in that celebrated 
war. The French (then at war with Great 
Britain,) finding their colonial trade almost en- 
tirely cut off by the maritime superiority of the 
British, relaxed tlieir monopoly of that trade, and 
allowed the Dutch (then neutral) to carry on the 
commerce between the mother country and her 
colonies, uoder special licenses or passes, granted 
to Dutch ships for this particular purpose, exclud- 
ing, at the same time, all other neutrals from the 
same trade* Many Dutch vessels so employed 
were captured by the British cruizers, and, toge- 
ther with their cargoes, condemned by the Prize 
Courts, upon the principle that by such employ- 



[ 48 ] 

inent ttey were, in effect, incorporated into the 
French navigation, having adopted the character 
and trade of the enemy, and identified them- 
selves with hia interests and purposes. They 
were, in the opinion of these Courts, to be con- 
sidered like transports in the enemy's service, 
and hence liable to capture and confiscation, up€>n 
the same principle as property condemned by 
way of penalty for resistance to search, for breach 
of blockade, for carrying military persons or des- 
patches, or as contraband of war ; in all which 
cases the property is considered, pro hac vice^ as 
enemy's jiroperty, and so completely identified 
with his interests as to acquire a hostile character. 
But it is obvious to remark that there is all the 
difference between this principle and the doctrine 
which interdicts to neutrals, during war, all trade 
not open to them in time of peace, that there is 
between the granting by the enemy of special 
licenses to the subjects of the belligerent state^ 
protecting their property from capture in a parti- 
cular trade, which the policy of the enemy ijiduces 
him to tolerate, and a general exemption of such 
trade from capture. The former is clearly cause 
of confiscation, whilst the latter has no such 
effect The rule of the war of 1 756 was founded 
upon the former principle, and likewise upon a 
construction of the treaties between Great Britain 
and Hollan<i, in which the former power con- 
teniied was conceded to the latter a freedom of 
commerce only as to her accustomed trade in time 
of peace. The Rule lay dormant during the war 



[49] 

of the American retolution ; but was afterwards 
rerived during the first war of the French revohi- 
tion, and extended to the prohibition of all neutral 
traffic whatsoever with the colonies, and upon the 
coasts of an enemy. But as indemnity was given 
by the Commissioners under the treaty of 1794 
for captures made upon this pretext, cmd as it had 
been expressly admitted in Lord Hawkesbury's 
letter to Mr. King, of April 11 th, 1801, (enclosing 
an official report of Sir John NichoU, then Ad- 
vocate General,) that the colonial trade might 
be carried on circuitously by neutrals, and that 
landing the cargo broke the continuity of voyage^ 
so as to legalize the trade thus carried on, there 
was the more reason for surprise and complaint 
on the part of the government and people of the 
United States at this unexpected attack upon our 
commerce. 

The revival and extended application of this 
Rule gave rise to numerous publications both 
on this and the other side of the Atlantic ; in 
which the respective pretensions of both countries 
were elaborately discussed. Among these was 
a pamphlet, entitled. War in DtBguise^ or CAe 
/Vamb (rf Neutral Flags^ written by Mr. Ste- 
phen, an English barrister, who had been much 
engaged in the argument of Prize Causes, before 
the Lords of Appeal, and was supposed to enjoy 
the coniideiice of the ministry. This production 
was examined, and its reasonings successfully 
combated by a very able writer in the Edinburgh 



[50j 

Review,* It was also answered by Mr, Gouver- 
iieur Morris ; and the whole subject was after* 
wards thoroughly discussed by Mr. Madison, in 
a work entitled, ** An Examination of the Britifih 
^^ doctrine which subjects to capture a neutral 
" trade, not open in time of [>eace." Different 
memorials were presented to Congress from the 
commercial cities of the I'nion, remonstrating 
with zeal and energy against this dangerous pre- 
tension. Among these was a Memorial from the 
merchants of Baltimore, which was drawn up by 
Mr. Pinkney, and was communicated by the Pre- 
sident to Congress on the 29th of January, 1 806.t 
The distinguished part which Mr. Pinkney 
took in this important discussion, and the 
thorough knowledge of the subject shown in this 
paper, together with the valuable experience he 
had acquired during his former residence in 
England, induced Mr. Jefferson to invite him to 
assist in the negociations with the British go- 
vernment on this and the other points of differ- 
once between the two countries. With this view, 
he was appointed in April, 1806, jointly with Mr. 
Monroe, (then ihe minister resident of the United 
Stales in London,) as minister extraordinary to 
treat with the British cabinet on those subjects. 
He, therefore, once more left his professional 
pursuits, and embarked with his family for Eng- 
land in May, and on his arrival immediately pro- 



* Vol VUI. No. XV. April, 1800. + Bee Part Secowo, No. II. 



[51 ] 

ceeded, in conjunctioli with Mr. Monroe^ to 
execute the duties confided to them. 

Some time afler his arrival in E^ngland, Mr. 
Pinkney received from his friend, Mr. Cooke, a 
letter informing him that his motives in accepting 
this appointment had been subjected to much 
misconstruction. The following answer to this 
letter will show in what manner he justified his 
eondnct. 

^ London, October 5thy 1 806. 

^ Mt Dkae Sia,— I am very mach indebted to you for your 
truly kind letter of the 4th of August, which has just reached 
me. It contains the best proof in the world of your good 
opinion and regard. It speaks to me with candour, and, at the 
same time that it betrays the partiality of a long-tried friendship, 
guards me against the disappointment to which a sanguine and 
credulous temper might expose me, and enables me to auticipate 
m season the misconceptions and calumnies which are preparing 
ibr me. This anticipation is certainly wholesome ; but it is un- 
|ileasant<» notwithstanding The langua^^e of reproach is new to 
me, and I fear I shall not easily learn to bear it with a good 
grace from a country which I have ardently loved and faithfully 
served with the best years of my life. The consciousness that 
I do not, and cannot deserve it, consoles me in one view, while 
it mortifies me in another. I am proud of the unqualified con- 
viction of my heart and understanding, that I am incapable 
of any thing that an honest man should blush to avow ; but it 
gives me pain to find that no purity of motive, or integrity of 
conduct, can afiord shelter in this world from the vilest and most 
disgusting imputations. Our country is young, and ought to be 
generous and charitable ; and I believe that the great bulk of our 
people are so. But I do not neea to havr my actions charitably 
interpreted. I ask only d^just construction of them ; I care not how 
rigorous, if it be not malignant It set^med natural to suppose, 
that putting former character out of the qiiestion, the circumr 



[58] 

Stances under which I last came abroad would at least secure me 
from the suspicion of selfish views and time-serving policy ; and 
I am, of course, surprised that a man can be found to infer, from 
my acceptance of the arduous trust, in which I am now engaged, 

< thai I have deserted ny principles and my friends, and pledged 

< myself to si^iport the party in power and their measures to 
'every extent' What principleS| in God's name^ and what 
friends have I deserted ? The plain matter of fact is thus : A 
great national crisis occurs, which requires, or is supposed to 
require, an extraordinary ^reign mission. The Pk-esident, wiiom 
I might be said to know only by character, offers this important 
charge to me. I give up my profession. I surrender all my 
hopes of future fortune. I forego a second time, and for ever, 
the expectation of placing my numerous and helpless family in a 
stiite of independence, and accept this anxious trust, which, in- 
stead of promising pecuniary emolument, is likely to bring with 
it a heavy pecuniary loss, and which, so far from promising to 
do me honour, puts in hazard the stock of reputation I have be- 
fore acquired. Now what abandonment of principle is there in 
all this ? I am willing to admit that I may have acted improvi- 
dently, as regards myself and my children, and that I may have 
overrated my capacity, and undertaken a task to which I am 
not competent. But I am quite sure that I have not deviated 
from that path of honour in which, with an approving con- 
science, I have walked from my boyish days. My appointment 
is known to have been as completely unsolicited as ever appoint^ 
ment was from the beginning of the world. It came to me 
wholly unsought. It is to the credit of the government that it 
did so. It came to me unclogged by any terms or conditions. 
They who talk of a pledge on my part, as the consideration of 
it, know that they insinuate a base and detestaUe falsehood. 
No such pledge, no pledge of any kind, was ever proposed to 
me. I was treated with honour, and delicacy, and confidence; 
and I have a firm reliance that I shall continue to be so treated. 
An attempt to treat me otherwise would drive roe in a moment 
from office^ as it would have prevented me from accepting it. 
As to this pledge^ the slander is too gross to be believed. I 
have an intimate persuasion, founded upon a consciousness 



mrfaich I cmlot ndstake, of integrity without btemish^ that no 
■Mm would undertake to suggest to me so vile and infamous a 
compact as the price of public station. The acceptance of my 
appointment may, indeed, imply a pledge ; and I am content 
that it shall be taken to be as large as honoOr Will permit. In 
Ha utmost sise, n^atever that may be, I will faithfully redeem It, 
and should be ashamed to have it supposed that I could shrink 
iWmi a duty so pressing and obvious. The foolish, and often 
hypocritical cant about apostacy and desertion of principleS| 
ahall not frighten me from the steady and manly course to which 
this doty directs me. I have never professed any principles with 
which my present situation, connected as it unquestionably is 
wlih the great interests ot my country, is in the slightest degree 
incohsiateht. i find nothing in the objects of it, in the means by 
which I am itistructed to accomplish those objects, or in the 
meaaures of the government preparatory to the mission, which t 
dm not entirely approve, and have not uiiifbrmly approved. 

** As to the friends I have deserted, utrho are they ? I accept- 
ed my appointment, as fhr as I could ascertain, with the entire 
concurrence of my friends of all parties ; and I rejoice that I 
have friends of all parties. It was that ilauering concurrence 
whidh encouraged me to hope that the anxiety inseparable from 
ny undertaking would not be aggravated by unjust and unfeel- 
ing prejudices, and that I should have no difficulties to struggle 
with, but such as I should find here. The affection of many of 
my friends induced them to express their fears that, as an indi- 
vidual, I should suffer by the mission. But they did not conceal 
tiidr approbati<m of my appointment, and did not intimate that 
any but prodeotial considerations ought to restrain me from ac- 
cepting it« I hare since been frequently consoled by the recol- 
ketion of this, lihe most interesting period of my life. 

^ I beg yonr pardon ibr all this egotism. But yoUr letter has 
affected me, and I have obeyed the impulse of my feelings, con- 
aldering myself as writing to you only, and that my letter will not 
bci seen by many others. " 

^ Upon the idle or malicious observations at Philadelphia and 
New-Tork, (the source of which I will not at present give my- 
aelf the treabk to conjecture,) t have no remark to make. I 

8 



£543 

tliank you sincerely for placing that subject in its true light. I 
will only say that I am not Mr. Chase's enemy, although in re-> 
turn for unwearied services and a sealous attachment of m«re 
than twenty years, during which no discouragements could drive 
me from him, he has lately been induced to act as if jbe were 
mine. Ingratitude is a harsh word, and they who have ventured 
to apply it to me, should first have been sure of their facts* 
They will, I presume, take care not to force such observatioBS 
too much upon my notice. 

<* Your fears upon the subject of the non-importation act of 
Congress are unfounded. It has, at no time, produced any 
bad efiect here. It was, undoubtedly, a wise and salutary 
law. Such was my opinion of it at the time, and the event has 
proved that opinion to be just Mr. Fox's illness and death have 
retarded us, but the prospect is good, neverdieless. Whether 
the country is likely to be satisfied by the result of our laboursy 
must depend upon the nature and extent of their expectations. 
The state of Europe and the world has a title to be considered. 

<< Lord Howick (Mr. Gray) is now at the head of the Foreign 
Department ; but Lords Holland and Auckland will go on. with 
us, and it is hoped that we shall soon bring the negociation to a 
conclusion. Lord Auckland is, however, absent firom town for a 
few days, and Lord Holland is prevented from meeting us until ai^ 
ter his uncle's funeral. The subjects are all difficult and delicate* 
The commercial subject is undoubtedly so, but not on account of 
any intricacy belonging to it. 

*^ I have been received here in a very flattering manner, and 
the best dispositions have been and continue to be manifested to- 
wards the mission, and our country and government. You will 
perceive by the newspapers that Captain Whitby is returned in 
the Leander, and is to be tried by a court martiaL The continent 
has resumed its warlike attitude — but I will not fatigue you with 
news which will probably be stale before my letter reaches you. 
The British conquest of Buenos Ayres is an important event 
It cannot be favourable to us, however. The intercourse with it 
will be regulated by the old principle of monopoly, and Great 
Britain will hold fast upon it if she can. It is even probable that (al- 
though Sir H. Popham is said to have undertaken the expedition 
without proper authority) an extension of this conquest, to- 



[55] 

gether with other cnteqHrises against Spanish America^ will be 
atteaipied* The conquest is an extremely popular one. The 
treasure brought home in the Narcissus, and the immense ezpor* 
tations of British goods to Buenos Ayres which have followed 
the knowledge of its surrender to the British arms, have had a 
wonderful effect* 

^ Lord Lauderdale is still at Paris, although Buonaparte and 
Talleyrand, and even Clarke (who with Cbampagny negociated 
with him) have left it ! The situation of the continent is more 
doubtful than at any former period. Another crisis so near to 
the last, and of a character so decisive, was hardly to be ex- 
pected. If Prusma ventures to measure swords with France, 
(and it seems now to be certain that she aitcs/,) Russia will assist 
her; bat Prussia, with Saxony and Hesse, must stand the first 
onsety which promises to be terrible. Austria cannot long be an 
Idle spectator, and she is well prepared to act with effect. Her 
forces are recruited, and their discipline improved. Sweden will 
aid the power that was so late her enemy. The magnanimous 
king of that gallant nation has a spirit far beyond his means* 
Great Britain and Prussia seem to be restored to a good under- 
standing. The blockade, which arose out of the subserviency of 
Prussia to the views of France, has been raised. Jacob! is on 
his return to this country, and Lord Morpeth talked of here for a 
mission to Berlin. The most perplexing circumstance in the 
present picture of the continent, is the stay of Lord Lauderdale 
at Paris. Upon what basis can G. B. negociate with France in 
the present conjuncture of affairs ? The uii possidetis (with the 
restoration of Hanover to its lawful sovereign) sounds well ; but 
a separate peace with France upon any terms, at a moment when 
the continent may be said to be in its last agonies, and taking 
courage firom despair, is about to make its last effort for life apd 
independence, would be a strange spectacle. I have no belief 
that it is possible. I have been incredulous from the first. 

^ I have been restrained from writing to my friends generally 
mnce my arrival here, by the consideration that I could not write 
freely, and timt the appearance of reserve in letters not invited 
by them, would be worse than absolute silence. I hope soon to 
hear from several of them, and will then write. I cherish an 



[56] 



affectionate remembrance of Baltimore, which nothiqg can e%ex 
impair." 



I have thought proper to insert the following ex- 
tracts from various communicatione which passed 
between Mr. Monroe and Mr. Pinkney, during 
their joint negociation, as illustrative of peculiar 
traits of character, and throwing occasional light 
upon some of the passages of the times, and also 
showing the mutual confidence and friendly fed- 
ings which subsisted between these eminent per- 



sons.* 



Frem Mr. Pink)9bt to Mr. Monroe. 

<^ My DiEAR Sir, — General Lyman has met with a Captain 
Warrington, of the Patty (of Philadelphia,) who in his voyage 
from Philadi'lphia to Amsterdam, was spoken by the hbonderj 
and had conversations with Captain Whitby, and a Lieutenant 
on board the Leander. The Lieutenant admitted distinctly that 
the Leander was not more than tnro miles from the shore at the 
time of the shot which resulted in Pierce's death— and that the 
shallop was about a mile nearer the shore than the Leander ; but 
he appears to have declared further, lAo/ the shot was not intended 
for the shallop. 

<^ General Lyman is desirous to know whether the deposition 
o.f this captain might not be useful. As this subject is entirely 
yours, I would not undertake to determine or give any directions 
upon it ; but at General Lyman's request write this note. He 



* Mr. Monroe has had the goodness to famish the edUor with an es|ila- 
nation of such purts of these papers as could out be made inteUigthle ^y a 
ipMre reference to the printed co^lectiosi of State Papers. 



[67] 

willy of course, expect your opinion and directions with as littk 
delay as possible, as the captain wishes to depart immediately. 

'^ I have not thought myself justified in ealling^-irt^Jbti/ yon, 
to make inquiries after Mr. Fox's health, but it is understood 
that he mends. If I do not see you soon, I will seek you at 
Low Layton. I hope, however, to meet you to-day at Sir 
Francis Baring's. 

Blakb's, Jermyn-strtety July 1. I am, &c. 

^ P. S. I have taken a temporary house in Baker-street, No. 
46, and shall be in possession to-morrow morning.'' 

From Mr, Monroc to Mr. Pinkmst. 

<' PoRTLAifD Plack, July 17, 1806. 

^ DsA& Sia,— I have the pleasure to enclose you a copy of a 
paper which I propose presenting at a proper time to Mr^ Fox.* 
I will thank you to examine it, and to suggest any alterations 
which may appear to yon necessary to be made in it. The 
outrages which were committed at the same port in 1804, by 
the same vessels, under other commanders, as is presumed, in 
both cases, are not noticed in it. It has seemed probable to me 
that if 1 connected the two cases, the pressure in regard to the 
last one might be weakened : that it is better to single that out 
for immediate example, and touch the other in conference, or by 
a special explanatory note, if necessary, hereafter. I am not 
decided in this opinion, and only suggest it for your considera- 
tion ; we will confer on it to-day when we meet. 

^ I gave notice to the keepers of the Parks on Sunday last of 
your office and privilege in that respect." 



* ▲ note on the tabject of the oningefl committed off the harbour of 
New-Tork bj Captain Whitbj, comaanding a Mivadron of Brititli fenelt. 



[58] 

Afr, PiNKNBT to Mr. Monbos. 

<< Dkae Sift,— 1 send you enclosed a copy of the B. project on 
Impressment.* 

^< It has just occurred to me that we have not answered the 
letter respecthig Sir H. Hoskyns' memorial lately sent to us ; 
and as it may save you trouble, I have written (but in great 
haste, and with a very imperfect recollection of the memorial 
which you have ;) a letter in reply, which I beg you either to 
adopt, amend, or reject entirely, for any other, that upon looking 
at the papers may appear to suit the case.'' 

From the same to the same. 

^ Thursday^ Nov. 5, 1806. 

<< Mt Dear Sib, — I send herewith enclosed the hasty sketch 
of an article on the subject of Compensation. I send also the 
amendments which it is presumable the project of the British 
Commissioners will require. 

^^ I do not send an article on the subject of an open trade with 
the West Indies, because they are not likely to agree to such a 
trade ; but you will find the exception as to that trade, which I 
suppose the 9th article must be subjected to. 

^ I have suggested a provbion in the 12tht article as to ConirO' 
hand on rettum or resumed voyages ; but I have some recollec- 
tion that you have prepared one which I entirely approved. 
The amendments I propose to the other articles you will see 
npon examining the paper itself." 

From the same to the same. 

^ Gbiat Cumberlamd Placs, Nov. 4, 1806. 
^ DiAft Sib,— I regret very much that Sir John NichoU has 



* See Waite*! State Papers, toI. VI. p. 824. 

t Tke Mb arUde of tbe Treaty u finally agreed en. Waite*s State Pa- 
ffvi, p. 857-868. 



[59] 

been applied to for loch a paper at Lord Auckland eDcIosed to 
joiL* ShaOow as it is, I think it increases the necessity to be 
▼ery firm and positive on our side on the point to which it relates. 
There must be some end of this question. 

'' I am extremely sorry that I happen to be engaged to- 
morrow evening, so as to make it impossible for me to be of 
your party at dinner, I shall take care to be at home when you 
call to-morrow. I perceive that half-past one is the time when 
we are expected'' 

From Mr* Monbos to Mr. PimtioiT^ 

^Dbae Sir, — I have the pleasure to send you a note from 
the British Commissioners in the sense suggested by them in 
their last interview.t It appears to be drawn with great attcn- 
tion to the object, and to be as free from objection as any paper 
they can draw, which does not answer our purpose. If yon 
think BO, nothing need, as I presume, be said to them respecting 
it. 

'^ I am engaged in the letter to the Secretary of State, which 
I hope to finish, on the plan it is commenced, to-day.| Tours, 
sincerely, J. M. 

Nov. 9, 180& 

^ I send you a note from General Lyman, which shows that the 
omission to send you an invitation to the Lord Mayor's feast 
was owing to the cause I had supposed. I shall be forced to de- 
cline going, on account of the early departure of the vessel by 
which we shall send our despatch, which, however, will not sail 
till Tuesday." 



* A report from Sir Jolw NiclToil, King*! Adroeate Geaerml, jwtliyiBg 
the British practice of imprewing leunen on board of neutral rtuA upon 
the high teag, oo iht groond that the King hai a^ght to reqnnre the fenrke 
•f aU hM Ma-tkring •nlgecti, and to leise them by force, wher«?er foond, 
oalett within the territorial fiaiht of another power. 

i Upon the rabjeet of Imprettment Watte's State Fapen, rol. VI. p. 380. 

I Waite's Stat^ Papers, toL XI. p. 820.* 



[60] 

Ff^m Mr. Pimknr to Mr. Momos. 

<< DsAft Sifti— The note of the B. ComminionerB is fts satifl- 
factofy as it could be made. I think it doaa not require any 
answer. 

<< If you do aot go to die Guildhall dinner, I shall of course 
make an apology. I really do not wish to go." 

From Mr. Monbok to Mr. Pinknbt. 

^ DxAR SiEf^— I have jdst received the enclosed from Lord 
Holland, which I regret was not directed to us both, I should 
express that sentiment to him, but that it might induce him to 
suppose there was some etiquette between us. Though an in- 
formal paper, it is a very interesting one on a public subject.* 

^ On the first point, the answer seems to be, that we shall of 
course claim the same jurisdiction of other powers that is agreed 
on with G. Britain, or be answerable to her for a departure from 
in her favour. To the other, no answer is now expected To 
me, however, it appears best that I should reply that we will con- 
sult together on both, and as it is his intention that we should 
meet on Friday or Saturday, that we will be prepared to commu- 
nicate to him then freely our sentiments on both points. I will, 
however, do whatever you think best, aad am very sincetely 
yours. 

November 14, 1806." 

« 

From Mr. Pimoonr <9 M^. M onbo*. 

^' DiAR Sir, — ^I think the course will be as you suggest-Mhat 
yoU should write such an answer to Lord Holland as you 
memioo." 



* Tbis note of Lord UoUand to Mr. Moaroe» relat«d to juritdMoa on 
our coaiu. Ho aaked whether we could suppoit it to the Mae excent 
againit France. It alio related to the duties on British manufactttresy-and 
inquired whether we would glre a preference to those of Great Britain in 
retnm for other eonunerdal adTanta([^. 



From Mr. Momtoi to Mr, Pimkhbt* 

'' DcAi SiR^ — ^I have this moment received the encloeed i«- 
fonnal note from Lord HolUnd, which is quite vague and inde* 
terminate on our business. It is very diKouragin^, after what has 
passed, to find ourselves in tiiis situation. 1 am really quite pr^ 
pared to give a new character at an early period 'to the ne^ 
gociation. However, on this point, we will confer before the 
next meedng, and it is to be hoped that the decisive conduct of 
those persons in it, will make an appeal to any other than the 
motives which have hitherto prevailed in the negociation un- 
necessary. • ♦ • • 

^ PoETLAKD Placb, Monday evening^ I7th ^ov." 

From Mr. Pucxmxt to Mr. MoiouMi. 

^ Mt DsAm SiB^ — ^To-monrow is, I thuik,the day appointed for 
meelfaig the B. Commissionerk I will call for you in my car- 
riage before eleven. The article in the Courier of to-night, b a 
very curious one on tiie subject of our nogociation; 

^ Yours ever and truly, 

<< Friday nigM, M Dee. 1806. Wm. Piimcn." 

From Mr. Moneob to Mr. Pinknbt. 

^ PoKTLAND Placb, FehnunylUhf 1807* 
^ Mt Dbar Sir, — I have the pleasure to enclose you a letter 
which I have just received from Lords Holland and Auckland, 
announcing their authority from thehr government to pursue the 
objects which remain to be settled between the two countries.* 
They propose a meeting on Saturday or Tuesday next, as may 
best suit us. If you have no objection, I should prefer the earliest 
day. Will you be so good as to give an answer to that effect ? 



* The sobfecti af Boundary, and Nnrigation of the MitiUtippi, Indian 
tiade, eompenintion for tpoliation, which had not been indoded in the trea- 
tv ligaed on the Itt December, 1806. 



[62] 

Perhaps it may be well to express some satisfaction that his 
Majesty has thought fit to commit this additional trust to charac- 
ters in whom we so rituch confide, or with whom we have been 
happy to have been connected in the late negociation — though 
in that do as you think best.* 

^ Do you ^d Mrs. Pinkney go to the court to-morrow ? In 
case you do, we will have the pleasure to call for you at one 
o'clock, if you approve that hour. We probably suffered by be- 
ing too late the last drawing-room.'' 

From Mr. Pinkiobt to Mr. Monroe. 

^^ Monday night. 

^^ My Dear Sir, — I am extremely sorry that I was out when 
you' were so good as to call. W. shall copy your project, which 
I have not yet read ; and if I should think it worth while, my 
draft of an article, as a substitute for the 5th in the Convention^ 
shall be copied also for consideration. 

<^ I shall be happy to see you at any hour in the morning after 
ten. It may, perhaps, be well that we should have an hour to- 
gether before we go to our Conference." 



^ It may not be improper to obeeire tliat the Editor has been assured from 
the highest authority) that the British Commissioners, during the whole 
course of these negociations, showed the most candid and conciliatory dis- 
position, at the same time that they were duly attentive to the interests of 
their own country. That amiable and accomplished oobleman, Lord Holltuidy 
it is well known, cherishes for this country and its free institutioDSy thoss 
feelmgs of kindness which he imbibed from his illustrious relative, Mr. 
Fox, and which we may be allowed to believe have been confirmed by 
his own enlightened judgment. Lord Auckland seemed also desirous by a 
conciliatory deportment to rrmove any unfavourable impressions which 
might have been taken up against him during the war of oar revoluliMi, 
wthout however, adven^in^v on any occasion, to the transactions of thosa 
times. The British negocia tors were, however, in the hands of their govern- 
ment, whose orders they obeyed ; and it is well known that the cabinet it- 
self was made up of fragile and discordant materials, all its proceediogi 
being looked upon with extreme jealousy by the opposition of the day. 



[68] 



. 



From tie same ta the same, 

^Mt Drar Sir, — Enclosed is our project on (be subject of 
Boundary. The 5th article is modelled upon Mr. King's con- 
vention, with a little of the phraseology of your plan introduced 
into it. The 6th relates to Grand Manan.* 

^' Be so good as to examine the two last, and mould them into 
any other shape that you prefer. The day has been so forbid- 
ding that I hare not ventured out."* 

From the same to the same, 

^^ February 23, 1807. 

'^ Mt Dear Sir,— W. has nearly finished copying the note to 
Lord Holland and Lord Auckland. It remains as it did when 
I bad the pleasure to see you, and will, I think, do very well in 
Aat form. I have not been able to accommodate what I struck 
cut of the note in its first shape to the ideas lately suggested ; 
and I hardly think it worth while to make another attempt. Any 
ikingj however, that you think will improve it, shall be added ; 
and if you bdieve that any thing more is necessary, 1 beg you to 
have the goodness to write it, and to mark the place where it 
shall be inserted. I send you my draft, and W.'s copy so far as 
it goeS| which, I think, is as far as the end of your amendment. 
Be 8o good as to let me have these pretty early to-morrow, (be- 
tween ten and eleven o'clock,) and the copy shall be completed 
for our meeting on Thursday, with the B. Commissioners. Will 
you take the trouble to call for me on Thursday ?'' 



From Mr, Monroc to Mr. Pinkkey. 

^ Mr Dbar Sir, — ^I have this moment received the enclosed 
'firom Lord Auckland, by which I find with surprise that we 



• See Wake's State Papers, toI. vi. p. 887-d99. 



'f M] 



weire expected at fais oiBce yesterday by him and Lord Holland. 
I read his note to me as yoa didy and we are therefore not to 
blame for the omission. I am going to call on Lord Auckland 
with Colonel Humphreys about two, and will come by for yoa 
in my carria|l! if you will be so good as to accompany us ; it 
will furnish an opportunity for making an explanation without 
form. 

^ I will bring our note about indemnities, which I think we 
shall easily arrange, and very satis&ctorily, by leaving out one 
paragraph, and making one or two modifications which I will 
explain.'' 

JVmi Mr, PiMKiiiT io Mr. Monbob. 

<^ Mt Deab Sib^ — I send you our letter^* with a copy of our 
letters to Lord Howick, and Lords HoUarid and Auckland. 

The other letter (on the subject of the supplemental Conven- 
tion) will be ready to-morrow or next day, and may be sent 
(together with a duplicate of this, which 1 will have prepared) 
by the Shepherdess.')' I propose to date the other letter of the 
2dth of April. W. will make a copy of Mr. Canning's last note 
to us, if you will allow him, for the purpose of being enclosed." 

From the same to the same. 

«JMay7, 1807. 

^ Mt Dsar Sib, — ^I enclose a short letter to Mr. Madison 
acknowledging the receipt of his letter of the 1 8th of March, and 
transmitting Mr. Murray's statement of cases for hearing before 
the Lords of Appeal. Of this paper I have retained a copy. 



* Mr. PiQkD^ and Mr. Mooroe't joiof letter of the 2td April, 1907, tm 
ih» Secretary of Stale. Walte*t State Papen, vol. vi. p. 87S. 

t Waite*! State Papen, toI. ti. p. 387. 

4 Waite'i State Papen, toL ri. p. 400. 



[65] 

''I endpie a letter of ny own, which I heg yon to havt the 
goodness to send with the othdr, if by the SkgpktrdessP 



It \b well known that before the above nego- 
oiationa were brought to a termination a change 
took place, in the British cabinet which brought 
Mr. Canning into the Foreign OlBSce ; and the 
misunderstanding between the two countries was 
still further increased by the attack on the frigate 
Chesapeake, by the British frigate Leopardi in 
June, 1807. The new cabinet having determined 
to send a special minister to the United States, 
who, it was supposed, would also be authorized to 
adjust the other subjects of difference, Mr. Monroe 
was anxious to avail himself of this opportunity 
of returning home, and of leaving Mr. Pinkney in 
London, in charge of the affairs of this country, 
as minister resident. The difficulties which 
opposed this arrangement in the mind of Mr. 
Pinkney, and the motives by which his scruples 
were finally overcome, are explained in the fol- 
lowing correspondence. 

Mr. PiNKNiT io Mr. Moniios. 

<< Gevat Cumbkrlano PLAcr, Friday, October 2, 180r. - 

'^ Mt Dbar Sik, — I thioJc, upon reflection, that I ought not to 
go to Downing-street to-morrow for the purpose suggested in our 
conversation of this afternoon. I have certainly no public cha- 
racter here but that of Conuaissioner Extraordinary and Pleni- 



• « 



[66] 

^tentiary, of which the functions, as defined in our joint con- 
mission, are different from those of a mere Minister l*lenipoteii> 
tiary. My eventual appointment of the 12th of May, 1806, as 
your successor in the ordinary legation, being the act of the Presi- 
dent alone, could only be in foree (as the commission itself very 
properly states) until the end of the session of the Senate next 
following its date. The letters of credence, it is true, do not 
contain the same express limit which is to be found in the conn 
miaaion ; but the constitution of the United States creates it as 
effectually as if it were declared in the letters themselves. If I 
should request to be considered here , as the general minister of 
our country, I could not refer that request to any authority from 
our government; but should be obliged to disclaim such autho- 
rity at the very time of making the request. My evident want 
of power could only be supplied by you ; but that would in sub- 
stance (let the mode of doing the business be what it might) have 
the inadmissible effeot of making me a Chargi d' Affaires, 

'^ 1 am persuaded, therefore, that I cannot, with propriety 
seek to have any concern, without the further orders of the go- 
vernment of the United States, with such of our affairs here as aiw 
not within the scope of the special mission ; although I feel no 
want of confidence that it would not be disagreeable to the Pre- 
sident that they should be left in my hands upon your departure, 
notwithstanding that my commission has not been renewed, and 
that one of the most important of the subjects confided to our 
joint care, has recently been withdrawn, with a view to the pub- 
lic advantage, from the special mission, and coitf ded solely to 
you." 



Mr. MoNBOK to Mr. Pinknvy. 

" My Dkak Sib^— I have the pleasure to enclose you some notes 
which I have just received fr<im Mr. Canning and Sir Stephen 
Cottrel, which communicate the arrangement made for my pre- 
sentation to the King to-morrow, for the purpose of taking leave 
of him. I send you also a sketch of a note which I propose 
carrying with me to Mr. Canning, which is intended to transfer 
the business m my hands over to you. As it is my wish to form 



[67] 

this note in tke muiBer best adapted to the ob^e^ and most 
agreeable to you, I hope you will be to good as to make any 
CDirection in it whicb yoa tbuik proper." 

From Mr, Pinkket to Mr. M onboe 

^ Mt Dsab Sir, — I see no objeetion to the terms of the note 
which you propose to leave with Mr. Canning. I take into con- 
sideration, however, that the subject will be explained in detail 
to Mr. Canning in your interview, and particularly that the letter 
of credence to the King will be shown to him. It is only in 
case this arrangement shall be found to be perfectly acceptable 
to the British government, that I presume the note will be left. 
In any other view the appointment of a mere Charge (P Affaires 
will be the best course, and it is one to which I have not the 
slightest objection. 

^^ I beg you to be assured that I have the utmost coniQdence, 
that you wish this affair to be made as satisfactory as possible to 
me— and that I have, on every occasion, a perfect reliance upon 
your friendship." 

From the same to the same. 

^Mt Dear Sir^ — I did not happen to be at home when your 
note of thb morning was brought here, and I have since my re^ 
turn been so much interrupted, that I could not send to you until 
this moment. 

^ I suppose it will be proper, and perhaps indispensible that 
an account (very brief indeed) of the transactions of the joint 
mission should go to the United States by the Revenge. You 
will find in a sketch now enclosed, what I have believed to be 
sufficient. If you approve, or will have the goodness to correct 
and add as you see occasion, and will then send it to me, I will 
have it copied to-night, and it may be signed, &c. early in the 
morning. I have copies prepared of all the enclosures, except 
only the project of alterations left with Mr. Canning. This you 
have, and if you wiU send it to me, I will have that copied also. 



• 



/ 



[68] 

^ The arrangement with Mr. Caoning relative to mjidfy I have 
not mentioned in our joint letter. Tou will, of conrae, explain 
that to Mr. Madison, and I shall do so likewise* My letter t* 
Mr. Madison I will send co you to-night, or to-morrow morning, 
and I beg of you to prevail upon Dr. Bullus to take charge of it. 

^ I return enclosed (with my signature) the letters to General 
Armstrong and Mr. Bowdoin, of which W. has taken copies to 
be transmitted with our joint letter to Mr. Madison. I enclose 
also copies of your note to Mr. Canning^and his reply upon my 
subject— which I presumed you wished, for the purpose of being 
transmitted in your own despatch. The originals I will give yon 
to-morrow." 

From Mr. PimcNKT to Mr, Madison. 

^Private, London, October KMA, 1807* 

'< Dbab Sir,— Mr. Monroe will, doubtless, sufficiently explain 
the subject of this letter ;^ but it seems, notwithstanding, to be 
proper that I should trouble you with a very brief explanation of 
it myself. 

'^ Thb government having determined to send a special envoy 
to the United States upon the subject of Mr. Monroe^s late in- 
structions, and it being probable (although not avowed) that this 
envoy would have ulterior powers to treat upon all the topics which 
affect the relations of the two countries, Mr. Monroe expressed a 
Irish to return without delay to the United States, and to leave 
with me the affairs of our country in quality of Minister Ex- 
traordinary and Plenipotentiary. So far as respected the busi- 
ness of the ordinary legation, there was, undoubtedly, a difficul- 
ty of form, if not of substance, in the way of its coming into 
my hands in any other than the inadmissible character of a mere 
Chargi (P Affaires. My credentials as Mr. Monroe's successor, 
expired with the session of the Senate next following their date, 
and had not been renewed ; and my commission as Minister Ex- 
traordinary gave only limited powers for spedBed objects. It 
appeared to be my duty, however, in case it should not be unac- 
ceptable to the British government to communicate with me in 
the event of Mr. Monroe's departure as if I were regularly ac- 
credited as the Minister Plenipotentiary of the United States, to 



[69] 

• 

cooseot on my part to toch an arraagement, as being more eii« 
giUe in the preseat conjuncture .than the appointment of a 
Ckargi iPAffcdrts. Mr. Monroe accordingly wrote, with my ap- 
probation, a note to Mr. Canning to that effect, to which some 
personal explanations were added, and r<>ceived a reply, of which 
a copy is eadosed, adopting the arrangement proposed. 

^ You will pecceive that, in lending myself to this step, I have 
ventured to infer the approbation of the President from what 
certainly does not express it. It would have been much more 
agreeable to me that a Chargi ^Afmrts should be left, and 
that I should remain in my character of Commissioner Gztra* 
Mdioary imtil the government of the United States should have 
an opportunity of taking its own course. In that mode I should 
*have been relieved from all embarrassment ; but thinking that the 
public interest required the course actually adopted, and that 
it was, moreover, that wUch was likely to fol6l the expectations 
•f tlie Preudent, I did not consider n^seif at libtrty to coosult 
9iy own incUaatiotts. 

^ The concluding expressions of Mr. Canning's note affnrd me 
an opportunity of saying that, in awaiting here the orders of the 
President, I am ready to return or to remain, as he shall think the 
interest of oar country requires. I beg you to be assured that 
m I accepted the trust which called me abroad with no selfish 
aiotive, (although I felt how much 1 was honoured by it,) I should 
regret that any indulgent feeling towards me should in any de- 
gree restrain the President from promoting, in the way he thinks 
best, that which I know is the constant object of his care — the 
general good. Neither the unfeigned veneration in which I hold 
km charae^r^ nor the grateful recolhsction which I have not for 
,a mameni ceased to cherish of the manner in which he has beea 
so good as to distinguish me, will suffer any abatement, although 
he should think fit to place some other than myself in the sta- 
tion which he once destined for me. I am quite sure that, what- 
ever shall be done, the manner of it will be liberal and kmd ; 
•afid truftiog^as I do most confidently, that I shall carry out of 
the public service, leave it when I may, the pure name ^ith 
which I entered it, and the unabated good opinion- of the govern- 
ment I have been proud to serve — the rest is of httle importance." 

10 



The signatuFe of the articles of a treaty on 
the SI St of December, 1806, had beeo accom- 
panied by a declaration of the British Com- 
missioners, in which they asserted, on the part of 
their government, the right to retaliate upon neu- 
tral nations the decree of blockade issued by the 
Emperor Napoleon at Berlin on the 21st of the 
preceding November, and stated that the signa- 
ture of the proposed treaty must not be consider- 
ed as precluding the exercise of that right, in 
case the enemy should not, before the treaty was^ 
returned from America with the ratification of 
our government, have relinquished his preten- 
sions, either formally or tacitly, or' the United 
States, by their conduct or assurances, should 
not fiave satisfied the British government that it 
would not submit to the decree. This declara- 
tion was almost immediately followed by the Or- 
ders in Council of the 7th of January, 1807, in 
which neutrals were prohibited from trading from 
one port to another port, both of which ports 
should belong to, or be in possession of France 
or her allies. This measure, although it profess- 
ed to be in retaliation of the Berlin decree, was 
in substance an extension • of the blockade which 
had bfeen notified on the 16th of May, 1806, of 
the coast, rivers, and ports from the river Elbe to 
the port of Brest, both inclusive, which was so 
qualified as merely to interdict the trade from 
port to port within those limits. 



.[71 i- 

• 

These extraordinary measures of France and 
Great Britain, together with the attack on the 
frigate Chesapeake, seemed to threaten the 
United States with the imminent danger of being 
iftTolved in the European war. But Mr. Pinkney^ 
in a private letter to Mr« Madison, dated the ISth 
of August, 1807, in which he speaks of the Pre- 
sident's Proclamation relative to the recent out- 
rage in our seas, states that the proclamation was 
approved in England, and had evidently produced 
the best effects — and that there was no room to 
doubt the disposition of that government to peace 
and atonement. This prospect was soon to be 
clouded by the Orders in Council of the 16th of 
November, 1807, and other subsequent orders, 
prohibiting all neutral trade with ports of France 
and her allies, or of any other country at war 
with Great Britain, and of all other ports in Eu- 
rope from which the British flag was excluded, 
unless such trade should be carried on through 
the ports bf Great Britain, under her licenses, 
and paying duties to her exchequer. The view 
which Mr. Pinkney took of this alarming state 
of affairs, will be seen by the following extract 
from his private letter to Mr. Madison, of the 7th 
of December, 1807, 



^ Some American vessels have been warned ander the orders 
of council, and permitted, after coming in, to proceed on their 
voyages, which, however, must now be full of danger. 



{72). 

• 

** Th€Te is every proMnlity that Swedbn wiH, ekbec willkigij 
or unvillinglyy soon unite with Russia in her meamres agaiml 
England ; Austria is already said lo be a party to them. The 
United States alone remain ; and, as if it was desirable to cast 
off the friendship of all the world in this hour of their greatest 
peril, the British gorernment persecutes t» wtth the most ttijife* 
diciousy wanton, and extravagant aggressioQ thut ever was vea* 
tured upon by a nation in the arrogance of prosperity, and in 
the fullness of unquestioned power. Mament to say that this vile 
measure continues to be more popular than it ought to be. Most 
of the opposition with whom I have lately conversed, arraign rt 
as foolish, rather than unjust ; but in general it is approved. A 
portentous delusion seems to have taken possession of the natiott. 
It was to have been expected that the affair of Copenhagen 
would have alarmed a moral and intelligent people by the prodi- 
gal waste of national character which it could not. fail to pro- ^ ' 
duce, as well as by the hcjrrible violence Nndiicb it ofl^ed to every 
^ing like principle, and even to the ordinary niaxins of poticf. 
It has, however, scarcely excited a murmur. It is, indeed^ imdei- 
stood, that it will be assailed in Parliament by the late ministry 
and their adherents, except Thomas Grenville, and, perhaps. 
Lord Grenville. It is equally understood that this attack will 
end iii nothing. If Lord Grenville should (as some asseri, 
though I incline to think erroneously) support the Copenhagen 
business, it is believed that it will be the signal of Ais separation 
from a party with which he never has been cordial, and of an 
approaching union with the present ministers, who are said to 
desire extremely to bring Lord Grenville and the Marquis Wel- 
lesley into office. 

« Since my letter of the 236 of last month, Mr. Bowdoin has 
put into my hands a copy of a letter from the French Minister of 
Justice, to the Procureur General of the Council of Prizes, dated 
the 18th of September last, with which General Armstrong has 
doubtless made you acquainted. I enclose a copy of if* 



' * ^^* rtMcnpt e^ve a different interpretation to the Berlin decree from 
what tfie Coanca of PriMS bad at first gi™ to It, when they had c^naidared 
it as a mere municipal regulation, forbidding the entrj of nentnd vesseh 



^ It m j^erkeAy certain tkal tlM BtUkk fovsitiinenl had no 
kaowiadge af this paper^ wfam tht Orders m Comeil were it* 
laed $ and indeed that tlicy have no knowledge of it even now. 
Tbey liate heard of certain dedarationa impoted to the EUnperor 
of France at bis levees, (with what troth I know not ;) hot these 
foaM hardly be eowidered at verj certain indications (tf what 
wonM be done; lar less as c9onstilnting in th ease iv ei a measare 
against wUeh there conld be adoal rendiation tfaroogh ike rig^ 
ofneutri^. 

^ The situation in whkh we are now placed by the violcnct 
and in)«itlee of others i» certahniy an arduous one ; bat it will be 
met by ear govemmetit with all the temper, wisdon, and Tirtoe, 
which H so impenotisly r^uires, and by our people wkh ttae 
patriotism which belongs to them. 

^ War between our country and Qtedi ^tain is not generally 
ezpeeted here. There is a disposition in many to amicipale 
aome strong measum on otnr part, but not war ; and it is taken 
for granted that Great Britaih will not seek a war if wt shoold 
itop abort of actual bostifity. The letters in the Morning Chro- 
idcle {ftom A« B. to the editor) which T hare sent you as they 
hatne appeared, are Arotn the pen of one of the ablest and warm*- 
est of our friends in England. They are not without great 
etrom ; but they spedt with considerable exactness the sense of 
his party, the most lavoorable of any in this counoy to the Unir 
ted States.'^ 



la a letter, dated the 2Ut December, 1807, be 

'^ I ought not, perfaapsy to have been quite so scrupulous of 
writing to you on public aiairs during the existence of the joint 
mission ; but you will do me the justice to believe that the 
scruple was sincerely felt, and yielded to frequently with great 



cornini^ from £iig:l«id kto French ports, and not ftothorismg; idznrw on 
the high leat of neotrnlf bound to or from British ports. 



[ 74] 

reluctance. Yo« will now h«ve reasoiiy perhaps, to complaifl of 
me for writing rather too much than too little* I shall, howerer, 
continue in general to mark my letters ^^ private/' by which 
their freedom and frequen^ will be rendered innocent at least, 
if they shall not be useful. 

<^ You will find that I have been carefol to send yon by every 
opportunity, newspapers, pamphlets, Stc, since Mr. Monroc'c 
departure ; as indeed I sometimes ventured to do before. May 
I beg that those from the United States may be sent with more 
regularity ? I ought to remark, that a pamphlet^ favourable to 
British pretensions, and decrying our own, is no sooner poblished 
in America than it finds its way across the Atlantic, gets into 
general circulation here, and is quoted, praised^ and sdmetimes 
republished; whereas those of an opposite description either do 
not arrive at all, or come too late. Some pamphlets, of a most 
pernicious kind, having a British character strongly stamped 
upon them, have lately been imported from the United States, and 
advertised for republication by English booksellers. I should 
have beeh glad to see the antidote accompanying the poison. I 
am a sincere friend to 'peace with all the world, while it can be 
preserved with honour : but ,the strange productions to which I 
allude not only dishonour or betray the cause of our countiy, 
but tend, if read in Great Britain, to prodace a temper unfiiendly 
to accommodation ; and thus, while they inveigh against wai^ 
contribute to produce it. The efiect of these works is greatly 
assisted by the wonderfiil ignorance which has prevailed, and 
still prevails, among all ranks of people in Great Britain, rdative 
to the reciprocal conduct of France and the United States to- 
wards each other. The President's Message has, for that reason 
only, been almost universally misapprehended. Even our best 
friends have mistaken and complained of it. In the course of 
my private intercourse (as well with the opposition as with the 
friends of ministers) I have done all that was consbtent with 
discretion, to give more correct notions on the subject ; but the 
press only can remove completely the prevailing error, and to 
that expedient it would be improper that I should have recourse. 
Some of the most distinguished men in England, however, have 
been referred to Grenersd Armstrong's letter to the French Minis- 



C 75) 

ter of Mariae, and the answer of that miokter) as puMisbed io 
the Americaa newspapers during the last winter, and to our Con* 
ventkm with France^ and may, perhaps, do what I cannot. 
Their own newspapers prove in part the practice, (even now) 
nnder the French decree of November, 1806; and it is well 
known to ouuiy persons here, (notwithstanding the general igno- 
rance) tibat France has never acted, and does not at this time act, 
apon the parts of the decree, which might seem intended for ex- 
ternal operation, as maritime rules. 

^ There are rumours of a schism in the cabinet (relative to the 
Catholics ;) but I am told by a member of the late administrik 
tion that it will come to nothing," 



In a letter to Mr. Madison, dated the 91st of 
December, 1807, he says: 

^' Accounts from America begin to be regarded here with 
great interest, and to be remarked upon in rather an altered 
tone. I confess that I expect them myself with peculiar anxiety, 
although without a particle of doubt. The attitude which our 
govemmcfnt is now to take will fix our destiny for ever ; and my 
trast is strong and confident that both will be worthy of the high 
name of our country. 

^ In my public letters, I have ventured to intimate my opinions 
as to the conduct which the crisis demands firom us. You will 
excuse me, I am sure, if in a private letter «1 speak with mord 
fireedom. 

** It will, I sincerely hope, be the solemn conviction of every 
man hi America, (as it is mine) that it has become impossible, 
without the entire loss of our honour, and the sacrifice of every 
thing which it is our duty to protect, to submit in the smallest 
degree to that extravagant system of maritime oppression, (pro- 
ceeding more firom jealousy of our rising gi ealness than firom 
the motives actually avowed) by which Great Britain every day 
exemplifies in various modes the favourite doctrine of her in- 
fiitnated advisers, that Power and Rightful Dominion are equiva- 
lent terms. 



[76] 

^ Nd man can deprecate war upon tigbl and frlvolons grounda 
more sincerely than I ahould do. But if war arises out of our 
resistance to this pernicious career of arrogance and selfishpcaa^ 
which, while it threatens our best interests with ruin, is ewoi 
more insulting than it is injurious, and more humiliating than it 
is destructiTe, can it be douffl^d that our cause is a just one, «r 
that we shall be able and willing to maintain it as a great and 
gallant nation ought to do ? 

^^ I have read, not without indignation^ in American newspsi- 
pers and pamphlets, that we are too feeble to assert our honour 
against the power of Great Britain, or to defend onrseWes against 
her encroachments. This slander u not believed by those who 
publish it ; but if it were true, instead of being immeasurably 
false, there are bounds to submission, beyond which even the 
feeble can submit no longer. Our government has shown a lau- 
dable solicitude for peace with all the world, and has acted 
wisely in its efforts to preserve it. But the time has arrived 
when it seems to be certain that we must either yield up all 
that we prize of reputation, of fortune, and of power, to Ik 
naval despotism of this country, or meet it with spirit and reKK 
lutlon ; if not by war, at least by some act of a strong and de- 
cisive character. 

^ The argument against resistance to Brituh aggreflsiosa, 
founded upon supposed danger from France, if Great Britain 
should be greatly weakened by that resistance, proves too much, 
and is otherwise false in fiict and in reasoning. Without being 
blind to the enormous power and other dangerous attributes of 
the Firench government, 1 am persuaded that we have little to 
lear from France, and that it is practicable (as it is most empha- 
tically our interest) to be at peace, without tdentifyittg oufielves 
with her. 

*^ It may be admitted, however, that France is a subject of 
apprehension to America as well as to Europe ; but are we on tlmt 
account to suffer with patienoe every wrong which Great Britain, 
stimulated by the jealousy of her merdiants, or the avarice of 
her navy, or the pride of consdaus power, may inflict upon us ? 
Such a state of abject slavery to our fears, such a tame surrender 
of our rights, as the price of British protection against possible 



[ 77 ] 

and contiogent perils would be a thoasand times mon' degrading 
thao If wc were now in the maturity of our yeara to return 
openly to the dependence of our colonial infancy upon the 
guardianship of the parent country. If we once listen to this 
base and pusillanimous suggestion, we have passed under the 
yoke and are no longer a nation of freemen ; we shall not only 
be despised and trampled upon by all the world, but, what is of 
lafioitely more importance, we shall despise ourselves — France 
will justly become our irreconcileable enemy, and Great Britain 
will only be encouraged and enabled to stab to the heart the pros- 
perity which she envies, and the power which she begins to 
dread. By a different course, that which suitft with the manly 
character and the great resources of the American people, we 
shall show that we rely on ourselves for protection. We shall 
maintain, with the gallantry and firmness which have heretofore 
characterized us, our station among the powers of the earth. 
We shall check, while there is yet time, the usurpations of Great 
Britain without destrojring her salutary strength. We shall di^^ 
minish our dependence upon Europe by learning to supply our 
wants : and, while we give no cause of present hostility to 
•France, we shall increase, by the necessary organization and 
development of our means of defence, our security from moles- 
tation from that and every other quarter. 

^ The picture lately drawn by some American politicians of 
ttud sufferings which a war with Great Britain is to bring upon 
us, is such gross and ridiculous exaggeration that it can hardly 
dec^ve even the thoughtless and the timid. Great Britain will 
herself feel the tremendous effects of such a contest ; and I ven<^ 
tare to prophecy will soon seek to end it ; but her late Orders of 
Coondl wili injure us in peace as much as she can ever hope to 
injure as by war. 

^ I have acknowledged In a postscript to my letter of the 29th^ 
the receipt of your letter to Mr. Monroe of the 2 1st of October* 
I had read^in the English newspapers, before Mr. Monroe's de- 
parture^ of the trial and execution of Radford, and of the trial 
of the other three seamen, but not of their punishment.* I do 

-.... I.- . ■ ■ ■' ■ ' '■' ■' — — — * — - I 

* Seamen taken in the Chesapeake. 

11 



[78] 

not know whether the instructions of Mr, Rose will enable him 
to offer any suitable atonement for this consummation of the 
guih of Berkeley. Th«* principal facts wt^re known before the 
Statira sailed, and were, perhaps, suggested by Mr. Monroe to 
this government, as calculated to influence the nature and extent 
of the reparation. At any rate, it will not how be proper that I 
should move in this affair without further instructions. 

" The.opposition in the approaching session of Parliament, 
will be extremely active, particularly in the House of Lords, 
where the late ministers have more ability than in the Commons. 
The field is ample, and the topics inter«»sting. The emigration 
of the royal family of Portugal has caused much idle exultation 
here ; but the sober estimate now made of the advantage to 
Great Britain from that event is not quite so brilliant as the ear- 
lier calculations. 

*« It is whispered that the late schism in the cabinet, .took its 
rise in a wish to bring Lord Grenville into power. He could not 
return while the Catholic question remained as he left it ; and 
hence an attempt (by Mr. Canning, as it is said) to prevail upon 
the King to relax upon that point. The. King was mflexible, 
and the affair has dropped. 

" Mr. Rose (the Envoy) is the author of the report of the 
House of Commons, relative to the West Indies, which 1 sent 
you last summer. Mr. Percival and Lord Hawkesbury are the. 
reputed authors of the new blockading plan. I should suspect 
Mr. George Rose (the elder) of a greui share in it. 

^' The French government is said to have issued a new decree, 
(dated at Milan, November 25th,) under which the dvat-e oi No- 
vember, 1 806, will be executed according to its letter. 1 have 
not seen the decree, although it is in Kngland ; but it will pro* 
bably be published in the Courier of to-night, which I will en- 
close. The French dt^cree of the 18th of November, (dated at 
Fontainbleau,) you will see in the papers herewith sent. 
^< i beg you to pardon this long and hasty letter.'' 

** private, London, January Tth^ 1808. 

" Dear Sir, — I enclose a duplicate of my public letter of the 
29th, and my private letter of the 31st of last month, to 



[79 1 

which T am now able to add a copy of the French decree 
of the 23d (not, as I had supposed, the 25th) of November. 
This was sent to me by a Mr. Mitchell, who was proceed- 
hig to the United States (as he writes me) in an Ameri- 
can vessel (the Ocean) with despatches for you from General 
Armstrong, when the vessel was captured by the Narcissus 
liri^te, and sent into Plymouth, upon xhe ground that she took 
in a part of her cargo in France, (salt for ballast) after the day 
lioiited in the last British Orders in Council. I have thought it 
proper to interest myself informally in the case of this vessel, 
and I have assurance that it shall receive the promptest atten- 
tion, I have advised Mr. Mitchell to wait a few days before he 
determines upon taking his passage in another vessel for Ameri- 
ca, by which he would be likely to lose time. 

" I sent'you some days ago a newspaper containing the French 
retaliating decree, dated at Milan the 25th of December. Those 
which are now forwarded contain the same decree; and you 
will find by the papers of this morning that it has been followed 
op by another. This country has ventured upon an extraordi- 
nary struggle with France, by which she has e\ery thing to lose 
and nothing to gain. The gross, impolicy of the late Orders of 
Council, (to say nothing of their insulting tone, and their injus- 
tice to aeutral states,) begins to develop itself, and will soon be 
manifest to all. I am greatly deceived if it will not in a few 
weeks b^ matter of surprise among all descriptions of people 
here, that a manufacturing and commercial nation like Great 
Britain, could have expected any thing but disaster and ruin 
from such a measure. 

" Hopes are entertained in England, that our Non-Importa- 
tion Act will have been repealed upon the arrival of intelli- 
gence of an intended extraordinary mission from this country ! 
That law passed upon unquestionable grounds of policy and 
justice ; and, although it has been heretofore properly suspended, 
I do not see how our honour could fail to become i. mere shadow, 
if it should now be abandoned even for a time. The mission 
of Mr. Rose would not seem to justify even the suspension of 
it, until the nature and extent of his powers were known ; and 
after they were known, it could justify nothing. He has no 
power to arrange on the topic of impressment, the great founda- 



[80 3 

tion of the Non-Importation Act ; and his govammeBt lias not 
only re-asserted its obnoxious pretension" on that subject in a 
public proclamation, but has even gone the length of declariog 
that it cannot consent to impair it The unredressed outrages 
of Love, Whitby, &c., afford no inducement to repeal a law de- 
liberately passed, with the clear approbation of the American 
people, when all the motives to its passage have received aug- 
mented force. But the late Orders of Council would make the re- 
peal, or even the suspension, of the ^on-Importation Act par- 
ticularly unfortunate. The time when they were issued — ^the 
arrogant claim of maritime dominion which they suppose and 
execute — and the contempt which they manifest, in the face of 
the world, for the rights and the power of our country, make 
them altogether the most ofiensive act that can be laid to the 
charge of any government. The least appearance of a disposi- 
tion to submit to such an attempt will encourage to further mg- 
gressions, until our nacional spirit will be lost in an habitoiJ 
sense of humiliation, our character known only to be despised, 
and our rights considered, like those of the petty stales of Eu- 
rope, the sport and tlie prey of the strongest There is an opi- 
nion here, that we are likely to become a divided people when a 
rupture with ' Great Britain is i|i question ; but this opinion is 
founded upon such American publications as those in a Boston 
paper, signed ^< Pacificus,'' and upon some pamphlets and pri- 
vate letters of a similar character, and will, undoubtedly, be glo- 
riously falsified, if there should be occasion, by the patriotisn 
of our people in every quarter of the Union. 

'^ Private. Lot^don, January 10th, 1808. 

• •••#••••• 

" At a meeting on Thursday last of the committee of mer- 
chants trading to the United States, a memorial to government 
on the subject of the late orders, &c., was intended to be pro- 
posed, when to prevent the reading of it and a question upon it, 
a motion was made for an adjournment by Alderman Shaw, and 
carried (I think) 1 1 to 7. 1 have not seen this memorial, (as it 
has been wished and endeavoured to prevent it from getting 
abroad,) but a copy is now preparing for me, and (if of any in- 



f 81 ] 

« 

lereft) I wiU temd it to yon as soon 9$ pbtmned. I shall be 
miich disappointed if a niptiure with us will not become and de- 
cidedly appear to be more unpopular every day. Their trade 
and many of their manufactures are at a stand, and unexampled 
distress and strong remonstrances must speedily be the con* 
sequence." 

In a letter to the same, of January 24tb, 180S, 
he says: 

^ I send you a parcel of newspapers, to which I refer you for 
the debates in Parliament for the news of the day. The able 
speech of Lord Grenvillei and the manly and eloquent protest of 
Lord Erskine will give yon pleasure. The speeches of Mr. 
Wyndham and Mr. £den in the House of Commons deserve 
your attention. 

'< The anxiety which has been for sometime past rapidly in- 
creasing relative to the United Stal^ is now very great and very 
general. The belief is every where entertained that we shall be 
Ibund to have taken a strong attitude. A hope is, however, 
indulged that it will be short of war, and that the peace of the 
two countries may yet be preserved. 

'* I have not ceased in my intercourse with all parties to en- 
deavour to diffuse (without losing sight of the manner) just 
notions as to the conduct which Great Britain ought, in prudence 
and in honour, to have observed towards us. Much ground has^ 
undoabtedly, been gained ; but, impressively as events and 
strong demonstrations of wide-spread dissatisfaction here, begin 
to speak to this government, I fear that it is only from America 
that it can be completely enlightened. A dignified, firm, and 
temperate course on our part, must soon produce its proper efiect 
on Oreai Britain, and I should hope on France also. 

^ The most friendly dispositions are constantly professed by 
ministers, and I am quite sure that they are averse firom a war 
with us I yet the King's speech will satisfy you that there is no 
present intention of yielding any thing to our claims. In their 
treatment of myself personally, there is every manifestation of 
and respect for our country. My reception on the 



birth day, and at Mr. Cannin v's dinner in the evening, were sucit 
as I should have had ri*ason to be perfectly satisfied with at any 
time. It has been mentioned to me, htiwever, by a friend on 
whom I have great reliance, that Mr. Perceval in a late conver- 
sation observed, that although they did not wish, and would not 
seek, a war with the Unit«'d States, yet -that if we made such a 
war necessary, they would not, perhaps, much regret it, as a 
check to our maritime growth was becomiug indispensible. 

'^ The late Orders of Council will be assailed in Parliament as 
unconstitutional, as well as impolitic and unjust ; and a strong 
protest will be entered on the journals of the Lbrds. I dined 
yesterday at Lord Crskine's with most of the distinguished mem- 
bers of the opposition ; as 1 found them agreeing in such a view 
of this subject as British statesmen ought to ddopt. The com- 
pany consisted of the Duke of Norfolk, Lord Grenville, i* ari 
Grey, Lord Chief Justice Cllenborough, Lord Lauderdale, Lord 
Holland, Lord H. Petty, Mr. Thomas Grenville, Mr. Tierney, 
Sir A. Pigot, Sir Samuel Romilly, Mr. Adam, Mr. Morris, 
(Lord Erskine's son-in-law) and myself. The utmost good will 
towards the United States was shown by them all. The Duke 
of Norfolk having compelled me to go first to dinner,, said, as he 
followed me, that he was happy to have an opportunity of show- 
ing his respect, not only for my station, but for the government . 
and country I represented. 

^^ This little compliment (in answer to the usual disqualifying 
observation on my part) which I would not repeat if it had been 
personal, may be thought to derive a value trom circumstances, 
and from the conspicuous worth, and high rank and influence of 
the Duke of Norfolk, and those by whom he was surrounded, 

which otherwise it certainly would not have. 

• ••♦•##•• 

<* I have thought it proper to discourage, by the only prudent 
means in my power, the«unnecessary stay of American vessels in 
British ports, or indeed in Europe ; but there are, notwithstand- 
ing, a considerable number here. To urge their departure 
openly would have been too strong a step ; but every other expe- 
dient has been tried. I have no immediate fears for their safety,' 
but they would be better at home. 



[ 83 ] 

^^ Prince Stahrembcrg left England last week upon very shorl 
notice. It is said that the French government dcniand»*d liis 
departure before tiie meeting of Parliament, and menaced Aus^ 
tria with war, if this demand were not complied with I lie 
appears to have bet'n more earnest in pressing tlie mediation of 
his court than was pleasing to this government ; and it is known 
that he went awa]^ much dissatisfied. Mr. Alopeus has received 
his French passport, and will leave us soon. Jacobi has not yet 
received his. 

" Sir George Prevost goes out immediately to Halifax as 
Governor and Commander-in-Chief. It is believed to be certain 
that five thousand troops will be sent at the same time. A friend 
(whose intelligence is from a good source, but who may have 
made some mistake) has assured me that a very large additional 
force is in preparation for tlie British Northern colonies. I sus- 
pect he has misunderstood the conversation which be reports to 
me ; but he speaks with confidence on the subject. 

'* I believe I have omitted in my former letters to mention that 
I was- told at Downing-street, some time since, that instructions 
had been sent to Mr. Erskine by the packet, upon the subject of 
the Orders of Council. What was the precise nature of tlie 
explanations with which these instructions have charged him, I 
did not inquire ; bui from what was stated to me, I presume that 
they could not be satisfactory. 

'^ I ought to mention that some of the opposition entertaio 
hopes of producing a change of Ministry. This is not a topic, 
however, upon which I can now enlarge. 

^ P. S. January 2r)th. I add to the parcel of newspapers, 
the Morning Chronicle and Times of this day, in which you will 
find another decree of the French government, enforcing with 
new sanctions and precautions, the decrees of the 23d of Novenir 
ber and 17th of December last. Spain has echoed the last men^- 
tioned decree. The state of the world is full of embarrassmentf 
for us ; but this consideration should only serve to augment our* 
patriotism and our firmness. Nothing can better illustratf the 
impolicy of the British orders than these measures of France- 
and Spain, for which they have furnished a pretext.'' 



[84] 

In a letter to the same, of February 6th, 1 808, 
he says : 

** You will observe that Mr, Perceval's speech in the House of 
Commons, is studiously respectful to us, while he justifies, and 
avows their determination to support their new system. As a 
defence of that system, his speech is nothing. It is more happy 
in recrimination than in argument ; and having the former re- 
commendation, the latter is absolutely unnecessary. I have al- 
ways suspected that the late administration were entrapped, in 
in unguarded hour, into the order of the 7th January, 1807, by 
the then opposition, who now use it as a triumphant answer to 
all that can be said in Parliament against their own orders. 
It was, indeed, a most injudicious measure. It was liable 
to the reproach of being at once violent and feeble, unjust 
and disingenuous. It asserted a pretension most alarming 
to neutral nations, which had no rightful foundation ; and 
then was affected to be referred to another which could not 
<over what was done. Without losing the character of an 
•usurpation, it had the air of artifice and contrivance. It vio- 
lated the unquestionable rights of neutral commerce, while it 
professed the utmost tenderness for them ; and, while its actual 
.provisions wore the appearance of inhibiting only the coasting 
trade of their enemies, (although, in fact, they did much more,) 
Ae preamble put forth such high claims for future use, as were 
in the end to leave no law upon the seas but force. It is proba- 
ble, however, that this pernicious order was resorted too merely 
because it was believed to be necessary to do something bearing 
upon the French decree — ^that ministers wished its actual effects 
to be as small as possible — that the real extent of its interference 
with neutral rights was little understood, except by those wko 
formed t^^-that the preamble contained all that ministers valued 
in the measure — and that they valued the preamble only as it 
was supposed to be calculated, without doing harm, to satbfy 
the poMic expectation of the day, and to silence the clamours of 
their opponents ! Be this as it may, the order is, as I have rea- 
son to know, sincerely repented of. 

^ The sweeping blockade notified by the same ministers in 



f 85] 

May, 1806, (from the Elbe to Brest incliniTe,) was another of 
their shis, which tended to countenance, not only the British or- 
den of the 1 1th of November last, but the French decree of No- 
vember, 1806, according to its widest import. Besides, that the 
principle and object of that blockade would, if admitted, go to 
sanction almost any conceivable obstructions to the trade of neu- 
trals, no adequate stationary force is believed to have been as- 
signed to the maintaining of it in its details. It was, therefore^ 
constructive in a very great degree, and must, indeed, from ita 
nature and extent, have been so. Few men in this country of 
any party will suffer themselves to look back to this and similar 
abuses, as forming any apology or pretext for the subsequent de- 
claration of France, but the actual ministers will not fail to de- 
rive from them what aid they can, (without, however, admittingr 
them to be abuses,) in favour of their own measures. You will 
find these measures (however they may be rested upon an assert- 
ed right of war) assuming every day more and more of the genu* 
ine appearances of trading expedients. The new system wtH 
natarally and necessarily be (as their vast blockades, the crea- 
tures of modem times, have invariably been) made subservient^ 
as for as it can, by licenses and regulations, to their own manu- 
fi^turing, colonial, and commercial views, without any other re- 
gard to its professed object than such as will oppress us, by ex- 
cluding our cotton, &c. from the continent. Even thus executed, 
it will be a desperate game, which, if persisted in, can only end 
in ruin. 

*^ I mentioned to you, some time ago, that this government 
knew nothing of Regnier's letter of the 18th of September last, 
when the Orders of Council were issued. It is now certain that 
they knew nothing of it, until they received from America the Na- 
tional Intelligencer, in which it was published with the Presi- 
dent's late message. 

^ I am in daily expectation of hearing from you. My situa- 
tion will, I fear, become a littie embarrassing, if you forbear 
much longer to send my credentiab, or some precise instruc- 
tions. I will make the best of it however. It is apparent that 
we gain ground here. Tlie tone is altered. The Embargo has 
done much, although its motives are variously understood. Some 

12 



[86] 

view it with doubt and suspicion. The govenunent appears ta 
put a favourable construction upon it ; and all agree thai it ia 
highly honourable to the sagacity and firnuiess of our councils. 
Events which you could only conjecture when the measure was 
adopted, have already made out its justification beyond the reach 
of cavil. We shall, I trust, in the progress, be as faithful to 
our duty, as in the commencement of the crisis which has come 
upon us." 

*^ Private, LoNnoN, February 22rf, 1808. 

^^ Dbae Sir, — I have the honour to enclose a copy of Mr. 
Percival's bill for carrying the late Orders of Council into effect. 
It is intended, as I am told, to alter it in some respects. The 
clause which imposes an export duty on the cargoes of neutral 
vessels changing their destination is to be omitted. The cotton 
of the British colonies b to be placed in the same predicament, 
whatever that may be, with American cotton, and instead of a 
prohibitory duty upon the export of that article, it is, I believe, 
determined, in consequence of the pressing advice of those who 
affect to understand the subject, aided by the late discussions in 
Parliament, to prohibit directly the exportation of cotton ; with 
a proviso, however, in favour of a licensing power in the King 
in Council, (of which I do not yet know the intended use,) 
and probably with an option to the neutral owner to export this 
commodity upon payment of the duty heretofore contemplated. 
The change will be attributed to, and is declared to proceed 
from, a respect for our feelings ; but, unfortunately, the other 
parts of their system make this supposed respect of no value. 
This change in their plan has, indeed, been recently mentioned 
to me by Mr. Canning ; but I declined (as I had before done, 
upon a similar proposal, as already explained to you) to make 
myself in any degree a party to it. 

<< You will find in the Resolutions, of which I have already 
sent you two copies (and which, after undei^oing some altera- 
tions^ are to form the table, A. B. and C. of the bill,) an export 
duty of 2s. 6d. stg. per bushel on foreign salt. The effect of 
thb duty must be, and is intended to be^ that the United States 
can no longer obtain their usual supply of that article (I think 



E87] 

about 300,000 bushels) from Spaia and Portugal. Mr. Percival; 
calculating upon this effect, supposed that we must, of course^ 
come here for British salt, not only to the amount heretofore 
taken by us, (I believe about 1,300,000 busheb,) but to the fur- 
ther amount of the supply heretofore obtained by us from Spain 
and Portugal, and perhaps more. Having thus, as he supposes, 
(without, by the bye, reflecting upon the difficulty of preventing 
us from procuring what salt we think fit from the Bahamas, &c. 
and upon the danger of our being induced to make it for our- 
selves,) created an absolute necessity for our taking between 
two and three miUiops of bushels at least of British salt, his 
plan is to take advantage of that necessity and lay an export du- 
ty upon it of dd. stg. per bushel. I have some doubts of his be- 
ing able to make this strange attempt acceptable to Parliament, 
but he seems bent upon trying it 

^ As to the commodities of France, Spain, Holland, &c. Im- 
ported into this country for exportation, they are charged with 
heavy duties upon re-exportation to the United States, which we, 
as the consumers, are, of course, to pay. But if the same com- 
modities are reexported to a British colony in America, &c. 
most of them are exempted from these duties by a proviso in the 
Bill. Thus a tribute is to be imposed upon us, which they do 
not choose to impose upon their own colonies, some of them in 
our immediate neighbourhood ; and authorized to trade with ui 
by land or inland navigation in those commodities, so long as we 
do not entirely prohibit their importation. They will annoy 
their enemy at our expense, but not at their own. 

^^ It was expected that all the articles, forming the surplus of 
our colonial importations, would be (as they are) subjected to 
high duties on passing through British ports to the Continent. 
But it has an odd appearance in a measure professed to be purely 
belligerent, and to be intended simply ^< to annoy the enemy," 
that the tike articles, of which France is supposed to stand so 
much in need, and of which the privation or enhanced price 
would so severely distress her, are exempted altogether from 
those duties, if they come from British colonies. 

^ Tou will find that a long section of the Bill touches our trade 
to the continent of Europe in £ast India articles. They must 



[ 88 ] 

not only cone to England on their way, but must come to the 
port of Londofty &c. and afterwards pay high duties from which 
the Company's trade is free. 

^ As to the duties which the resolutions proposed to lay (as 
I mentioned in my last) upon tobacco, &c. they seem to be 
explained by one of the provisos of the Bill, to which I refer 
you. 

'< These laboured details are, after all, little more than sha- 
dows, unless indeed France should lend herself to this extra va- 
gant system, and the United States should follow her example. 
As this must be impossible, it follows that this gigantic plan of 
monopoly and tribute will sink into a smuj<gling scheme, by 
which the nation will be impoverished, corrupted, and disho- 
noured. 

<^ Mr. Baring's book is in great credit here. It is read with 
avidity, and is doing good. Parts of it are highly meritorious. 
It was wished to bring it out sooner, but it was found to be im- 
practicable. The author, of " War in Disguise^' (whom it is 
intended to bring into Parliament) is preparing an answer to it. 

^< The opposition in Parliament to the Orders in Council b 
powerful, and some have hopes that Ministers will be compelled 
to abandon them. It is certain that they are not cordially 
approved by all the cabinet ; but Mr. Percival and some of his 
colleagues are, I believe, determined to go on with their experi- 
ment at all hazards. Lord Hawksbury is now supposed not to 
have had much, if any, share in them. 



^V, S. Feb. 25. Mr. Percival has abandoned his proposed 
duty upon salt. 

^ You will perceive, by the Parliamentary Debates, that an 
arrangement is contemplated with Sweden for subjecting exports 
from that country to transit duties equivalent to those which wiU 
be imposed here. 

<< I now enclose a copy of Mr. Percival's Bill amended. I 
need not point out in what respects it differs from the first BilL 
I enclose ^ko copies of the papers just laid before Parliament 



[89] 

lo America* Tbey are mitapprehended by the public, 
but will be explained in ParliameDt. 

^ Yoo will not fail to observe that in Mr. P.'s amended bill, 
cotton, wool, yam, and bark, are excepted from the benefit of 
the clause in the third page^ (Clause B.) relative to vessels coaung 
in under warning." 



In a letter to Mr. Madison^ dated the 25th of 
April, 1808, he says : 

'' Mr. Rose has sent me your private letter of the 2l8t of 
March, for which I am greatly indebted to you. I know, and 
sincerely regret, the state of your health ; and therefore entreat 
you not to make any effort (beyond what may be absolutely 
necessary for the public service,) to write to me. I will take for 
granted your good will, and if you will suffer me to do so, will 
presume upon your esteem. Of course, I shall not be ready to 
think myself neglected, if I hear from you but seldom, and shall 
not relax in my communi^cations, because indisposition, a press 
of business, or some other reason, prevents you from giving 
much attention to my letters ; I will only stipulate for an occa- 
sional acknowledgment of them, so that I may know what have 
been received, and what have miscarried. I need not say that 
as much more 9s may be consistent with your convenience will 
be in the highest degree acceptable to me. 

^ I feel very sensibly the delicacy and kindness of the assu- 
rances which you are so good as to give me, that the purpose of 
nominating me to the permanent legation^ here was never for a 
moment suspended in the mind of the President I am the more 
gratified by this evidence of his continuing confidence, because 
1 have a firm persuasion that he will never have reason to repent 
it. I beg of you to say for me to him that I am truly grateful 
for this distinction. 

^ I enclose another copy of the instruction to British crnizersi 
mentioned and enclosed in my last.* Having been confined by 



* Ord«rtciicounifiagaurch2s«iif toYMhU«tlMEailMifo. 



[90] 

indisposition for some days, I cannot vouch 'that it has been 
actually issued ; but all information concurs to make it sufficiently 
certain. There is something extremely injudicious in this mea- 
sure-^to say no more of it* I do not suppose that we oaght to 
consider it (or rather to appear to consider it) as offensive to 
us ; but undoubtedly an attempt in the face of the world, thus to 
set the people against the government and its laws, is an ungra- 
cious act, and rests upon a bad principle. The effect of this 
wise contrivance, in America, can only be to add to the vigilance 
of the government in guarding the law, and to render more con- 
spicuous the just pride and the public spirit of our citizens by an 
open disdain of all foreign allurements to break it. Such an 
instruction manifestly i eposes upon a foul libel on our patriotism ; 
and is such a sneer upon our honour, national and individual, as 
should give us virtue, if we had it not before, to resist the tempta- 
tion which it offers to the worst of our passions. 

•••••••••• 

" I send herewith Brougham's speech on the Orders in Coun- 
cil,* another pamphlet which I have not read, and some news- 
papers. You will find in one of them' the Report of an opinion 
of Sir James Mackintosh, as a Prize-Judge, which has draws 
much attention here as a judicial anomaly .f In one of the num- 
bers of the Times are some smart observations upon it. 

P. S. I have just received my credentials, and your letter of 
the 8th of March by the packet, and have sent the customary 
note to Mr. Canning, requesting an interview^ for the purpose of 
presenting them. The incident you mention was not the most 



• Mr. Brougham's Speech deliTercd at tiie bar of the House of Commont, 
•n Che 1st April, 1808, as counsel for the petitioners against Che Orders in 
Cooncil, before he became a member of Parliament. 

t Mr P. here refers to the judgment of Sir James Mackintosh, then Re- 
corder of Bombay, in the case of the Mmerra, which will be found reported 
in the fint volume of Mr Hall's American /,aw Journal, p. 217. In this 
case, Sir J. Mackintoeh declares thfU he did not consider himself bound, 
when sitting: as a Pri«s Judge, by the King's Instructions, an/ further than 
they were, in his opinion, consistent with the Uw of nations. 



E91 ] 

fortunate that could have happened ;* bat I hope it will produce 
no bad effect here. I will endeavour to let it to ri^u without 
hazarding any thing. 

^ The freedom with which I hold it to be my indispensible 
duty to write to you, renders the delicate caution which the Pre- 
sident uses on such occasions peculiarly proper in my case ; but 
if he should at any time think that the interests of the state re- 
quire that publicity should be given to my despatches, I do not 
(because I ought not to) ask to be spared ; although certainly 
the publication of some of them during my stay in this country 
would cause me most serious embarrassment. My course will 
ccmtinue to be to write with candour, frequency and fidelity, and 
to throw myself upon the kindness and wisdom of those to whom 
my correspondence belongs. I shall do so without doubt or fear 
of any kind. 

^ P. S. April 26. Mr. Pickering's letter has just been sent to 
me by a friend in the city. I have not had time to read it ; but 
I hear it is spoken of as being rather too strong against the United 
States. Many copies of it are in town, and it will doubtless be 
re-printed in England. Have you prohibited the exportation 
of all pamphlets which uphold our rights «nd our honour ?" 

" PriveUe. Lonoon, April 27, 1808. 

^ Dear Sir^ — I saw Mr. Canning this morning, and taking- 
for granted (as the fact was) that he was apprized of all that 
happened relative to mv despatch of the 23d of November last, 
I thought it prudent to afford him an opportunity of showing the 
effect it had produced upon him, by leading to the subject myself, 
as being suggested by the American newspapers. He had evi- 
dently, received an impression from the transaction (although he 
would have concealed it) which it was proper to remove. My 
explanation appeared, as it ought,^ to be completely satisfactory. 
I proposed, however, to give him one or two extracts from the 
letter in question, which he consented to receive, with professions 
that they were (as I take for granted they were) unnecessary. 



* AUading to the ctrcmnitaiice of the readiag of one of hb letten, with 
open doori ia the Senate, it haTiag been communicated confidentially. 



[94] 

« You have not mentioned the Governor in any of your .let- 
ters. You must like him I am sure ; (br he is of a liberal, gene- 
rous temper. I do not meet with your newspapers as often as I 
could wish ; but, from those I have seen, the Governor's conduct 
appears to have been active^ spirited, and judicious on every oc- 
casion that has occurred since his first appointment. It was to 
have been confidently expected that it would be so. His prin- 
ciples have always been those of ardent patriotism ; and his 
mind, naturally strong and vigorous, has been enlightened by great 
experience. In my letter to him by Mr. Rose, (which, as Mr. 
Rose did not go to Annapolis as he expected, was not perhaps 
delivered,) I asked to have the pleasure of hearing from him 
when he should have a leisure hour which he coiidd not otherwise 
employ. Will you take an opportunity, of intimating this to him ? 
Remind Mr. H. and Mr. D. of me. Tell them that they neglect 
me ; but that I remember them with as much cordial esteem as 
ever. Where is my friend', Mr. £. } If you should see him, 
say to him for me a thousand kind tbit^s. Inform Mr. M* that 
I wrote to him last autumn ; but fear my letter miscarried. As 
to Mr. C. he has given me up entirely. There are many other 
friends of whom I could speak ; but I have not time. There is 
one, however, of whom I will find time to speak ; and to her i 
beg you to say that she shares in all the regard I feel for you." 

^London, August 29thf 1809. 

^^ De AE N., — ^I have had the pleasure to receive your letter of the 
l6th of July, and am happy to see that you do not forget me. 

I should reluctantly quarrel with your domestic felicity' : Inil I 
might perhaps be in danger of doing so, if it appeared to ear 
gross you so entirely as to leave no leisure for a recollection now 
and then of us who are absent. 

** The letter of which you speak, (enclosing one from Mrs. 
P.,) came safe to hand ; and if it had not, I shoidd have inventeA 
half a dozen apologies for you. 1 know you so weU^ that, when 
you appear to neglect me, I am ready to throw the blame upoo 
fortune, upon accident, (who are, I suspect, the same person^ 
ages,) upon every thingi and every body, rather than upon yoo. 



[95] 

^< My health has been rather frone than t wished it ; but I am 
now convalescent. A short absence from town, (my family are 
still out of town) sea-air and sea-bathing have put me up again. 

^ Such a result of my labours for the public^ as you would 
Hatter me with, would make me, I doubt not, the healthiest man 
in England. There is a sort of moral health, however, which 
aosses, and difficulties, and disappointments, tend very much 
to promote. I must endeavour to console myself with the 
opinion that I have laid in a |ood stock of that^ while I was 
losing some of the other. 

^ After all this philosophising, I am half inclined to envy you 
the smooth, even tenour of your life. Tou are every way hap- 
py — at home — abroad. Nothing disturbs your tranquillity, far* 
fher than to show you the value of it. 

" Beloved by your family — respected and esteemed every 
where — ^your official capacity acknowledged — ^your official exer- 
tions successful — what have you to desire ? But I have been so 
tossed about in the world, that, although I am as happy at home 
as my neighbours, I can hardly be said to have had a fair and de- 
eent share of real quiet. The time may come, however, when 
I too shall be tranquil, and when, freed from a host of importu- 
nate cares, that now keep me company whether I will or not, I 
may look back upon the way I have travelled with a heart at 
ease^ and forward with a Christian's hope. I suspect I am grow- 
ing serious when I meant to be directly the reverse. Thus, in- 
deed, it is with the great mass of our purposes. 

^ I am rejoiced that Annapolis holds up its head. In itself the 
most beautiful, to me the most interesting spot on earth, I would 
fain believe, that it is doomed to enjoy the honours of old age 
without its decrepitude. There is not a foot of. ground in its 
neighbourhood which my memory has not consecrated, and 
which does not produce, as fancy traces it, a thousand retrospec- 
tions that go directly to the heart. It was the scene of our youthful 
days. What more can be said ? I would have it to be also the 
scene of my declining years. 

^ Tell J. that I would write to him if I could — ^but that I have 
scarcely leisure for this scrawl. He knows my affections, and 
will take the ^ will for the deed.' I offer him through you, my 



[96] 

felicitations upon the stability and wholesome effects of the 
Farmers' Bank. Ask him why it is that I do not hear from him ^ 
AH days are not discount days, and a man may be cashier of the 
Bank of fclngland, and yet have a moment to spare to those who 
love him. I beg you to remember me to the Governor and to 
Dr. G.; and to other friends." 

In a letler to Mr. Madison, dated January 16th, 
1809, speaking of the publication of his official 
letter of the 21st of September, 1808, on the sub- 
ject of the embargo, which had been communi- 
cated confidentially to Congressi but had found 
its way to the press, he says : 

'' I regret that you should have felt a moment's concern on 
account of the puUicity given to my letter. It cannot be of the 
least importance. I do not believe that it will injure my stand- 
ing here ; but if it should, it can only lead to my recall ; and 
as a recall, under such circumstances, would not imply the dis- 
approbation of my own government, it would give me no pain ; 
and it would most certainly put me to no inconvenience. I need 
not say how much I value every testimony of your friendship 
and confidence ; but if (as I hope and trust) you will. have been 
called to the office of |^resident,.it is my most earnest request 
that you will not permit that kindness of which I have already 
had so many proofs, to stand in the way of your views for the 
public good generally, or for what I am sure will be the same 
thing, the strength and prosperity of your administration. Send 
me back to my profession, with your good wishes, whenever it 
shall be thought expedient, and be assured of my sincere and un- 
alterable attachment." 

In a letter to the same of August 19th, 1809, 
he says : 

<< It appears froip the newspapers that Mr. Adams has beea 
appointed minister \o. St. Petersburg. I rejoice at this apponit- 



I 



C»7] 

meaty for. navy reasons. While I am speakipc of a new diplo- 
nistic sucioo, will you forgive me if I intimate that the old can 
scarcely remain much longer oa their present estaUishmeni ? 
The salary is so dreadfully inadequate, that I am ruining Buyaelf 
here in spite of sdl the care I tan take to avoid it ; and I presame 
thai General Armstrong is not better off at Paris, although the 
necessary ejcpenses o( Paris are less than those of Xiondon." 

The following is a letter to his brother : 

^ London, Sipiember 2Sdf 1809» 

^ DnAa N.,--«I' received, a fev days ago, your letter of the 
2€th o( June. I am much obliged to you for the intelligence 
given in a part of it, and still more for the kindness and aflfection 
^hich pervade the whole. A better choice of Governor could 
not, I should think, have been, jnade. It must have been very 
agreeable to you, and I congratulate you upon it according^. I 
have not yet received the letter which you tell me I am to expect 
from the Grovernor and Council. I shall be happy to do all in 
my power to fulfil their wishes, whatever they may be. William 
is most fortunately fised, and I have the utmost confidence that 
he will do weili. If he does otherwise hb condemnation will be 
gi^eal isidaed. T,h^.fiW14ren who are with me have shot up at a 
pri^igiouaratn, and. »e<|iiire much eare and expense^ Charles, 
who in ansmarfcaUy promiahig boy, has finished his preparatory 
course^ and it now. at Eton. Edward will be placed, after 
Chriatmas, at the>sdhaol which Charles has left. The rest wiH 
cantiiMie to have nmators at home. 

^ My anaiety to return does not diminish. On the contrary, 
jt grows upon me, and I find it necessary to wrestle with it. Too 
know that I have as many and as strong inducements to be eon- 
taated here, as any Americaii could have ; but England is not 
Maryland ; and foreign friends, however great, or numerous, or 
kind, cannot interest us like those of our native land, the com«> 
panions of our early days, the witnesses and competitors of our 
fint struggles in Ule, and the indulgent partakers of our sorrow* 
and our joys ! I trust that I have as little disposition as any 
man to repine at my lot^ and I know that I endeavour to form 



[98] 

my mind to a devout and reverential submission to the will of 
God. Yet I cannot conceal from myself, that every day adds 
something to my cares and nothing to my happiness ; that I am 
growing old among strangers ; and that my heart, naturally warm 
and open, becomes cold by discipline, contracted by duty, and 
slu^ftsh from want of exercise. These may be called imaginary 
iUs ; but there is another, which all the world will admit to be 
substantial— I speak to you in confidence — my salary is found 
by experience to be fkr short of the actual necessities of my 
situation. It was fixed at its present rate many years ago, when 
the style of living and the prices of articles would not bear a 
comparison with those of the present time. I have no right to 
complain, however ; and, therefore, I write this for your own 
perusal merely." 

The following extract of a letter to Mrs. Ninian 
Pinkney, refers to a domestic misfortune which 
she had recently sustained : 

<' London, June 24IA, 1809. 

<^ Mt Dsab Madam, — If I had not found it impossible to 
answer your letter by the return of the Padfic, it would have 
been answered. Business occupied my time, and anxiety my 
heart to the last moment. I would have dheated the last of 
these tyrants of an hour or two by conversmg with you ; but 
the first forbade h, and I had no chmoe b«t to submit From 
this double despotism I am now comparatively firee, and the use 
which I make of my liberty is to trespass on you with a fbw 
lines. 

^^ I shall not condole with you «n your late loss, though I am 
able to conjecture how keenly it has been felt ; you have your* 
self suggested one of the consolations which best support the 
good under the heaviest of all human calamities : IFe skaU wieei 
again in purity and joy the friends who are every day falling 
around us. There is nothing which more effectually cheers die 
soul in its dark mortal pilgrimage than this noble confidence $ 
life would, indeed, be a sad journey without it ; the power tff 



[99} 

death is in this view nothing $ it separates us lor a season merely 
to fit OS for a more exalted and holy communion* I have clung 
to this thought ever since I was capable of thinking, and I would 
not part with it for worlds ; It has assisted me in many a trial 
to bear up against the evil of the hour, and to shake off in some 
degree (for who can boast of having entirely escaped from) the 
influence of those passions that betray and degrade us. If I may 
dare to say so, it gives a new value to immortality, while it fur- 
nishes powerful incentives to virtue. You cannot, I think, have 
yet met with *' Morehead's Discourses." One of his sermons 
turns upon the loss of children ; and he sets forth, with that 
eloquence, which comes warm from the heart, the softenings 
which this bitter affliction derives from religion. When yon 
can get the Sermon read it ; in the mean time, the following 
short extract will please you. It is exquisitely beautifol ; and 
the best of our modem Reviews has quoted it as a soothing and 
original suggestion," 

^ ^ We are all well aware of the influence of the world : Wc 
^ know how strongly it engages our thoughts, and debases the 
^ springs of our actions : we all know how important it is to 
' have the springs of our minds renewed, and the rust which 

* gathers over them cleared away. One of the principal advan* 
' tagea, perhaps, which arises from the possession of children, is 
' thai, in their society the simplicity of our nature is constantly 

* recalled to our view ; and that when we return from the cares 
' and thoughts of the world into our domestic circle, we behold 

* beings whose happiness springs (twn no false estiniatcfl of 
^ worldly good, but from the benevolent instincts of nature. The 
^ same moral advtmtage is often derived in a greater degru 
^from the memory of those children who have left us. Their 
' simple characters dwell upon our minds with a deeper impres- 
' sion ; their least actions return to our thoughts with more force 
^ than if we had it still in our power to witness them ; and they 
^ return to us clothed in that saintiy garb which belongs to the 
' possessors of a higher existence. We feel that there is now a 
' link connecting us with a purer and a better scene fif beings ; 
' that a part of ourselves has gone before us into the bosom of 



H 



C 100 ] 

* God ; and that the same happy creatures which here on earth 
^ shoved us the simple sources from which happiness springs^ 
^ now hover orer us, and scatler from their wings the graces and 

* beatitudes of eternity.' " 

'' Who can read this passage without feeling his heart in uni- 
son with it ? It cannot be read without inspiring a pleasing 
melancholy, and lifting the mind beyond the low contaminations 
of this probationary state, < To scenes where love and bliss 
immortal reign.* >> • • • 

Mr. Pinkney^s official communications with the 
British gorernment, were supposed by some per- 
4M>n8 in this country to be deficient in that firm- 
' ness and decided tone which would have been 
becoming an .American minister whilst remon- 
strating against aggressions the most injurious 
and insulting. But his communications with that 
government, as to their manner, were dictated by 
the tenor of his instructions, which were of the 
most pacific and conciliatory character. His con- 
duct in this respect was assailed in some of the 
public prints with great, and as he felt, unmerited 
severity. In the mean time, the compensation 
which he had received firom the State of Mary- 
land for his services in the business of the bank 
stock, together with the money he had saved from 
the professional earnings of his youthful days, 
had been absorbed in the expenses incident to 
the education of his children in a foreign country, 
and to the munificent and hospitable style of liv- 
ing which he had adopted in London, as be- 
coming his public station, and necessary to re- 



t 101 I 

oiprcK^te the civilltieB he received from others. 
He alludes to these painful circumstances in a 
letter to Mr, Madison,^ dated August IStb, 18 10, 
of which the following is an extract : 



^ Before I conclude this letter, I beg leave to mention a $iib« 
ject in whidi I have a personal interest. I am told, and, indeed, 
have parUy seen, that I am assaifed irith great acrimony and per- 
severance in some of the American newspapers. It is possible 
that increasing clamour, though it can g^ve me mo Concern, may 
make it convenient that I should be recalled ; and it certainly 
will not be worth while to make a point of keeping me here, lor 
any time, however short, if many persons in America desire that 
it should be otherwise. I can scarcely be as useful to our coun- 
try under such circumstances as I ought to be, and I haVe really 
no wish to continue for an^ purpose looking to my own advan- 
tf(ge. If I consulted my personal interest merely, I should al- 
ready have entreated your permission to return. The dispropor* 
tion between my unavoidable expenses and mj salary, has ruin- 
ed me in a pecuniary sense. The prime of my life is passing 
away in barren toil and anxiety, and, while I am sacrificing my- 
self and my fkmily in the public service abroad, ill disposed or 
silly people are sacrificing my reputation at home. My affec- 
tionate attachment to you need not be mentioned. If its since- 
rity is not already manifest, time only can make it so, and to 
that I appeal. But by seeking to remain in office imder you, 
against the opinion of those whose remonstrances will at least be 
loud and troublesome, if they are not reasonable and just, I 
should show a want of all concern for your character and quiet. 
I do not seek it therefore. On the contrary I pray you most 
earnestly to recall me immediately (the manner of it would, I am 
sure, be kind) if you find it in any way expedient to do so. Be- 
lieve me I shall go back to my profession with a cheerful heart, 
and with a recollection of your unvarying kindness which nothing 
can ever impair. I should, indeed, look forward to retirement 
kom official station with the deepest sorrow, if I supposed that 
in parting with me as a minister, you were to part idth me aU« 

14 



[ 102 } 

as a friend. But the friend Will remain— -not for a season enly> 
bat always-— and be assured that, though you will haTe manj 
abler friends, you can have none upon whose truth and zeal you 
may more confidently rely. In a word, I do not at this momeat 
request my recall, but I shall receive it without regret, if you, 
with better means of judging than I can have, should think it ad- 
visable. That I should remain here much longer is hardly pos- 
sible ; but I flatter myself that in forbearing at present to ask 
your consent to my return, I do not lose siglit of the public good. 
** This, is a very long letter and full of egotism — but it will 
have an indulgent reader, and wiH I know, be excused." 

•^ In an answer to this letter, dated October 30tb> 
1810, Mr. Madison says: 

'^ The personal sensibilities which your letter expresses, are far' 
greater than I can have merited by manifestations of esteem and 
confidence which it would have been unjust to withhold. As a 
proof of your 4)artiality, they ought not on that account to ex- 
cite less of a return. As little ought your readiness to retire 
from your station, from the honourable motives which govern 
you, to be viewed in any other light than as a proof of the va- 
lue which attaches itself to your qualifications and services. It 
is not to be denied that a good deal of dissatisfaction has issued 
through the press against some of your intercourse with the 
British government. But this could have the less influence on 
the Executive mind, as the dissatisfaction, where not ihe mere in- 
dulgence of liabitual censuie, is evidently the result of an honest 
misconception of some things, and tin ignorance of others, nei- 
ther of which can be lasting. I have no doubt that if your sen- 
timents and conduct could be seen through media not before the 
public, a very different note would have been heard ; and as little^ 
that the exhibitions likely to grow out of the questions and dis- 
cussions in which you are at present engaged, will more than re- 
store the ground taken from you.*' 

During his residence as minister in Great 
Britain, Mr. Pinkney's attention was^ among other 



[ 108 ] 

•bjects, directed to the magnificent Kene of 
public industry which that country displays. He 
perceived that her manufacturing establishments 
were one of the main spring.^ of her wealth and 
power, and witnessed with pleasure the rapid pro- 
gress of those agricultural improvements which 
have contributed so much to the opulence and 
embellishment of the island. He was anxious 
that his own country should participate in the 
benefits derived from the advancement of these 
important arts. In a letter to Mr. Madison, 
dated August, 1809, he says : 

'< As we are turning our attention to wool, I have added a tract 
lately published here, on the Merino and Anglo-Merino sheep, 
which may be of use. I trust that we shall continue to culti- 
vate such manufactures as suit our circumstances. Cottons now, 
and woollens hereafter, must continue to flourish among us.'' 

Among other occasions of a similar character, 
he was present at the cattle show of that distin- 
guished patron of agriculture, Lord Somerville, 
in the spring of 1810. After the business of the 
day, a very large company sat down to a public 
dinner, Lord Somerville in the chair. The pre- 
miums having been distributed, his lordship, 
among other toasts, gave — 

< Mr. Fmkney, the American Minister ; and may harmony 
* always prevail with those who speak the same language.^ 

Which was received with enthusiastic applause 
by the company. 



[ 104] 

Mr. Pinkney, in returning thanks for tbia mark 
of respect to himself, and to the country he re- 
presented, desired his Lordship and ihe company 
to be persuaded that he was very grateful for the 
unexpected notice which they had been so good 
as to take of the United States and their ininisten 

^ I ibank you/' said he, ^ in the first place, for my country, 
and I hope I shall not be thought very presumptuous, if led, or 
even misled, by my wishes, to conclude that personal kinflness 
may have had some litile share in prompting your conduct on 
this occasion, I venture to thank you for myself. I trust, my 
Lord, it is scarcely necessary fur me to say how sincerely I join 
in the wish which has been so well received by the noblemen 
and gentlemen here present, that there may be perpetual good 
understanding between Great Britain and the United States. 
An American Minister has, in truth, no merit in anxiously desii^ 
Ing cordial friendship with this country on terms consistent with 
the honour of his own ; and your lordship will allow me to re- 
joice that there do exist on both sides the most powerful and 
obvious inducements to cultivate such friendship. We need not 
trouble ourselves to inquire whether it be true, as some poli- 
ticians have pretended, that interest is the only tie of sufficient 
itrength to hold independent nations together af friends, for toe 
are fortunately bound in amity by all sorts of ties, which I fer- 
vently hope we shall not, even if it were possible that we should 
be so disposed, be strong enough to break. No reflecting and 
impartial man can dmibt, that the true interests of Great Britain 
and America are compatible in all cases, the same in most A 
liberal and comprehensive view of these can lead t» no other 
conclusion than that they are calculated to cherish and invigo- 
rate each other. But a sense of this compatibility and identity 
of interests, effectual as it ought to be in communicating a cha- 
racter of steady friendship to our relations, is not the only pledge 
of harmony between us ; for a thousand kindly influences, with 
which calculation has no concern, combine to form an auxiliary 
pledge, little inferior in strength, I should hope, and far spperiM 



[105] 

in Monri beMTf y I «m tore, td tke odMr. Tbete iniiiMiicasy ny 
lordy it would be a pleasing, and perhaps not improiitabley task 
to review in detail^ and by reviewing, to give then fresbneM, 
ted iuigmeiitei actrvity, for the aofot^and salutary purposes of 
peace and kiAdness. Bm I have afarady treapassed too long otf 
yooir iiidiilgettce, if, indeed, I have not trespaiaed upon that di*. 
cfetion whieh so emphatically becomes my situation. I beg 
leave to drink the health of your lordship, dsc." 

• 

In the following letter to Mr. Madison, Mr. 
Pinkney solicited his recnll with more earnest - 
tiess than he had hitherto done. The motives 
which induced hiin to decline remaining any 
longer in the public station which he had occu- 
pied, fixe fully explained in this letter. 

^< LoNOON, Nov. 24, 1810L 

^' DcAa Sib, — I iend by this opportunity to the Secretary of 
State, a letter, entreating your permission to return to America. 
I have not thoaght it necessary to mention in that letter my 
motives for (his sipparently abrapt request ; but you will, I am 
sure, "be at no loAs to conjecture them. 

*^ I ask your leave iai this time to close my mission here, be- 
ckuse I find it iMpossible to remain. I took the liberty to 
suggest to yon in my letter by Mr. SHis, that I was not untiaHing, 
though I lud no desire, to continiie a little longer ; bat, upon a 
receht inspection of my private aflRiirs, it appears that my pecu- 
niary means are more completely exhausted'than I had supposed, 
and that to be honest I must hasten home. 

^The compensation (as it is oddly caHed) allotted by the 
Government to the; inaintenance of its Representatives abroad is 
« pittance, Irhlch no economy, however rigid, or even mean, can 
render adequate. It never was adequate I should think ; but it 
is now (espe<iially in London) far short of that just indemnity 
for unavoidable expenses which every ^ov^rnment^ no matter 
what its form, owes to its servants. 



[106] 

<< I have in hct been a constant and progresriTe loaer, and al 
length am incapable of supplying Um* deficiencies of the puUic 
allowance. Those deficiencies have been hitherto supplied by 
the sacrifice of my own- capital in Araenca^ or by my credit, 
^already pushed as far as the remnant of that capital will justUy, 
and i fear somewhat farther. I cannot, as an honourable mao, 
with my eyes open to my situation, push it farther, and of course 
I most retire. I do not mean to exaggerate the amount of my 
capital thus dissipated in a thankless office. It was not very 
large — ^it coutd not be so. I have spent too much of my life 
(how faithfully none will have the injustice to question) in the 
public service, to admit of that. But such as it was> it had Ua 
value as a stake, in case of accidents, for those about me, and 
being now gone, cannot hereafter eke out a scanty salary. It is 
superfluous to say that I have no other resource. 

^^ This is the consideration which has urged me to write for 
my recall at this moment, 

*' There are others, however, which ought, perhaps^ to have 
produced the same effect at even an earlier period, and would 
have produced it, if I had followed my own inclinations rather 
than a sense of duty to you, and to the people. Some of these 
considerations respect myself individually, and need not be 
named ; for they are nothing in comparison with those which 
look to my family. Its claims to my exertions for its benefit in 
my profession have been too long neglected. Age is stealing 
fost upon me, and I shall soon have lost the power of retrieving 
the time which has been wasted in endeavours (fiidtless it would 
seem) to deserve well of my country. Every day will, as it 
passes, make it more difficult to resume the habits which I have 
twice improvidently abandoned. At present, I feel no want of 
cheerful resolution to seek them again as old friends which I 
ought never ta have quitted, and no want of confidence that they 
will not disown me. How long that resolution, if not acted 
upon, may last, or that confidence may stand up in the decline 
of life, I cannot know and will not try. 

^ I trust it is not necessary for me to say how much yoor 
kindness, and that of your predecessor, has contributed to subdue 
the anxieties of my situation, and to make me forget that I ought 



i 107 ] 

lo leave a post, at Qnce so perilous and costly^ to richer and ta 
abler bands. Those who know me will believe that my heart is , 
deeply sensible Of that kindness^ and that my memory will pre- 
serve a fip<<iful record of it while it can preserve a trace of any 
thing. 

''I am in danger of making this a long letter. I will only 
Add to it^ therefore, that I shall prepare myself (in the expecta- 
tion of receiving your permission) to return to the United States 
as soon as the season will allow me to do so with convenience 
to my family ; and that, if my duty should, in any view of it, 
require a more prompt departure, 1 shall not hesitate to act as 
it requires." 



Mr. Pinkney continued still to press upon the 

British government the complaints of this coun* 

try, until finding that no attention was likely to 

be paid to his remonstrances, he demanded an 

audience of leave in pursuance of the President's 

instructions. On the last of February, 1811, he 

had his audience of leave at Carlton House, and 

stated to the Prince Regent the srrounds upon 

which it had become his duty to take his leave, 

and expressed his regret that his efforts to set to 

rights the embarrassed and disjointed relations 

of the two countries had wholly failed, and that 

he saw no reason to expect that the great work 

of reconciliation was likely to be accomplished 

through any other agency. 

He soon after embarked for the United States 
in the frigate Essex, and arrived at Annapolis in 
June, 1811. On his arrival ia this country he 



[108] . 

immediately resumed the labo^ors of his profes- 
sion with his accustomed alacrity and ardour. 

In September, 1811, he was elected a member 
of the Senate of the state of Maryland. 

In the following December, Mr. Madisoa tea- 
dered him the appointment of Attorney General 
of the United States, which he accepted in the 
following letter : 

*^ Annapolis, Dec. 17, 1811. 

^^ Dear Sis,— I had the honour to receive, kUe last nighty tbe 
letter which you were so good as to write to me on the 12tfa, 
and at the same time mj Commission as Attorney General of 
the United States. I shall not delay a moment in repairing to 
Washington, after a few impoftuiiale engagesients liece have 
been satisfied ; and I hojpe to set out in a few days. 

'^ Permit me to thank you 9igain for the great kindness and 
delicacy with which this afypointment has been tendered to ne, 
and to assure you that if I should fail to justify your choke by 
an able discharge of my <^cial duties, i shall at least prove tbn 
J know how to discharge tbe duties of gratitude and frieadshiii." 

In a subsequent letter to Mr. Madison, he 
4iays: 

'<I have received a letter from Mr. Dallas, from which it 
appears that he has not been applied to by Mr. Gallatin to assist 
in the cases in the Supreme Court, in which it was thought his 
aid would be advisable ; and further, that he would be wiKng kr 
assist, if applied to. Although I shall be perfectly p w p a re d Uk 
argue one of them, (the case of the French national vesael,) it 
will be a great gratification to me to have him for an assistaBt in 
both. I take the liberty to submit it to your consideration wht^ 
tiier an eariy application to him would not be well, if it ir 
hpicaiM 10 rttain him al dL 



[ 109 3 

^' I find an imnieiise mass of btuifieu in the Supreme Court in 
which the goyernment is coqcerDed ; but I hope to get through 
with it at the ensuing term. The Committee of Claims has 
referred Beaumarchais' case to me upon the law of if. It pei^ 
plexes me exceedingly; for tii strict law the discount cannot 
well be maintained, and yet in all righteousness it ought to be 
insisted on — at least there seems to be the strongest probabiiit;^ 
that it ought.'' 

The case of the French national vegsel referred 
to in the above letter, involved a very interesting 
question of international law. The Exchange 
wad originally a merchant ship, belonging to citi- 
zens of this country, which had been seized by 
the emperor Napoleon under his decree issued nt 
Rambouillet, armed and commissicwed in his 
service, and sent to carry despatches to the East 
Indies. In the course of her voyage, she touched 
at the port of Philadelphia, being in distress, and 
our waters being at that time open to the ships of 
war of all the belligerent powers. She was there 
proceeded against by the original American own- 
ers, who reclaimed their property in the ordinary 
course of justice, and the cause was finally 
brought before the Supreme Court ; the French 
Minister having insisted in his correspondence 
with our government that the justice and legality 
of the original seizure was a question of state to 
be settled by diplomatic negociation between 
France and the United States ; and that it could 
not be determined by the ordinary' tribunals of 
justice^ especially as the vessel had entered a port 

15 



i no } 

of this country under the general permission ta 
the public ships of foreign nations. The same 
principle of exemption from judicial cognizance^ 
for the vessel thus entering our waters, was also 
maintained by Mr. Pinkney, as Attorney General, 
with a force of argument and eloquence, and an 
extent of learning, which raised him at once in 
the public estimation, to the bead of the Ameri- 
can bar. 

He reasoned to show that wbere wrongs are in* 
flicted by one nation upon another^ in tempestu- 
ous times, they could not be redressed by judi- 
cature ; that where the private property of a citi- 
zen bad been ever so unjustly coofiseated in the 
tribuoals of a foreign state, a regular judicial ooa- 
demnatioa closes the judicial eye upon the enor- 
mity of the original seinire ; and still leas could 
the coiirtsof juslice interfere wbere the ^sovereign 
rights of a foreign prince had intervened. He 
compared the case in judgment to .the analo- 
gous exemption (under the law of nations) from 
the local jurisdiction of the country, of the per- 
son of the sovereign, of his ministers, or his 
fleets and armies, coming into the territory of 
another state, by its permission, express or im- 
plied* He insisted upon the equality of sove- 
reigns, and that they could not submit their rights 
to the decision of another sovereign, or bis courts 
of justice; but that the mutually conflicting 
claims of independent, states must be adjusted 
by diplomatic negociation, or reprizals and war ; 
that no reprizals had been authorized by our 



goverament tn the present iantance, and that the 
general provisions of the lavs descriptive of the 
ordinary jarisdiction of the national courts to re-* 
dress private wrongs^ ought not to be so interpret- 
ed as to give them cognizance of a case in which 
the sovereign power of the nation had, by impli- 
eation^ consented to waive its jurisdiction. These 
topics of argnment, which were made the grounds 
of the decision pronounced by the court, he am* 
plified and illustrated by a variety of considera- 
tions^ drawn from the impoteney of the judicial 
power to enforce its decisions in such cases ; 
from the exclusive coaapetence of the sovereign 
power of the nation adequately to avenge wrongs 
committed by a foreign sovereign, and to deter- 
mine when it shall assert, and when it may com- 
promise its extreme rights ; from the nature of 
the questions growing out of such transactions, 
as being mther questions of state policy than of 
jurisprudence, of diplomatic than of forensic dis^ 
.eussion. 



It was a rash assertion of an illustrious writer, 

« 

that there are no discoveries to be made in mo- 
ral science and in the principles of government. 
To say nothing of other improvements which the 
present age has witnessed, mankind are indebted 
to America for the discovery and practical ap- 
plication of a federative scheme of government, 
which combined with the representative system, 



same time, the bar, as itt the anoiettt ttfwbUcB, 
is the principal aveAue Co public honottrs and 
employmenla. Theae circumatanceay combiaed 
with the singular nature of the juriadiotion of 
the Supreme Court as administering the Politi- 
cal Law, have advanced the science of juris^ 
prudence in the United Btates far beyond the 
general condition of literature, and have raised 
the legal profession to a higher rank in public eati* 
mation than it enjoys in any other, nation. 

At the same session of the court, when the case 
of the Exchange was discussed, the much agi- 
tated question whether the United States, con- 
sidered as a federal government, have an unwrit* 
ten or common law, which may be administered 
in the courts of the Union, in criminal and other 
cases, in the absence of any statulory provisiottf. 
arose in the case of an indictment for a libel on 
the President and Congress. The Attorney- 
General (Mr. Pinkney) and the counsel for the 
defendant both declined arguing the question, for 
some reason which does not appear. But I ana 
told that Mr* Pinkney had formed, and frequently 
expressed, a very deqided opinion that the cottrta 
of the Union posses&eH a common law jurisdic- 
tion ; though I have not been able to learn what 
were the grounds of this opinion, or the limtta- 
tions he would have admitted to the views which 
are attributed to him. The court pronounced its 
judgment for the defendant, a majority of the 
judges present being of the opinion that it had 
not jurisdiction of the ease^ But it seema that 



C "5 ] 

the .question is not yet oonmderod as at rest, the 
cwrt haviAg^ in a subsequent case; which came 
on for liearing 'm 1816^ expressed a willingness to 
listen to m argument upon it, notwithstanding 
the former decision. 

The whole snbfect has been recently discussed^ 
in a very able and elegant workt by Air. Dupoo- 
cean. He considers that there would hare been 
little difficulty in solfing the problem, if in stating 
it, the aosbiguons terms common law jurisdiction 
had not been used ; which he conceives are sus-- 
ceptible of a double interpretation^ implying in 
the one sense a jurisdiotton which may be law- 
fiiUy aasnmedy amd in the other a power in direct 
opposition to the letter and spirit of the national 
constitution : so that the controversy has been to- 
maintain or reject altogether this common law 
jmri$dictian^ in every sense in which the terms 
may be used, whilst a proper distinction would 
have reconciled all conflicting opinions upon the 
subject. In England, the common law is the 
source of jurisdiction to all the courts. In this 
country, it is no longer the source of power or 
jurisdiction, but. the means or instrument through 
which it isexercised. The cmnmon law is a sys- 
tem of jurisprudence, and nothing more. From 
the common law, considered as a source of power, 
no jurisdiction can arise to any court of justice in 
this country, state or national ; but considered as 
a means for the exercise of power, every lawful 
jurisdiction may be exercised through its instru- 
mentality, and by its proper application. 



t "6 ] 

Having thus disarmed the common law of its 
only dangerous attribute, what he calls the power 
giting capacityj Mr. Duponceau proceeds to 
argue with great acuteness and ingenuity, that 
considered as a system of jurisprudence^ it is the 
national law of the Union, as well as that of the 
particular States. It would be wandering too far 
from the subject of the present publication to 
enter into a critical examination of his reason- 
ings ; but it may not be improper to remark that 
the same distinction seems to have been held in 
view by Mr. Justice Story in CooUdge*8 case,* 
although the proposition is. not enunciated in 
such formal terms, or so elaborately discussed as 
by Mr. Duponceau, the nature of the case being 
such that the jurisdiction might more properly be 
considered as resting upon the Admiralty powers 
of the Court, than upon its general common law 
authority to punish offences against the United 
States. 



In the political controversies which grew out 
of the Declaration of War with Great Britain in 
1812, Mr. Pinkney took a very decided and zea- 
lous part. The following extracts from a pam- 
phlet written by him, and addressed to the people 
of Maryland, under the signature of Publius, in 

* Galiiton's Rcportf , rol. I. p. 488. 



[ 



v 



[117] 

1813, will show his views and feelings upon the 
momentous question which then agitated the 
public mind. 

^ But it is impossible that, in weighing the merits of a candi- 
date for a seat in the General Assembly, you should be occupied 
by considerations which are merely local. You are bound to 
give to your inquiries a wider range. Tou neither din, nor 
ought, to shut your eyes to the urgent concerns of the whole 
empire, embarked as it is in a conflict with the determined foe 
of every nation upon earth sufficiently prosperous to be envied. 
Maryland is at all times an interesting and conspicuous mem- 
ber of the Union ; but her relative position is infinitely more 
important now than in ordinary seasons. The war is in her 
waters, and it is waged there with a wantonness of brutality, 
which will not suffer the energies of her gallant population to 
slumber, or the watchfulness of her appointed guardians to be 
intermitted. The rights for which the nation is in arms, are of 
high import to her as a commercial section of the Continent. 
They cannot be surrendered or compromised without affecting 
every, vein and artery of her system ; and if the towering honour 
of universal America should be made to bow before the sword, 
or should be betrayed by an inglorious peace, where will the 
blow be felt with a sensibility more exquisite than here in Ma- 

lyland ? 

**It is perfectly true that our State government has not the 
prerogative of peace and war ; but it is just as true that it can 
do much to invigorate or enfeeble ihe national arm for attack or 
for defence ; that it may conspire with the legislatures of other 
States tp blast the best hopes of peace, by embarrassing or resist- 
ing the efforts by which alone a durable peace can be achieved ; 
as it may forward pacific negociation by contributing to teach 
the enemy that we who, when our means were small, and our 
numbers few, rose as one man, and mainUined ourselves victo- 
rious against the mere theories of ftVigland, with all the terrors 
of English power before us, are not nmo prepared to crouch to 
less than the same power, however insolently displayed, and to 

16 



[ 118 ] 

receive from it in perpetuity an infamous yoke of pemicioi9 
principles^ which had already galled us until we could bear it no 
longer. 

** That the war with England is irreproachably just, no mao 
can doubt who exercises his understanding upon the question. 
It is known to the whole world, that when it was declared, the 
British government had not retracted or qualified any one of 
those maritime claims which threatened the ruin of Americaa 
commerce, and disparaged American sovereignty. Every coDr 
structive blockade, by which our ordinary communication with 
European or other marts had been intercepted, was either per- 
versely maintained, or made to give place only to a wider and 
more comprehensive impediment. The right of impressment, 
in its most odious form, continued to be vindicated in argument 
and enforced in practice. The rule of the war of 1756, against 
which the voice of all America was lifted up in 1805, was still 
preserved, and had only become inactive because the colonies 
of France and her allies had fallen before the naval power of 
England. The Orders in Council of 1807 and 1809, which in 
their motive, principle, and operation, were utterly incompatible 
with our existence as a commercial people ; which retaliated with 
tremendous effect upon a friend the impotent irregularities of an 
enemy ; which established upon the seas a despotic dominion, 
by which power and right were confounded, and a system of 
monopoly and plunder raised, with a daring contempt of de- 
cency, upon the wreck of neutral prosperity and public law ; 
which even attempted to exact a tribute, under the name of an 
impost, from the merchants of this independent land, for per- 
mission to become the slaves and instruments of that abominable 
system; had been adhered to (notwithstanding the acknowl- 
edged repeal of the Berlin and Milan decrees in regard to the 
United States) with an alarming appearance of a fixed and per- 
manent attachment to those very qualities which fitted them for 
the work of oppression, and filled us with dismay. Satisfaction, 
and even explanation, had been either steadily denied, or con- 
temptuously evaded. Our^mplaints had been reiterated till 
we ourselves blushed to hear them, and till the insolence with 
which they were received recalled us to some sense of dignity. 



r 



[ 119] 

History does not furnish an example of such patience under sudi 
an accamulation of injuries and insults. 

^ The Orders in Council were indeed provisionally revoked a 
feir days after the declaration of war ; in such a manner, how- 
ever, as to assert their lawfulness, and to make provision for 
their revival, whenever the British government should think fit 
to say that they ought to be revived. The distresses of the 
manafacturing and other classes of ^British subjects had, at last, 
extorted from a bigotted and reluctant cabinet what had been 
obstinately refused to the demands of justice. Bnt the lingering 
repeal, inadequate and ungracious as it was, came too late. Tkt 
RMcan had been passed,^ 

'' ' Nothing is more to be esteemed than peace,' (I quote the 
wisdom of Polybius,) * whkn it lvavks us in possession or 
' OUR honour and rights ; but when it is joined with loss of 
' freedom, or with infamy, nothing can be more detestable and 
^ fatal.' I speak with just confidence, when I say, that no fede- 
ralist can be found who desires with more sincerity the return 
of .peace than the republican government by which the war was 
declared. But it desires such a peace as the companion and 
instructor of Scipio has praised — a peace consistent with our 
rights and honour, and not the deadly tranquillity which may be 
purchased by disgrace, or taken m barter for the dearest and 
most essential claims of our trade and sovereignty. I appeal to 
you boldly : Are you prepared to purchase a mere cessation of 
arms by unqualified submission to the pretensions of England ? 
Are you prepared to sanction them by treaty and to entail them 
upon your posterity, with the inglorious and timid hope of esca- 
ping the wrath of those whom your fathers discomfited and 
vanquished ? Are you prepared, for the sake of a present profit, 
which the circumstances of Europe must render paltry and pre- 
carious, to cripple the strong wing of American commerce for 
years to come, to take firom our flag its national efiect and cha- 
racter, and to subject our vessels on the high seas, and the brave 
men who navigate them, to, the municipal jurisdiction of Great 
Britain ? I know very well that there are some amongst us (I 
hope they are but few) who are prepared for all this and more ; 
whm pule over every scratch occasioned by the war as if it were 



[ 122 ] 

infinitely greater value to England than the usage, whilst they 
wer« innocent in themselves and respectful to us. Y^u have 
seen these temperate overtures haughtily repelled, until the other 
noxious pretensions of Great Britain, grown in the interim to a 
gigantic size, ranged themselves by the side of this, and left no 
alternative but war or infamy. We are. at war accordingly, and 
the single question is, whether you will fly like cowards from the 
sacred ground which the government has been compelled to 
take, or whether you will prove by your actions that you are 
descended from the loins of men who reared the edifice of Ame- 
rican liberty, in the midst of such a storm as you have never felt* 

<^ As the war was forced upon us by a long series of unexam- 
pled aggressions, it would be absolute madness to doubt, that 
peace will receive a cordial welcome, if she returns without igno- 
miny in her train, and with security in her hand. The destinies 
of America are commercial, and her true policy is peace ; but the 
substance of peace had, long before we were roused to a tardy 
resistance, been denied to us by the ministry of England ; and 
the shadow which had been left to mock our hopes and to delude 
our imaginations, resembled too much the frowning spectre of 
war to deceive any body. Every sea had witnessed, and con- 
tinued to witness, the systematic persecution of our trade and the 
unrelenting oppression of our people. The ocean had ceased to 
be the safe' high-way of the neutral world ; and our citizens tra- 
versed it with all the fears of a benighted traveller, who trembles 
along a road beset with banditti, or infested by the beasts of the 
forest. The government, thus urged and goaded, drew the sword 
with a visible reluctance ; and, true to the pacific policy which 
kept it so long in the scabbard, it will sheathe it again when 
Great Britain shall consult her own interest, by consenting to for- 
bear in future the wrongs of the past. 

*^ The disposition of the government upon that point has beea 
decidedly pronounced by facts which need no commentary. 
From the moment when war was declared, peace has been sought 
by it with a steady and unwearied assiduity, at the same time 
that every practicable preparation has been made, and every 
nerve exerted to prosecute the war with vigour, if the enemy 
should persist in his injustice. The law respecting seamen, the 



[ 123 ] 

Russian missioni the instructions sent to our cbarg^ d'aflaires in 
London, the prompt and explicit disavowal of every unreasona- 
ble pretension falsely ascribed to us, and the solemn declara- 
tions of the government in the face of the world, that it wishes 
for nothing inore than a fair and honourable accommodationi 
would be conclusive prcMfs of this, if any proofs were necessary. 
But it does not require to be proved, because it is self-evident. 
What interest, in the name of common sense, can the govern- 
ment have (distinctly from that of the whole nation) in a war 
with Great Britain ? It is obvious to the meanest capacity that 
such a war must be accompanied by privations,' of which no 
government would hazard the consequences, but upon the sug- 
gestions of an heroic patriotism. The President and his support-' 
ers have never been ignorant that those who suffer by a war, 
however unavoidable, are apt rather to murmur against the 
government than agamst the enemy, and that while it presses up- 
on us we sometimes forget the compulsion under which it was 
contunenced, and r^;ret that it was not avoided with a provident 
fbresigbt of its evils. 

^ It will, therefore, be no easy matter to persuade you that this 

war was courted by an administration who depend upon the 

people for their power, and are proud of that dependence ; or 

that it will be carried on with a childish obstinacy when it can 

be terminated with honour and with safety. You have, on the 

contrary, a thousand pledges that the government was averse to 

war, and will give you peace the instant peace is in its power. 

You know, moreover, that the enemy will not grant it as a boon, 

and that it must be wrung from his necessities. It comes to this, 

then : whom wUI you select as your champions to extort it from 

him ? upon whom will you cast the charge of achieving it 

against him in the lists ?" 



In the progress of the war by sea. a great va- 
riety of interesting and difficult que^tion^ of pub- 
lic law were brought before the Prize Courts for 
determination. Under the old Confederation, 



[ 124] 

this branch of the law of nations was adminis- 
tered according to the ordinances published bj 
Congress, recognizing the leading principles of 
prize law, as practised by the maritime states of 
Europe. These ordinances, some of which were 
published even before the declaration of inde- 
pendence, and during the limited hostilities pre- 
viously authorised, were followed by measures for 
the establishment of a navy, and a Board of Com- 
missioners for its government, similar to the 
present Navy Commissioners ; and for the ap- 
pointment of advocates to manage the maritime 
causes in which the United States might be con- 
cerned. 

A Court of Appeals was also organized for the 
express purpose of finally determining causes of 
this nuture ; and it is to be lamented that so few 
of the decisions of a tribunal, in which some of 
the most distinguished jurists and patriots of our 
country presided, should have been preserved or 
published for the instruction of posterity. The 
necessary consequence was that the breaking out 
of the late war found us almost without experience 
in this branch of law, so far as it depends upon 
judicial precedents. This defect could be but 
imperfectly supplied by a resort to the elemen- 
tary writers on the law of nations, most of 
whom are extremely deficient in practical details, 
and a particular application of the general prin- 
ciples they lay down. It therefore became ne- 
cessary to discuss anew all the leading doctrines 



J 



\ 



[ 125 ] 

of prize law ; and to ccMafirm them by the autho- 
rity of the Supreme Court. 

In laying the foundations of the system which 
was thus built up, Mr. Pinkney co-operated as an 
advocate; and his learning and peculiar expe- 
rience in this science contributed essentially to 
enlighten the judgments of the court. 



A bill having been brought into the House of 
Representatives, requiring the Attorney-General 
to reside at the seat of government, Mr. Pink- 
ney, who found it incompatible with his other 
professional engagements to remain constantly 
there, tendered a resignation of his office to the 
President. On this occasion he received the 
following letter from Mr. Madison. 



^ WAfeBoroTOif , Jantfory 29, 1814^ 

" DsAK Sib, — ^I have received your letter, conveying a resig- 
■ation of the important office held by you. As the bill to which 
you refer has not yet passed into a law, I hope you will he able 
to prolong your functions till a successor can be provided ; and 
at any rate to afford aid in the business of the United States, 
particularly understood by you, at the approaching term of the 
Supreme Court. 

,^ (>n the first knowledge of the bill I was not unaware that 
the dilemma it imposes might deprive us of your associated ser* 
vices, and the United States of the advantages accruing from 
your professional care of their interesu. I readily acknowledge 
that in a general view, the object of the bill is not QMligible to 

17 



[ 126 1 

* 

the Executive. At the same time, there may be instancee where 
talents aod services of peculiar value outweigh the coosiderattoD 
of constant residence ; and I have felt all the force of this truth 
since I have had the pleasure of numbering you among the part- 
ners of my public trust. In losing that pleasure, I pray yon to 
be assured of my high and continued esteem, and of my sheerest 
friendsh^ and best wishes.'' 



At the session of the Court in 1815, was brought 
to a hearing the celebrated case of the Nereide, 
the claim in which had been rejected in the Dis- 
trict Court of New-Tork, and the goods con- 
demned, upon the ground that they were captured 
on board of an armed enemy's vessel which had 
resisted the exercise of the right of search. This 
cause had excited uncommon interest on account of 
the very great importance and novelty of the ques- 
tions of public law involved in it, as well as the 
reputation of the advocates by whom it was dis* 
cussed. 

The claimant, Mr. Pinto, was a native and resi- 
dent merchant of Buenos Ayres, which had de- 
clared its independence of the parent country, al- 
though it had not yet been acknowledged as a sove- 
reign state by the government of this country. 
Being in London in 1813, he had chartered the 
British armed and commissioned ship in question 
to carry bis goods and other the property of his 
father and jsister to Buenos Ayres, and took pas- 
sage on board the vessel, which sailed under 
British convoy, and having been separated froiii 



V 



\ 



[ 127 ] 

the convoying squadron, was captured off the 
island of Madeira, after a short action, hj the 
United States' privateer the Governor Tompkins. 
The cause was argued by Mr. Emmett and Mr. 
Hoffman for the claimant, and by Mr. Dallas,* 
and Mr. Pinkney for the captors. 



* Alexander James Dallas was born in the island of Jamaica, 
on the 21st of Jone^ 1759* He was the son of Robert Charles 
Dallas, a native of Scotland, and a very eminent physician* 

In early youth, Mr. Dallas was taken to England by his father 
for the purpose of education. He was for sometime at West* 
minster school, and afterwards became a pupil of Elphinstone, the 
translator of Dr. Johnson's mottoes to his periodical essays. 
Mr. Dallas was in the habit of seeing Dr. Johnson at Elphin- 
stone's house, and having on one occasion addressed the author 
of the Rambler in a compliroeotary Latin essay, was immedi- 
stely honoured by the great moralist with the present of a beauii* 
(ul copy of that work. 

In 1780, he married a lady of Devonshire in England ; and 
after a short residence in London with Oaptain George Anson 
Byron, (who had shortly before married his sister, and who was 
the youngest son of Admiral Byron, and the uncle oi the celebrated 
poet Lord Byron,) be ^nbarked for Jamaica to recover his patrimo- 
nial inheritance in that island. In this pursuit he was unsuccess-* 
fnl, and left Jamaica for the United States, and arrived at New* 
York in June, 1789. Determining to remain In this country, he 
removed to PhUadelphia, and took the oath of allegiance to the 
Commonwealth of Pennsylvania on the 17th of June, 1783. 

Mr. Dallas had, while in London, entered his name at the 
Temple, preparatory to the study of the law. In Jamaica he 
practised for a short time, and received the commission of a 
Alaster of Chancery. His prospects of professional busing 
and public promotion in diat island were very flattering, but on 
his arrival in the United States he determined to unite his for- 
tunes with those of this young republic. He was admitted to 



[ 128 ] 

In the course of his argument, Mr. Pinkney 
insisted that the property ought to be condemned 
€{8 good prize of war upon the three following 
grounds : 

1. That the treaty of 1795 between the United 
States and Spain, contained a positive stipulation, 
adopting the maxim of what has sometimes been 
called " the modern law of nations," that free 



the bar of the Supreme Court of Pennsylvania in July, 1785, 
and to that of the Circuit Court of the United States in April, 1790. 

In the political divisions of the country he attached himself to 
the republican party, and was appointed, in 1791, Secretary of 
the Commonwealth of Pennsylvania, by Governor Mifflin. In 
this station he continued until the year 1801 , having been suc- 
cessively re-appointed by Governor Mifflin and Grovemor 
M'Kean. In 1801> he was appointed by President Jefferson, 
the Attorney of the United States for the district of Pennsylva- 
nia. Diu*ing the same year he was commbsioned as Recorder 
of Philadelphia by the State government, and the compatibility of 
that offlce with the one he held under the national government, 
having beep drawn in question, by his political opponents, was 
argued before the Supreme Court of Pennsylvania. The judgment 
of that tribunal having been pronounced in his favour, he imme- 
diately afterwards resigned the office. 

Besides the different official situations which he held, he ac- 
companied the Governor of Pennsylvania, as Aid-du-camp, and 
Paymaster General of the forces, in the expedition to suppress 
the western insurrection in 1794. On this occasion he conducted 
with singular diligence and activity, and his services were highly 
useful to the public cause. 

In the early part of his professional career, having much lei* 
sure, he occupied himself with various literary undertakings, and 
prepared for the press the first volume of his valuable series of 
law reports. In 1795, he completed, with universal approba- 
tion, an edition of the laws of Pennsylvania, with notes, in three 
volumes, folio. 



[ 129] 

Aips ihaU make free goods ; and although it did 
did not expressly mention the converse propo- 
sition that enemy ships should make enemy goods, 
yet it did not negative that proposition ; and as the 
two maxims had always been associated together 
in the practice of nations, the one was to be con- 
sidered as implying the other. 
2. That by the Spanish prize code, neutral 

In October, 1814, he was appointed Secretary of the Trea- 
swry by President Madison, and acted as Secretary of War from 
the 22d April, 1815, until the army was re>organized upon the 
peace establishment. He administered the Treasury deplurtment 
at the most difficult crisis in the affairs of the country which has 
occurred since the establishment of the present national govern- 
ment ; and whatever may be thought of the relative merit of his 
financial plans in comparison with those si^;gested by others, the 
praise of having rescaed the national finances from the most 
perplexing embarrassments, cannot justly be denied him. ^^ In 
^< the month of December, 18l6, peace being restored, the finan- 
'^ ces arranged, the embarrassment of the circulating medium 
^ daily diminishing, and soon to disappear under the influence of 
<^ the National Bank, which it had so long been his labour to es- 
^ tablbh, his property insufficient to defray the expenses of his 
^ situation, with a family still dependent on him, he resigned 
« this honourable station, and returned to his practice of the 
^ law in Philadelphia* Here he again entered upon professional 
<^ business with the zeal and ardour of youth. His business was 
^ immense, and his talents as an advocate were held in requisi- 
^ don not only at home, but from almost every quarter of the 
^ Union. In the midst, however, of prospects more brilliant 
'' than he had ever witnessed, and while indulging tn the fond 
^' belief that a few years of exertion would repair the injury in 
*^ his private fortunes occasioned by his devotion to the public 
^ service — ^his career w» suddenly closed by the inexorable 
'' band of death.v 



[ 180 ] 

property found on board of enemies* vessels was 
liable to capture and condemnation^ and that this 
being the law of Spain applied by her when bel- 
ligerent to us and all other nations when neutral 
by the principle of reciprocity, the same rule was 
to be applied to the property of her subject, which 
Mr. Pinto was to be taken to be, the government 
of the United States not having at that time ac- 



While laboriouslv engaged in the trial of a cause at Trenton, 
in New Jersey, he was attacked by a complaint to which be had 
for a long time been subject, and had barely time to reach bis 
family In Philadelphia, when he died on the l6th of January, 

X817- 

Mr. Dallas possessed a mind highly gifted by nature, and 
richly cultivated with a great variety of useful and elegant know- 
ledge. An early and frequent habit of writing had given him 
an uncommon facility in composition. His style, both in speak- 
ing and ^writing, was chaste and perspicooos : seldom embellished 
with rhetorical ornament, but always marked by good taste. 
The various public stations he had filled, his habits of dil^^ent 
study, and intercourse with the most intelligent persons, had 
enabled him to acquire an extensive knowledge of mankind and 
of literature ; which he imparted in his colloquial intercourse 
with peculiar facility and grace. His manners were highly 
polished, and his amiabk disposition endeared him fo a large 
circle of friends, and rendered him an ornament to the elegant 
society in which he moved. As an advocate, he was . distin- 
guished for his patient industry*-his accurate learning— «nd his 
diffusive and minute investigation of the subjects he undertook 
to discnss. When called to a seat in the national cabinet, be* 
sides his accustomed diligence, activity, and method in business, 
he displayed an energy of character not generally looked for, 
•and showed that he possessed the bold and comprehensive views 
of a patriotic and enlightened statesman. 



[131 ] 

knowledged the independence of the Spanish 
American colonies. 

3. He contended that the claim of Mr. Pinto 
ought to be rejected on account of his unneutural 
conduct in hiring, and putting his goods on board 
of, an armed enemy's vessel, which sailed under 
convoy, and actually resisted search* 

But on this last head, I have thought it fit to 
let Mr. Pinkney speak for himself, as the discus- 
sion involved an interesting principle of interna- 
tional law, and his manner of treating it will give 
the reader some notion of his forensic style and 
^ peculiar mode of reasoning upon legal subjects. 
• For this purpose I have inserted this portion of his 
argument, together with the exordium and perora- 
tion of his speech in this cause.* It is well known 
..that Mr. Pinkney's argument was overruled by 
the court, and the sentence of condemnation re- 
versed by the opinions of a majority of the judges 
of the Supreme Court. It is remarkable, how- 
ever^ that it should have been determined by Sir 
William Scott, a short time before the hearing 
in &e Nereide, (although the judgment was not 
known in this country,) that British captors were 
entitled to salvage, for the recapture of neutral 
(Portuguese) property, taken by one of our cruiz- 
ers on board our armed British ship, upon the 
ground that the goods would have been liable to 

* See Pabt Second, No. IV. The £ditor very much regrets 
that it has not heen in his power to procure a full note of th^ 
very able and eloquent argument of Mr. Emmet in this cause. 



I 132 ] 

eoudemnation in our courts of prize according to 
the established principles of the law of nations. * 

But the Supreme Court did not so understand 
that law, nor did they consider the case of IVf r. 
Pinto such as it had been represented in the argu- 
ment of Mr. Pinkney, and the glowing, meta- 
phorical language by which it was sought to be 
illustrated. 

In the words of Mr. Chief Justice Marshall, in 
delivering the judgment of the Court, " the Ne- 
^' reide was armed, governed, and conducted by 
" belligerents. With her force, or her conduct, 
^* the neutral shippers had no concern ; they de- - 
'^ posited their goods on board the vessel, and 
'^ stipulated for their direct transportation to 
'^ Buenos Ayres. It is true, that on her passage, 
^' she had a right to defend herself, and might, 
^^ have captured an assailing vessel ; but to 
*^ search for the enemy would have been a viola- 
" tion of the charter party and of her duty. 

'^ With a pencil dipped in the most vivid co- 
'* lours, and guided by the hand of a master, a 
** splendid portrait has been drawn, exhibiting 
*' this vessel and her freighter as forming a single 
*^ figure, composed of the most discordant mate- 
'' rials of Peace and War. So exquisite was the 
** skill of the artist, so dazzling the garb in which 
** the figure was presented, that it required the 
** exercise of that cold investigating faculty which 



Dodson's Admiralty ReporU, toL I^ p. 445. 



[138 ] 

" ought always to belong to those who sit on this 
" bench, to discover its only imperfection, — its 
*' want of resemblance. 

" The Nereide has not that centaur-like ap- 
'' pearance which has been asrribed to her. She 
** does not rove over the ocean, hurling the thun- 
" ders of war, while sheltered by the olive branch 
" of peace. She is not composed in part of the 
" neutral character of Mr. Pinto, and in part of 
" the hostile character of her owner. She is an 
" open and declared belligerent ; claiming all the 
" rights, and subject to all the dangers, of the bel- 
" ligerent character. She conveys neutral pro- 
perty which does not engage in her warlike 
equipments, or in any employment she may 
^* make of them ; which is put on board solely 
" for the purpose of transportation, and which 
'' encounters the hazard incident to its situation ; 
^' the hazard of being taken into port, and obliged 
^^ to seek another conveyance, should its carrier 
" be captured. 

" In this, it is the opinion of the majority of the 
" Court there is nothing unlawful. The charac- 
" ters of the vessel ^nd the cargo remain as di«- 
" tinct in this as in any other case."* 



it 



Soon after the conclusion of the peace with 
Great Britain, the citizens of Baltimore, where 



* Craoch's Reports, vol. U. p. 430. 

18 






[ 134] 

Mr. Pinkney still continued to reside, held a publie 
meeting, at which the following Address, drawn 
up by him, was adopted and directed to be trans- 
mitted to Mr. Madison. This paper may be con- 
sidered as embodying the opinions and feelings 
of Mr. Pinkney upon the great struggle through 
which the country had just past ; opinions 'and 
feelings which he had frequently expressed in 
popular essays, and speeches to public meetings, 
and which he never withheld from his fellow-citi- 
zens in public or in private. He had been an 
eye-witness of the unceasing anxiety of our 
government to avoid a resort to war, and of the 
spirit in which their forbearance was met by the 
opposite party, tie had exposed his own life in 
the defence of his country. He was, therefore, 
peculiarly qualified to give utterance to the sen- 
timents of a people, who had manifested an un- 
shaken attachment to the public cause ; who had 
never wavered in their fidelity to the government 
and the country ; and who had repelled with cou- 
rage and constancy the attacks of an enterprizing 
enemy flushed with his recent success against the 
capital of the nation. 

r 

« To the Presiiknt of the United States. 
^ We beg leave to offer to you our sincere congratulations up- 
on the conclusion of an honourable peace between the United 
States and Great Britain, and at the same time to express our un- 
feigned admiration of the enlightened wisdom, and patrietic firm- 
ness, by which your conduct has been distinguished during the 
extraordinary trials to which for some time past our country has 
been ezpqged by foreigp injustice. 



[ 



C 135] 

^ In the anxious and long-continued efforts of eur government 
to avoid a contest with England, we have seen and approved 
that spirit of moderation and love of peace, which ought in a 
peculiar manner to characterise republican rulers ; and in the de- 
cision with which an appeal to arms was made, when forbear- 
ance was no longer possible, we recognize and applaud that cou- 
rageous devotion to the rights and honour of the nation, which a 
brave people are entitled to expect from those who are the depo- 
sitories of their power. 

** The struggle which followed that appeal was necessarily 
commenced under formidable difficulties, growing out of our own 
situation and that of the enemy $ but it was marked in its pro- 
gress by signal triumphs, won by a navy in the weakness of its 
infancy, from the greatest maritime nation on the globe, and by 
an army, and militia in which discipline had only begun to lend 
its aid to valour, from those who had long been formed to mili- 
litary habits, and had become familiar with victory over the vete- 
ran troops of France. 

^' That struggle has revived, with added lustre, the renown 
which brightened the morning of our independence. It has call- 
ed forth and organized the dormant resources of the empire : 
it has tried and vindicated our republican constitution : it has 
given us that moral strength which consists in the well-earned re- 
spect of the world, and in a just respect for ourselves. It has 
raised up and consolidated a national character, dear to the hearts 
of the people, as an object of honest pride and a pledge of fu- 
ture utilon, tranquillity, and greatness. It has not, indeed, been 
unaccompanied by occasional reverses ; yet even these have had 
their value and may still be wholesome to us, if we receive them 
as the warnings of a protecting Providence against the errors of 
a false confidence, and against intemperate exultation in the midst 
of more prosperous fortune. Many of our citizens, too, have 
fallen in this conflict, and it becomes us to mourn their loss ; but 
they have fallen that their country might rise ; they have cement- 
ed with their blood the fabric of her happiness and glory ; and 
alfliough death has snatched them from us, they will still live in 
their example and in the grateful remembrance of thehr country- 
sen. 



-vr 



[ 136 ] 

" Throughout this severe probation your course has been stea-^ 
dy and uniform,you have not been turned aside from the pursuit of 
peace, through a vigorous preparation for war, by unforseen and 
gigantic eipbarrassments, enhanced if not produced by an opposi- 
tion more active and persevering than ever before was known to 
palsy tlie energies of a free state, in the hour of her greatest 
peril. The result of constancy, sustained and animated by vir- 
tue, has been what it ought to be : the result has been a peace 
which every American feels that he may enjoy, not only without 
a blush, but with a lofty consciousness that it brings with it aug- 
mented honour for the preset^, and security for the future." 

I have mentioned that Mr. Pinkney was active- 
ly engaged in the defence of the country during 
the war. Soon after it was declared he was elect- 
ed to command a volunteer corps which had been 
raised in Baltimore for local defence, and which 
was attached as a battalion of riflemen to the 
third brigade of Mfiryland militia. He marched 
with his corps to Bladensburg, at the time of the 
attack on the city of Washington by the British 
under General Ross, and conducted with great 
gallantry in the action^at the former place, where 
he was severely wounded. Some time after the 
peace, he resigned his command, on which occa- 
sion the following communications passed be- 
tween him and his fellow-soldiers. 



" To the Battalion of Riflemen^ attached to the 2d Brigade of 

Maryland Militia, 

" It has become necessary, fellow-citizens, that I should resign 
my commission as 3'our Major ; and I am about to resign it ac- 
cordingly. I accepted it, as yon know, during the late war with 



^ 



y 



[ 137 ] 

England) in the hope that it would enable me to be in some de- 
gri« useful in the defence of oui country. In the events my use- 
fulness has been very small ; but tlie knowledge that yours was 
great and signal has consoled me ; it iias more than consoled me ; 
it has filled me with an honest pride. 

^ Your bravery, and skill, and conduct, have won for you a 
high name, that ought to be dear to you as a corps. It will, I 
trust,Jbe as a bond of union, and keep you together under a 
better commander than I can pretend to be. You cannot have 
a cooomander more truly attached to you personally, and to your 
honour as soldiers, than J have always been ; but cenainly you 
may have one with more activity, more leisure, more knowledge 
of your peculiar discipline. # 

^' If the war had continued, I would not have parted from 
you ; but peace has taken away the only motive which could 
justify me, at my age, and in my situation, in holding a military 
commission. 

<< I take my leave of you, therefore, under a persuasion that pro- 
priety demands it. I need not tell you that I do so with regret, 
produced by .a remembrance of our past connexion ; nor is it ne- 
cessary that I should assure you that in ceasing to be your com- 
manding officer, I shall not cease to be your friend. 

" WM. PIJSKNEY. 

« Bai-timo»e, Sept. 22, 1815." 

« Baltimoke, OcU \\y 1815. 
^^ Major Wm. Pinkkcit : 

«( Sia,— The Battalion of Riflemen attached to the Third Bri- 
gade Maryland Militia, have received, with emotions of deep 
regret, the information that you have resigned that command, 
the duties of which, during a m«tt arduous period, you discharg- 
ed with so much honour to yourself, advantage to the corps, and 
to your country. 

'* As long as our government cherished the pleasing hope that 
the force of justice, reason, or argument, could induce a pow- 
erful nation to cease from violating our neutral rights, harassing 
oar lawful commerce, ahd dragging our seamen into ignominious 
bondagtiyonr splendid talents and matchless eloquence were em- 



I 138 ] 

ployed in the attempt ; commanding the respect of your opponents 
and the applause of your admiring coontry. But, when our gov- 
ernment vas at length tardily convinced that the hope it had so 
long cherished was indeed fallacious, and reluctantly determine 
<cd, in compliance with the wishes of the nation, to appeal to 
arms, your fellow- citizens beheld you among the foremost to 
second that appeal, and unsheathe your sword to assert the vio- 
lated rights, and avenge the insulted honour, of our beloved coun- 
try ; your talents were there directed to improve that discipline, 
inc^ase that devotion, and exalt that courage, which were even- 
tually so successfully employed in bringing the war to a speedy 
and an honourable termination. 

^' If, in the course of the glorious contest, this corps has ac- 
quired any claim to the applause of its country, we do not hesi- 
tate to ascribe it, in a great degree, to the influence of yoor 
example, which pervaded its ranks, and invigorated its exertions, 
in the day of battle. To be separated from an officer whose 
talents, courage, and patriotism, are universally admired, and 
whose blood has been freely shed in defence of that cause, the 
justice of which his eloquence had, on many occasions, so abun- 
dantly established, must be at any time a subject of regret ; but 
we console ourselves with the reflection, that under existing cir- 
cumstances, the portion of your valuable time, which would have 
been occupied by the duties of the command you have resigned, 
may be more beneficially employed in discharging the importenC 
duties of that honourable station in the councils of the republic, 
to which you have been called by the jgratitude and confidence 
of your fellow-citSa^ns.*' 



The station in the public councils to which Mr. 
Pinkney had been called in the manner stated in 
the above Answer^ was that of a Representative in 
Congress from the city of Baltimore. Soon after 



[ 139 ] 

his election, a question arose of v#fy great impor- 
tance under our peculiar political system, which 
was discussed with much zeal and talent in the two 
bouses of the national legislature. A commercial 
convention between the United States and Great 
Britain was signed at London in July, 1815, and 
subsequently ratified by the President and Senate, 
by which it was stipulated that the discriminating 
duties on British vessels and their cargoes, then 
subsisting under certain acts of Congress, should 
be abolished, in return for a reciprocal stipulation 
on the part of Great Britain. On this occasion 
a bill was brought into the House of Representa- 
tives to carry the convention into effect, specifi* 
cally enacting the stipulations contained in the 
convention itself. This bill was opposed by Mr- 
Pinkney in a speech containing a full discussion 
of the whole subject, both as connected with the 
law of nations and our own municipal const itu* 
tion.* 

In order to ejcplain this speech, it may not be 
useless to mention that the bill passed the House 
of Representatives, but was rejected in the Senate ; 
that body having passed a mere declaratory bill 
enacting that so much of any act of Congress as 
was contrary to the stipulations of the conven- 
tion, should be deemed and taken to be of no 
force or effect. Some further proceedings took 
place ; and the disagreeing votes of the two 



a 



• See Part 11. No. V. 



houses were at test reconciled by a committee of 
conference, at whose recommendation the'decla- 
ratory bill was passed by the House of Represen- 
tatives, and became a law. 

It may also be expedient to remind the reader 
of what took place in the House of Representa- 
tives under the administration of General Wash- 
ington, as to the legislative provisions necessary 
to carry the British treaty of 1794 into effect. In 
the debate on this subject, it was contended that 
the constitution having provided that all treaties 
made under the authority of the United States 
should be the supreme law of the land ; every 
treaty being a contract between the nations who 
are parties to it ; and the treaty with Great Bri- 
tain having been ratified by the President with 
the advice and consent of the Senate, a refusal 
by the House of Representatives to provide the 
means of carrying it into effect, was consequently 
a violation of the treaty, and a breach of the 
national faith. On the other hand, it was insisted 
that a treaty which required an appropriation of 
money, or any other special legislative provision to 
carry it into effect, was not, so far, of binding obli- 
gation, until Congress had adopted the measures 
necessary for that purpose. The House of Repre- 
sentatives ultimately passed a resolution, calling on 
the President to lay before them the instructions 
to Mr. Jay, the minister by whom the treaty had 
been negociated, and the correspondence and 
other papers,' except so far as they were improper 
to be disclosed on account of pending negocia- 



f 



[ 141 ] 

tions. President Washington declined comply- 
ing with this request ; stating that a treaty, when 
duly made by the President and Senate, became 
the supreme law of the land ; that the assent of 
the House of Representatives was not necessary to 
its validity ; and therefore the papers requested 
could not properly be required for the use of the 
House, unless for the purpose of impeachment, 
which was not stated to be the object of the call. 
The House thereupon passed resolutions disclaim- 
ing the power to interfere in the making of trea- 
ties, but asserting its right, whenever stipulations 
were made on subjects within the legislative pro- 
vince of Congress, to deliberate and decide as to 
the expediency of carrying them into effect.* 



* At the session of the Court, 1816, Mr. Pinkney still con^ 
tiDued his labours at the national bar, where he frequently came 
io conflict with the great abilities of Samuel Dexter. 

Mr. Dexter, who died soon sAer this term, may be pronoun- 
ced one of the ablest men this country has produced. The man- 
ner in which he combined the various talenu and attainments of 
the common lawyer, the civilian, and the statesman, may be 
appealed to as a striking example of those expansive views and 
liberal studies which distinguish the more eminent advocates at 
the American bar. 

He was bom at Boston in the year 1761, and was the second 
son of Samuel Dexter, an eminent merchant of that city. Hit 
father was a man of acute understanding, and an ardent lover of 
L his country. In those struggles between the provincial legis- 
. lature of Massachusetts and the royal governors, which preceded 
and prepared the revolution, he bore a prominent part. He was 
repeatedly negatived by the* Governor as a counsellor, until so 

19 



[ 1^ ] 

In March, 1816, Mr. Pinkney was again called 
into the diplomatic service of his country. In or- 
der to understand the motives which had repeat- 
edly induced him to go abroad in the same service^ 
it is necessary to advert to some of the peculiar 
circumstances connected with his brilliant success 
at the bar. This success was as much the effect 
of extraordinary diligence and labour as of his 



constantly was he re-elected, that it was not thought prudent to 
persist in rejecting him. In 1774, he had the signal honour of 
being negatived by Governor Gage, in company with Bowdoin 
and Winthrop, by the <^ express commands of bis Majesty." 
The pen of this eminent patriot is to be traced in the answers to 
the Governor's speeches, and the various state papers of the 
day ; which have so long been the theme of general admiration 
for their manly style, their perspicuous argument, and their firm 
and bold tone of remonstrance against the oppressive measures 
of the British government He lived to see his country free and 
happy ; and the evening of his days was spent in studies con« 
nected with the noblest speculatibns in which the human mind 
can be engaged. These studies, b^^gun and continued for his 
own private satisfaction, resulted in the establishment of a pro- 
fessorship of Sacred Literature in the University at Cambridge, 
which was founded by his testament. 

His son was graduated at this university in 1781. With such 
a paternal example, the path of public and private virtue was 
open before him. After being admitted to the bar, he rose ra- 
pidly to eminence in his profession, and in the public councib of 
his native State. He was soon elected to Congress ; at first as 
a member of the House of Representatives, and afterwardis as 
a member of the Senate. He distinguished himself as an able 
debater, at a period when bolh houses of the national legislature 
were adorned with the presence of many eloquent statesmen* ; 



[ 14S] 

genius and rare endowments of mind. His con- 
tinued application to study, writing, and public 
speaking, which a physical constitution as power- 
ful as his intellectual enabled him to keep up 
with a singular perseverance, was one of the most 
remarkable features of his character. He was 
never satisfied with investigating his causes, and 
took infinite pains in exploring their facts and 



and was successively appointed Secretary of War, and of the 
Treasi\ry, under the administration of President Adams. On 
the change of administration, in 1801, he resigned his official 
station, and resumed the practice of his profession ; but he never 
remained a silent or indifferent spectator of the dissentions and 
dangers of his country. ^ The prerogative of the mind of Mr. 
^ Dexter was a right to think for itself;" and on the declaration 
of war with Great Britain in 1812, he separated from the politi- 
cal connexion with which he had hitherto acted. 

He took a zealous part in promoting the interests of learning, 
and devoted his leisure to the same studies which had engrossed 
so much of the attention of his father. He was deeply grounded 
in the doctrines of Christianity, and the testimonies upon which 
their credibility is rested. They habitually guided his conduct 
in life, and he strengthened their influence by private meditation 
in that retirement which was so congenial to his disposition.* 

The features of the intellectual character of Mr. Dexter pre- 
sented a strong contrast with those of Mr. Pinkney. ile had 
cultivated his powers by silent meditation and reflection, rather 
than by the study of books. Without being at all deficient in 
mere technical learning, he relied mainly upon his own distin- 
guishing faculties, and in his legal investigations sought for those 



* The abore accoont ii principally compiled from a notice which appear- 
ed m one of the Boston newtpapen toon after Mr. Dezter'i decease. 



[ 144 3 

circumstances, :tfid all the technical learning con- 
nected with theoi. He constantly continued the 
practice of private declamation as a useful exer- 
cise, and was in the habit of premeditating his 
pleadings at the bar, and his other public 
speeches, — not only as to the general order or 
method to be observed in treating his subject, the 
authorities to be relied on, and the leading topics 



original principles which lie at the foundation of every civilized 
code. His forensic style was marked by a strong metaphysical 
logic, combined with great purity and simplicity of diction ; and 
be unfolded the most perplexed and intricate questions of public 
and private law with a power of analysis which seemed almost 
intuitive. In the course of his investigations he frequently 
arrived at the same conclusions with those who pursued the more 
laborious process of reasoning, merely from analogy and prece- 
dents ; and often found himself sustained by the authority of a 
Scott or a Mansfield, when he was not aware that he was tread- 
ing in the footsteps of those great jurists. At other times he 
confirmed and strengthened the authority of the oracles of the 
law by new inductions and fresh illustrations drawn from his 
own capacious intellect. Less attentive to the forms and analo- 
gies of technical law, than to the principles of natural equity, his 
mind was enlarged by a philosophical view of universal jurispru- 
dence ; and to him might be applied what Cicero says of Sulpi- 
cius : — ^^ Neque ille magis jurisconsultus qunm justitiae fuit : ita 
ea qusB proficisebnntur a Legibus et a Jure civili semper ad 
Facilitatem Fquitatemque referrebat.'^ But it is higher praise 
and equally well merited, that in him the character of the advo* 
cate seemed to borrow a new lustre from that of the philosopher 
and the patriot ; that like the illustrious Roman referred to, — 
^' in his political conduct he was always the friend of peace and 
** liberty ; moderating the vi#lence of opposite parties, and dis- 
*f couraging every step towards civil disse ntions/^ 



C 145 1 

of illustration^ but frequently M to the principal 
passages and rhetorical embellishments. These 
last he sometimes wrote out beforehand ; not that 
he was deficient in facility or fluency, but in 
order to preserve the command of a correct and 
elegant diction. All those who have heard him 
'address a jury, or a deliberative assembly, know 
that he was a consummate master of the arts of 
extemporaneous debating. But he believed, with 
the most celebrated and successful orators of an- 
tiquity, that the habit of written composition is 
necessary to acquire and preserve a style at once 
correct and graceful in public speaking ; which 
^thout this aid is apt to degenerate into collo- 
quial negligence, and to become enfeebled by te- 
dious verbosity.* His law papers were drawn 

■ .iiii.! I II j. I M i.ii 11 I I . n pi.i ...■ ...I ■ III 

\ 

♦ A writer in the Edinburgh Review, referring to this practice 
of the ancients, quotes the following passage from Mr. Broug- 
ham's Inaugural Discourse, on his election as Lord Rector of the 
University of Glasgow. " I should lay it down as a rule admit- 
ting of no exception that a man will speak well in proportion as 
he has writlen much ; and that with equal talents, he will be the 
finest extempore speaker when no time for preparing is allowed, 
who has prepared himself the most sedulously when he had an 
opportunity of delivering a premeditated speech. All the ex* 
ceptions, I have ever heard cited to this principle, are apparent 
ones only," &c. The reviewer then proceeds to mention some 
examples of this practice. " Pericles, we learn, — Pericles, of 
whose astonishing powers an attempt has been made to convey 
an adequate idea by affirming of him that he thundered, and 
V lightened, and shook all Greece, — a man of business, too, (as 

I Bir. Hume justly observes of him, if ever there was one,) pre- 

pared himself by written composition, and first introduced the 
practice— ^^flww >{<rTo» a©>«» w /i»«rT«fM iMn, T»r r/* cvrev 'X*^^" 



[ 146] 

up with great care ; and his written opinions were 
elaborately composed both as to matter and style ; 
and frequently exhausted, by a full discussion, the 
subject submitted for his consideration. If to all 
these circumstances, be added the fact that he 



(otrmf. And this it will be remembered was done at Athens, 
where the people were, according to Demosthenes, the readiest, the 
quickest, and the most expert at extempore composition. It by 
no means follows, that a person of experience and study, if pre- 
pared with regular and set passages, (Lord Erskine, we believe, 
had written down, word for word, the passage about the Savage 
and his bundle of sticks, in his speech on Stockdale's trial, j is, 
when those passages are ended, like a swimmer who goes to the 
bottom the very moment he loses his corks. NMt sine cortice / 
The mind, having acquired a certain excitement and elevation, 
and received an impetus from the tone and quality of the matured 
and premeditated composition^ perseveres in the same course, and 
retain^ that impetus after the impelling cause shall have died 
away." 

Mr. Moore, in his interesting life of Sheridan, remarks, as one 
of the striking characteristics of that extraordinary person, the 
great degree of labour and preparation which his productions^ 
both as an orator and a writei-, cost him. '' He never made a 
speech of any moment, of which the sketch, more or less detail- 
ed, has not been found among his papers — with the showier pas- 
sages generally written two ur three times over (often without 
any material change in their form) upon small detached pieces of 
paper, or on cards. To such minutis of effect did he attend, 
that I have found, in more than one instance, a memorandum 
made of the precise place in which the words ^ Good God, Mr. 
Speaker,' were to be introduced. These preparatory sketches 
are continued down to his latest displays ; and it is observable 
that when from the increased derangement of his affairs, he had 
no longer leisure or coUectedness enough to prepare, he ceased 
to speak." 



r 



[ 147] 

engaged in the performance of his professional 
duties with unusual zeal, always regarding his 
own reputation as at stake, as well as the rights 
and interests of his client, — and sensibly alive to 
every thing which might affect either, and that he 
spoke with great ardour and vehemence ; it must 
be evident that the most robust constitution would 
not be sufficient to sustain such intense and unin^ 
terraitted labour, where every exertion was a con-^ 
test for victory, and each new success a fresh 
stimulus to ambition. He, therefore, found it ne- 
cessary to vary his occupations, and to retire alto-> 
gether from the bar for a season, in order to refresh 
his wearied body and mind, with the purpose of 
again returning to it, with an alacrity invigorated 
and quickened by this temporary suspension of 
his professional pursuits. He was thus induced 
to accept the appointment of Minister Plenipo-^ 
tentiary to the court of Russia, and of special 
Minister to that of Naples. Soon after this dou- 
ble mission had been conferred upon him, in a 
conversation with one of his friends, he said : 
" There are those among my friends who wan- 
der that I will go abroad, however honourable the 
service. They know not how I toil at the bar ; 
they Jinow not all my anxious days and sleepless 
nights; I must breathe awhile ; the bow forever 
bent will break :" "Besides," he added, " I want 
to see Italy : the orators of Britain I have heard, 
but 1 want to visit that classic land, the study of 
whose poetry and eloquence is the charm of my 



[ 148 ] 

life ; I shall set my foot on its shores with feelings 
that I cannot describe, and return with new en- 
thusiasm, I hope new advantages, to the habits of 
public speaking." 

On this occasion he published the following 
Address to his constituents : 

** Fkllow-Citizbns — My acceptance of an appointment as 
the Minister Plenipotentiary of the United States to Russia, makes 
it necessary that I should resign my seat as one of your Repre- 
sentatives in Congress. I am conscious that I owe you an apo- 
logy for having attempted to hold it even for a single day, rather 
than for this tardy resignation of it ; and I assure you if I had 
acted upon my own judgment, instead of the suggestions of 
friends, who hoped that I should find leisure to be of some use 
to you, I should long since have given you an opportunity of se- 
lecting a better representative in my place. I was persuaded 
before the present session commenced, that the duties of my pro- 
fessiun, which a long course of public employment had rendered 
indispensible to my family, would press so urgently upon me as 
to compel me to seem careless of your interests. The event has 
verified that persuasion. During the greater part of this session 
I have been incessantly occupied in courts of justice, and have 
been scarcely able to give such attendance in the House of Repre- 
sentatives as would allow me to vote upon the most important 
questions. To mix much in the discussion of those questions, 
greatly as I desired to do so, wad impracticable. If I had re- 
mained at the bar, therefore, I should have thought it incumbent 
upon me, afler such an experiment, to ask your permission to re- 
tire from the post in which your partiality had stationed me ; con- 
vinced that it would be impossible for me to do justice in it either 
to you or myself, without the utter neglect of what I owe to 
tbose who depend upon me for support. 

<<I beg you, fellow-citizens, to believe that I have not willingly 
been an inattentive servant, and that, as I was prond of the high 
distinction which you had conferred upon me, I should have me- 
rited it by a close application to your concerns, if I had been at 



[ 149 ] 

liberty to do so. I fed assured that I maj rely upon yonr 
known liberality for my justification in this respect ; and^ while I 
offer you my grateful thanks for the proof of confidence with 
which you have honoured me^ and that too in a season <»f dan- 
ger and trial, which has now passed away^ I pray yoy to be con- 
vinced that yoii will always find in me a faithful friend, devoted 
to your honour and prosperity, in whatever situation I may hap* 
pen' to be placed. 

WM. PINKNEY." 



Mr. Pinkney embarked, for the purpose of 
proceeding on his foreign missions, on board the 
Washington, a ship of the tine, composing a part 
of our Mediterranean squadron, under the com- 
mand of Commodore Chauncey, and landed at 
Naples on the 26th of July, 1816. The object 
of his mission to the Neapolitan court was to de- 
mand from the present government of Naples in- 
demnity for the losses which our merchants had 
sustained by the seizure and confiscation of their 
property in 1809, during the reign of Murat. Af- 
ter he had fulfilled the duties of this special mis- 
sion, he was to proceed to St. Petersburg as the 
minister resident of the United States. 

On his arrival at Naples he immediately appli- ^ 
ed himself to the business with which he was 
charged, and after various conferences with the 
I^arquis di Circello, the Minister of Foreign Af- 
fairs, he addressed a note to that minister, con- 
taining an. elaborate argument upon the responsi- 
bility of a nation for wrongs done and obligations 

20 



[ 150 ] 

incurred under its actual rulers, upon a sabse* 
quent revolution in the government which maj 
stamp those rulers with the character of usurpers 
in the view of their successors.* 

The Neapolitan minister evaded giving any 
answer to this note, until after Mr. Pinkney's 
departure from Naples, which he was obliged, by 
his instructions, to leave, in order to repair to his 
post at St. Petersburg ; and, as is well known, 
the Neapolitan government refused to admit the 
justice of the demand which he was directed to 
present for its consideration. 

During Mr. Pinkney's stay at Naples he receiv- 
ed information from Mr. Harris, our Charge 
d' Affaires at St. Petersburg, that the Emperor of 
Russia having taken offence at the conduct of the 
United States' government in the affair of Mr- 
Kosloff, the Russian Consul-General in this coun- 
try, had forbidden Mr. Harris from appearing at 
court. Kosloff had been arrested, upon the accu- 
sation of having committed a horrible erime ; and 
was indicted for the offence in the State Court of 
Pennsylvania. A motion was made by the pri- 
soner's counsel to quash the indictment for want 
of jurisdiction in the Court, upon two grounds : 
1st. That consuls are privileged by the law of 
nations from criminal prosecutions in the tribunals 
of the country where they reside. 2dly. That by 



* State Papers, vol. xi. p. 487. 



t 151 3 

the constitution of the United States exclusive 
jurisdiction in all cases affecting ambassadors, 
other public ministers, and consuls, is conferred 
upon the Courts of the Union. The first point 
was determined in the negative ; but it was held, 
that although foreign consuls are amenable to 
the criminal justice of the country where they 
reside, yet the national constitution has conferred 
upon the Courts of the United States excltuive 
jurisdiction of all offences committed by them in 
this country. But the State Court did not under- 
take to determine by what law he was to be tried 
in the Courts of the Union ; and he was after- 
wards discharged without a trial, upon the doubts 
which I have before stated to exist among our 
jurists, whether the Courts of the United States 
have power to try and punish offences committed 
by a person, over whom they have, by the Qoosti* 
tution, jurisdiction in all cases ; but where there 
is no express act of Congress defining the offence 
and affixing the punishment : or, as it has com- 
monly been expressed, whether the national 
Courts have any common law jurisdiction. 

Mr. Pinkney deemed this matter of sufficient 
importance, in respect to the propriety of his pre- 
senting himself as the minister of the United 
States at the Russian court, so long as the diffi- 
culty subsisted, to induce him to send forward 
Colonel King, the Secretary of his Legation, with 
the following letter to Mr. Harris : 



[ 152] 

** Private, " Naples, September 17, I8l6. 

<< Sir, — ^I received last night your letter of the SOth of July, 
with its enclosure. The light in which the Emperor faa^ seen 
the affair of Mr. Kosloff is very much to be regretted ; but I 
have no orders to offer any explanations upon it, although the 
means of explanation have been put into my hands by the De- 
partment of State* 1 am in possession of copies of all the mate- 
rial papers belonging to the case ; and consequently know and 
am able to say with perfect confidence, that the government of 
the United States had not, either in fact or constructively, any 
participation in the act of which the Emperor seems particularly 
to complain. I am not, however, authorized to make a fornal 
disavowal of that act, because (as I presume) it had not occurred 
to the government that it could be necessary, or would be de- 
sired. 

^ It is impossible to understand this affair ever so slightly 
without perceiving that it was altogether a judicial proceedings 
In the common course, by a magistrate, and by officers of the 
State of Pennsylvania, over whom the government of the Union 
could exert no preventive control, (even if it had divined their 
intention to arrest and imprison iVIr. Kosloff,) and against whom 
it could institute no prosecution, after the act was done, with a 
view to their punishment. It is plain upon ike face of the trans* 
fiction that the government of the United States has given no 
cause of offence to Russia, either by what it omitted to do, or by 
what it did. In truth, it omitted nothing which it could, and 
ought to have done ; and, in all that it did, manifested the ut- 
most possible respect to the Emperor. It endeavotired, through 
its law officer (the District Attorney for Pennsylvania) to put 
ftn end to the prosecution, by placing Mr. Kosloff, as Russian 
Consul*General, under the peculiar protection, either of the law 
of nations, or of the constitution of the United States ; and the 
prosecution was terminated by a decision of the Court of Penn- 
sylvania, that, although a consul is not entitled (as undoubtedly 
he is not) to the immunities which appertain by the jiij gentium 
to ministers, he is nevertheless not amenable in America to a 
State tribunal. The government could go no farther ; and this 



[ 153] 

was the whde of its connexion with Mr. KosIofTs case^ with the 
exception only of its refusal afterwards to issue an order, upon 
Mr. DaschkoflPs applicationy for the trial of Mr. Kosloff in a tri- 
humU of the Vniied States ; the Attorney-General having re- 
ported that according to a recent adjudication of the Supreme 
Court) such a trial could not be had. 

^ When I left America, I do not believe any body supposed 
that the Emperor had uhen, or would take, umbrage, at Mr. 
KosloflTs affair. In my instructions^ therefore, (which breathe 
nothing but esteem and reverence for the Emperor,) it is not even 
mentioned. Yet I am sure that if the American government had 
anticipated the feeling which it has excited in the Emperor, it 
would have hastened to prevent it by such explanations as could 
not have failed to be satisfactory. The disposition of the go- 
vernment of the United States to cultivate the most amicable 
relations with his Imperial Majesty is known to all the world ; 
and if it has not been forward to explain the case of Mr. Kosloff 
before explanation was required, it could only be because the 
consciousness of its sentiments of respect and kindness stood in 
the way of even a conjecture that they would be brought into 
question. 

^ I take fof granted, however, that as Mr. Daschkoff was di« 
rected to ask reparation, the misunderstanding has long since 
been removed, notwithstanding the strong step adopted by the 
Emperor in /tmtne, of forbidding the appearance at court of the 
Charge d'Affaires of the United States. It is not improbable 
that I shall receive in a few days (by a despatch vessel expected 
by Commodore Chauncey) some communication from the De- 
partment of State on this matter ; and I can scarcely doubt that 
you have already received instructions concerning it. At any 
rate, I persuade myself that nothing serious can ultimately grow 
out of such a difficulty. But still it would be improper that I 
should present myself before the Emperor as the minister of my 
country, until I know with certainty that the difficulty has wholly 
ceased, or until I have such further instructions bs will enable 
me to remove it, or will make it my duty to encounter it. While 
you are desired to absent yourself from court, it would be rash 
in me to hope, (at least until I have power to do what it seems 



[ 154 ] 

w indispensible, i. e. to dbavow by the express commemd ef mp 
govemmenij the conduct of the magistrate, &c.) to be received 
with the respect which is due to those whom I have the honour 
to represent. Upon a point so delicate, I' will not unnecessailly 
put any thing to hazard. 

^^ I have, therefore, determined to send to you immediately, 
with this letter and all the papers above alluded to. Colonel King, 
(the secretary of my legation here and in Russia,) and to follow 
myself as far as Berlin, as soon as my business here is finished. 
My mission to this court wiU be brought to a close within the 
next fortnight ; and I shall then lose no time in proceeding to- 
wards St. Petersburg until I reach Berlin, where I shall wait to 
hear from you, unless I hear from you sooner, as I hope I. shall. 
Colonel King, who knows perfectly my views, will supply ver- 
bally what may be deficient in this letter." 

The following is an extract of a letter from 
Mr. Pinkney to Mr, Monroe, dated October 7th, 
1816. 

*^ I am at last on the point of quitting Naples. I have heard 
nothing further from Mr. Harris, and Mr. King has not written 
to me since he left us ; but I shall go on towards St. Petersburg 
as rapidly as I can, in the confidence that the affair of Kosloff has 
been settled. My health has suffered here. The climate looks 
well enough, (not better however than our own,) but it relaxes and 
enfeebles much more than purs. The so much vaunted sky of 
Italy appears to me (thus far) to be infinitely inferior to that of 
Maryland. Every thing here has been overrated by travellers, 
except the Bay of Naples, and the number and clamorous impor- 
tunity of the common beggars, and the meanness of the beggars 
of a higher order, which it is absolutely impossible to overrate. 
After alt, our country gains upon our afiection in proportion as 
we have opportunities of comparing it with others. 

^^ About this time, the American people, as I trust, Are em-» 
ployed in preparing to olOfer you the only recompense in their 
power (a flattering one it is to any man) for your long and faith- 
ful services. I feel confident that before this reaches you it will 



[155] 

be known that yoorfeUow-citiflens think you entitled, by a Fife of 
unsullied honour and enlightened patriotism, to be preferred to 
all others as their cliief magistrate. It will depend upon thai 
whether I continue in public life or not My wish at any »Bte (I 
think I shall not change it) is not to remain long at St. Peters- 
burg. The station in London is foil, and likely to be so, and 
my desire of course will be (as I now believe) to return to Ame- 
rica about the time I mentioned to you, that is, after a lapse of 
two years from the epoch of my departure from it The proba- 
bility is, that in that event, I shall station myself permanently at 
Washington, and that 1 shall there resume roy professional pur- 
suits." • • * 

Mr, Pinkney soorf afterwards proceeded through 
Rome, and the other principal Italian cities, to 
Vienna, and finding the obstacle allfided to in 
the above letters removed, continued his jour- 
ney to St. Petersburg, where he remained about 
two years. 

In a letter to his daughter, Mrs. Cumberland 
D. Williams, dated the 16th of August, 1817, he 
speaks of his health, and that of his family being 
affected by the climate, but that every body had 
been so kind to them that they almost forgot that 
the climate did not suit them. He mentions that 
he had requested his recall, and hoped before 
long to return home, to leave the United States 
no more. In the same letter, he gives the follow- 
ing sketches of some of the members of the Im- 
perial family. 

^^ » 

*^ The Empress Mother is still a charming woman, and when 
young must have been extremely handsome. She may be said 
to do th^ honours of this splendid court, and it is fit that she should. 
Her manners are infinitely pleasing, at the same time that they 



C 156] 

are loAy ; and she is a perfect mistress of the arts of conTene- 
tion. She is, moreover, exemplary in all the relations of life, and 
is beloved for her goodness by all classes. 

<< <^f the reigning Empress it is impossible fo speak in ade- 
quate terms of praise. It b necessary to see her to be able to 
comprehend how wonderfully interesting she is. It is no exag- 
geration to say, that with a slight abatement for the effects of 
time and severe afliction, (produced by the loss of her childreD,) 
she combines every charm that contributes to female loveliness^ 
with all the qualities that peculiarly become her exalted station* 
Her figure, although thin, is exquisitely fine. Her countenance 
is a subduing picture of feeling and intelligence. Her voice is 
of that soft and happy tone that goes directly to the heart, and 
awakens every sentimeat which a virtoous woman can be. ambi- 
tious to excite. Her manner cannot be described or imadned. 
It is graceful, unaffectedly gentle, winning, and at the same tame 
truly dignified. Her conversation is siuted to this noble exterior. 
Adapted with nice discrimiAation to those to whom it is address- 
ed, unostentatious and easy, sensible and kind, it captivates in- 
variably the wise and good, and (what is yet more difficult) 
satisfies die frivolous without the slightest approach to frivolity. 
If universal report may be credited, there is no virtue for which 
this incomparable woman is not distinguished : and I have rea- 
son to be confident firom all that I have observed and heard, that 
her understanding (naturally of the highest order) has been em- 
bellished and informed to an uncommon degree by judicious, and 
regular, and various study. It is not, therefore, surprising that 
she is alike adored by the inhabitant of the palace and the cot- 
tage, and that every Russian l«)oks up to her as to a superior be- 
ing. She is, indeed, a superior being, and would be adored, ai* 
though she were not surrounded by imperial pomp and power." 



The following extract of a letter from a friend 
of the Editor, who was much in Mr. Pinkney's 
society at St. Petersburg, will explain his man- 
ner of life and the nature of his pursuits while 



[ 157 ] 

in that capital^ as well as ^ estimate formed of 
his talents and the extent of his attainments by a 
very intelligent observer. 

^ I arrited in St. Petersburg in the month of June, 1817. I 
carried a lettei^f introduction to Mr. Pinkney from our friend^ 
Mr. Justice Story. Mr. P. received me at once with the great- 
est kindness and hospitality. He told me almost the first time I 
saw him, that he should not make a single dinner for me, or re- 
ceive me with ceremony ; but if I Would consider myself a mem- 
ber of his family, and take a seat at his table <ionstantly, when 
not otherwise engaged, he should be gratified. As I soon found 
he was in earnest, I accefked his offer almost to its full extent. I 
passed about two months in the city, lodging at the same hotel 
with him, and domesticated with his family. I saw him every 
day, and at almost every meal ; and the recollections I have of 
the pleasure enjoyed in his society, are amongst those I shall 
longest retain. 

<< Of his past life, he did not speak much. I inferred, how- 
ever, that he had always been a hard student, and considered 
himself a laborious and thorough scholar in those branches of 
human knowledge to which he had more particularly devoted 
himself. I remember that he once said to me^ that he considered 
the late Mr. Chief Justice Parsons and himself the only men in 
America who had thoroughly studied and understood Coke Lit- 
tleton. He appeared to estimate the legal acquirements of our 
professional men as of litde extent, generally speaking, and to 
think he gave himself but little credit in thinking that he had 
learnt more law than any other man in the country. 

^ He kept himself very much in private, fiving so (as he said) 
from motives of economy^ He was in lodgings at the Hotel de 
I'Europe, and saw no company ceremoniously — that is, he gave 
no dinners, &c. He had made it known to the diplomatic cir- 
cle there when he first arrived, that he should live in that style, 
and therefore could not reciprocate their civilities. They, how- 
ever, visited him a good deal, and he accepted their invitations 
frequently. I understood from various quarters, and inferred 
from what I saw, that he stood very particularly well with the 

21 



[158] 

Emperor, hU familj, and priocipal ministers. His personal ha- 
bits were very peculiar. His neatness, and attention to the 
fashionable costume of the day, were carried to an extreme, 
which 'exposed him while at home to the charge of foppery and 
affectation. But it should be remembered how large a portion of 
his life he had spent abroad, and in the highest cii'cles of Euro- 
pean society. Though he undoubtedly piqued himself upon be* 
ing a finished and elegant gentleman, yet his manners and habits 
of dress were, as it always seemed to me, acquh'ed in Europe; 
and so far from being remarkable there, they were in exact ac- 
cordance with the common and established usages of men of his 
rank and station. All who have been at any of the European 
courts know that their statesmen and ministers consider it a ne- 
cessary part of their character to pay great attention to the ele- 
gancies and refinenrents of life, — and after a day passed in the 
laborious discharge of their duties, will spend their evenings in 
society, and contribute quite their share of pleasant trifling. It is 
their maniere d^etre. 

During the summer that I passed with Mr. Pinkney,his person- 
al habits were very regular. He breakfasted late, and heartily. 
Then he retired to his study, and we saw him no more until 
dinner at six o'clock. The evening he passed with his family, or 
in visiting. He took very Jittle exercise, oat and drank freely, 
and I thought suffered occasionally from the usual effects of a 
plethoric habit, with much indulgence as to food, and no anen- 
tion to exercise. Undoubtedly his extreme attention to personal 
cleanliness contributed much to preserve his health. His family 
saw little company at home or abroad ; he appeared to be ex- 
tremely fond of them, and satisfied with passing his evenings in 
their society. 

*^ As to his intellectual character, and his talents and attain- 
ments as a lawyer, a statesman, and an orator, I shall say no- 
thing. I do not pretend to measure the extent of his mind, or 
to add any tiling to the general voice which has placed him at 
the head nf the great men of our country. As to his attainments 
and his tastes in minor matters — besides a competent share of 
classical learning, he had a eeneral acquaintance with modern 
literature : but I do not believe that he was fond of light Eng- 



[ 159] 

lish literature; though he seemed to make it a point of keeping 
along with the age^ and, therefore, read all the p<>pular poems, 
reviews and novels, and talked about them very well. But his 
gjeat forte (as to his literary accomplishments) was his thorough 
and exact acquaintance with tlie English language — with Its best 
models of diction — with its significations, its grammar, and its 
pronunciation. Upon this he prided himself exceedingly, and 
well he might ; for you know the singular art and skill with 
which he displayed his mastery over Kis own language — hispow- 
' er of using it with astonishing force, elegance, and accuracy in 
the simplest conversation upon common topics, in his legal argu- 
ments which were to instruct and influence the finest minds in the 
country, and in the debates of the senate which were to afiect 
permanently and vitally the destinies of the nation.'' 

The following is a letter written to Mr. Mon* 
roe by Mr. Pinkney just before his leaving Rus* 
sia. 

'^ St. Petbrsburo, 21 5^ January , 1818. 

'^ My Deab Sir,— I had the honour to receive to-day (and I 
cannot tell you with how much pleasure) your very kind letter 
of the lOth of November. It came by the route of Sweden, but 
not accompanied by any thing from Mr. Rush or Mr. Adams, 
or by my expected recall. I presume that the next mail (by the 
route of Hamburg) will bring me all that is wanting to justify my 
return to the United States. 

^^ I pray you to be assured that I view your forbearing to name 
me for the court of England exactly as you do, and that I re- 
joice you took that course. It would certainly have been ha- 
zardous ; and, moreover, I had no wish to go to England, or to 
remain any longer abroad. The office of Attomey-Qeneral 
would not have suited me; as I have some time since taken 
measures for resuming my residence at Baltimore, where I hope 
to retrieve the losses which my missions could not fail to inflict 
upon me in a pecuniary sense. Those losses are, indeed, some- 
what severe; but they have been incurred in the public service. 



* 



[ 160 1 

and if Providence spares and assists me^ wiU not long be felt. 
Your friendly wishes are really invaluable. I do not want office, 
but I priae highly your esteem* My desire is to be a mere 
lawyer, and to show my disinterested re^ct and affection for 
you in a private station. For this reason I beg of you to think 
of me only as a friend for whom office has long since ceased to 
have any charms^ and who only courts opportunities of proving 
bis devotion to the character and interests of his country, and his 
attachment to those for whom he professes regard and reverence. 
Do me the favour always to regard me in this light, and you will • 
not be disappointed in me. 

^^ Notwithstanding my anxiety to get home, I shall quit this 
station with some regret. They have been very good to me 
here. The state of the world too requires that we should have 
a good stock of prudence at this court ; anil I feel quite sure that 
on that score I should never be found deficient. My place, how- 
ever, will doubtless be supplied by a roan much more able and 
distinguished, and at the same time of equal discretion. You 
cannot put too much ability and character into this mission. One 
of the foremost men of bur country ought to be selected for it. 
A Charge d' Affaires may be left here for some time ; but when 
a Minister Plenipotentiary is appointed, he should be of marked 
political rank. My own health, and that of my family, has re- 
cruited a little. My intention, therefore, is to set out for Ham- 
burg as soon as my recall has arrived, and I have had my au- 
dience of the Emperor, who is expected in about ten days. At 
Hamburg I think I shall be able to get a ship for my homeward 
voyage. 

^' Accept my unfeigned thanks for your uniform klndpessy 
which is deeply impressed upon my heart, and my assurances of 
unalterable respect and attachment." 



Soon after Mr. Pinkney's return from Russia, 
^ poqtroversy arose respecting the right of tba 



/ 



[ 161 ] 

Btate legislatures to tax the Bank of the United 
States, which was brought before the Su[)renie 
Court in the year 1819, upon a writ of error to 
the Court of Appeals of Maryland, which had 
given judgment against the bank for the penalties 
provided for not paying the tax imposed by a law 
of that State. On this occasion, Mr. Pinkncy 
had given his opinion that the iState law was un- 
constitutional, and had been retained by the Bank 
to argue in support of that opinion. 

The following is the exordium to tho argument 
which he delivered. 

** In the catalogue of those petty vexations, which arc said to 
constitute the miseries of human life, I know of nothine more 
irksome than to be compelled to speak to a well informed tri- 
bunal upon topics that have lost all the grace of novelty, upon 
which genius and learning have been so often exercised, that he 
who seeks to be either smart or profound in the discussion of 
them, can scarcely fHil to be accused of pilfering the felicities of 
expression of some predecessor in the argument, or of appro- 
priatir^ to his own use the sagacious reflections of some report, 
or pamphlet, or speech, on which, in the days of their freslmess, 
aa intellectual epicure might have delighted to banquet, but which 
endless repetition and long continued femiliarity have robbed of 
almost all dignity and interest. 

^ Such undoubtedly was, at the commencement of this debate, 
the situation of many of the topics which have'^been forced into 
it by our learned opponents (I may be permitted to ^y) against 
ail the remonstraaces of taste, if not of prudence ; and it will not 
be imagined that this their situation has been much improved by 
what has since occurred. On the contrary, it may in all reason 
be supposed that what was at first only threadbare, has now been 
worn to tatters ; and that consequently very little is left for me 
but miserable shreds and ragged odds and ends, the tristes re- 
Uquia of those who have gone before me. Such a predicament 



[ 162 ] 

is certainly tint to be envied ; and, forese^ng, I woald haye 
avoided it. Accordingly, I made it my humble suit to the 
learned representatives here of that erring State of which I am 
an unworthy citizen, that we might not on this occasion, by un- 
hallowed rites, wantonly conjure up the ghost of a departed con- 
troversy ; that THE CONSTITUTIONALITY OP THE BAISK, if H 

could not be assumed, might at least be submitted in respectful 
silence to this high court, to which our lucubrations, or rather 
our recollections^ upon it, could hardly be expected to afford 
either pleasure or instruction. In an especial manner I urged to 
one of the learned gentlemen* (who has in his recent speech 
reconciled an admirable playfulness of fancy with great apparent 
severity of reasoning, and placed many a flowery wreath upon 
the grave and forbidding brows of metaphysical subtlety) my 
extreme repugnance to entering the lists with him upon so stale 
a quarrel. I said to him in the language of Diomed, as reported 
by the ambassador of Latinus : — 

Ne vcr6, ne me ad tales impcUite pugnas. 

But I obsecrated and deprecated in vain ; his sturdy and inexo- 
rable infidelity seemed to rejoice in the prospect of displaying 
itself with an ostentation worthy of better principles ; he ap- 
peared to expect, with feelings bordering upon transport, the 
approaching opportunity of pouring his heresies into our pious 
ears, and of disturbing, with the restless zeal of an obstinate 
sectary, that wholesome faith in the bosom of which we had 
sought and found, what man seldom finds, however industriously 
soever he may seek it, Tranquillity and Repose. The conse- 
quence is, that the question of the constitutionalitt or the 
BANK has ^risen, as it were, from the grave, and in its very 
shroud presents itself before you, to demand at last the honours 
of Christian burial, ki such sort that it may hereafter hope to rest 



•^ — 1 ■■fc*^ 



* Mr. Jonet . 



r 



[ 168 ], 

ID peace, beyond the reach of the lawless incantations ol' these 
potent sorcerers and their confederates. 

^ As for the cause itself, Sir, I am not only ready to concede,: 
but anxious to maintain, that the aggregate of the considerations 
which it involves, impart to it a peculiar character of importance • 
and that this tribunal, distinguished as it is for all that can give 
to judicature a title to reverence, is, in adjudicating upon it, in 
the exercise of its most exalted — its most awful functions. The 
egiftlative faculties of the government of the Union, for the pros^ 
perity tif the Union, are in the lists, not indeed upon the roman* 
tic and chivalrous principles of tilts and toumnments, but upon 
the sacred principles of the constitution. In whatever direction 
you look, you cannot but perceive the solemnity, the majesty of 
such an occasion. In whatever quarter you approach the sub- 
ject, you cannot but feel that it demands from you the firm and 
steady exertion of all those high qualities which the universal 
voice ascribes to those who have devoted themselves to the mi- 
nistry of this holy sanctuary. For myself, the importance of 
this cause, incapable as it is of bemg overvalued, does not 
dismay me ; it does but excite me to deal with it as I ought ; I 
am glad that it is of the deepest interest to us all. I meditate 
with exultation, not fear, upon the proud spectacle of a peaceful 
judicial review of these conflicting sovereign claims by this more 
than Amphictyonic council. I see in it a pledge of the immor- 
ality of the Union, of a perpetuity of national strength and glory, 
increasing and brightening with age, — of concord at home, and 
reputation abroad. 

^ Our opponents think of the importance of this cause as I do. 
They have, therefore, put forth their whole power in the argument 
of it. All the graces of a polished elocution, within the reach of 
two of the learned counsel ; all that more robust and hardy wit, 
within the reach of the other, which makes a jest of the climate 
of Kamschatka and amuses itself with the frost of the Pole ; all 
th^ artifices of a cunning and disciplined logic more or less with- 
in the reach of all the learned counsel, have been exhausted upon 
it. We have had the affecting retrospections of Mr. Martin, up» 
on scenes < quorum pars magna (or minima) fait,' (for I wilt not 



[ 164 3 

object to his amendment,* lest I should distress the modesty that 
suggested it,) which scenes, luckily for the time of the court, had 
tj^eir commencement at an.epoch considerably subsequent to the 
flood ; we ha^ve had the appalling, though elegant, prophecies of 
Mr. Jones, predicting political pestilence and war, as an almanack 
predicts cloudy weather and tempest ; and we have had the ur- 
gent instances of Mr, Hopkinson,that we should look neither back- 
wards nor forwards, but 6x our intellectual gaze, with a laudable 
intensity, upvn the circumstances and necessities of the present 
moment. Indeed, what have we not had that could cootribote to 
the credit of the learned counsel, without contributing to the pro- 
fit of the cause ? 

^< It is proper, however, that I should in this place admit, that^ 
although the speeches of the counsel on the other side have^ with 
reference to the doctrines which they inculcate, left me as great 
an unbeliever as they found me, the speech of one of them has 
iiot wholly lost its effect upon roe, since it has served to enhance 
the lively interest which I had before taken in this controversy. 
The speech to which I allude, was one which the most eloquent 
might envy, the most envious could not forbear to praise. It was 
a finely woven tissue of sopfabtry, tinctured with an oocasionai 
declamati on, far more vivid than the hypocritical disclaimert 
which prefaced it could lead us to anticipate, and drapened with 
those captivating figures which fancy can bestow at will upon 
that which is intended to be the garb of delusion. In this speech^ 
the Attorney for the District of Columbia indulged in frequent 
lamentations over the consequences which he foresaw, or affected 
to foresee, must inevitably result from that decision which every 
one feels and knows cannot fail to be pronounced in this cause. 
Rapt into future times, like the bards of old, he sung, upon that 
hypothesis, of internal resistance and commotions — ^ of raoving 
accidents by flood and field'— of ^ direful struggles' and ^ tremen- 



* Mr. Martin bad said| in speaking of Ae transactioai of the CoDrention 
that propoaed the constitntion of the United States, and of which he was a 
member, — ** quorum pari nUniaui fiti " 

t.Mr. Jones had in the outset of his speech deplored his incapacity for all 
rhetorical or declamatorj ornament. 






r 165] 

doua conrulsiotis^*— that should shake tfae»ITnion to its centre and 
bring it down in ruins upon our heads ! The domain of poetry 
was invaded, all nature was ransacked, for images which might 
recommend the wildest possibilities and probabilities as substi- 
tutes for the sober calcniations of enlightened reason. These 
miserable statk jsalousics, which the learned counsel seems, 
in the language of Milton, to consider as 'hovering angels, girt 
with g<^den wings,' — but which^ in mj estimate of (heir charac- 
ter, attended like malignant influences at the birth of the 
constitution, and have ever since dogged the footsteps of rtt 
youth — may be said to have been summoned by him to testify in 
this cause, to give to this court their hysterical apprehensions and 
delirious warnings, to afflict our understandings With the paby 
of fear, to scream us, as it were, into a surrender of the last, the 
only fortress of the common felicity and safety, by ^Capitulating 
with those petty views and local feelings which once assailed usy 
in the very cradle of our independence, as the serpents of Juno 
assailed the cradle of Herculeti, and were then upon the point of 
consigning us to everlasting perdition^ 

^ When principles^ such as I have just adverted to, are an^ 
nounced from a quarter which every thing that is excellent in in- 
tellect and morals contributes to make respectable, it is high time 
that we should be informed, by the authentic responses of the ap- 
pointed oracles of the constitution, in what spirit that consti-^ 
tution is to be interpreted ;— it is high time that we should be 
made to understand whether we are already relapsed into the 
more than infantine feebleness of the Confederacy, or whether 
we may yet venture to impute to the actual constitution that man« 
ly strength which can alone enable h to become the champion of 
the general prosperity agahtst all those assaults to which, in the 
vicissitudes of human affairs, and according to the ordinary lot 
of human institutions^ it cannot fail to be exposed. 

*^ Sir, it is in this view that I ascribe to the judgment that may 
be pronounced in this cause, a mighty, a gigantic influence, 
that will travel down to the latest posterity, and give shape and 
character to the destinies of this republican empire. It is not 
merely that it may stabilitate or pull down a financial and com- 
mercial institution called a Bank — however essential such an in- 
stitution may be to the government and country. I have a deep 

22 



[ 166] 

and awful conviction (which the speech of my learned friend 
has confirmed) that upon .that judgment it will mainly depend 
whether the constitution under which we live and prosper i&to be 
considered, like its precursor, a mere phantom of political pow- 
er to deceive and mock us — a pageant of mimic sovereignty, 
calculated to raise up hopes that it may leave them to perish, — 
a frail and tottering edifice, that can afford no shelter from storms 
either foreign or domestic — a creature half made up, without 
heart or brain, or nerve or muscle, — without protecting power or 
redeeming energy— or whether it b to be viewed as a competent 
'guardian of all that is dear to us as a nation." 



It is to be regretted that the means no longer 
exist of completely restoring this admirable 
speech, which occupied three days in the de- 
livery, and contained an exposition of the leading 
principles to be applied in interpreting the consti- 
tution, which were made the foundation of the 
judgment pronounced by the Court exempting the 
national Bank from taxation by the respective 
States. I have, however, endeavoured, with the 
aid of mv own notes taken at the time, and those 
of Mr. Pinkney, which have been since put into 
my hands, to recover the substance of his argu- 
ment.* 

Mr. Pinkney having been elected by the legis- 
lature of Maryland a Senator in Congress from 
that State, took his seat in the Senate on the 4th 
of January, 1820; and the bill from the House 



• See Part Sjbcond, No. VI. 



E 167] 

of Representatives for the admission of Missouri 
into the Union^. with a clause prohibiting the in- 
troduction of slaves into the new Htate, being 
under consideration, delivered, on the i5th of 
February, a very elaborate speech in opposition 
to the proposed restriction, of which I have col- 
lected some fragments. He insisted that Con- 
gress had no power by the constitution to impose 
such a condition upon the admission of a State 
into the federal Union.* 

The result of the discussion of this momentous 
question in Congress is well known. Mr. Pink- 
ney, in a letter to his son-in-law, Mr. Cumber- 
land D. Williams, dated the of February, 
says : 

^^ The bill for the admission of Missouri into the Union (with- 
out restriction as to slavery) may be considered as past. That 
bill was sent back again this morning from the House with the 
restriction as to slavery. The Senate voted to amend it by 
striking out the restriction, (27 to 15) and proposed, as another 
amendment, what I have all along been the advocate of, a re- 
striction upon the vacant territory to the north and west as to 
slavery! To-night the House of Representatives have agreed to 
both of these amendments, in opposition to their former votes, 
and this affair is settled. To-morrow we shall (of course) recede 
from our amendments as to Matne^ (our object being effected,) 
and both States will be admitted. This happy result has been 
accomplished by the Conference, of which I was a member on 
the part of the Senate, and of which I proposed the report which 
has been made. • • • • • 

^ I hope it will be possible for me to return to Baltimore on 



• See Pabt Second, No. VII. 



[ 168 ] 

Saturday for a few days. A bankrupt law will, as I think, pass, 
although it will be much opposed. My assistance on that sub- 
ject will be necessary. My professional duties have been sacri- 
ficed to my political duties, and my constituents will, I trust, 
give me some credit for ihis. The Quakers have found my 
speech of 1789 in the House of Delegates (my second speech) 
in pamphlet form, and have sent it to members of both Houses. 
They have sent one copy to me. After a hasty perusal of it, I 
think it will not disgrace me ; and I should not care if they 
should think it worth while to republish it.'* 



In framing the complex political system by 
which the United States are governed, one of the 
most 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 cepugnant 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 
United 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 excejptions 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, 
and 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 »n 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 



[ 170] 

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 terms 
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 %dopt- 



* »m 



Set Pakt Sicomd, No. VIII. 



r 



[ ni ] 

ed by the Court ; and it may now be regarded as 
one of those points of constitutional law which 
are most conclusively and satisfactorily esta- 
blished. 

Mr. Pinkney continued his professional labouMs 
at the session of the Court in 1822, with the 
same intense application and ardent desire of suc- 
cess whjch had marked his whole career. He 
also took a part in the preliminary discussiQns 
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 efibrt. He men- 
tioned to a friend that he had sat up very late in 
the night on 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 Reriew, vol. ir. p. 3X0 — New Series. 



[ 172 ] 

the perasal. 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 
wiiich, whenever the temporary suspension of his 
bodily sufferings 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 l^reathed 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, AforeA 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 abifides 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 ham suck 
as he was only ten or twelve days before — full of confidence, is 
his vigour and his fortunes, exulting in the supremacy of his pow» 
ers and reputation, and earnest to maintain it, by every mode of 
strenuous exertion. He had reached the age at which, in thu 
country, dissolution is not deemed altogether premature, and the 
feelings by which the lawyer and orator is impelled to extreme 
effort for invariable tritm^h in his career, usually abate ; whe» 



f 173 ] 

he becomes, in sfi^e degree, visibly fatigued with the race, and 
coDiparatirely 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- 
jojrraent 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 
man, struggling with exery 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 bis strength 
— he was obliged several times to ask the indulgence of the 
Bench, while be sat down to rest fur 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. Bi)t his zeal was not to be repressed on this occasion, as it 
had not been on any similar one. 

^ 1 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 maiiaging 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 enlirely 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 
Joss of an inch of the ground which he had gained, or seem at 
any moment unequal to his reputation. Does not the nature of 
Ms end remind you of Cicero's relation of that of Lucius Cras- 
susy an orator whom he resembled in the intensity of his ardour 

23 



I 



( 174 ] . 

to excel, and the extent of his influence over the minds of hh 
hearers ? 

^< Post ejus interitum veniebamus in curiam, ut vestigium illud 
ipsum in quo ille postremum institisset, contueremur. Namque, 
turn latus ei dicenti condoluisse, sudoremque muitum consecutuni 
esse audiebamus : ex quo cum cohorruisset, cum febri doroum re- 
diit : dieque septimo est consumptus. O fallacem hominum spem, 
fragilemque fortunam et inanes nostras contoniiones ! que in me- 
dio spatio saepe franguntur et corruunt, et ante in ipso cursu ob- 
ruuntur, quam portum conspicere potuerunt/' 

At the opening of the Supreme Court on the 
morning after Mr. Pinkney's death, Mr. Harper 
addressed the court, and requested an adjourn- 
ment to the next day, in order to enable the bar 
to express its regret at the loss the profession 
and the public had sustained. He stated that the 
tribute which was due to the memory of their 
departed brother could no where be more pro- 
perly paid than in that place, where the pre-emi- 
nent talents and acquirements by which he 
adorned the profession had been so oflen dis- 
played, and where he had taken so large a part 
in fixing those great legal and constitutional land- 
mf>rks by which that court had conferred the most 
solid and extensive benefits upon the nation. Mr. 
Chief Justice Marshall spoke with great feeling 
in reply, and observed that the judges partici- 
pated sincerely in the sentiments expressed at 
die bar, and lamented the death of Mr. Piukney 
as a loss to the profession, and to the country at 
large ; and that they most readily assented to the 
motion which had been made. After the ad- 



[175] 

journment of the Court, the members of the bar 
assembled in the Court-room ; and Mr. ('lay 
having been called to the chair, it was, on motion 
of Mr. Harper, seconded by Mr. Webster, unani- 
mously resolved, that the bar, as a mark of their 
respect for the memory of their deceased brother, 
and of their deep sense*' of the loss whAh the 
public and the profession had sustained in his 
death, would attend his funeral in a body, and 
wear crape on the left arm during the term. The 
usual resolutions on similar occasions were also 
passed by both houses of Congress, and his fune* 
ral was attended by the members, by the heads 
of the executive departm^ts. the foreign minis- 
ters, the judges and bar of the Supreme Court, 
and a numerous concourse of citizens, with all 
those marks of reverential sorrow and respect 
which were due to the character and eminent 
station of the deceased. 

The following extract from a sermon preached 
in the House of Representatives on the Sunday 
following the death of Mr. Pinkney, by the Rev. 
Mr. Sparks, one of the chaplains of Congress, 
will further illustrate the strong impression pro- 
duced on the public mind by that event. 

■ 

^ But there is a greater moralist still ; and that is, Deaths 
Here is a teacher who speaks io a voice which none can mis* 
take ; who comes with a power which none can resist. Since 
we last assembled in this place, as the humble and united wor<» 
shippers of God, this stern messenger, this mysterious agent of 
Omnipotence, has come among our numbers, and laid his wither^ 



•►^ 



* ♦ 



C 176] 

ing hand on one, whom we have been taught to honour and res- 
pect ; whose fame was a nation's boast^ whose genius was a bril- 
liant spark from the ethereal fire, who^ attainments were equalled 
only by the grasp of 'his intellect, the profoundness of his judg- 
ment, the exuberance of his fancy, the magic of his eloquence. 

^< It is not my present purpose to ask your attention to any 
picture drawn in the studied phrase of eulogy. I aim not to 
describe thp commanding powers and the eminent qualities which 
Conductea the deceased to the superiority he held, and which 
were at once the admiration and the pride of hit countrymen. I 
shall not attempt to analyze his capacious mind, nor to set fttrth 
the richness and variety of its treasures. The trophies of his 
genius are a sufficient testimony of these, and constitute a monu- 
*ment to his memory, which will stand firm and conspicuous 
amidst the faded recollections of future ages. The present is 
not the time to count the sources or the memorials of bis great- 
ness. He is gone. The noJblest of heaven's gifts could not 
shield even him from the arrows of the destroyer ; and this be- 
hest of the Most High is a warnjng summons to us all. When 
death comes into our doors, we ought to feel that he is near. 
When his irreversible sentence falls on the great and the re- 
nowned, when he severs the strongest bonds which can bind mor* 
tah to earthy we ought to feel that our own hold on life is slight, 
that the thread of existence is slender, that we walk amidst perils, 
where the next wave in the agitated sea of life may baffle all our 
struggles, and carry us into the dark bosom of the deep." 



Having already anticipated most of the parti- 
culars which must be combined in order to form 
a just estimate of the eminent individual of whom 
I have endeavoured to collect a few scattered 
traits, I will not detain the reader by attempting 
to blend them together in a studied portrait. In 
tracing the principal outlines of hip public charac^ 



r 



[ 177] 

ter, his professional tdlents and attainments must 
necessarily occupy the most prominent place. 
To extraordinary natural endowment^) Mr. Pink- 
ney added deep and various knowledge in his 
profession. A long course of study and prac- 
tice had familiarized his mind with the science of 
jurisprudence. His intelleetual powers wefc roost 
conspicuous in the investigations connected with 
that science. He had felt himself originally at- 
tracted to it by invincible inclination ; it was his 
principal pursuit in life ; and he never entirely lost 
sight of it in his occasional deviations into other 
pursuits and employments. The lures of po- 
litical ambition and the bb^idishments of polish- 
ed society— or perhaps a vague desire of univer- 
sal accomplishment and general applause, might 
sometimes tempt him Jto stray for a season from 
the path which the original bent of his genius had 
assigned him. But he always returned with fresh 
ardour and new delight to his appropriate voca- 
tion. He was devoted to the law with a true en- 
thusiasm ; and his other studies and pursuits, so 
far as they had a serious object, were valued 
chiefly as they might minister to this idol of his 
affections. 

It was in his profession that he found himself at 
home ; in this consisted his pride and his plea- 
sure : for as he said, 'Uhe bar is not the place to 
" acquire or preserve a false or fraudulent repu- 
** tation for talents," — and on that theatre he felt 
conscious of possessing those powers which would 
command success. 



[ 178] 

Even when abroad he never entirely neglected 
his legal studies. But at home, and when ac- 
tively engaged in the practice of his profeBsion, 
he toiled with almost unparalleled industry. All 
other pursuits, — the pleasures of society, and even 
the repose which nature demands, were sacri- 
ficed t% this engrossing ebject. His character, 
in this respect, affords a bright example for the 
imitation of the younger members of the profes- 
sion. This entire devotion to his professional 
pursuits was continued with unremitting perseve- 
rance to the end of his career. If the celebrated 
Denys Talon could say of the still more cele- 
brated D'Aguesseau, qp hearing his first speech 
at the bar, — '^ that he wovld willingly end as that 
^^yoimg man commknckd," — *every youthful as- 
pirant to forensic fame among us might w^sh to 
begin his professional exertions with the same 
love of labour, and the same ardent desire of 
distinction which marked the efforts of William 
Pinkney throughout his life. This intense appli- 
cation and untiring ambition continued to ani- 
mate his labours to the last moments of his exis- 



* M. D'AouEssEAU avait fait le premier essai de ses talens dans 
]e charge d'Avocat ou chatelet, ou il entra a I'ige de vin^t-un 
ans : et quoiqu'il ne I'eut exerc^e que quelquea mois, son pere ne 
douta pas qu'il ne fQt pas capable de reupiir une troisieme charge 
d'Avocat G^ii^ral au Parliament, qui vi^nait d'etre cr^^e. l\ y 
parut d'abord avec tant d'^clat, que le c^lcbre Dbnis Talon, 
alors President a Mortier, dit quHlvoudrait jinir comme cejeune 
homme commengaU. Abreg^ de la Vie de M. le Chancillier 
d'Aguesseau. 



[ 179 3 

tence ; and as he 4ield up a high standard of ex- 
cellence in this noble career, he pursued it with 
unabated diligence and zeal, and still continued 
to exert all his faculties as if his entire reputa- 
tion was staked on each particular display. He 
guarded with anxious and jealous solicitude, the 
fame he had thus acquired. The editor ^ell re- 
members in the last, and one of his most able plead-* 
ings in the Supreme Court, remonstrating with him 
upon the necessity of his refraining from such la-* 
borious exertions in the actual state of his health, 
and with what vehemence he replied — that he 

DID NOT DESIRE TO LIVE A MOMENT AFTER THE 
STANDING HE HAD ACQUIRED AT THE BAR WAS LOST^ 
OR EVEN BROUGHT INTO DOUBT OR QUESTION. 

What might not be expected from professional 
.emulation directed by such an ardent spirit, and 
such singleness of purpose even if sustained by 
far inferior abilities! But no abilities, however 
splendid, can command success at the bar with- 
out intense labour and persevering application. 
It was this which secured to Mr. Pinkney the 
most extensive and lucrative practice ever acquired 
by any American lawyer, and which raised him to 
such an enviable height of professional eminence. 
For many years he was the acknowledged leader 
of the bar in his native Btate ; and during the last 
ten years of his life, the principal period of his 
attendance in the Supreme Court of the nation* 
he enjoyed the reputation of having been rarely 
equalled and perhaps never excelled in the pow- 
er of reasoning upon legal subjects. This was 



[ 180 ] 

the faculty whicii most remarkably distinguish- 
ed him. His mind was acute and subtle, and at 
the same time comprehensive in its grasp,— rapid 
and clear in its conceptions, and singularly felicit- 
ous in the exposition of the truths it was employed 
in investigating. He had the command of the great- 
est variety of the most beautiful and appropriate 
diction, and the faculty of adorning the dryest and 
most unpromising subjects. His style does not ap- 
pear to have been originally.modelled after any par- 
ticulai" standard, or imitated from the example of 
any particular writer or speaker. It was formed 
from his peculiar manner of investigating and 
illustrating the subjects with which be had to 
deal, and was impressed with the stamp of his 
vigorous and comprehensive intellect. When it 
had received all the improvement which his ma- 
turer studies and experience in the practice of 
extemporaneous and written composition enabled 
him to give it, his diction more nearly approached 
to the model of that pure, copious, and classical 
style which graced the judicial eloquence of Sir 
William Scott, than to any other known stand- 
ard. But it had somewhat more of amplitude^ 
and fulness, and variety of illustration, and of 
that vehement energy which is looked for in the 
pleadings of an advocate, but which would be 
unbecoming the judgment-seat. It also bor- 
rowed occasionally the copiousness, force, and • 
idiomatic grace, and the boldness and richness of 
metaphor, which distinguish the old writers of 
English prose. But in ail its essential qualities. 



i 181 } 

Mr. Pinkney's style was completely formed long 
before be had tbe advantage of studying any of 
these models of eloquence. The fragments of 
his works which are collected in this volume wilf 
enable tbe reader to form some judgment both of 
its characteristic excellencies and defects. But 
after all, tbe great fame of his eloquence must 
rest mainly in tradition, as do perfect memorials , 
of his most interesting speeches at the Bar or in 
the Senate have been preserved ; besides that so 
much of the reputation of an orator depends upon 
those glowing thoughts and expressions which 
are struck out in the excitement and warmth of 
debate, and which the speaker himself is after- 
wards unable to recover. Most of the poetry of 
eloquence is of this evanescent character. The 
beautiful imagery which is produced in this man- 
ner, from the excitement of a rich and powerful 
mind, withers and perishes as soon as it springs 
into existence ; and the attempt to replace it by 
rhetprical ornament, subsequently prepared in 
the cold abstraction of the closet, is seldom suc- 
cessful. Hence some portions of Mr. Pinkney's 
speeches, which were begun to be written out by 
himself with the intention of publishing them, 
will be found, perhaps, to be somewhat too much 
elaborated, and to bear the marks of studied or- 
nament and excessive polish : but the editor is 
enabled to assert, from his own recollection, that 
trhilst they have certainly lost in freshness and 
vigour by this process, in no instance have these 
more striking passages been improved in splen- 

24 



f 182 ] 

dour of diction, and variety and richness of orna,« 
meiit. Indeed, he often poured forth too great a 
profusion of rhetorical imagery in extenapora- 
)ieou8 composition. His style was frequently too 
highly wrought and embellished, and his elocu- 
tion too vehement and declamatory for the or- 
dinary purposes of forensic discussion. But 
whoever has listened to him even upon a dry and 
complicated question of mere technical law, 
where there seemed to be nothing on which the 
mind delighted to fasten, must recollect what a 
chartn fie diffused over the most arid and intri- 
cate discussions by the clearness and purity of 
his language, and the calm flow of his graceful 
elocution. His favourite mode of reasonin^f was 
from the analogies of the law ; and whilst he 
delighted his auditory by his powers of amplifi- 
cation and illustration, he instructed them by 
tracing up the technical rules and positive insti- 
tutions of jurisprudence to their original principles 
and historical ^source. He followed ihe precept 
given (1 think) by. Pliny, and sowed his arg^tr- 
mtnis broad-cast, amplifying them by every va- 
riety of illustration of which the subject admitted, 
and deducing from them a connected series of 
propositions and corollaries, gaining in beautiful 
gradations on the mind, and linked together by 
an adamantine chain of reasoning. 

Of the extent and solidity of his legal attain- 
ments, it would be difficult to speak in adequate 
terms, without the appearance of exaggeration. 
He was profoundly versed in the ancient learnin g 



[ 183 ] 

of the common law ; its technical peculiarities 
and feudal origin. Its subtle distinctions and arti- 
ficial logic were familiar to his early stu*lies, and 
enabled him to expound with admirable force and 
perspicuity the rules of real property. He was 
familiar 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 fantibus hauririj) 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 was 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. Apiorig 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 



1 



[ 184] 

eignificationsy— ite prosody, and in short, its whole 
structure and voeabulary. 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 him.^elf 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 be 
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, when 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 litera*- 
ftire. 



C 185] 

But the acquisition of such knowledge may be 
recommended 9 and no doubt was sought 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 be found so useful in enlarging his 
knowledge of his own language, improving his 
taste, and strengthening and embellishing his fo- 
rensic slyle. 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 children, 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 



* Jeflferson'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, cannot 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 writers 
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, 
an<l those which related to the English language 
and literature, with the stricteist method and the 
most resolute perseverance. But, in other re- 
spe -ts 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, with 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 
larire and comprehensive views, and that extensive 
knowledge of mankind which constitute the quali- 
fications of a great statesman, and which would 
have fitteif him to take a leading part in the po- 
litical afiairs of his country, and to guide its pub* 
lie 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 of a peaceful judicial review 
"of the conflicting sovereign claims of the go- 
'^ vernment of the Union and the particular States 



[ 188 ] 

'* by this more than Araphictyonic council," — his 
arguments were characterized by a fervour, ear- 
nestness, gravity, eloquence, and force of reason- 
ing, which convinced all who heard him that be 
delivered his own sentiments as a citizen, and 
was not merely sdlicitoua 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 strengtii 
" 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 PtihliuSj that like 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 ma rks the boundaries between the State 



it 



[ 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- 
souri 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,"—- 4i«s 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 nowy 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 which 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 Ambition 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 professicinal 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 I 
** 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, I know of no re- 
^* ward on this side the grave, save only that of an 
*^ approving conscience, which, put in xompari- 
^'son with it, I should think worthy of a sigh, if 
" lost, — of exultation, if obtained.'' 



-.li 



PART SECOND. 



N<». I. 



MR. PINKNET's OPINIOT4S DELIVERED AT THE BOARD 
OF COMMISSIONERS, ACTING UNDER THE 7tH AR- 
TICLE OF THE TREATY OF 1794, BETWEEN THE 
UNITED STATES AND QARAT BRITAIN. 



THE BETSEY, 

FdKLONG, Master. 

Dtu Nioiio&i..*— ^^ The board having maturely considered the 
Memorial and Exhibits, together with the letter of Air. Gosling, 
aud 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 
within the provisions of the treaty ?' Dr. Nicholi stated as hii 
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 prize by the supreme tribunal of the capturing state. 

'< That the treaty has not altered this general rule of the law 
of nations, having engaged to 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 tiiat rendered the powers of the Supreme Court 
of this country, acting according to its ordinary rules, incompe- 
tent to afford complete compensation. 



[ 194] 

^ That the appeal was heard after the signing of the treaty, 
and the claimtot has not satisfactorily shown any circumstances, 
belonging to his case, on account of which adequate compensa- 
tion could not hare 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 SOM, 1797- 

^ Enlarged opinion hp 

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 compensatioD. 
They have not only recorded the general grounds of their opin- 
ions, but have discussed at length several of the t<^ic8 that were 
either contained in the printed cases and other proceedings, or 
mentioned at the board in the course of the inquiry.-— Lest iiroffli 
this latter circumstance it should be inferred that those tofucs 
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 time, I take the opportunity of declaring that H 
is not my present intention again to resort to this measure, net 
thinking that the duty I have undertaken calls for it. 

^ Upon' the construction of the treaty as to the extent of the 
powers given to the commissioners, it might be questioned how 
far the decision of the board was binding on the high contracting 
parties. The decision might be revised, and the reasons of each 
member might be required to appear. I therefore record mine. 
But upon the merits (»f the claims and the amount of compenso- 
tion, the treaty has expressly declared the decision of the major- 
ity of the board to be final and conclusive. 

<' It would be extrenc^ly inconvenient, if no^ altogether incom- 
patible with my professional engagements, to state my opinion 
in writing on the merits of each case. 



[195] 

** II 11 probable that those who shall chance to read the reasons 
which may be hereafter recorded in other cases by members of 
the board, and who^ shall find certain positions rery ably contro- 
verted in those reasons, may infer that a difference of opinion in 
other members was H^lly or principally founded on those posi- 
tions, notwithstanding in truth they might not raalerialiy, or even 
in any degree, weigh in their final jodgment. I must submit in 
future cases to be exposed to such erroneous Inferences. 

^ In what I am about to state, it is not my intention to combat 
any of the positions laid down in the opinions in writing deli- 
vered in by other members, however decided my dissent may be 
from several of them : much less shall I examine any loose ob- 
servations in the printed cases or proceedings, or which may 
have dropped at the board in the course of an unreserved dis- 
cussion 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 caae. They will be (bund 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 of a 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 with the (present) return cargo, and with 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. 

^ AH persons who are within the enemy's territory, are, primft 
facie, to be considered as enemies, and are liable to hostility. 

** But a person within' the enemy's territory u 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 caulioutf- 



[ 196] 

\y 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 compensalioR depends then, ia 
my opinion, on his having shown that notwithstandini! 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 oeutraL The burthen of proof lies upon 
him — primi 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 thai 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^faidicf 
for the conquest of the French Islands. 

^ Martinique, a neighbouring Island, was at that time invaded. 

<< The attack of Guadaloupe was at that time expected. 

*^ George Patterson, though his outward cargo was disposed of, 
and a return cargo of great value purchased, thought proper to 
separate himself from his vessel^ to dispatch her to America, and 
voluntarily to remain at this critical period at Guadaloupe — liable 
to be called upon to do military' duty, and to act in common with 
the other inhabitants in defence of the Island. 

<^ He did not remain there to withdraw 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 be 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 aiding 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 callpd upon to lay down general rules^ or 
to define abstract principles, but to decide on the oieriu of the 
claim, upder all its accompanying circumstances. It may be ex* 
tremeiy difficult to define precisely what residence in a belligerent 
country, in its nature and duration, shall be permitted to a neutral 
^-or what acts amo|uit to an interposition in the war : and al- 
though I feel the present case to be by no means clear of doubt 
and difficulty,, 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 c<^ntinued 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 ca^e of this claimant^ 
and with all that deference an d respect which is justly due to 
the decbion of a very exalted tribunal, but being bound (if that 
decision is not conclusive) to decide ultimately upon my own 
conscientious judgment, 1 cannot but concur with the majority 
of the Board in thinking that William Patterson is entitled to 
compensation. 

^' Tlie next consideration isj what are the losses and damages 
for which compensation is to be made ? 

^* The claimants tlemand not only for those arising from the 
condemnation, but for all those in any degree resulting from the 

original capture. 

" Thb demand depends upon the consideration whether or 
tiot 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 hve 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 



i -^ 



^ 



[ 198] 

entering into other reasons) that at least there was prchahU cauu 
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 lo^ and damage actual- 
ly incurred, and out of pocket, but also for loss of the profit 
that niisfht 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- 
veniencJes ; 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 pro/iti 
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 tbe 
risks that usually accompany it. 

*' To reimburse the claimants the original cost of their proper- 
ty, and all the expenses they have actually incurred, together «nlh 
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 neuUal, in 
a great measure, under the pressure of war -that the profits of 
this trade were highly inflamed by the war ; the French West- 
India colonists being under a necessity of selling their produce 



[199] 

9t a very low pnte to neutrals, who conveyed it circuitously to 
Europe; and the prices in Burope 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 pciees 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 
captured, 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. Pinknet. — 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. 

In consequence, a question has occurred upon 
the showing of the agent of the crown, " Whe- 
^' tber this Board is bound and concluded by tliat 



[ 200 ] 

'* affirmance, so as to be prevented (as between 
'^tbe 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?" 

The agent's objection is in the following words, 
^' That the captor has no right against the claim* 
^' ants to found a condemnation but as a grantee 
'* of the crown f and such aslhe 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 &u- 
" 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 from receiving complete justice in the ordi- 
**nary course of judicial proceedings, and, there- 
^^ fore, that it is npt a case in which the parties 
** are entitled to relief under and by virtue of th^ 
^' provisions of the treaty." 

Upon the fullest consideration of this objec- 
tion, 1 have stated it to be my opinion, " that the 
" affirmance of the condemnation by the Lords 
" does, in no respect, bind ds as Commissioners 
" under the 7th article of the treaty ; and that it 
*-is no further material to our inquiries, in the 
^^ fixociitipn of the trust confided to us, than as it 



[ 201 ] 

" goes to prove that compensation was unattaina- 
'' bic 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 ivith that of his Majesty's government ; 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 gnly 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, T feel it 
to be my duty to reduce to writing, and to file the 
reflections which have led me to the foregoing 
conclusion. 

There are some of the agent's premises which 
I shall not employ myself in contesting. He who 
alleges, for example, that the croton 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 
his Majesty's own Court, composed of the members 
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, he- 
cause 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 courts 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 I 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 according to 
that law, and to treaties (if any) subsisting be- 
tween the states of the captor and claimant. ^^ 

(Anstoer to Prussian Memorial.) 



i 



[ 203 ] 

The nature and grounds of this exchisive prize 
jurisdiction in the nation of the captor, and the 
legal effects flowing from its exercise, are so clearly 
detailed by Rutherforth, in bis 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 hecaiA$e it ik angwera" 
hie to all other states ; for \that they do in war 
i$ 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, ta 
** 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 l9o far an eoixlusiee 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- 
" ther the ships or goods which they have seized 
'^ upon are lawfully taken or not^ is determining 






ii 



a 



[ 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 no- 
** 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 eaptors 
belong, (p. 598) to judge exclusively, h 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 oa 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 personi^ or of the things that are the sub- 
" ject of the controversy ;— tf justice therefore is 
*^not done them, they may apply to their oum 
'^ state for a remedy which may consistently with 



€i 



ti 



ti 



a 






It 
ft 
€t 
€t 



[ 205 ] 

the law of nations^ give them a remedy^ either 
hy solemn waVy or by reprisals. In order to 
*' determine when their right to ^pply to their own 
state begins, we must inquire when the exclu- 
sive 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- 
^^swerable 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 coarts ; 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 



4t 

4* 



u 
u 
u 

4i 
it 
tt 



[ 206 ] 

" affgrieved : but the law of nations will not enti- 
" tie them to a remedy unless they hav<^ 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- 
" vil 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 
" s-itisfy 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 tkei^point of 
property — that its sentencn forecloses all contro- 
versy between claimant and captorfi^ and those 
claimiv^ under fA<?m— and that it terminates for 
ever all ordinary jwHcial inquiry upon the mat- 
ter of it. These are the unquestionable effects 
of a final admiralty sentence, and in these re- 
spe(!ts it is unimpenchable and conclusive. But 
thn doctrine involved in Mr. Gosling's objection 
reaches infinitely Hirther. Tr swells an incidental 
jurisdiction over things into a direct, complete. 



a 
ti 



[ 207 ] 

* and unqualified control over nations and their 
citizens. The author I have just quoted, proves 
incontestibly, by arguments drawn from the na- 
tare 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. Hut the agent's opinion has de- 
rived countenance from a source too respectable 
to be slighted, and I will, therefore, bestow some 
furtlier consideration on it. 

It results, from the equality and independence of 
nations, that the jurisdiction entrusted to onenntion 
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 wliich the ends of social utiion, and 
the moral duties arising out of it, are understood^ 



[ 208 ] 

will furnish us with the axiom — " sic uteVe tuo ut 
" ah( iiuiti nun leeilas/' 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- 
municatee 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 rigfitjnlh/ 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 justly 
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 tojvstice^againsX 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 vnder 
colour of an existing authority, it can never be 
by virtv^ of it 



d 



[ 209 T 

The law of natjotis, which is a system of mo* 
ral equity applied to civil societies, n^spectn, 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 vessol^^ not confiscable by those 
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 — Ansf. 
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 afiected by its operation t 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 them incontrovertible evidence of their own 



'[ 210 ] 

legality ; if they are to be sheltered by a veil of 
iniagiuary sanctity, froin all scrutiny or exannina- 
tion into their merits — if they are to pass upon 
the world for just, although palpably oppreseive, 
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 — hecau$e 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 s^eneral, because there may be cases where the nation 
may bt» answerable immediately, or at least before the cayse has 
gone through every possible stage, — as where the capture is under 
the special orders of the state, Sic, 



[ 211 ] 

cause of complaint against the belligerent nati(m. 
The national liability is suspended while the sub- 
ject is regularly sub j-adice between captor and 
cliiimant, 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 its 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 
responsibility 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 natiofi, which 
has sheltered him from his just demands.* 

Grotius, b. 3.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 nition to obtain reparation by reprisals ; 
^^for the authority of the judge is not of the same 
^^ force against sftra/ngers as subjects. Here is 
" the difterence : 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 : — 



(t 



• Vide Grotius, Lib. 2, ch. 21. gect. 1, 2, and 8 ; and 2 Ruth. 
Inst. Nat. Law, p. ^15. 



n 



it 



I 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 GrotiuB 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- 
sped 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 
ythere is, which prescribes to states implicit sub- 
mission to them, when well-grounded complaints 
are made against them. On the contrary, it i», 
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 



[ 213 ] 

nationsi 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 want 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 
Jinaly unjust jtulgment against a neutral, says the 
law of nations, is a good ground for reprisals, 
because no other mode of compensation is left. 
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, 
6ne 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 is misconceived, or if rules unknown 

38 



[ 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 i» to be submitted to. 

To administer the law of nations is the ' ac- 
knowledged proYince 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 
tliat 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! That a Prize 
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 be 
stated. 

One of Grotius's commentators, speaking of 
his idea of a positive law of nations, remarks^ 



[ 215 I 

*^ 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 pow- 
*;er."{2'Ruth. 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 
M^ould have discovered it to reside in every supe- 
rior Prize Court in £urope, under the semblance 
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 of 
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 su6h a sen- 
tence can never be drawn ad aliud examen. So 
far is true — but while in this view it operates 
conclusively by the commop 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 respectj 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 

instramentality of an unquestionable judgment 
from all individual responlsibility, 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 liability 
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 
commierce, 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 mu^£ 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 placartt of Hol- 
land, may be revived and 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 tha:t 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 
jkas been) the conduct of maritime states ; and I 



I 217 ] 

am at liberty to argue agaiast a principle from its 
possible perDicious 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 ovm rules. 

The law of nations is differently understood in 
different 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 wliich Prize 
Courts aught 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 ]. 

ThuSi 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 others, left no injury remainiDg ! 

Without going into further detail on this part 
of the subject, (upon which I have already Raid 
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 conolusion 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 hist- 
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 comminions from his Majesty ,''^ 
and ^' that from various circumstances belonging 
to the said cases, adequate compensation for the 
said losses and damages covXd not then he 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 AmericaB 



[ 220 ] 

claimants to the extent required, for the most for- 
ward of their cases were still svb 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 confirmedj 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 un- 
conditional compensation for the captures or 
condemnations 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 indttn- 
niftcation 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 condemnations complain- 
" ed of, the British government will, at all events, 
" make compensation f * but they provide as fol- 
lows : " that in all such cases, where adequate com- 



€C 



[221 ] 

pemation cannot^ for whatever reason^ he notr 
^* actually obtained, hadand received by the said 
" m^chant$ and others in the ordinary course of 
" justice, full and complete compensation for the 
'< same will be made by the British government 
*^ to the said complainants.'' 

The treaty was made before events had paved 
the way for its immediate effect. It takes up the 
subject of national redress by anticipationr It 
states the ingredients necessary to constitute a 
valid demand under it, although all the requisite 
ingredients did not, and could not, then exist. It 
imposes it upon the claimants as a duty to seek 
redress against the individual wrong-doer by all 
competent ordinary means, the result of which 
could not then be foreseen ; and it is upon the 
eventual failure of such means, without any laches 
on his part, that it authorizes him to seek repara- 
tion from the government of Great Britain. Sucli 
a provision, if I comprehend it rightly, is pre- 
cisely what the law of nations would dictate, and 
is framed in the very spirit of that law. The eminent 
negociators who adjusted it seem to have had in 
their view not only the substance but the wojrds 
of what is said by Grotius in a passage before 
cited, that the neutral has no claim to compensa- 
tion from the state to which the wrong-doer be- 
longs, " whilst he may recover his right in a ju- 
dicial way^ 

Those who place a different interpretation upon 
the treaty, say " that it refers to cases to which 
" circumstanees belonged, that rendered the pow- 

29 



[ 222 ] 

^^ er^f the Supreme Court of this country^ act- 
" ing according to its ordinary rules j incompe* 
" tent to afford complete compensation.^^* 

So far as this construction professes to stand 
upon the spirit of the treaty, or to execute the 
probable views of the contracting parties, I op- 
pose to it the consideration that it stops short of 
such an engagement on the part of Great Britain 
as the law of nations would prescribe. 

That law does not measure the responsibilitj 
of a belligerent for illegal captures, as prize, 
merely by the powers which it chooses to vest in 



* The cases admitted to come within this interpretation are^ 
so far as I have been able to collect, as follows : 

In cases of seizure, under the revoked ^orders of council, the 
Lords have held, that they are bound, upon a reversal of the 
condemnation, to consider the captor as so far justified by thena, 
as to be excused from costs and damages. In such cases, there- 
fore, it is supposed that the commissioners have, with a view to 
those cost&and damages, power to award them against the British 
government. 

Where restitution is decreed after a sale, the Lords are bound 
by the Prize Act to give no more than the iiett proceeds, and if 
these proceeds should be short of adequate compensation, it is 
supposed that we have the power to award the deficiency against 
the British government, since the Lords were incompetent by 
an act of parliament to award it against the captor. 

Where the captor, become insolvent, so as that the claimant 
cannot procure payment of a decree of restitution, &c. withdM 
any fault on his part, we are supposed to have jurisdiction. 

Where any fact other than the claimant's negligence has dis- 
abled the Lords from entertaining an ap,>eal, we are supposed to 
have jurisdiction. I have not heard of any specific cases under 
this head^. 



^ 



[ 223 ] 

its tribunals, or the checks it thinks proper to im- 
pose upon those powers. It measures it also by the 
legality or the illegality of their decisions, com- 
pared with the law of nations, where their pow- 
ers are confessedly commensurate with the pur- 
poses of justice. According to that law, as I have 
shown above, an illegal sentence by the Lords, 
confirmatory of an illegal capture to the prejudice 
of a neutral, is a national wrongs for which the 
British government is to make amends. In every 
correct idea of the subject, the act of the court is 
the act of the nation. The seizure upon which 
it operates, was an act for which the state was 
accountable in default of judicial retribution. 
The judgn^ent of the Lords shuts up every ave- 
nue to such retribution, and of course makes the 
nation answerable definitively, instead of remov- 
ing or lessening its precedent liability. 

The Vevokod orders of council, under which 
many American vessels were captured contrary to 
the law of nations, and which are held to bind the 
Lords to excuse the captor from costs and dama- 
ges, or the act of parliament compelling the Lords 
to grant only the nett proceeds upon a decree of 
restitution, were no more national actSj for the 
injurious etfects of which the government was to 
be charged, than the misuser of its prize juris- 
diction, by those to whom it has entrusted it, in 
confirming a capture which the law of nations 
condemns. The state is as much chargeable for 
the infringement of neutral rights by the council 
in its judiciary character, as by the same council 



[224 3 

in its ezecutivcj or any other character. It can 
only result from a misconception of the subject, 
that we should attach national responsibility to 
the latter, and yet exempt the former from all ob- 
ligations to recompense. If there ia a national 
authority (and it is admitted there is) for the ex- 
ercise of which a state is answerable to foreign 
powors, and their members, it is peculiarly that 
which the law of nations, and not civil institution, 
has communicated. 

Territorial jurisdiction more immediately be- 
longs to the government that claims it. It is more 
absolute and exclusive, because it is founded upon 
the domain of the society within which it is ex- 
erted, and springs from their common will, and 
theirs only. 

But prize cognizance has its basis in the law, 
which all states have an equal interest in, and to 
whfch all are parties. Its objects ^re the rights 
of all — its essential principle the equity of all. 
It is admitted that the British government is re- 
sponsible, not only by the law of nations, but even 
under the 7th article of the treaty, for the losses 
sustained by citizens of the United States, by 
reason of an act of the British parliament, 
which makes the nett proceeds, in prize causes, 
the measure of restitution, even after the rule 
€stablished by that act has b6en judicially . sanc- 
tioned. 

If there is any difference between the power of 
legislation vesied in the parliament of Great 
Britain, and the judiciary power vested in its 



I 



I 



[ 225 ] 

Courts of Prize, with a view to plenitude or ex- 
clusiveuess, we can be at no loss to discover on 
which side the difference lies. Can it be thought 
that, if the former power, sovereign, pre-eminent, 
and completely exclusive as it unquestionably is, 
cannot justify the violation of neutral rights, — 
the latter, deriving its existence from the general 
law which belongs to civil societies, and founded 
upon their relative independence, -is thus omnipo- 
tent ? It is inconceivable, that while the British 
nation is answerable for wrongs produced by the 
acts of its constitutional legislature, even after * 
they have received the sanction of Admiralty 
decrees, the acts of its Prize Courts, having no 
warrant in any law whatsoever, can be lifted 
above the reach of inquiry or exception. And 
here it is proper to notice a suggestion, which we 
have heard more than once deliberately repeated, 
that it is highly improbable that Great Britain 
would consent that the decrees of its highest 
Court of Prize should be brought into question. 
Without stating the particular manner in which 
this improbability has been inferred, it may be 
sufficient to observe, that, if the suggestion is 
grounded upon any supposed right on the part of 
Great Britain to insist on the conclusive nature of 
such decrees, we have already seen that, however 
such a right may be supposed^ it does not in truth 
exist. If it be rested on any other ground, it 
may be answered, that Great Britain has consent- 
ed to submit the justice of one of its highest acts 
of sovereignty (an act of parliament) to our de- 



[ 226 ] 

termination — ^and has also consented to subject to 
our opinion the propriety of a rule of prize cog- 
nizance necessarily flowing from, or rather in- 
cluded in, an order of his Majesty in council, 
and adopted in practice by the Lords. Can there 
be any just sense of national pride or respect for 
national jurisdiction or prerogative, fairly attri- 
butable to a great nation, which will allow it to go 
tfivs far in a scheme of equitable retribution for 
injuries to a friendly power, produced in the heat 
of an unprecedented war, and yet induce it to 
hold up the sentences of its maritime tribunals as 
defying impeachment, and to exact from all the 
world a blind and superstitious faith in their 
legality ? 

From the foregoing considerations it will be 
pretty manifest that (unless the words of the 
treaty necessarily import as much) there is no 
reason to believe that the framers of that instru- 
ment intended to bottom the liability of the Bri- 
tish government, in regard to the captures and 
condemnations complained of in the preamble to 
the 7th article, upon any specific want of power 
in its Supreme Court of Prize to grant com- 
pletc compensation; but on the contrary, that it 
ought to be presumed (if the words of the article 
will bear us out in it) that they intended to pro- 
Tide for and effectuate that- nrore extended and 
rational responsibility which the law of nations 
indicates. 

When we are acquainted with the measure of 
redress which the neutral had a right to demand, 



[ 227 ] 

and the%elligerent was under every obligation to 
assent^ to, it does not seem reasonable to infer 
that the treaty was meant to fail of giving full 
effect to them. An interpretration of an instru- 
ment of redress between nations, which cannat 
be referred to any conceivable estimate of the 
rights of the party seeking, or the moral duties 
of the party conceding the redress, cannot lay 
claim to attention upon any other footing than that 
it arises unavoidably from the positive and restric- 
tive language of the stipulation. An interpreta- 
tion of such an instrument, which precisely quad- 
rates with the reciprocal rights and obligations 
of the parties to it, is such a one as must be re- 
ceived, and will be received, by the common sense 
of mankind, if it can be sustained withaut vte- 
lence to the letter of the contract. 

It is said by Rutherforth and other respectable 
jurists, " that even where words are capable of 
two senses, either of which will produce some 
effect, you shall take that sense which is reason^ 
able and consistent with that law which applied 
to the subject;'*'* and again, ^' that where nothing 
appears to the contrary, the presumption is that 
the parties meant what they ottght to mean. (2 
Ruth. Inst. Natl. Law, p. 326, 7.) 

It is in this view that I have supposed it to be 
important to ascertain by a preliminary inquiry 
that neither the United States, nor the claimants, 
their citizens, were bound to receive as just the 
sentences of the Lords, unless they were so iti 
fact — that such sentences if unjust, instead ef 



[ 228 ] 

shaking off the responsibility of the Bntish na- 
tion for the losses and damages resulting from 
illegal captures and condemnations, produced the 
perfection of that responsibility, and gave to the 
United States an indisputable right, by the law of 
nations, to require of the British government, m 
behalf of its citizens, adequate compensation for 
those losses and damages. It will now follow 
that, even if the words of the 7th article will admit 
of two constructions, one of which shall be agree- 
able to the foregoing result, and the other to the 
opinion of the agent, it is our duty to adopt the 
former. And it will now be in our power to esti- 
mate more accurately the import of every efficient 
term in the article. 

The truth is, that without forcing upon the lan- 
guage of the clause a meaning not to be found in 
it, the agent's position cannot be countenanced 
by it : while on the other hand, that construction 
which suits, as I have shown, the nature of the 
subject regulated by the article, is such as the 
language of it would lead us to adopt. 

Let us now proceed to an examination of the 
letter pf the article. 

I have already quoted the preamble, from which 
it appears that the allegation recited in it has a 
two-fold aspect. 

Ist. That American citizens had sustained con- 
siderable losses and damages by reason of irre- 
gular or illegal captures or condemnations under 
colour, &c. 



[ 229 ] 

*2d. That from various circumstances belonging 
to their cases, adequate compensation could not 
then be actually obtained^ had and received by 
the ordinary course of judicial proceedings.. 
' The provision itself stipulates that in all such 
cases where adequate compensation for the said 
losses and damages caniwl far 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 for the 
same will be made by the British government, to 
the said complainants, with a proviso that the 
stipulation shall not extend to such losses and 
damages as have been occasioned by the manifest 
delay, or negligence, or wilful omission of the 
claimants. 

Upon language so clear and definite, it is not 
easy to make comments with any vieiV to further 
perspicuity. I will make the attempt however. 
We are to have jurisdiction, if it shall appear th^t 
the claimants could not, at the time of making the 
treaty,/or any reason whatsoever^ (other than their 
own laches,) actually obtain, have and receive ade-* 
quate compensation, in the ordinary course of 
justice. 

The claimants in the case before the Board 

have alleged and proved that they have made a 

complete experiment on this subject ; they have 

alleged and proved that they have had recourse 

to the only tribunal competent to give them any 

redress in the ordinary course of justice, and that 

tribunal, after a full examination of their case, has, 

30 



[ 230 ] 

upon the special circumstance of it, absolutely 
and conclusively denied them any compensation 
whatsoever, without any delay or negligence, &c« 
on the part of the claimants.^ Of the practicabili- 
ty or impracticability of obtaining judicial redress 
in any given case, one would think that no evidence 
could be so eminently satisfactory and appro* 
priate as the result of a fair and complete attempt 
to obtain it, in the only possible way in which it 
was to be obtained, if obtainable at all. It is 
not pretended on this occasion that the attempt 
was defectively made^ or that its result is in any 
sort ascribaUe to the laohes of the parties making 
it. It must be allowed on all hands, then, to have 
flowed from the circumstances belonging to the 
case upon which the Lords of Appeal have pre* 
Bounced a final decision. Indeed the decree of 
the Lords expressly says so. We have not heard 
it suggested that any expedient was open to the 
claimants by which they could have produced a 
diiferent result, or, in other words, by which they 
could have obtained judicially the redress to which 
th«y say they are entitled — and it is certain that 
the sentence of the Lords has closed the subject, 
in a judicial view, for ever. If the claimants could 
have obtained adequate compensation in the usual 
eourse of justice, it is natural to ask how does it 
happen that they hove not obtained it? Have 
they not made every practicable effort towards 
that end t Nobody denies it. Has not all com- 
pensation been definitively refused them upon 
the facts attending their complaint ? We all agree 



[ 231 ] 

to this. It is of course sufficiently proved that 
the claimants could not obtain judicial retribution. 
But it is said that this is not enough to gratify 
the treaty. I will at present take for granted, 
however; that it gratifies the term cannot— and, 
if it does, it will be difficult to point out any other 
words in the article which it does not gratify. It 
is contended that it must appear farther that the 
claimants could not obtain adequate compensa- 
tion on account of the want of power in the 
Lords of Appeaij acting accordtng to their or- 
dinary rules to afford iU Although this idea is 
obviously short of what the contracting parties 
ought to have meanty and cannot be reconciled 
with the law applicable to the subject of the ar- 
ticle, yet if the language of it inevitably pointed 
to so inadequate a conception of its views, I should 
hold it to be my duty to adopt it. I have, there- 
fore, searched in the article for the restrictive spe- 
cification which confines the impracticability of 
obtaining judicial redress to that sort only which 
could be referred to nothing but the incompeten- 
cy of the powers of the Lords of Appeal. Upon 
eicamining the stipulation, however, which is sup- 
posed to contain this specification, or something 
equivalent to it, I am so far from finding it, that 
I discover the terms, actually used for the purpose 
of the definition it aims at, to be of peculiarly ex- 
tensive import, so wide and comprehensive as to 
be universal^ and uaclogged by any exception 
whatsoever, other than the exception of the mani- 
fest ddaify Sfc. of the claimants. 



[ 232 ] 

The language of the preamble is ^^from va- 
rious circutn$tances belonging to the said cases :'' 
that of the provision itself is ^^for whatever 



reason^ 



If the term " various circumstances^^ can be 
SU[)posed to mean no more than circumstances of 
a particular description affecting the powers of 
the Lords; or if the term ^^for whatever feason^^ 
can be lessened down so as to mean no more than 
for a reason of a precise and peculiar nature — 
or if a designation of the largest possible range, 
evidently inserted to reach universality, can be 
converted arbitrarily into a designation of the 
most circumscribed and limited nature — then, in- 
deed, it may be true that the article ejctends only 
to cases to which circumstances belonged that ren- 
dered the powers of the Supreme Court of tfii» 
country, acting according to its ordinary rules, 
incompetent to afford complete compensatiofi. 

The slightest view of the article will serve to 
produce conviction that this selection of a par- 
ticular class of circumstances or reasons^ to the 
exclusion of all others, is a fanciful selection, not 
authorized by the article itself. The article does 
not prescribe to the claimants the precise indica- 
tion of any circvmstafjces or reasons producing the 
failure of the judicial remedy. It is enough^ un- 
less we put into the clause what is not there at 
present^ that it is palpably seen that some circum- 
stances or reasons, other than the claimant's ne* 
glecf, produced that failure ; and b( this the sen- 
tence, dismissing the appeal upon the merits, must 






[ 233 ] 

■ 

be 'undeniable testimony — although neither the 
sentence nor the prior proceedings may enable 
us to identify the special fact or reason which 
stood between the claimants and the compensa- 
tion they demanded. 

In the case before the Board, the LcH'ds have 
stated in their decree that they dismisi^ed the ap- 
peal upon nM the gpecial circumstances of the case* 
If it were necessary to resort to every mode of 
illustration upon this question, it might here be 
observed, that when the Lords have, by a final 
sentence, assured us that on account of all the 
special cvrcwmstances of the claimants' case, ju« 
dicial redress was refused them — we might ven- 
ture to conclude, in the language of the preamble 
to the 7th article, that there were " various cir^ 
^^ cumstances belonging to the said case/' by rea- 
son of which the claimants could not obtain, have 
and receive, adequate compensation, by the ordi* 
nary course of judicial proceedings. It will hard- 
ly be imagined that the term ^^ various circum- 
" stances,^^ in the preamble of the 7th article of 
the treaty, is not at least equally as large with 
'^ aU the fecial circumstances^^ in the Lords' de- 
cree — and it need not be insisted on, that if their 
lordships had shaped their sentence with Studied 
reference to that article, they could not have 
framed it more aptly for the purpose of bringing 
the claim of the memorialists within its pale. 

Even if the treaty required it of the memorialists 
to specify the ctrcumstances which made them 
incapable of procuring^compensation before the 



r 234 ] 

Lords, they are here enabled to comply with this 
nicety, inasmuch as they have the best warrant 
for saying that all the circumstances of the case 
concurred to constitute this incapacity. But sure- 
ly there is no necessity to be thus minute ; nor is 
it on many occasions possible to be so. We 
know that the miscarriage of the judicial remedy 
must arise from some circumstances belonging to 
the case from a reason of some description or 
other, and, if we are satisfied that such circum- 
stance or reason was not the neglect of the daim- 
ants J why are we to scrutinize further, since the 
treaty declares that it shall be totally immaterial 
what the circumstance or reason is, provided it be 
nojt such neglect t We can put no other construc- 
tion upon the words ^^for whatever reason^'* with- 
out resorting to an equitable interpretation, more 
loose than any example will justify ; and if we 
have recourse to equitable interpretation, such 
as it ought to be, it has before been demonstrated, 
that it will only serve more decidedly to indispose 
us towards the desired restriction. 

But stress has been laid upon the word <' can- 
noty^ as if it related to want of power in the Lords. 
And it has been asked, why the contracting par- 
ties dM not (if my construction of the article is 
correct) use the words '' shall notj^ so as to make 
the clause read thus — ''it is agreed that in all 
'' cases where adequate compensation shall noU 
" for whatever reason, be actually obtained, had 
** and received, in the ordinary course of jus- 
" tice,'' &c. 



[ 235 ] 

It might be sufficieBt to say, in answer to this 
argument, that the word ^' cannoV^ has not, in it- 
self any exclusive relation to an impracticability 
of any particular description, aad that when it is. 
conjectured to refer to a defect of authority in 
the Lords, the conjecture has no foundation in 
the ordinary meaning of the word. But the ar- 
gument will admit of another answer more point- 
edly applicable to the latter branch of it* The 
words '^ cannot now^^ appear to have been used in 
preference to the words suggested, because they 
would exclude the claimants from compensation 

where failure of ordinary redress should he in 
consequence of their ovm neglect happening af- 
ter the making of the treaty ^ while at the same 
time they would completely open the door to com- 
pensation, where such failure was not produced 
by the fault of the claimants. The treaty contem- 
plated national reparation where no other was 
within the power of the claimants^ and, conse- 
quently, it has said, " where adequate compen- 
^^ sation cannot be obtained by the said merchants 
" and others.'' If it had said, " where adequate 
^'compensation shall not be obtained/' &c., it 
would have gone beyond the object I ascribe to 
it, as well as beyond the responsibility of the 
British government upon it which it meant to act. 
If I am told here, that a proviso might have limit- 
ed and explained this looseness of expression — 
and in fact there is now such an explanation sub- 
joined to the provision as it stands — I answer ihat 
those who are framing a treaty must be supposed 



[ 236 ] 

* 

to aim at as .accurate a designation of their mean-- 
ing as possible in that body of the provision they 
are modelling; and that they are not to be sus- 
pected of adopting a phraseology unnecessarily 
wide of the views, in the hope of being able to 
correct it by a proviso ; — that as to the explana- 
tion which now makes a part of the article, it ap- 
pears to have no effect upon it with a view to any 
delay or negligence happening after the making 
of the treaty ; for that such after negligence is 
guarded against solely by the words "cannot now/* 
and if not solely y it is at least sufficiently guarded 
against by those words. 

In short, the terms " cannot noto*^ suited views 
such as I attribute to the makers of the treaty. 
The words " shall nof^ would have exceeded those 
views. 

It is said to be a rule in literal interpretations to 
follow that sense which is agreeable to common 
use, without attending to grammatical fancies or 
refinements. But surely there is much fancy and 
refinement, and very little attention to common 
usage, in construing words which state an imprac- 
ticability, for any cause to mean an impractica- 
bility for some special cause. Fie who says, " that 
if redress cannot, for whatever reason^ be obtained 
in the ordinary course of justice, he will himself 
grant it,'' can hardly, without departing from the 
settled import of the terms, be made to mean i 
merely " that he will grant compensation, if it can- 1 
not be obtained on a^xount of some possible de- 
ficiency of power in a certain tribunal.^ If 



j 



[ 237 ] 

the treaty had run thus — '^ Where adequate «oin- 
pensation cannot be adjudged or afforded by the 
Lords of Appeal,"\ti their ordinary course of pro- 
ceedings," instead of ^ where adequute compen- 
mtion cannot be obtained by the naid merchants 
and otherSf^^ th^re might have beeh room to argue 
that the incapacity of the Lords, by reason of the 
scantiness of their authorfty, was intended to be 
relied upon, and not the incapacity of the claim- 
ants.; the 'words as they now stand have no re- 
ference to the incompetency of -the Lords, they 
point to the elatmante^ want of power to procure 
retribution, and they declare, moreover, that it sbcdl 
be of no importance what this want of power ari- 
ses from, if it be not the precedent negligence of 
the claimants themselves. 

The practicability of obtaining judicial rddress 
for a legal claim is one thing : the . practicability 
of rendering it is another. They may depend on 
causes whollydistinct. Jf a proper case for relief 
is brought before a court of competent jurisdic- 
tion, it is practicable for that court to relieve ; but 
it may, notwithstanding, be true in regard to the 
claimant, that relref can^to< be obtained; for the 
court- may mistake the law, and though empower- 
ed to do justice, refuse it. The treaty speaks of 
what can or cannot be. procured by the claimants, 
under all the circumstances of tdeir claims, by re- 
sorting to their ordinary remedy ; and not of what 
can or cannot be done by the Lords in acting 
upon that ordinary remedy. The first might, in- 
deed, depend in a great degree upon the last ; 

31 



[ 238 1 

but it did not whoJttf (\epend upon it; since the 
Lords ini^ht reject the cloimatitis' demand from 
error, as well as toant of power* It is plain, there- 
fore, thvat before the aj^entS' position can be main- 
tained, the terms of the treaty must be radically 
altered. From -a stipulation providing for cases 
in which the patties ivjv/red jcannot,/ar vohaterer 
reason^ obtain redress before tb^ Lords, it must be 
changed into a stipulation providing for cases in 
which the Lords cannot, /or a particular rea^im^ 
grant redress. That such a* provision cannot, by 
any admissible inode of construction, be inferred 
from language which relates exclusively to the 
power of the suitor, and not to that of the tribu- 
nal, is loo evident for argument. 

We can give countenance to this forced infer- 
ence -in no other way than by fajwyuig that both 
the ^contracting parties had such dependence 
upon the court of one of them, as to take it for 
graQted that in all cases where that court had (he 
power to do justice, it necessarily followed that it 
would be procured from it on a proper application* 
But there is no part of the treaty which makes 
profession of such unbounded- respect for that 
court, and there is no rule of the law of naticms 
which prescribed such respect to the United 
States. • On the contrary, the American govern- 
ment, by acting upon such an improper depen- 
dence on the possible legality of decrees which 
were yet to be pronounced, would have surren- 
dered by anticipation its indisputable right of 
questioning those decrees, if in reality they should 



t 289 ] 

be unjust. Why ate we to iinagine that this was 
contetnplatQd ? The treaty- does not invite as to 
this conclusion ; and Great Britain ha'd no colour 
to ask' from the United States such a sacrifice. 
Are we then to uphold an interpretation of this 
instrument, which is not only unauthorised by its 
lagguage, but is unsuitable to the subject of it, 
and at variance with the undoubt(*d rights of one 
party, and the duties of the other! What Great 
Britain could not properly demand, we are to 
suppose she did demand — what thetTnited 8tates 
ought to h'lve insisted upon, we are to suppose 
th(^ abandoned; and this is to be done not only 
without evidenc-e, but in direct contradiction to 
the declarations 'of the pasties. This is so far 
from being conformable to the rule cited from 
Rutherfortb, that it beems to proceed upon a rule 
to this effect—" that even where words will fairly 
admit of but one sense, and that, too, consistent 
with the law applicable to the subject, we are to 
force upon them a sense incongruous with that 
law, and compel the contracting parties to mean 
what they ought not to have meant.''* 

* But even if it were admitted that thf parties to the treaty pre- 
sumed, that where the Lords had .power to redresis, th^y would 
always ^ant redress, and that they acted upon that presumption,'^ 
in framing the 7th article — there is a corregpondt nt prejiump- 
tion which it would appear to he our duty to be guided by. I 
mean the presumption, that where the Lords have not rendered 
justice^ they had not the power to render it — ^and consequently, 
that' we have the power upon every interpretation of the article. 
I reject this mode of establi^hinsr our jurindictioii, however, be- 
tause I do not believe that the framers of the treaty acted upon 
the first preiumption. 



[ 240 ] 

It is said by Vattel, (b. 2, ch. 17,f. 266,) " that 
''on every occasion, when a person h^ and ought 
" to have shown his intention, we take for true 
'' against biin what he has sufficiently dedlare^- 
^^ This is an incontestible ptinciple applied to trea- 
"ties,"&c. 

(Id. ib. sect. 264.) ^'If he who who can and 
^' ought to have explained himself clearly and 
'^ plainly, has hot done it, it is worse for him : he 
*^ cannot he allowed to inlroduce stibseqaent re- 
" strictions which he hcLS not expressed.^^ " There 
^^ can be no secure conventions, no firm and solid 
'' concession, if these may be rendered vaia by 
'^ subsequent limitations, that ought to have been 
*^ mentioned in the piece, if th^y were included 
^' in the intentions of the contracting powers.'^ 
Not|;iing can be plainer than that the limitation 
now attempted to.be imposed on the 7th article of 
the treaty, (which, in relation to the subject now 
before us, is the stipulation of Great Britain,)'i8 a 
svbsequent restriction not expressed in the article it- 
self. The application of the above extracts from 
Yattel is peculiarly strong upon this occasion — 
not only because the language of the 7th article, so 
far from being mysterious and equivocal, clearly op- 
poses itself to the restriction suggested; not only 
because the rt^striction is inconsistent with every 
just ide^ of the neutral rights and obligations of 
the contracting parties, and such a one as the 
matter of the contract does not naturally admit ; 
but also, because the framers'of the article have^ 
in the adjustment of its form, evinced their anxie- 



[241 ] 

ly to guard from a too enlarged constcuction 
by an explanation Bubjoined to the body of the 
claotfe, and yet have not adijed any explanation 
which gif^» a' colour to this lifliitation. The' con- 
cluding part of the ffrst paragraph of the article 
is sfeitis^etory proof that those who framed it 
wero attentive to the precise effect of their act, 
and' had considered the . means of preventing it 
from being stretched beyond their views. ^ hen 
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 
pro^vtsOy so as to fit them with exactness to tlieir 
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. 
•Siifely if it was meant to assert the infallibility 
of any particular judfcature, in opposition to the 
words of the provision, an object which is sup- 
(posed to have been preserved so steadily, in the 
vi^w of one of the pafties, would not have been 
neglected at the time when explicitness upon a 
subject of infinitely inferior ('oni!>equence was so 
cautiously attended to. I tforbear to enlarge fur- 
ther On this point, because I wish to avoid unrea- 
sonable prolixity ; but! think I have already said 
-enough to provQ that the objection to our jurisdic- 
tion is unfounded. 



[ 242 ] 

Upqn the merits of this case, a question has 
^occurred, which requires to be examined. 

iVo of the comuiissioners have held, that on 
facts disclosed in the case of George .Patterson, 
the owner of the brig, and part owner of the car7 
go, was, during and by reason of his stay in Gua- 
daioupe, (an enemy's territory,) liable to be treat- 
ed as ^n enemy to Great Britain by those acting 
under its authority.; and of course, that his proper- 
ty sent out frorp Guadaloupe and seized by n Bri- 
tish cruzier, while he remained in thai island, was, 
by the law of nations, rightfully subject to con- 
demnation as prize. 

The facts are these— William and Geqrge 
Patterson (the claimants) wene 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- 
terrtbn. She sailed from Baltimore for the West 
Indies on the 19th 4 December, 1793, with a cargo 
of flour, butter, and specie, belonging joimly to 
the said partners. George Patterson sailed in 
her as owner and supercargo. The vessel pro- 
ceeded to Guadaloupe (her port of destination) 
where she arrived on the 8th of January following, 
and there delivered her cargo to the said George 
Patterson. The cargo (at 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 board the said bri^ a 
return cargo, the produce of the island, and des- 
tiAdd her therewith to Baltimore, remaining him- 



[ 243 ] 

self at the said island ; a^ sHq accordingly sailed 
Frorn Ciuadaloupe on the \Sth of March^ boand 
on her said intended voyage : in tht? prosecution 
thereof, she vi^as on the iOth'^.of the same month 
(two days after her departure from the island) 
met with and taken as prize, by the British private 
sloop pf war Agenocia. It appears by the.evidence 
fokind on board the brig, that 'George Pattersoo 
had no intention of Miettling in Guaduloupe ; that 
his s^taiy was meant to be for a t^hort time only, 
(until the Bets(*y should return with another car* 
go;) that his views werdto procure from the admi* 
ni»tr<ition of the island, payment for cargoes 
which they had taken from him and his >partner, 
and while he stayed to mnnnge the affairs of the 
concern and conduct.the iaurful trade in which it 
was engaged to the best advantage'. 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 blocka/le (an assumed 
fact upon which the condemnation at Bermudas 
appears to have been founded) is admitted to be 
false. The suggestion Xhat during his stay in the 
island, it was rtotoriously expected to be blockaded, 
18 unsupported by the shadow of evidence — and if 
it were proved* it would bi? idl^and unconsequen- 
tial. It cannot be necessary to argue that the ex-- 
pecteUion of a blockade does pot render provi- 
sions oontraband, or in any shape intm-fere with 
the free lt)m of neutral (commerce. We are all 
agreed that there cannot be a camtructive btock- 



[ 244 ] 

ade to the prejudice of the trade of neutrals*-^ 
and after this concen^ion, it would be absurd to 
wa8te time ita showing' that the mere expectation 
of a blockade, when none exists in fact, or can be 
made out constructively, . ia not entitled to have 
that effect. 

His sending to Aknerica for another cargo of flour 
after the adminisiration of the islatid had taken 
the Betsey* s , car go by fffrce, was not the act of fin 
enemy to Great Britain, but 8trictl3r^lawful for him 
to do so as neutral. Is he to be called an enemy 
to Great Britain, because be did not petulantly re- 
sent th^ infringement of bis 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 bas thought proper to 
submit to this wrong, and even to hazard the re- 
petition of it I 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 t 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 cargcr imported was siich as the law of na- 
tions did not prohibit. 

If the reverse of this doctrine were true, I do 



[ 245 ] 

Hot 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 Krance. For during that year the go- 
Yernmenl 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 island, 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, — ha did not become an inhabitant of the 
island, but was a mere sojourner in it for special 
limited purposes lawful in their nature. 

Still, however, it is said that bis residence there, 
such ad it was, made him, under all circumstan- 
eesj the enemy of Great Britain. 

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 wordsi 
take up (jLjixed rendence for permanent purposes, 
however lawful they may be, in the territory of a 
belligerent nation, flagrante bello, and thereby 
become united to, and, sub modo, citizens or sub- 
jects of it> are liable to be treated as enemies by 

32 



[ 246 ] 

the opposite belligerent; but neutral straogere, 
who merely pass or sojburn in the territory of 
a belligerent nation, for the mariagement 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— 2r3, of 
this chapter, the author treats of the ritizena and 
natives of a 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. 

^£CT. 213. ''The inhabitants^ as distinguished 
'' from citizenSj are strangers who are permitted 
^' to settle and stay in a country. Bound by their 
** i esidence 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 mean.t by 
Vattel, are such as are in some degree incorpora- 
ted with the nation, and are liable to the duties^ of 
dtizenshipf although not enjoying all itp 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, subjected themselves to their cpntrol^ 






[ 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, n^eaking of a man who has left his own 
country : ^' )f he heis 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 inhoMtants f 

(Vattel, b. 2d c. 8th 8. 99th-) ** We havfe al- 
" ready treated (b. 1st c. 19, already quoted) of 
" the inhabitants J or of the men who reside in a 
** country where they are not citizens. We ^«hall 
" only treat here of the strangers ytho pass or so- 
*^journ in a country, for the management of their 
** affairs, or in quality of mere traveller s.'^^ 
Sect. lOL (iJ^peaking 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 
f^ laws made to maintain good ordir, and which 
*^ have no relation to the title of citizen or sub- 
**ject of the stated 

8rct. 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- 



u 



[ 248 ] 

'^ 8ion» and to contribute to its defence, as mucU 
'^ OA hu being a citizen of another state may per- 
^* mil him. ' But nothing hinders his defending it 
^'against pirates and robbers; against the ra- 
" Tages of an inundation or the devastations of 
^^fire^'^ The author in this place, evidently sup- 
poses that (although in the case of an inhahitant* 
or fixed resideiU^) every duty of a .citizen is on 
sucii inhabitant while he continues, so there is no 
obligation upon a sojofirner or temporary resident 
to assist in defending the country in a solemn 
war ; and of course, that there is no obligation 
upon hini inimical to the nation with which that 
country is in a state of hostility. But in Sect. 
lOti, he is still more explicit. 

Skct. 106. " Indeed he cannot be subject to 
*' the taxes, which have only a relation to the dti- 
** zens ; but he ought to contribute his share to all 
" the others* Being exempt from serving in the 
" militia, and from the tribute destined for the 
*' support of the rights of the nation, he will pay 
^^ the duties imposed on provisions, merchandise, 
'* &.C., and, in a word, every thing has only a re-- 
*^ lation to his residence in the cotmtry, and the 
** affairs which brought him thither y 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, and dues not become a settler in, or 
inhabitant of, the country, cannot, by reason of 
such sojourning, be considered as having subject- 
ed himself to any obligations injurious to the op- 
poBite 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 t«uch a man an enemy is to do violence 
to common sense. 

Sect. 107. (Same subject) "The citizen or 
"subject of a state who ah^evts himstlf jar a 
" time without any intention to abandon the so- 
"detif of which he is a member, does not k)f?e 
"his privilege by his absence; he preserves his 
" rights, and remaim bmind by the same ohliga- 
" tiom. Being received in a foreign country in 
" virtue of the naturcd society, &c., he otight to be 
" consulered there as a member of his own nation, 
**'and treated as suchJ'^ 

The nation then, with whom a neutral stranger 
sojourns, is, by the law of nations, to^ consider and 
treat \{\m as a m^ember of Kis own country : 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 
in his own country. And yet it is imagined that 
the opponite power at war,* merely on the ground 
of his residence, which does not alter his charac- 
ter, and is in no respect unlawftil, may consider 
and troat him .as an enemy ! 
Why is it then that neutral goods found in an 



[ 250 ] 

enemyV territory are not liable to confiscatioB, 
if the quality of the place^ where a neutral shall 
himself be found, attaches itself thus powerfully 

tohim ) 

If this doctrine against which I am now con- 
tending were true, the converse of it woiiid b.e al- 
so true. .If place and not character is to fix a 
man as friend pr enemy, an enemy would cease 
to be so as soan 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 wliich friend 
or enemy is to be ascertained. The political tieSj 
iiot the locus in quo, defis^ignate the quality. Has the 
party duties upon him in favour of one of the belli- 
gerents against the other, which, if called into ac- 
tion, would 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 noty you cannot treat 
him as an enemy, without trampling upon the laws 
of nations^ although you should find him in (he 
heart of the country with which you are at war.* 
I have already shown that a sQJourner 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 ] 

ia fact settled in it, has no $uc1i 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 himi 
are as perfectly neutral as those he brought 
along with him. 

The foregoing observations are confirmed by 
Buriemaqui's Principles of Political. Law, (p. 281, 
a. 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 he- 
" 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 uSf 
" 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 witb tem- 
porary views, and who come withiQut any intention 
of abandoning their own country, or becoming m* 
habitants of another. In the description of '' those 
'' who are animated with, the same spirit against 
'' UJ(," it will not be supposed that those are in- 
cluded, who, with a complete neutral character 
ai^fl witb every neutral obligation upon them, go 
for a time into the belligerent country on a law- 
ful errand, having no relation to hostility — nnd, 
while there, take no improper part in the national 



[ 252 3 

quarrel, biit 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 
their neutrality, and who continue as free from 
any duties, adversary to either of the contending 
parties, as if they had remained at. home. 

It is plain that liurlemaqgiV meaning is the 
same with that of Yattel. Ky settlers he intends 
those whom Vattel calls inhahitantSy who may 
fairly be presumed to be animated toifh the same 
Bpirit 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 Burle- 
maqui, and accounts no strangers as enemies but 
such as settle in the enemy's country. 



[ 253 ] • 

The following is copied from a manuscript niote 
of Ijord Carnden's opinion in two of the St. Eu- 
statius' cases, (Harmonie 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 travels for health, to settle a particular 
" business, or the like^-of such persons, so U^n- 
*^ porarily residing ^ he said, he thought it would 
^* be hard ^o 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, be said — ^\ la 
" every point of view they ought to be deemed 
" reftident subjects. Their persons, their lives, 
"their industry, are employed for the benefit of 

m 

** 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 
" corne within that description." 

The note concludes with stating, " that the 
** goods in both ships (viz. the Harmonie and Jaco- 
" bus Joannes,) were condemned (except those be- 
^ longing to Erutz) upon the ground of penna-- 
**nent residence ox inhabitancy of the owners in 
** an enemy's territory." 

The ground upoii which the property of Erutz 

was excepted from the condemnation, is stated in 

33 



1 



[254] 

the note to be» ^^ that he was an ^occasional ren- 
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 wholly on 
the fact of permanent inhabitancy, a fixed and 
settled residence. Such was the doctrine in thia 
country formerly ; and, if it has been changed, it 
will* not be, easy to prow 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, .concur? to establish the distinction 
with which I -set out. It gives authority to seize 
property belonging to France, or to any perscHis 
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 that a 
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.! 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 referring 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 ] 

eriginally 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 argumf*nt stands thus: — 
All persons who are within the enemy's territory 
are, prima faciei 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 a 
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 hid 



[ 256 ] 

• 

character stood free from the presumptioa against 
him, arising solely from, the place in which he 
happened to be. The burden of the proof would 
then bo transferred from him to the captors. 

By showing that he Was a citizen of the United 
States, he showed that he w.as.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 
tDUi in -an enemy^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 
wbjch he had forfeited the friendly character, 
whici) all the ship's papers proved him to possess,, 
that 'friendly character wasientitled to protect him. 
They did not prove such 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 aft^r 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 
daysi) 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 coupled with what lawful acts it may, so 
as, upon the footing of inhabitancy, to make him 



( 257 3 

an enemy to Great Britain. •. It cannot be pre- 
tended that, while at Guadaloupe, be. 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 d neutral. His object in remaining at 
the island, was manifestly to procure payment of 
what was due to him from the administration ; 

ft 

and, while so employed, to make such mercantile 
profit, by conducting the usual trade of the part- 
nership as might be practicable. That the i^iland 
wanted provisions is probable, and that he wi^h- 
ed to have an opportunity of supplying it, not 
only on account of the price of flour,, but also on 
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 Greorge. Patterson- not to havei been liable to 
condemnation, there was at least pxohahle cause of 
seizure and detention for the jpurpose 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 o£ obtaining judicial opinions upon it, ille- 
gal. But, in my judgment, it was so clearly in his 
favour, that I confess myself astonished that any 
doubt could be entertained about it. 
. If 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- 
gree f6r talents, integrity and station ; but even the 
commissioner who recommends it to ns as conclu- 
sive proof of probable cause^ confesses that it was an 
erroveaiis sentenccj inasmuch as it condemned the 
property of William Patterson, as well as that of 
George Patterson. For this sentence, as %t 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 <^annot, in 
any shape, be an authority for us. We are unani- 
mous, that, as to Willianfi Patterson's property, 
it is palpably erroneous ; — that no pretext can be 
imagined even to countenance it in respect of his , 
property ; — and a majority of the Board are of 
opinion, that it \^ clearly erroneous in toto* Af- 
ter thisi it is at least novel to rest the proof of 



[ 259 } 

probahle cause upon the authority of that seB^ 
tence. The questioa of prdkable cause is as 
much a question upon which it is our duty to de- 
cide, according to our own judgHMntSy 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 i^ should be 
allowed to controlit on the former; — especially 
when the sentence thus set up as a proper guide 
•to decision on the former, is nothing tnore tlmn 
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 sufficient evidence of probable cause, it 
would follow that every decision against probable 
aause 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, 
1 cannot persuade myself that I am to sacrifice 
the conviction of my own nynd, 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 



1' ^ 



C 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 been 
made of it at the port of destination, if the voy- 
agti 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 
co(Urse, 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, arisea from 
themi 

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 ; — bat 
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 vesseFs arrival, enabled them under all cir- 
cumstances to make. 

Whep the claimants show (and a majority of 
the Board have determined that they have shown 
it) that the cargo belonged to them ; — that the 
voyage which the vessel (also the property of one 



[961 ] 

of them) had commenced was a lawful one ;— * 
that there was. no ground upoa which she could 
justifiably be seized or detained, they prove a 
complete right to prosecute that voyage, without 
molestation, and to acquire such advantages there- 
from as in the course of trade mi|rbt fairly be 
calculated on: 

According to a written opinion filed by one of 
the Board on this occasion, no ccfVnpensation 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 jttst and 
^ adeqiMte 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 depriviss 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) lays 
down the rule that " in estimating the damages 

*^ which any one has sustained, where such things 

34 



[ S03 ] 

<'' as he has a perfect right to, are unjuatly takoi 
''froai hiuii or witbholden, or intercepted, we 
** are to considery 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 received 
'' these profits without any labour or expense ; be- 
<< 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 deduoted 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 mofe 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 oft* 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- 



[ 2(» ] 

^< dents are greater or more in number, or mora 
'< 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 iUelf, and were subject to no 
other risk than the cargo was exposed to. 
With a view to prices^ there was no risk at all, 
since 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 
hswe facts by which to regulate pur 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. 

Home objections were started at • the Board, 
against thef 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 be, 
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, jimtice to each individual complainant. It 
IB Bot aufficie»t that our awards shall cover the ag* 
gregate losses of all the different parties injured^ 
unless we distribute compensation in equitable^ 
proportions. . 

it is supposed that there can be no certointy 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 niarkef, at any given time, is neither impos- 
iBible 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, &c., and the amount of duties, na 
person can be at a loss for.* 

The |»*incipal reason assigned for this uncer* 
taiBty, is the difficulty of fixing the precise in- 
fluenee 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 can 
be attributed to the arrival of the particular ves- 



*«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. Itg 
exectitton has appeared to be easy, and.itB result certain. 



[ 266 1 

sel in question, ought to be attended to, apd that 
this 16 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,) 
eould 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 
^or objection to the opposite doctrine, that, al- 
though profit is the lawful object of a 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 ha/te 
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] 

estiiiiate of the neutraFs probable profits, the ia- 
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 Gad, 
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 
artf 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 belligereixt 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, of. those acting under its authority. 
iJVhen it is recommended to us to desert the sure 
grounds of facts^ to employ ourselves in an im- 
practicable calculation upon possibilities, we 



[ 268 ] 

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 commissioned subjects. When we are asked 
to reject the fair rule of measuring the compen- 
sation for an injury, by ascertaining the com- 
.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 damago 
might have been less if the same wrong-doers had 
not previously cimimitted similar injuries. 

If we are to abandon the criterion which the 
actual prices current ofier 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 injoatice. Complain* 
ants do not come before us aa 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 
ease is entitled to be determined according to the 
injuiy which that complainant has received ; and 
it can be no reason 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* 
tides 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 mhifB reparation equal to the damage, such 
as it was, not such as it might haw been, under 
eirbumstances not existing. 

It is immaterial whether the prospect of pr<^ 
was bettered by the same persons tibat wrongfid*- 
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 emplaned in making it, and 
that the British government (or its commissionQd 
captor) unlawfully interposed so as to defeat their 
elSbrts. The right existed with a view to the pro- 
fits actually aUainabUf without reference to the 

35 



E 270 ] 

ciKeumatattce^ that Diade it.attainable; and the 
right being ascertained, the compensation is in- 
adequate unless it is co ^extensive with it. 

We need not be appreliensive that any injarjr 
will be done to Great Britain by this mode ; for 
it will not pay to any complainant more than a 
compensation for tJu actual loss and damage 
suitfained 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 
^ aritfing from a state of war, they muat be content 
' to bear part of its inconveniences ; or, on the 

* other hand, if they claim to Jbe exonerated from 
'all the rinks cmd inconveniences of war, they 
'must agree to forego its advantages. They 
' are not to j^ay, 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 
neans. Every neutral trader does and must stand 
the risk which the law of nations annexes to the 
state of war. A neutral who 4rades in contraband 
hazards confincation. A neutral who trades to a 
besieged or blockaded port with notice, runs the 
same hazard. A neutral who carries enemies' 
•goods, runs the hazard of search, seizure, deten- 
tion, &c. 

,The incanmeniences to which the status belli 
flubjects neutral commerce^ are^ that it cannot be 



i 271 3 

carried on so freely as in time of peace ;— that a 
neutral nation cannot trade with either of the bfel- 
ligerents in certain articles ;--^or at all to such 
ports of either an 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 pri^secution of its trade, 
it must observe an impartial neutrality. 

I'hese are the risks and inconveniences to 
which a neutral must snbmit, 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 olie or all of the 
powers at war. 

Let us now compare the above cited obser- 
vatidnwith the consequences deduced from it. 
** To reimburse the claimants the original cost of 
*^ their property, and all the expenses they haive 
'* actually incurred, together with interest an the 
** wfwie amount, would be a just and adequate 
'* compensation.^^ ** To add to the original cost 
" of the property a reasonable mercantile profit^ 
'^ such as $s usuaUy made in time of peace, would 
** amount to a very liberal compefisatian.^^ 

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 profUs at all, or only the peace profits. 



[ 272 1 

The law of nations impoBes reBtrictions upon 
neutral commerce during war which the bellige- 
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 confia- 
cat(*d. Here (as in many other respects) the 
inconveniences of the state of war operate up- 
on him. But agaiOt 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 
prjce 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 be 
is liable, and yet you do not permit him, in cases 
where his conduct is unexceptionable, to make or 
enjoy the profits 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 entitled to the war profits^ or, indeed. 



r 



[ 273 ] 

any profita at all as a counterpoise to them, if 
either of the belligerents has the power and in- 
elioation to seize upon bis property ? 

What becomes of the admission that the war 
\profitfl are the neutral's compensation for the in- 
CBMivenience to which the law of nations subject* 
the commerce of his nation, if it is maintained 
that the war profits are rightfully at the mercy 
of isuch of the belligerents as shall be strong 
enough to defeat them t 

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 

4hese restrictions ; we have conforaded 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 nalions, 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 3 

been sold, the nett proceeds are given in ordinaiy 
eases, and in the provision cases the invoice price 
and 10 per centum profit waer given. M r . 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 6ne rule which has 
been received and adhered to in the Courts of 
Admiralty of all countries, or even of many 
sountries. 

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. 1 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 
does not prohibit it. Such, it is admitted, was the 
trade in which the Betsey was employed, and I 
cannot conceive how aiiy 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 3 

ebject of punishment i^)on a loose idea that it waa 
ha/fety not urdawfuL* , 

It 18 said further that the treaty intended to sub- 
9titute a new mode, not a new Tineamire . of cdrn- 
penaatton. Upon the question of jucisdictiony' I 
have itnderstood it to be urged that. a Aewmeasuvt 
of compensation was almost tho.only object of the 
treaty. We have been supposed, to have the pow* 
er of relieving^ in eases where the litords h|ive 
given only the nett proceeds, in ' consequence 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 refase costs and damages 
against the captor. But it is in vain that we have 
power to entertain 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 redressf 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 Barlemaqui, ll6. 



[ 276 ] 

OD against the opinions I ilHive detivered 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 bast founded respect ; but I could 
not explicitly detail the grounds of my decisions 
on this occasion, vrithout noticing topics that were 
believed to militate against them, and with that 
impression have been put upon our files* 

London, l$t Jnhff 1797. 

WM. PINKNEY. 



THE NEPTUNE- 






A PROVISION CASE. 



Ma. PfNKNET.— 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 
^hat is called the question of jurisdiction. The 
motives which influence me to recwd the grounds 
of my decision, arise out of a sense of the deli- 
cacy of my situation ; and thes«.* motives apply 
as forcibly to a decision upon the merits, as to a 
decision upon the import of the words of the 
treaty. 



[ 277 ] 

In the course of the followini^ 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 obs'Tve that I have not studied to avoid this. 

My sole view is the vindication of my owti 
opinion ; but this requires the diseussion 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 sny other manner,) the tbitig. 
itself can neither be offensive nor repreheneibie. 
I may, indeed, misrepresent what p(»sMbly I may 
not have understood ; but it will be easy for tfaosd 
whose ideas I hstte misconceived, to eodnteraet the 
effect of accidental misrepresentation^ by paiti»g* 
on record their real thoughts. 

The general nature of the case is briefly as 
follows: 

m 

In April 1795, (between the tinie of the efigna*' 
tkire of the treaty and the time ef eiicbanging the 
ratifications) his Britannic Majestj" in eoilncil is- 
sued an instruction to the commanders of Ww. 
ships of war and privateers, 6bc^ by which, they 
were direoted to stop and detain all vessels leaded 
wholly or in part with corn, flour, meal, and other 
articles of proviskms therein mentioned, and 
iKHind to any port in France, &c., and to send 
them to such ports as ihould be most convenient^ 
in order that such corn, &c., might be purchased 
in behalf of his Majesty's government. 

36 



C 278 ] 

I state the tenor of the instruction, not from 
any authentic copy, for that is not to be obtain- 
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 8th of June, 1793. The sub- 
stance is sufficiently established by proof, and t 
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 citisens, laden in part with 
rice, and bound on a voyage from Charleston to 
Bordeaux, in Krance, 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 government, and the pro- 
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 car- 
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 ] 

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- 
eertainment was the invoice price^ and a mercan- 
tile profit of 10 per centum^ which they alleged 
they had not the power of departing from, that 
rule being prescribed to them by the British gt>- 
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 tlie British goveroment under the above> 
reports. 

Upon the coming in of the memorial, the follow- 
iog preliminary question was started : 

Whether it sufficiently appears that the claim- 
ants could not obtain, have, and receive, by the irr- 
diiiary course of jwiicicU proceedingSf adequate 
compensation for the loss and damage they are 
supposed to have sustained by the seizure com- 
plained oft 

Upon this question, I have given my opinion in 
;|he 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. 

Ist. 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 agi^inst the British nation, have carried along 
with it any further efficacy than the government 
of the country chose to gwe to it. 

He who should seek the pf^rformaiice of such a 
sentence, muat address himself to the di§€retiam 



I _• 



[S81 ] 

of the gopemmmt, and not to the powniof mny 
ordinarff judicature known to the laws or con- 
9ititi4tion. 

It has been admitted (and very properly) by 
one of the Board, in a written opinion filed on a 
former occasion, that tbe treaty extends to cliseft 
*^ to which circumatancea belonged that rendered 
ike potceri of the Supreme Ctmrt, acting accord- 
ing to its ordinarff rulesj incompetent to afford 
complete compeneatiim" I do not think that this 
admission is co-extensive with the 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 1 am now considering, in the view in 
which it is now presented to us. 

The powers u( the Lords (as well as those of 
tbe High Court of Admiralty) were, and are, no- 
toriously incompetent to afford any compensation 
at aU against the British government in the sense 
the treaty contemplates. 

They may be competeint to pronounce an opi- 
nion in judicial form, that compensation ought to 
be afforded, but tbe opinion when pronounced 
would be intrinsically inefficient 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 tbe 
treaty does not call upon the claimants to apply 
to the good faith of either of tbe 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 by the ordi- 
nary course of judicial proceedings. On this oc- 
easion (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 affected 
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 refidition of a 
judgment^ they could never, in the nature of things, 
reach that point expressly designated by the trea- 
ty, i. e. Ihe acttuil receipt of complete compen- 
sation. They show that, even if the Lords, or 
Sir James Marriot, had adjudged in their favour 
to the utmost extent of their present demand, all 
beyond that judgment must of necessity have 
been a perfectly discretionary act on the part of 
the British government, with which the ordinary 
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 enforce 
that sentence by reason of the insolvency of those 
upon whom only it can operate, we are all agreed 
that the claimant is entitled to come here for re- 



[ 288 ] 

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 
tho shadow of power to execute a decree against 
the government of Great 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^ 
ceedingi ? On the contrary, it is certain that the 
payment was merely voluntary, and that, although 
consequent upon, it was not, and could not bdj 
procured by any judicial {N'oceedings whatsoever* 

It is in proof that, notwithstfinding the deciree, 
payment was refused, unless the claimants would 
join in a prayer for the confirmation of the report 
of the regii^trar 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 pertmpt^rp in- 
stead of eonditioiial,: by what . form of judicial 
proceedings could* the claimants have compelled 
compliance against thb sovereignty of the British 
nation ? 

In short, it is- an incomprehensible solecism 
to talk of obtaining, having, and receiving ade- 
quate compensation ; against the government of 



[ 284 ] 

this country, by the ordinary course of judicial 
proceedings. The moment it sbouhl be granted 
that redress was only practicable agaioat the go- 
vernmenty it would follow, as a self-evident con- 
clusion, that it was not judicially practicable at all 
to the extent intended by tbode who appointed us. 

A decree for compensation is not compensa- 
tion in fact, — and however the former might have 
been obtained against the government fn the or- 
dinary course of judicial proceedings, it is cer- 
tain that the latter (of which only the trea^ 
' speaks) was not so attainable. 

If this part of the question be plain upon the 
letter of the treaty, it is (if possible) yet plaino* 
upon its spirit. 

With what rational object can it be caacetved 
that the treaty should compel the neutral claimanta 
to apply to the Lords of Appeal for retributioQ 
against the government of the country,<before their 
complaints shall be laid before us! In ordinary 
cases between claimant and captor , there is the 
best reason for such an application* The national 
reHponsibflity in such cases would be lessened in 
proportion to the quantum oi compeasation judi- 
cially received from the individual wrong-doer ; 
and if the compensation s^ proenred from- the in- 
dividaal should be equal to the* injmy, the nalio^^ 
al responsibdity upon which we are af^ointed to 
act would be at an end. 

But in a case where the government, and the 
govemmeat only, is answerable to the claimant, 
there is no inducement to prescribe to him the 



[ 285 ] 

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 the claimant 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 th<^ 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 su(;fa 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 soM to his Majesty's go*- 

37 



[ 286 1 

verotnenty and the pfoceeds 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 properly, for the 
restitution of which the captor might originally 
have been answerable, was, by the act of the court 
in plain ptinuance of the order of councUf 
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 iL 

I take it to follow undeniably, that the captor 
was no longer liable for the restitution of the 
property ttself since no court can be supposed 
capable of enforcing 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 thai 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 



[ 287 ] 

to hii Majesty's 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 ] 

captor's as well as the claimants^ costs to be 
by ihe 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, dacnages, 
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 oir 
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 
dbcree 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 beezi an attempt to coerce, or rather to in- 
fluence the sovereignty of the nation, (the only 
party really bound to compensate the claioi- 
ant,) by penalties upon an individual admitted l^ 
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 meaos so flagrantly oppressive. 



[ 289 ] 

It is no ajMweF at all to sav that the honour of 
the British governmettt would not have permitted 
it to abandon the captor to the operation of the 
Admiralty sentence, without furnishing him with 
the means of eomplying with it. I do not ques- 
tion the national honour, for no one believes moro 
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 
should fail 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- 
Tern ment before {Hrocess was taken out upon it, 
yet if such hope or reliance should be disappointed, 
they coald 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 n which this subject can 
be considered, the Court of Admiralty or the 
Lords could only proceed upon the good faiih 
of the British government ; and the whole ques- 
tion, at least, revolves itself into this i-^** Is it 
a sufficient 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 ejfflcacy, 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 hare 
induced the British government voluntarilff to do 
Jthem 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 
amy 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 unaniioaously 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 ] 

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 
<)ccurred to the Lords, that, upon the probability 
of that interference, they were justified in decree- 
ing them against him. 

Rather than accomplish, in th is mode, the in- 
demnification of the claimants, they have said, 
ihai, however well grounded his claim, he should 
have no costs and damages at all. 

The force of this analogy will not be weaken-^ 
•d by any suggestion, that the instances placed in 
comparison are difierent in their circumstances. 

In both instances the captor's situation is gub- 
^antiaUy 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 
orderg of competent mperiors. 

The orders of April 1795, under which the 
Neptune was seized, directed the sale of the cat- 
goes to his Majesty' $ govemmentj as well as the 
sei%ure 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 procen 
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 t 
Tbese 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 bodv 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 und^^ 



[ 293 ] 

the control of the court. Of the cargoes it took 
possession' immediately upon their coming into 
port, 4irithout 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 effect of its 
will. Even in the ascertainment of the corapen* 
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 oa this occasion, that the 
'^ claimcmts 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 establisfa- 
ed, the rule by which compensation for the cargo 
should be estimatedi 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, ndth a rea- 
wnahU mercantile profit thereon^ together teitk 
freight^ demurrage^ Sfc. 

2d. That the order of council was justified by 
necedsity — 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 ] 

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 
praeinons in certain junctures where there are 
hopes of reducing the enemy hyfamine.^^ (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 exist 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 ] 

But there is no necessity for relying wholly <m 
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 gei\eral 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, deigning 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 al^o to be observed that in Sect. 113. he 
states expressly that all contraband goods, (in- 
cluding of 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 
1795, and yet if the seizures made under that or- 
der fell within VaiteFs opinion, the confiscatioiK 



[ 297 ] 

of the cargoes seized would have been justifia- 
Ue aecerding 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, neverclaimed it upon 
grounds peculiar to any description of contraband, 
but upon general reaisons, 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 jancture 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 even 
in larger terms than Vattel, evidently confines its application to 
cases of siege and blockade. 



n 



[ 298 ] 

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 tertiu illo genere usus ancipitis distinguendus 
^* erit belli status : nam ^ tueri me non possum 
** nisi que ntithmtur intercipiaw, necessitas^ ut 
'' a/i&e exposuimu^ jusdabit, sed sub onere resti- 
'^ tutionis, nisi causa alia accedat.^' (lib. S. 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 en^mjfy hut oa ike inddspensAle 
mea/ns of our oum 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 autbof izes 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, svb modoy the rights of 
others. 

I ■_ 11 [ — I -ii___i.p I ■! . M ii-.i ■ ■_- I %.^m t^m 11-1-^ 1 I -i^m^-^Km ^mm^a^m^^^^^ 

* Lib. 2. c. 2. 8. 6. &c. 






[ 299 ] 

This necessity he explains at large, in lib. 2. 
c. 2 s. 6. Slc.j and in the above recited passage 
be refers expressly to that explanation. 

1. ^'Videamus porro ecquod jus communiter 
'^ hominibus competat in eas res, quse jam propria 
'' aliquorum factee sunt, quod qnaeri minim forte 
^^ aliquis putet, cum proprietas videatur eU^sorpsisse 
^' jus iUud omne, quod ex rerum communi statu 
'^ nascebatur. Sed non ita est. Spectandum enim 

est, qufiB mens eorum fuerit qui primi dominia 
singularia introduxerunt : quse credenda est talis 
'' fuisse ut quam minimum ab sequitate naturati 
> ^ recesserit, Nam si scriptcB etiam leges in eum 
^' sensum trahendae sunt quatenus fieri potest, 
<< multo magis mores qui scriptorum vinculis non 
" tenentur." 

2. "Hinc prime sequitur, in gravissima ne- 

^'cessitate reviviscere jus illud pristtnum 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 navigadone si 

^ quando defecerint cibaria, quod quisque habet 

^ in commune conferri debeat. Sic et defendendi 

'^mei causa vicini sedificium orto incendio dis- 

^'sipare possum: et ftmes aut retia discindere 

** in quae navis mea impulsa est, si aliter explicari 

^^nequit. Qu» 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 
conditions annexed to the exercise of this right. 
<»f neeessitv. As 1st, b shall not be exercised 






t 300 3 

until all other possible means have been used; 
2A. nor if the right owner is under a like 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, z,) *^ Hinc colli- 
'^gere est, quomodo ei, qui bellum pium gerit 
** liceat locum ocupare, qui situs sit in solo paca- 
^^ to ; nimii'um si non imaginariumf sed certum 
*^ $it periculum, ne hostis eum locum, invadat, et 
^^ inde irreparabilia damna det : deinde si nihil su* 
matur, quod non ad cautionem sit necessarium, 
puta, nuda loci custodia, relicta domino ?ero 
^'jurisdictione et fructibus : postremo, si id fiat 
^' anirao rediendsB custodd® simulatque necessitas 
'^ ilia cessaverit. ' Enna aut malo, aut necessa- 
^' rio facinore retenta/ ait Livius, quia malum hie, 
'^ quicquid vel minimumj abit a necemtaie^^^ &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 Up a part he- 
neged 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 th«y were in common. 



[ 301 ] 

In book 3) cb. 7, sect. 1 , (of neutraU in war^) 
this author, recapitulating what he had said before 
on this inibject) further explains this doetrine of 
necessity, and most explicitly confirms the con- 
struction I have placed upon chap. I, sect. 5. 
(Vide also Lee on Goptures, p. 158, where the 
same construction is put upon Grotius.) 

Rutberforth, 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- 
cessity — and supposes his meaning to be that the 
seizure will not be justifiable in that view, ^* un- 
less the exigency of affairs is such that toe cannot 
possibly do vaithout themJ^ (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 a» a meaiis of reducing the 
enemtfy he confines the right within very narrow 
limits. ;r— for 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 block- 
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 ] 

I think that it may be confidently concluded, 
that thifl 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. I^aw, p. 583.) 



* Even if it were proved that the opinion of Grotius (lib. 3,c. 
1,8. 5,) applied to the orders of 1795, the ride of compensation 
established by the majoriiiy 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 appropriate that which belongs to others, we must make resti- 
tution or compensation 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^me case 
with Grotius, has this passage. (Vattel, b. 3, c. 7,s. 122.) « Ex- 
treme necessity may even authorize the temporary seizure of a 
place, and the putting a garrison therein for defending itadf 
against the enemy, or preventing him in his designs of seizing 
this place when the sovereij<n 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." Burlamaqui'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. 17, 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 1 2th 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, Slc. Postell. 
Specim. Jur. Marit. sect. 11, has the same 
limitation. 

See also in Zouch, and Valines 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 1 795 cannot be rested up- 
on any just notion of contraband ; 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 1793, 
to the American government seems to carry this principle to a 
still greater extent : for he says, in Itis letter to Mr. Jeffi*rson, of 
the 12th of September, 1798, (covering a copy of those orders,) 
** that by the law of nations, as laid down by the most modern 
writers, it is expressly stated, that all provisions are to be con- 
sidered an 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 artiolw 
ofv'^provision, (which are no more contraband in 
themselves than common merchandise,) to ports 
not besieged or blockaded will authorize that in- 
terruption, 1 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 recpect 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 tliia 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 them 
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 ofi*, as far as possible, by captures, all com- 
munication with the enemy, and thus strike at 
once at his power and resources in a way which 
would not often fail of being effectual ? 

We know that, in the case of siege or block- 
ade^ there is no distinction between provisions 
anda)ther articles of merchaildise^ 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 cm 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 



* i 



[306] 

if such a foundation be sufficient for this princi- 
ple, it will alwiBiys be lawful for a belligerent to do 
any act whatsoever ^ or commit depredations upon 
any trade whatnoeter^ provided it shall appear to 
be possible, by doing so, to annoy or bring the 
enemy to termsj or provided he shall only intend 
by doing so to reduce the enemy to reasanaUe 
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 pro- 
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 IGOS, 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 1689, seem to have be- 
lieved that they could only lend a colour to their 



[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 profpect, 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 atfect to 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, " afiect to believe," — 
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 P 
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 
judge, 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 discrie- 
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, unlm 
a surrender or -a peace is quickly expected* 

Without professing to enter into much detail 
upon this occasion, the foregoing cpQsid9rationfl 
appear to me to prove satisfactorily:, that the or- 
ders of 1795 cannot, in the light in which I am now 
considering theui, be jusitified qr excused.* 

* Even if the general position stated by Vattel be admitted in 
the utmait possible latitude, stHl it would nbt foltoir that provi- 
sions belonging to neutrals,. and bound to Franee^ could right* 
fully be seized, as the orders of 1799 directf^d. Before article! 
not contraband in se can be seized, even when bound (oa 
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 has 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 ^f one belb- 
gtTent of reducing the other by famine, or of its intentions o( K- 
sorting to the stoppage and seizure of all provisions bound to tbe 
enemy, as a means of reducing him to terms, 1 know not, unless 
it be from the declarations •f that belligerent : but we may, I 
think, safely assume that it is in^Tispensible that be 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 179^) the American traders had no information o(^ 
sort. Great Britain had made no declaraiion amounting to i 
notice of its hopes, prospects, or intentions in thb particular.; and 
how otherwise a neutral could obtain a knowledge of theni, it is 
not easy to conjecture. The orders themselves were not wade 
public. They were mere secret instnlctions to commanders of 
armed vessels, and were not even sent to the Court of Adnurslff 



t 



[ 309 ] 

It is how to be seen whether the 1 8th article of 
the treaty gives any sanction to those orders. 

as is usual. Even now it i& 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 1793 
(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 
aurt- , wa9 tittle Bkore than a nominal alternative ; but it does not 
appear that the orders of 179^ 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 tiz upon an attempt to treat it like a 
town or garrison, thcj^haracter of wild and chimerical. 

At any rate, there must be a concurrence of circumstances, 
which have not happened in that country during the present war, 
to authorize the prospect in question. - 

If tne orders of 1795 are to be considered as an experiment on 
this subject, (and we are told that they are,) that experiment has 
proved the rashness of the hope ; but in /jeict these orders made 
a* ezperimefit which has not been already made by those of 
)798 under circiunstances equally, if not more favourable to such 
an enterprise. 1 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 enemy. 

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*^- XXXII.— O/ Camillm. 

" The 18th article of the treaty, which regulates 
^' the subject of contraband, has beep grievously 
" misrepresented — the objections used against it, 
'^ with most acrimony, are disingenuous and un- 
" founded," &c. 

^* The most laboured, and at the same time 
'^ the most false of the charges against the 1 8th 
^' article of the treaty isy that it allows pravi- 
^' sions to be be contraband in cases not heretofore 
^' warranted by the laws of nations^ and refers to 

* General Hamilton. 



.# 



€€ 

U 
€€ 
€1 

i( 



[ 311 ] 

the belligerent party the decision of what these 
cases are. This is the general f%rm 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 
" ' cases exist at present.' " 

*' The first is a palpable untruth, which may be 
" detected bjf 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 quoted in these terms, ' Com- 
** ' modities,' &c. Heineccius* countenances the 



• I have examined Heinecciu*, and 6nd that he ranks provi- 
sions among the articles generally contraband of war, for which 



ft 

ii 



[ 312 ] 

''opinioiiy 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 ity to those cases in which the chance of 
*^ reducing the enemy by famine was laanifesC 
and probable, such as the cases of particular 
places bona fide besieged, blockaded, or in- 
vested. The government accordingly remon- 
'^ strated against the proceedings of Great Britain, 
" and made every effort against it, which pni- 
'^dence in the then posture of afiairs wouM 
'^ permit. The order for seizing provisions was 
'* after a time revoked, (i- e. the order of 1 793. 
« W. P.) 

" In this state our Envoy found the bufiiness, 
** 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 ? &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, Kb. 3, c. 17, s. 3. It need 
not be stated that these writers prove the reverse of this, and 
that the reverse of it is universally admitted. Indeed, the 18th 
article expressly admits the reverse of it. W. P. 






ei 

u 

it 

iC 
€t 
€4 



[ 313 ] 

'* only iisue out of this embarrassment t Plainly 

'^ to leave the point unsettled, to get rid of it, to 

let it remain sabstantially where it was before 

tke treaty. This I have good ground to believe j 

^ 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, 80 becoming contraband, according to the 

*^ * lotas 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 diffic^ulty 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 stipulation 

'* which follows. 



I 
I 



ti 

a 



[ 314] 

'* This excludes the supposition that any caaes 
^^ whatever were intended to be admitted, or 
agreed. But this dilfficulty 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 isy 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 alSair 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- 
^Hion 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 






1 



it 
it 



[ 315 ] 

^* is 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 eveQ 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 id 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 different phraseology 

" was to have been expected, if the intention had 

'^ been to leave each party at full liberty to seize 

'^ agreeably to its oum 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 opinwn 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 ooe 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 
preftand to this character. A law of nations is 
a law which nature, agreement, or usage has es- 
'^ 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 obvioiis 
^' use of the term, which nothing but the spirit of 
^* misrepresentation could have perverted to a 
" different meaning." 

^^ The argument against the foregoing construe- J 
" 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 besieged, 
*' blockaded or invested. Cases of this kind are fiiUy 



* This has not been tirged at the Board on this occasion, but 
in the case of the Betsey, Furlong, Mr. Gostliog's objection to the 
jurisdiction amounts to it. W. P. 



it 
u 



u 
It 



[ 317 j 

" provided for in a subsequent part of the article ; 
'^ the implication, therefore, is thnt 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. 7^he 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, Sec. ; and de- 
** Clares 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 ar^ment at the Board, stood thus :-*-cases relative to 
«egp, &c., :\Te fully provided for in the latter part of the articlei 
and, therefore^ the former part is intended to embrace fomethinf 
more. W« 1^- 

41 



[SIS] 

<< 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 afiected in respect to compensation 
^' by the antecedent clause. Thus the (act 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 thian gene- 
** ral rule, that whenever articles not genefally 
*' contraband, become so from particular circiim- 
<^ stances according to the laiw 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 respe<rt 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 






« 
«( 
•f 
«« 



It 
€€ 



[ 819 ] 

they shall not eyen be detained, bat ahiUl be 
permitted to go whithersoever they please. If 
they persist after notice, then the contumacy 
shall be panished 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 alterpa- 
" 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 ] 

*' Another aiiswer is, that e^en if the parties had 
*' been agreed that there were no other eases than 
'^ thucje of besieged, blockaded, or invested places, 
** still there would hfive 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 beea 
" 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 with no- 
" tice to a besieged army, whereby it might ob- 
" tain a supply, essential to the success of its ope- 
" rations ? Is there no doubt that 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 exr 
" 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 



»w> 



, » - 



[821 ] 

*^ supply of the garrison in that place, they might 
'< pf right be seized by a Spanish fleet. 

** The ca tumniators of the article have not had 
'^ the candour to notice that it is not confined to 
*^ provisions^ but speaks of provisions and other 
** articles. £ven this is an ingredient which com* 
'' bats the supposition that countenance was to be 
^ given to the pretensions of Great Britain with 
** reg€U!*d 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 1 contend for, still the existence of it af- 

^ ford» 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 jppwer 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 yoii may rightfully 

'' ' seize provisions and other articles, not gene-^ 



[ 822 ] 

'' ' rally eontrabaad. Tbta law does not autbo^ 
'* ^ rize the seizure in the instance in question ; 70a 
** * have eonsequently no warrant under the treaty 
" * for what you do." ' 

** The same disingenuous spiriti which tinctures 
^^ all the conduct of the adversaries of the treaty, 
** 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 1 am persuaded 
'' will prove that it wiU not even be pretended to 
^^ justify it by anff thing in the treatff.^^ 

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 disponed to examine them with caadouf, 
that, although the persuasion has not been coon* 
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 shalli 
of course, bestow some slight consideration. 

That article says, that the owners of the cargoes 
becoming contraband by the laws of MticMOs, and 



[ 323 ] 

I 

for that reason seized, shall be speedily and cofn^ 
pUtely 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 '' foU and complete 
oompeasation/' used in the seventh article <^ the 
treaty. 

The rule is, ^' the value of the c argoes and • 
MABonable 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 indemifir 
cation and compensation are so far synonimous 
as that we should be justified in taking the sense 
of the contracting parties upon the import of the 
£>rmer, 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 nationsy 
might still be wholly inadequate to the complete 
eompenaation of the owners of a cargo vyrong- 
fully captwred or condemned. 

The term complete indemnifitcation or coTnpen-^ 
gaiion 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 
oompenBation,'* where we grant any thingw-rbut 



[ 324 ] 

do we apply the same rule in every case t or do 
we not rather understand by " complete compen- 
.sation^' that retribution which is commensurate 
with the injury received ? 

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 cat^es 
wholly different in pririciple, and, instead of t^uit- 
tng 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- 
dem were justified by necessity, Great 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 neceniUf may jus- 
tify such a measure. It is only impmtant to as- 
certain whether that extreme nec^mty 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 coa-* 
cur in this opinion. 

No facts are stated to us by the agent of the 
crown, from whicb we might be justified in iur 
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 averting the calamity she feared- 
It is not to ,be doubted that there were other 
means. The offer of an advantageous marked 
in the different 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 thiii inducement is held out to them in time, it 

will always produce the effect intended. 

42 



[ 326 1 

But so long BM 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 the 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 thoae 
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 neutrals 
came with these articles, until at length the mar- 
ket was found to be overstocked. The same ar- 
rangement, had it been made at aa 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 s<Mrt 
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, unUss the government re- 



[ 827 ] 

Morted to depredations upon neutral trudep 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 pccasion, 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- 
cessity was such as warranted the ordera of 1 795> 
and the seizure under them. How does this vary 
the rule of compensation t 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 
eould have obtcdned 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 
could 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, lib. 2, c. 2, s. 6, &c.--*lib. 3, c. 1, s. 5, 
c. 17| 0. 1. &C.*— 1 Ruth. 85; and Burlemaqui — 



[ 328 ] 

Vattel, b. 3, c. 7, s. 122—1 Ruth. 405—2 Ratb. 
586,7. 

But uf ion such a subject neither authorities nor 
arguments can be required* 

WM. PINKNEY. 

London, 25<A Jui9t, 1797. 



THE MOLLY— Fofw?^. 

Mr. Pinknet. — The information given to the 
Board, by Joshua Johnson, Esq., in relation to 
this case, has satisfied me that the memorial ought 
to be dismissed. 

But for that information, I should think the 
claimants entitled to demurrage.* 

27(A/V6. 1797. WM. PINKNEY. 



^ It may be necessary to add, by way of explanation, that the 
demurrage above alluded to is not on account of the detention 
of the ve88el,ybr iht purpose of giving efeet to the captor^ $ right 
to ike cargo^ but on account of her detention, when it was mo 
longer neceistny in reference to the cargoy and when the object 
of it was solely the vessel herself. 

The papers, both false and true, and all the evidence in the 
caust*, concurred in showing the property of the vessel to be as 
claimed ; and, but for the infoimation of Mr. Johnson, I should 
iuve determined tliat 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 8th of August, (793. The cargo, was 
condemned 2d of May, 1794, but the vessel was not restored on* 



[389] • 

THE SALLY— CAoafo, Maiter. 

Mr. Pinknrt. — I am of opinioDi 1st. That 
the claimants are entitled to the costs below, to 
damages and demurrage. 3d. 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 beeii 
given to the ship's papers produced by the neu- 
tral master at the time of the capture, unless any 
fraud appeared in tkemy or there were very good 
reasons for suspecting their validity. 

1st. The ship's papers upon the face of them 
bore no marks of fraud, and afforded no reason at 
all to justify a doubt of their validity and fairness. 

til the 5th of July foUowing^^though no new lights were 
thrown upon the property of the vessel. 

This explanation is made long after the filing of the foregoing 
opinion, the inezplicit nature of which did not sooner strike me* 
In fact. It is only inezplicit to those who are not acquainted with 
Ae drcumatances of the case in which it was filed. W. P. 



[S30] 

The want of formal bills of lading eould not 
affect their credit, as there were papers on board 
in substance equivalent to them. 

Invoices to which the master^s acknowledge 
ments were subjoined, stating explicitly for whose 
account the goods were shipped, and engaging to 
foiled the shippers' instructions by which the^ 
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 informationy 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 this respect an irrecandieahle 



[ S31 ] 

incan^iitency between the letter of instructions 
irom 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 bis freight 
for goods not shipped on their account, according 
to hilU of ladings but it is so obvioqs that this 
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- 
$edf was, to every purpose jof law or explicitness, 
equal to a bill of lading, and might well have been 
«alled so by the ship-owners (putting inadvertence 
out of the question) without hazarding the credit 
of the ship's papers with those, 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 views, 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 
eoncealment. 

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 them in that very paper which 



[ 332 ] 

was sure to come under the inspection of those 
against whom the fraud was meditated. If it i^as 
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 fdUe hills of 
IcLding^ as well as receive on board, as instru- 
ments of deception, /abean^ colourable %nf)€nce$, 
to which he made himself a party as effectually 
as he could be to bills of lading! There can be 
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, that the 
master^s pretence of the vessel's des^nation frooi^ 
Rocheile 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 



[888 1 

€ace of them, it is to be considered whether the 
preparatory e&aminatioiia furnished any thing up* 
on which to impeach them. 

Tlie law of naiions reqinres that a belligerent 
makiog prize of a neutral, in the teeth of proper 
written docui»ejit8, shall Imve very good reanom 
for his conduct* The reason in this case (even 
admitting it to have been known to the captor at 
the time of the seissure, which is not at aU likely) 
was simply tb«t Andusse, a Frenchman, who hap- 
pened to be, among others of his countrymen, k 
paaseBger on board the Sally from America to 
France, did not, as the others did, leave the ship 
at Rochelle, hut was proceeding in ber to Amster- 
dam. T|mt he had no interest in, or control over 
the cargo, appeared from the ship's papers, and 
(if the captor made any inquiries on the subject 
without which he could have known nothing of 
this alleged probable cause) it must also have ap- 
peared from, the declarations of the master, mate 
and Aadttze. 

It was, howerer, possible that, notwithstanding 
these papers and declarations, Anduze nught be in- 
terested m the ship or cargo, or both ; and if the 
possibilitff of such an interest be a very good rea- 
son for distrusting the papers, &.c. then, and then 
only, had the captor probable cause of seizure on 
this occasion. But possibility is not probable 
cause. There. must be an apparently well-found- 
ed ^presumption. The presumption, here relied 
upon, was that Anduze would have landed ^t Ro- 

efaejyie, if interest had not attached him to the 

43 



I 334 J 

ship ; but this was an arbitrary and fanciful pre-* 
sumption — a mere surmise, rested upon the selec- 
tion of one motive out of many, all of them equal- 
ly, and some of them infinitely more, probable. 

Anduze had been for many years an inhabitant 
of America, and the West Indies, and, of course, 
had been in no situation to calculate with certain- 
ty how far a residence in France would suit his 
views in life, his political opinions, or the part 
he might have acted previous to his arrival. It 
was not .practicable for him even to ascertain 
whether he could be in safety there, during that 
turbulent sBra of the Revolution. At Rochelle he 
might be enabled to make this estimate more con- 
clusively — and the result may be supposed to have 
been a conviction that it would be more prudent 
to go on to Holland. Rochelle too was at that 
time in a state of much disturbance, as appears 
by the proof, and. this might have influenced him 
to prefer proceeding with the vessel. In short, 
without enumerating them, it must be evident that 
various causes, in no shape connected with the 
Sally or her cargo, might have induced him to re- 
embark, and as the fact was thus fairly attributa- 
ble to so many strong and probable reasons con- 
sistent with the ship's papers, and the declarations 
of the captured^ if the captor would persist is 
carrying the vessel into port upon mere possibi- 
lity and surmise to the contrary, he did it ai ^ 
peril of indemnifying tAs neutral if hissurmif^ 
should turn out to be groundless. 

In taking Anduze to Amsterdam, the neutrd 



[ 335 3 

master was doing a perfectly innocent act ; and it 
would be strange if the consequence of this inno- 
cent act should be to subject him to the heavy loss 
he has incurred, althougii he had taken every pre- 
caution to manifest the neutrality of ship and car- 
go which could be supposed to be necessary. If 
such doctrine be according to the law of nations, 
it will be impossible for a neutral to provide for 
his security. Let his vessel and goods be docu- 
mented how they may, let his conduct be ever so 
unexceptionable, some solitary conjecture may al- 
ways be conjured against him which shall be suf- 
ficient to ruin all his prospects, and compel him 
besides to sacrifice his time and money in an ad- 
miralty contest, by which every thing is to be lost 
and nothing to be gained. I, for one, think better 
of the law of nations — and I am, therefore, of 
opinion that when Sir James Marriott pronounced 
for restitution, he should have granted to the 
claimants costs, damages and demurrage, unless 
he was restrained by the orders of 6th November, 
17dS, which, however they might have bound him, 
are no rule for us. And, further, that as the 
claimants were obviously aggrieved by his refusal 
to grant these costs, &c*, and were compelled to 
carry their case before the Lords for redress, the 
expenses attending, or Consequent upon the ap- 
peal, are due to them from the British government. 

WM. PINKNEY. 
Grafts Inn Square^ Jukf 13<&, 1797. 



[ S36 ] 

THE DlXSA^Oardmr. 

Mr. Pinknet. — I am of opinion that the veascS^ 
and cargo were seized and carried into port with- 
out probable ground of suRpicion, that either vessel 
or cargo were lawful prize ; and that the facts af- 
terwards disclosed in regard to throwing papers 
overboard, which were, at the time of such dis- 
closure, proved to be wholly immaterial, and to 
have been destroyed under apparently well found- 
ed impressions that the privateer in chase was 
French, did not furnish any such ground. I think 
of course that the claimants are entitled to full 
and complete compensation for the loss and dam- 
age occasioned by this capture, including expenses 
and demurrage. 

WILLIAM PINKNEY. 

February 2Sd, 1797. 



THE SULLY— Hayes. 

Mr. Pinkivet. — The question proposed in this 
case, and the decision it has received, have drawn 
frt^m the British commisioners a dedaratioD '' that 
<< they do not think themselves competent, wmier 
<< the words of ike treaty ^ or the commini&m iy 
** whicJi they act^ to take any share ttithout the 
^* special inslrMCtions of the king's ministers^ in 
^* the decision of any cases in which the judicial 



[387 ] 

<^ proeeedingn are still depending in the ordinary 
^'course of josttce/' 

This declaration, which at their instance has 
been recorded, assumes f^r its basis that our pow- 
ers, as they are to be found in the treaty, do not 
embrace complaints in which the judicial remedy 
is yet depending ; and further that a contrary opi- 
nion pronounced by a majority of the Board, con- 
sisting of the two American commissioners and 
the fifth commissioner is so far from being obli- 
gatory on the minority, consisting of the two 
British commissioners, that they (the British com- 
missioners) are bound, without special instrme- 
Honsfrom one oniy of the contracting parties, so 
to oppose themselves to that opinion, as, by re- 
tiring froqoi the Board, or otherwise impeding its 
progress or suspending its functions to prevent 
the efiect to which the decision of the majority 
may, on such a subject, be entitled. 

Upon the points thus involved in this declara- 
tion, I have already given my opinion ; but the 
course which this transaction ham taken makes it 
preper that I should file the reasons upon which 
likat opinion has been formed. 

Stated in as few words as possible, they are as 
follows : 

1st. The principle that in the interpretectian 
ef our powers^ the majority of the Board cannot 
conclude the minority, (upon which I shsU first 
remark,) is not a new one. 

It occurred, though perhaps in a difierent form, 
was much cawassed, and finally abandoned in the 



[ 338 ] 

caM of the Betsey, Furlong. I had suf^osed 
that the inadmisaible nature of this principle had, 
on that occasion, been fuHy understood, and that 
the principle itself would never be revived. 
This supposition was evidently authorized by the 
issue of that claim, as well as by the circumstan- 
ces that marked its progress, and has since beea 
repeatedly confirmed in practice by both of the 
British commissioners. I allude particularly to 
their conduct on that class of complaints called 
provision cases. 

When those cases were preferred to us, the 
most prominent question, to which they gave oc- 
casion, was whether the judicial remedy had been 
sufficiently prosecuted according to the intent of 
the treaty. It was obviously impracticable to de- 
termine that question without looking to the ex- 
tent and quality of our powers, and interpreting 
the instrument creating them. The British com- 
missioners were of opinion, that those complaints 
were not within our cognizance, because, as they 
contended, the judicial experiment reaching no 
farther than the Court of Admiralty, had not been 
completely made. - Yet they acquiesced in the 
opinion of the majority, and did not scruple to 
take all the share that was required of them in the 
several subsequent steps, by which that opinion 
was made to result in various awards to the per- 
fection and authentication of which they lent 
their names. We have not been told, nor can it 
be pretended, that the revival of this discarded 
principle can be referred to any reasons bearing 



[ 339 ] 

peealiarly on the cases which are now to be af- 
fected by it, so as to account for that revival at 
this period more than at another appearing equal* 
ly to demand it. 

2. It can hardly be denied, or if denied, it is 
manifestly true, that the Hoard has the power to 
ascertain, for the regulation of its own conduct, 
whether a claim preferred to it falls within the 
description of the complaints committed to it for 
examination and decision. 

Without such a power, the authority expressly 
communicated by the treaty to decide the merits of 
the daim; and the amount of compensation to be 
uwa/rdedj would be merely nominal and illusory. 

We are directed by the 7th article to proceed 
with diligence to a certain specified end, viz., to 
determine claims presented to us under that arti* 
ele, according to their merits, and to equity, jus- 
tice, and the laws of nations. We cannot proceed 
to that end, without considering and determin- 
ing whether the claims so presented to us are 
within the article or not c of course, it is not pos- 
sible to doubt our competency to this incidental 
inquiry and determination. 

It is not, however, to be admitted, that the treaty 
does not in terminis empower us to interpret for 
ourselves the submission it contains ; although it 
would be of no real importance, if it were other- 
wise. In stating the manner in which this Board 
is to proceed, the 7th article refers to the 6th. 
The 6th article says, that '' the said commission- 
ers, in examining complaints and applications, are 



[ 340] 

empowered and required, in pursuance of tki tnu 
intent and meaning of this article^ to take into 
consideration all claims,'' &c. 

If the words '' in pursuance," &c., mean aoy 
lliing, they mean that the commissioners are to 
consider the nature and scope of the submission, 
the quality and size of their powers, and are to sd 
accordingly in the execution of their trust. 

In a word, the Board has authority to determine 
its own jurisdiction. 

3d. If the Board possesses this authority, it 
will follow, inevitably, that it may be exercised by 
a majority of its members present, when the 
Board is duly formed For the treaty, after de- 
claring that three of the commissioners shall con- 
stitute a Board, and shall have power to do any 
act appertaining to the said commission, provided 
that one of the commissioners named on each 
side, and the fifth commissioner shall be present, 
proceeds thus : — ''And all decisions shall be 
made by the majority of the voices of the com- 
missioners then present^ 

I have, indeed, heard it suggested, that a dis- 
tinction is to be taken here between decisions upofl 
the scope of our powers, and decisiims upon the 
merits of complaints. 

I cannot conjecture upon what grounds such a 
distinction can be rested ; but I believe it to be 
plain, that there is no warrant for it in the treatffi 
where only I think it material to search for it 

4th. If the Board has this power, and if i^ ^ 
proper to be exercised by the loaiority, then wiH 



[841] 

it also follow, that the minority must submit to 
such exercise, and cannot rightfully control or pre- 
vent its effect by seceding from the Board or 
otherwise. 

To say th?it the majority have the power to de- 
cide, and yet that this power may be resisted or 
evaded by the minority, so as that it shall wholly 
depend upon their will, is an incomprehensible 
solecism. It would be a vyaste of words to argue 
against so flagrant an absurdity- 

But if the British commissioners can on this 
occasion rightfully retire from the Board, to de- 
feat the will of the other commissioners compos- 
ing the majority, who does not see that they can 
do so on every other question of jurisdiction, or, 
to be more explicit, in every case that can occur ; 
and thus, although but a minor portion of a Board 
directed in the instrument of its constitution to 
act in all instances by a majority of voices, ren- 
der the whole authority and activity of that Board 
dependent upon their individual judgment, not 
only suspend at their pleasure, but annihilate its 
functions, not only retard its advances to a result 
which each member of it has sworn to endeavour 
with diligence to reach, but raise an insurmounta- 
ble barrier to the possible attainment of that re- 
sult ? 

Nor is it certain that the evil and the absurdity^ 

if pushed to their utmost extent, would stop here. 

It is not clear that it would be open to the United 

States to complain of such a nullificjeition of the 

seventh article of the treaty by the Mo British 

44 



[ 842 ] 

commicHiionera, as a breach of that article by the 
British government. Let it be supposed, for the 
sake of illustrating this idea, that we are right, and 
the British commissioners are wrong in the con- 
struction of our powers, but that the British go- 
yernment does not choose to direct its commis- 
sioners to accede to our construction, or to take a 
share in giving efficacy to it, by attending to form 
a Board, could the United States, upon the 
ground of the treaty, remonstrate against this to 
the government of Great Britain as any violation 
of its plighted faith ?, The British government 
might reply to such a remonstrance, that it lost no 
time in appointing its commissioners, in com- 
pliance with its undertaking; that those com- 
missioners have the treaty for their guide, and are 
left to decide as that and their consciences shall 
dictate ; that it is not bound to control them in 
favour of any class of claimants, or to point out to 
them what is or is not their duty ; that it has done 
all to which its stipulation engages it, and that it 
is for the commissioners themselves, tinder the 
sanction of their official oath, to look to and as- 
certain the scope and complexion of the trust com- 
mitted to them by the two countries, and the man- 
ner in which that trust is to be discharged. 

I do not at present perceive that to such a in- 
dication any satisfactory answer could be given, 
provided the British government did not byHs 
own interference produce the secession of its com- 
missioners. 



[ 843 ] 

And here it 19 proper to remark that the dM^a- 
ration of these commissioners is so far from as- 
cribing its imagined incompetency in this and 
similar cases to any interference on the part of 
their government, or to any superinduced obstacle 
whatsoever, that it rests it exclusively on the words 
of the treaty and the commission by which they 
act.* 

I do not doubt the power, whatever may be my 
opinion of the right of the British government, to 
restrain, its commissioners from attending the 
Board, or from performing any other act of duty. 
But it will not admit of a ^uestimi that such a re- 
straint, if injurious to the other party to the treaty, 
or to its citizens, would be a clear and unequivo- 
cal breach of it, and might be so considered and 
proceeded upon by the government of the United 
States. 

We are not, however, arrived (and I. devoutly 
hope we never may) at a state of things so much 
to be deprecated. The threatened secession is 
announced as the intended act of the armmis- 
sioneri themeelves, the propri^y of which they 
profess to have deduced from the terms of the 
treaty and their commission. 

In what parts of both or either of these docu- 
ments they have been able to find the justification 
of a step so extraordinary in itself, and so impor- 
tant as to its possible effects, they have not thought 



* There is nothing restrictive in the commission, it is co-ex- 
tensiTc with the treaty. Vide. Journals. 



1 



[ 344 ] 

it necessary in any sort to explain ; but in de- 
daring that thej infer their supposed incompe- 
tency to take any $hare in our decision, and of j 
course the necessity of their secession, from these 
sources only, they have sufficiently explained that 
no share in producing it is to be attributed to their 
government. 

There cannot in fact exist, on the part of their 
government, aay inducement to such an interpo- 
sition. For even if our decision in this case on 
the import of the treaty should ultimately prove 
to be erroneous, no wrong would be done to the 
British government, since an award in pursuance 
of such a decision would be merely void. 

Our determination on the extent of our powers, 
cannot take away or lessen the indefeasible right 
of the high contracting parties to interpret their 
own act, when the occasion shall be such as to in- 
cline them, and make it proper for them tceiert 
that right. 

But, on the other hand, a forbearance on oiir 
part to determine on our powers, so as to place 
ourselves in a situation to decide the. merits of 
claims, and to fix the amount of compensation, if 
we shall believe any to be due, (according to the 
commands of the treaty and the tenor o( our 
oath,) would reduce the article from which we de- 
rive our appointment to a dead letter, leave it 
without any inherent capacity to operate or be- 
come effectual, and make the Board rely in every 
stage of its progress (if, indeed, it could make 
any progress at all) upon the occasional instruc- 



[345] ^ 

tions of the contracting parties^ which neither is 
obliged to ^ive, or the uncertain event of supple- 
tory negociationsy over whioh we can have no 
control, and for which the article contains no 
provision. 

In short, I believe it to be clear that it is the 
duty of this Board to proceed by a majority of 
voices, in the execution of the seventh article of 
the treaty, according to the estimate which the 
majority shall make of the true intejit and mean- 
ing of the article, leaving the validity and effect 
of their proceedings to the judgment of those by 
whom they were appointed : and 1 believe it to be 
peculiarly evident, that no minority of this Board 
can of right control or prevent decisions apper- 
taining to the commission by the majority upon 
aoy idea of their own incompetency, or the col- 
lective incompetency of the Board : and further, 
that any actual want of power in the Board, or 
any of its members, ccmnot be supplied by the 
special instructions of one only of the contract- 
ing parties. 

I come now to the other question involved in the 
declaration, viz. — Whether the Board is now au- 
thorized by the seventh article of the treaty to 
examine and decide cases in which proceedings 
are still depending in the ordinary course of 
justice ? 

On this question, the argument lies within a 
very narrow compass. 



[ 346 ] 

The . article stipulates, '^ that in all the cases oi 
irregular or illegal capture or coodemnation com- 
plained of in its recital, where, for whatever rea- 
son, adequate compensation could not at the time 
of making and concluding thye treaty be actually 
obtained, had and received in the ordinary course 
of justice, full and complete compensation for 
the same will be made by the British government 
to the complainants/' 

For the purpose of rendering this stipulation 
effectual, the same article provides for the appoint- 
.meat of a Board of Reference, (consisting of five 
commissioners,) to whom the complaints in ques- 
tion are to be preferred and submitted for exami- 
nation and decision according to certain rules ; 
and it declares that the award of this Board shall 
be final and conclusive, both as to the justice of 
the claim and the amount of the sum to be paid 
to the claimant. 

The article further provides, "that eighteen 
months from the day on which the said com mis* 
sioners shall form a Board, and be ready to pro- 
ceed to business, are assigned for receiving com- 
plaints and applications ;" but that, nevertheless, 
the said commissioners shall be authorized, in any 
particular case^ iu which it $kaU appear to them 
to he reaeonakU and jmtj to extend the said term 
of eighteen months for any term $iot 
six months after the expiration thereof. 

The article further provides, that each of the 
said commissioners shall take an oath or affirma- 
tion " honestly, diligently, impartially, and care- 




[ 847] 

fuHy to examine, and to the best of his judgment, 
according to the merits of the several cases, and 
to justice, equity, and the laws of nations, to. de- 
cide ail stick complaints as under the article shall 
be preferred to the said commissioners.^^ 

On the 10th of April last, the term of eighteen 
monthsy limited by the article for the exhibition of 
claims, expired ; but previous to its expiration (on 
the last day of the term) the present complaint, 
with a variety of others in which the judicial 
remedy was not exhausted, was preferred to us. 

As it is my intentiop to meet the general ques- 
tion arising out of the declaration of the British 
commissioners, I shall not here state or advert to 
the particular circumstances by which the present 
complaint, in relation to the point before us, 
might possibly claim to be distinguished. 

My opinion is, — that in all the cases of irregu- 
lar or illegal capture or condemnation recited in 
the preamble of the seventh article, in which, 
without the manifest delay, or negligence, or wil- 
ftil omission of the claimants, adequate compen- 
sation has not been obtained in the ordinary course 
of justice, within the term assigned by the article 
for the reception of claimd, we are authorized to 
proceed to an examination and decision of their 
merits, and to award compensation, if we shall 
believe it to be due. 

The following are in substance my reasons for 
that opinion : 

let. It is obvious that complaints thus circum- 
stanced are properly before us, or to speak more 



[ 348 ] 

correctly, have been duly preferred under the ar* 
tide. If they have not been duly preferred, they 
never can be, and of course can never in any event 
become the subject of our consideration, wbicb 
none of us maintain. 

The article assigns eighteen months for the re- 
ception of claimS; and regularly every claim, to 
be entitled to the benefit of the article, must be 
presented to us within that term. 

We have authority, it is true^ in particndar 
caseHy for the advantage of claimants, and upon 
special grounds of reason and justice, to extend 
the terms six months longer, but a claimant is not, 
therefore, under any obligation to pass by the 
general limitation for the purpose of throwing 
himself upon our discretion, and hazarding the 
total exclusion of his application. 

If he slips his time in the first instance, the 
treaty still allows him to ask to have his com- 
plaint received, upon showing sufiSicient cause to 
justify the indulgence ; but it ('annot be imagined 
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 favour 
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 
eighteen months, and if it be manifestly in his 
power to do so, must file it within that period. 



L 



[ 349 ] 

The complaints in question, therefore, have 
been duly preferred under the article. 

2d. If they have been duly preferred under 
the article, it will not be difficult to prove by the 
express letter of it, that it is now 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 suitabte 
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 &r as it 
reaches, as indisputable evidence of our duty. 

The oath commands us diligently to examine 
and decide aocording 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 ded- 
iion 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 them, and until the 
tardy and circuitous process of that tribunal shaU 
have been successively spent against captors, 

owners, and bail, to enforce their determination^ 

45 



[ 850 ] 

Nothing can be more conclusive than the lan- 
guage of this oath to show that the makers of the 
treaty did not mean to authorize^ far less enjoini 
the indefinite procrastination now contended for i 
but on tho 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 Itoguage 
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 of a period within whi<*h 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, n4>t 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 framersofthe 
treaty clearly suppose that all complaints, capa- 
ble of being perfected at all, would be perfected 



[ 351 ] 

by the lapse of it, that they would in its course 
obtain the ingredietits 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 coticeivable 
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 afler 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 groundless, 
and thus shutting them out from all possibility of 
relief. 



[852] . 

4tb. 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 asiignments as by the said commissionefv 
" 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 €U9ign' 
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 iu 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 award 
when they sthall have finally refused him redresSp 
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] 

instances, be the subject of well-foanded coiA- 
plaint ; but it was not at all improbable, that Mich 
a tribunal should sometimes administer justice 
with more wisdom than despatch. 

The preamble to the treaty declarers 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 lyithin 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 our construction be re- 
ceived, the article will be rendered, not only con- 
sistent in all its parts^ and simple and uniform in 



€i 
t€ 



[ 355 1' 

ita principle, but capable of fulfillmg it9 own 
destination. 

Nor does this construction^ as has been sup- 
posed, in any shapoi riolate 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 sufficiently manifested. 

The efficacy 6f 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, hs a contract^ be said to have done any thing 



[ S56 ] 

secure or obligatory, unt|l such a limitation wai 
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 ought 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, tfnder 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 responsibility of the British government should 
become an available means of compensation. 



[357] 

*Phat government, being originally a party to the 
wrong, could ask only a qualified resort to Ike or- 
<linary remedy in its courte 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 
'Sandour. 

WILLIAM PINKNEY. 

L.ONB0N, Jwne 26f A, 1 798. 



EXTRACTED FROM THE MINUTES. 

I6th 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, 

1st. Whether the Board is competent under 

the treaty and convention, to include in the 

amount of compensation to be awarded to claim- 

antSy if it ehall appear to be just and equitable to 

" do so, interest 4uring the late suspension 1 

* A motion made by Mr. Gore, that the Commissioners should 
proceed to subscribe the awards ready for their signature. 

46 



[ 358 ] 

2d. Whether it would be just and equitable to 
do 8o ? 

On the first question, 

It is underatoood 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, 1 799, 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 conven- 
tion. It is not easy to ascertain the exact foun- 
dation of this extraordinary doubt ; but so far as 
I am able to collect it from the entry on the Jour- 
nals of the 1 7th of last month, made at the in- 
stnnce of Dr. Swabey, I understand it to be, that 
the treaty did not contemplate such an incidcDt 
as thiH 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 subs^equently 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 ] 

could 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 has 
been made of it, as it is not only highly iraproba* 
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 aiid 
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 <^ourse 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 whole of the com- 
plaints be fore us. So that, in truth, the suspension 
now in question was the third by which the com- 



t 860 ] 

mission has been retarded since its firttft orgaBiza- 
tion. Of such an event, thereforci which this iiew 
and delicate scheme of adjustment was naturidly to 
be expected to produce not once only, but frequent* 
\yj and which accordingly it did produce, from time 
to time, as difficult topics presented themselres 
for discussion, it cannot be allowable to say, that 
it was an incident not in the contemplation of 
the treaty J or of those hy whom it was franud. 

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 ca,9us 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 t 

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- 
tra(*ting parties, it submits these complaints with- 
out limit or exception to us. It makes us the ex- 
elusive arbiters, not only of the justice of the com- 



[ 361 ] 

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 he full and complete^ and 
leaves the res| 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 wider 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- 
•rt our powers, we should find in them no defi- 
eisncy in regard to ths justiea of any claim regu- 



[ 862 ] 

]arly before us, or the amount of the sum to be 
awarded. On these two points, therefore, vi^ 
the justice of a clatm^ within our cognizance, 
and the amount of the C(ym/pen$ation, 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 cclsub omtssui 
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 % Certainly not 
from any words in the treaty, taking notice of in- 
terest eo nominty 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 out 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 compensation according 
to our notions of justice and equity. Rut is not 
this reason, undoubtedly the only one that can be 
assigned in favour of the 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 
'* pur notions of justice and equity ?** It is quiie 
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 ca%u% omssius 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 we shall soon see that it is not to be found 
in the convention^ who^e provistOTis 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 ctpisidered as recom- 
municating in 1 802, by reference to the seventh 
article of the treaty, the powers originally com- 
municated by that article in 1794, with the single 
modification 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. Rut 
we not only have that povi^er (in which it is admit- 



[ 364 ] 

ted that a power to give interest is ineludM) un- 
impaired : — we have, it freed by the conventk^ 
from Dr. Swabey's objection, even if that objec- 
.tion was a 6ound 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 siispentf^ion was not coa- 
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 oh 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 
grtfss 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 1 796 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 affected. What 
these considerations 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 ihe British government, 
the former would be placed in a better situation, 
and the latter in a worse, than if the suspension 
bad not happened. If this should appear to be 
true, I agree that it would be of great weight. 
i It is, however, so totally erroneous as to be the 
I exact reverse of the truth ; the fact is, that the 
claimant will be a loser, and the British govern* 

meat a gainer, by the suspension, even after this 

47 



[ 366 ] 

iQterest shall have been paid and reoehred. 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 ha%e J[>een decided by 
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 1800, not only of his principal, but of such in- 
terest Upon that principal, as, but for the suspenr 
sion, would at that time have come to his bands. 
To put him, therefore, in any thing like so good a 
situation as he would have been in if the suspen- 
sion had not 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, will 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 claimsDts 
being merchants, are not adequately compenRat- 
ed for the privation of what ought to have formed , 
a part of their capital, at a time when commer- 
. cial capital was more than usually active, by a re- 



f 867 ] 

tribution granted with a view to the mertf rate of 
interest. 

The foregoing observation^ it is to be admit- 
ted^ Apply solely to claknants whose cases, in re- 
gard to the judicial remedy, Were ready for our de- 
cision at the commencemoBt of the suspension, or 
would have become- so in the course of it ; and 
they apply undoubtedly with less or greater forcCy 
according as the time when the case was, or 
would have been 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 must at the 
same time be seen that, for precisely the same 
reason, Great Britain couid not be, as to such 
claims, in the dightcMt 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 affect 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 affirmed to be at least co-extensive with (he 
cldmants' loss. In cases ready for decision, or 
that would have become so during the suspension, 
it has already been.ahown that it haa enjpyed the 
use of the claimants' principal by reason of the 
9mpmuon only : aiid if this were the whole bene- 
fit, it would seem to be obvious that the suspen- 
sion rather furnishes itn argument in favour of the 



t 368 ] 

paytnent of ititerest 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 Britidi 
government interest; during the suspension on the 
claimants' principal, is, properly understood, nei- 
ther more nor less than this, that during diat 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 
thai 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 
skills 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 io. 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. 



•i* 



;j^ 



t 360 ] 

In what other view this subject can be consider- 
ed, I 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 himI 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 
aniends 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 fit 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 
bought of. The convention has told us all that 
it was intended we should know on this subjuct, 
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 kumediate act 
of the British government, in consequence of diflS- 
culties having arisen in America, under the sixth 
article of the treaty. 



:.^ 



"Ma 



( S70 ) 

With tbis character conclusively given to that 
transactioo by the convention/it would be wcirae 
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 Ij^ve been had not the suspentiion 
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 
49ubject. 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 BriUA 
claimants? 



To give to British claimants a larger measure 
of redress in tlus respect than we give to Ameri* 
oan claimants, upon a vague cKarge of miscon-* 
duct against one of the high contracting parties, 
lor which no countenance i8 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, aaregards 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* 
pie, or our title to consistency ? This is a dilem- 
ma on which I will not 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 for a few days, and on the 30th of. 
April, the Board proceeded to make awards on 
the principle contended for by JVtr. Grore %SiA 
Mr. Pinkney. 



C-STZ ] 

f 



» 



* 



• N^- 11. 



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 Vnited States of America^ in Con- 
gress assembled: 

THS mMORIAL OF THE MBRGBANT8 AND TRADBRS OF THB CITY 

OF BALTIMORE. 

Your memorialists beg leave respectfully to submit to jwb 
consideration the following statement and reflections, produced 
by the situation o( our public affairs, in a high degree critical and 
perilous, and peculiarly affecting the commerce of their country. 

In dvs early part of the late war between Qreal 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 h, 
or rather 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 UQilerstood to be the sense of Great 
Britain, and was explicitly declared by her courts of prise, that, ' 
although she had not expressly allowed to the merchants of the 



[ 37S 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, hi 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 tkr 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 unauthorised in 
the light of a restriction, was not greatly inconvenient in its prac- 
tical operation ; and your memoriali^sts entertained a confident 
hope, that, while on the one hand, they sought no change of system 
by which the assuihption of Great Britain to impose terms, how- 
ever mild in their character and effect^ upon their lawfiil 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 leas 
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, youf memorialists have been fatally dis- 
appointed. Their vessels and effects, to a large amount, have^ 
lately been captured by the commissioned cruizers of Great 
Britain, 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 ignoi^snce has been considered as criminal, and an 
honourable confidence in the justice of a friendly nation, pursued 
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 
leen sacrificed : and it is not the least of their compUints against 

48 



[ 874 ] 

them, that they are undefined, and undefinable, equivocal in thck 
form, and the fit instruments of oppression by reason of their 
ambiguity. 

Your memoriaKsts 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 sufiered to produce that con- 
sequence. It is supposed to have been judicially declared, in 
general, that a voyage undertaken for the purpose of bringing 
^nto 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 in- 
justice, because of its peculiar capacity to embarrass with sei- 
zure, and to ruin with confiscation, the whole of our trade widi 
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 t>f 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 impossi- 
ble. Our property is therefore menaced by a great and formida- 
ble dan^r, which there are bo means of eluding ; for, even if 
It should chance to escape the condemnation which this pernicious 



s 



[ 375 ] 

novelty prqiares 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 inqpisitions ; 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 it wasted, and in the end destroyed, by a noxious system bf 
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 aAer 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 agsunst 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 itijuri- 
ous suspicion which such an object would imply. The view 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 inCaided to be serious, and extensive, and permaneo^ 
your memorialists search in vain for the motive by which a state, 
in amity with our (iwn, 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 
H>f capricious aggression upon our rights, by which it dishonours 
itself without promoting any of those great interests for which 
an enlightened nation may fairly be solidtous, and which only 
a steady regard for justice can ultimately secure. When we sec 
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 ri^ht 
of exporting it to another ; which prohibit an end because it 
arises 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 m 
its place ; which, proposing to &x with accuracy and predsion 
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 ] 

iorwoB and sanctions, upon which our revenue depends, will not so 
terminate the voyage from the colonies, as that the articles may 
be inunediaiely re-exported to Europe by the original importer. 
But if they cannot be exported immediately, wkat 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 ? 4n 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 sufficient to save 
him from the peril of the rule. But, admitting it to be certain, 
instead of being bare^ possthU^ that these attempts would form 
any thing like securitj^ 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 prooft 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 along with it, British courts of prize grant no ade- 
quate indemnity. Redress to any extent is difficult ; to a con^' 
t&U 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 maiitijiie 
code has heretofore been greatly mitigated. But they now beg 
leave to enter their solemn protest against the principle itself, as 
an arbitrary and 4in founded pretensinn, by which the just liberty 
of neutral commerce is impaired and abridgedy and may be whol- 
ly destroyed. 

The reasons upon which Great Britain assumes to beraelf a 
right to interdict to the independent nations of the earth a com- 
mercial intercourse witl\ the colonies of her enemies, (out of the 
relaxation of which pretended right has arisen the diktinctioo 
in her courts between an American trade from the colonies to 
the United States, and from the same colonies to Europe) wiU, 
we are confidently persuaded, be repelled with firmness and e^ 
feet by our government. 

It is said by the advocates of this high belligerent claim, dial 
neutral nations have no right to carry on with either of the pai^ 
ties at war any other trade than they have actually enjoyed in 
time of peace. This position forms the basis upon which Great 
Britain has, heretofore, rested her supposed title to prevent idtiK 
gether, or to modify at her discretion, th« interposition of neih 
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 measure of the war-trafitc ; and 
that, as on 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 usuil 
markets, not only by military enterprises against particular places, 
carried on with a view to their reduction, but by a vast sytstem of 
blockade, afiecting 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 



[ 379 ] 

future affords no consolation for the piist. The triumphant fleets 
of one of the contending powers cover the oc«*an ; 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 chantiels 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 ofpeaccj 
for the criterion of our commercial rights, in order to justify the 
consummation 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- 
ibrmity and consistency ; is partial, unequal, and delusive : it 
makes every thing bend to the rights of war, while it afiiects 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 established 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 
fiiithful picture of the theory, and practical operation of this 
doctrine. 

But, independent of the considerations thus arising out of tl^e 
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 trade in war, is sufficiently manifested, 
there are other considerations which satisfactorily prore the inad- 
missibility of this principle. 

It is impossible that war among the primary powers of Eu- 
rope should not, in an endless variety of shapes, materially affect 
the whole civiUzed world. Its operation upon the prices of la- 



[ 880 ] 

bour and commodities; upon the value of money; upon ex« 
change ; upon the rates of freight and insurance, is ^ reat and im- 
portant. But it does much more than all this. It imposes upaa 
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 maii- 
kind are infinitely varied by its powerful agency, bcith io 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 the 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 oifers to it 
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 whith they have been engaged for 
upwards of a century, we find that each of them has, occasion- 
ally, departed firom its scheme of colonial monopoly ; relaxed 
its navigation laws, and otherwise admitted neutrals, for a l<Higer 
or shorter space, as circumstances required, to modes of trade 
from which they were generally excluded. 

This universal practice, this constant and invariable usage, 
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 



[ 331 ] 

VTBTf (she made such a treaty with us) by which neutrals are 
received into a panicipation of an extensive traffic, to whirh be- 
fore they had no title. And can 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 op|)onents, they 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, been {.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. 

Tt 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 |»eneral preponde- 
rance of her own power, upon«lhe land or upon the sea, or by 
the general success of her arms. In the one case, as compl«'tely 
as in the other, the interference of the neutral lightens the pres- 
sure of war ; increases the capacity to benr 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 Britain will herself 
instruct us, by a recent exjsimple. Her courts of prize have in- 
sisted that, during the war which ended in the peace of Amiens, 

49 



[ 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, 1793, 
when France and her maritime adversaries had not measured 
their strength in a single conflict ; when no naval enterprise 
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 Grreat Britain in particular, wis 
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 Coon- 
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 and depression." 
It would seem to be impossible to say of a trafiic 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. Il 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 
efiect of a 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 whir 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 direbt efforts, for 
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, actiudly. 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] 

tbem up to pillage and to ruin. Compared with this principle, 
which viol«*nce and artifice may equally claim for their own, the 
expl«»ded doctrine of constructive blockade^ by which belligerf-nts 
for a time insulted and plundered the states at peace, is ioD^Hxiit 
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 
mav 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 itself from 
season to season, in what are called relazationsj 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 ic 
was seen to lose more 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 eflect, 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 sufiicient answer to this observa- 
tion, that the same course of reasoning would prove that neutrab 
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 
sufiicient to make a trade unneutral and illegal, the best estab- 
lished and most usual traffic would of course become so. But 



[ 385 ] , 

Grreat 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 Great Britain does at this moment grant licenses to neutral 
vessels, taking in 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 
earried 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 barter. It is used, not 
as a h4>stile 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 prosperity, 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 coimtenance irom 
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 



[ 388 ] 

that system still continuing in force, could only be a French trade 
and open to French vessels, either becamey 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 tht-se two 
periods, as entitled to any peculiar veneration. The effects of 
that practice were almost wholly confined to the Dutch, who had 
rendered themselves eictremely obnoxious to Great Britain, bj 
the selfish and pusillanimous policy, as it was fal8«'ly calle^^ 
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 coo- 
tinued, had in it nothing of complaisance to France ; they fur- 
nished from the commencement of hostilities, on account of the 
pragmatic sanction, succouni to the confederates ; declar«^d openly, 
after a time, in favour of the queen of Hungary ; and finally 
determined upon and prepared for war, by sea and land. Givat 
Britain, of course, had no inducement in that war to hunt ai^er 
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 France the succours stipulated by treaty ; by 
constantly supplying France m^ith 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 Namur 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 into the 
hands of France, by the court of Vienna, which Great Briuun 
represented to be contrary to the Barrier treaty and the treaty of 



[ 389 ] 

Utrecht Without entering: info the sufficiencj of these grounds 
of 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 
Jed, as tending to establish a rule of the public law of Europe. 
It may not be improp«*r to observe too, that the station occupied 
by Great Britain in the seven years' war, (as proud a on« as any 
country ever did occupy,) compared with that of the other Gu- 
ropean powers, was not exactly calculated to make the measures 
which her resentments against Holland or her views 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, and 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 decistans on this pointy 
followed those of the war of 1744. • 

The question first came before the lords of appeal in January, 
17S2, in the Danish cases of the Tiger, Copenhagen, and others^ 
captured in ilctober^ 1780, and condemned at St. Kitts, 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 any traffic, and haTiDg been laden at the time £^ 
*^ 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* 
^ »uant to precedents in the like cases in the last war,) to all in- 
^ leiits and purposes, be deemed a ship and goods belonging to the 
*^ French, or at least adopted, and naturalised 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 GuibddUmpey and no other place«'* 

^ 2dly. Because it is contrary to the establiihed rule of gemt- 
^ rol Unt, to admit any neidral ship to go to^ and trade tst, a 
** port belonging to a colony of the enemy ^ to which such neutral 
** ship 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 : thtis in the most solemn and explicit manner disavowing 
and rejecting the pretended rules of the law of nations, upon 
which the captors relied ; the £rst of which was Uterally borrov- 
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 sfty, 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 ai 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 trade in all hs modes, which were favourably 
adjudged by the lords of appeal after the American peace, it 
will be sufficient to mention the case of the Vervagtingj decided 
by them in 1785 and 1786. This was the case of a Danish 



[ 391 } 

ship laden with a cargo of dry goods and provisioDs, with which 
she was bound on a voyage from Marseilles to Martinique and 
Cistpe Francois^ where she was to t^e 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* 
lendy was condemned <is 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 8th of 
March, 1765, reversed the condemnation, and ordered further 
proof of the property to be produced within three months. On 
the 28th of Match, 17^6, no further proof having been exhibited, 
aud the proctor fur 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; for 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 ot 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 ndt 
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 point : ^^ 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- 
twef*n France and her colonies was not considered as an unneutral 
commiTce ; but under what circumstances ? ft was anderslood 
that France, in opening her colonies during the war, declared^ 
that this was not done with a temporary view relative to the wsr^ 
but on a general permanent purpose of altering her colonial sys- 
tem, and of admitting for4*ign 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 oes- 
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 <^n be placed upon explanations 
of measures 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 monopoly." 

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 con6- 
dence which has no example, in a singularly incredible declara- 
tion, (if, indeed, such a declaration was ever made,) alter 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 17S6, at least two years after 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 pot 
into such a formal and authentic shape as to be the fair subject 
of judicial notice. 



[ 393 ] * 

» 

It IS not contained in the French arrets of that day, where 
only it would be proper to look for it, and we are not referred to 
any other document proceeding from the gevemment 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 tliat 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 of the lords of appeal, in and aiter the American war, 
opon 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 anytime, 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 Marriotj who sat m 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 difficulty and peril, than as an expres- 
sion of the deliberate opinion of the lords of appeal, or of the 



[394] 

^overnuK!Ut of Great Britain ; on the matter of righti it mifht 
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 relaxation 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. Vet 
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 and gave 
to the world a series of decisions agajnst it, founded not upon 
British orders of council^ gratuitously . relaxing what was still 
asserted t6 bt- 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 apd 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 concessioo 
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 dectees, down to the year 1786, 



[ 395 ] 

and afterwards, is powerfully confirmed by the acquiescence of 
Great Britain, during the first must 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 io 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 by which its true character was de- 
veloped. Produced in mystery, at a moment when universal 
confidence in the integrity of her government had brought upon 
the ocean a prey of vast value and importance ; sent abroad to 
the difilerent naval stations, with such studied secrecy that it 
would almost seem to have been intended to make an experiment 
how fai* 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, 
an<i 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 hef councils, for that act of 
injustice and oppression ; and your mptnorialists have a strong 
confidence that the late departure from the usual course of her 
policy will be followed by a like disposition to atonement and 
reparation. The relations which subsist between Great Britain and 
tbe 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 firmne.ss 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 
late|j( harassed and alarmed. 



[ 396 3 

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 oar 
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 wfaidi 
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 tins 
anxious crisis of our public afiairs, 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 10 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 wrongs upon us, and to advance unjust pre- 
tensions to our prejudice. 

Baltimore f Jan, 21, 1806. 



[397] 



N^- III. 



(RIYAYE CORBfiSPONDEllCfi WITH MR* MAI>ISON. 



Mr, PiNKNET to Mr. Mapxson. 

Private. ^ London, June 29th, 1 808. 

'< Dbae Sir, — I had a long interview this mprnja^ with Mr. 
Canning, which has given me hopes that the object mentioned in 
your letter of the SOth of April,* (a duplicate by the packet^ 
for the St Michael has not yet arrived^ m^y be accomplished, if 
I should authorize the ezpect^on which tht* same letter suggests.t 
Some days must elapse, however, before I can speak with any 
certainty on the subject. The St, Michael will probabl^v have 
arrived before that time, and will furni&h me with an opportunity 
of giving you not only the result but the details of what has 
passed and ma> yet occur. I bee: yoii, in the mean time, to be 
assured that the most efiecmal care shall be taken to put nothing 
to hazard, and to avoid an improper commitment of our govern- 
meat. 

^ I was questioned on the affair of the Chesapeake* There 
seems to be a disposition here to consider the amende haiUMrakie as 
ahready 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 t^'rma 
more conformable with th^ views which you very justly take of 



* The i«pe«] of the Qrden ia CottoeU. 
t The repeal of the Embargo. 

• 51 



[ 39B ] 

thii interesting subject. I was told (it was n«t said officiall j} 
that the persons taken out of the Chesapeake would be readily 
restored. The punishment of the officer (otherwise than by hb 
recall, which has been done) will, perhaps, form the greatest en* 
barrassment ; but I will endeavour to ascertain informally wfaal 
will be done on that and every other part of the case. My. snie 
object will be, of course, to lead them, as occasi«m offers, (as lar 
as in my power,) to do what they ought, in the way most Ibr oar 
honour. I can the more properly do this now, as Mr. Canning 
has himself proposed the subject to me as intimated above*" 

Mr. PiNKNST to Mr. Madisok. 

Private. ^ Brighton, J«/y lOfA, 1808. 

<' Drar Sir,*-I had the honour to write you a short letter, by 
Mr. Temple Bowdoin, dated, I think, on the 29th of last mootliy 
of which (not having it here) I cannot now send a duplicate, it 
stated that I had received by the British packet a duplicate of 
your despatch by the St. Michael-— that I had just had an inter- 
view with Mr. Canning — and that Aere 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 ofidaUy) diat there would be no objection here 
to restore th«- men tidcen from the Chesapeake ; and I suggested 
a hope that (except as to the punishment of Berkeley) there woold 
not l>e much difficulty in inducing them to propose in a propn* 
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 



[ 3991 

are highly interestiog with reference to Spain. I enclofe a part 
of Cobbett's Register of last night, (the residue will go with the 
packets of newspapers,) coniaining the British order in council 
that hostilities shall cease with Spain, &c., and the prorogation 
apeeco* 

Mn PiifiKKT to Mr. Madison. 

Private. ^ August 17M, 1808. 

^ Dkak Sir, — I omitted to mention in my late letters that, at 
my second interview with jyir. Canning, he suggested incidental- 
ly that 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 
suggestion, very carelessly thrown out, by asking explanations ; 
and 1 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 h 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 began 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 m 
the newspapers of yesterday, from which it appears, 

^ 1. That American vesseb may proceed from a port in the 
United States with a cargo the produce of the United States, or 
eolomal 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 



VaMei Stites direct with a cargo the growth «r produce of Spam 
er Poitu{;ai. 

^ 2. That ao American vessel, having entered a port in Sfwii 
previous to the commencement of hostilities by the Pctrnto 
against France, may proceed from such port with a car^o, the 
growth and produce of Spain, direct to a port of the United 
States, unless the vessel entered m breach iff the Orders in 
CounciL 

<< You will observe that the answers are strictly conteed to 
the points proposed by the • questions ; but it would seeoi that 
from these explanations others necessarily follow." 



Mr. PiNKNXY to Mr. Madison. 

Private. '' London, Sept, lOth, 1 808. 

'< Dear Sia, — I intended to have enclosed in my private letter 
of the 7th, by Mr. Bethune, who left town on the evening of that 
day f6r Falmouth, to embark in the 6. 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 I beg to renew 
ray request that the sli£[ht variations from the original and dupli* 
cate, which you wilt find in the lines marked in the margin with 
a pencil, may be adopted. The only one of these correcticHifi, 
however, about which 1 am in the least anxious, is in the fourth 
paragraph frodi the end, which in my rough draft reads thus, ^ at 
, ^' the close of the interview^ 1 observed, that, as the footing upon 
^ which this interview has, &c." This awkward iteration of the 
word interview, (if not actually avoided in the oqgioal and du- 
plicate, as perhaps it is,) 1 really wish corrected. 

^ Mr. Canning's reply to my note not making its appearanoei 
I went this niprning to Downing-street to inquire about it ; but 
both Mr. Canning and Mr Hammond were in the country. I 
•hall not omit to press for the answer (without, however, gi^^ 
unnecessary offence) until I obtain it, or have the delay explained. 
It is possible that, when received, it may be found to mdopt oiv. 
INToposal, and that they are merely taking time to eoonect with 



[401 1 

4betr compfnmoe a lon^ yhndication of tlieir orda's. This is one 
wray of accouiHing for the delay. 

^ It is also posstMe that they are actnatly undecided, and that 
Ihey wish^to proscra^inttte ^nd keep back, their answer until they 
ean understand by the B. Packet (expected very soon) the w<irk- 
in^ of the embargo, tind of the Spanish views in America ; un- 
til they can take measure of mir elections ; nntil they can ascer- 
Itom what is to be the course of France towards us ; until the stiite 
of t^urope, so flattering to their hopes, shall improve yet more, 
or at any rate be past tlie danger uf a relapse, &c. Sue. Ail this 
is possibk; but I Cf>nttnire to think that tbey will reject what I 
have proposed. Their present ekvatton is exactly calculated 
^aideil by false estimates of America) to mislead them to such a 
conclusion. They are hardly m a^temperof mind to appreciate 
the motives of the President^ conduct. - The chances are that 
^ey will ascribe the assurances I. have been authorized to give 
diem, as to the enorbargo 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 V ou 
must not be surprised if they should be found to expect even 
m(»re 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 govehi- 
raent towards the two powers that keep the world 'in an uproar 
with their quarrel has been retiUy disapproved in the United 
States, the overture just made to both cannot fail to subdue h. 
I anticipate from ft a perfect union of sentiment in favour of any 

stthude which it may be necessary to take. It puts us so une- 
quivocally In the right, that, although we were not, 1 think, btiund 

to make it, it is impossible not to rejoice that it has been made. 

ki any event it must be salutary and must do us bonour. The 



[ 402 ] 

•▼erture, hbwever, would seem to be more advasitageous to Oral 
Britain than FraDce. For if yoa should take off the embajngo 
as to France and continue it as to Great Britain, your proce^ 
ms would have little substance in it, considered as a benefit t9 
France, unless and until you went to war against Great Britmn, 
But the converse of this would have a vast effect in Ikvour of 
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) m pari 
delicto with France on the subject of that code of violence wfaidi 
drives neutrals from the seas and justice from the world. 

^ It is said here, by those who affect to know, that a concilia^ 
lory conduct by France towards the United States will not be 
acceptable to this governm^-nt $ 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 muck 
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 nmch 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, PiMKNET to Mr. Madison. 

» 

Private. ^^ Lokdon, S^t. 21, 1808. 

^ Dbar Sir,— The Hope arrived at Cowes from France 
the 18th. 

** Not having heard from Mr. Canning, although he returned 
to London the l6th, 1 called again yesterday at Downing-street, 
and was assured that the answer to my note would be sdnt to- 
night or early to-morrow morning. Mr. Atwater will of eourK 
be able to leave town on Friday, and embark on Saturday with 
a copy of it. 

*' 1 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 ) 

antjcipaudy that the late events in Spain and Portuffal (which 
ought not to be considered as deciding any thing) will have an 
effect on public opinion in America against the continuance of 
the embargo, and fovourable to all the purposes of Great Britain* 
If this were true, I should think it wis deeply to be lamenled. I 
may misunderstand the subject ; but I cannot persuade myself 
Aat any thing that has happened on this side of th^ Atlantic, 
oBght to induce us in any d^ree to retreat from our present 
system. 

^< if we should resolve to trade with 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 
suapend the embargo as to those countries only, or as to those 
countries and Qreai Brttata, or we must repeal it altogether. 

^ 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 inju- 
rious than no market at all ; it would be a lure to destruction 
and nothing more. A suspension of the embargo, so limited ia 
its nature as this would be (supposing it to be in fact what it 
would be in form) would have a most unequal and invidioua 
operation in the different quarters of the Union, of which the va* 
nous commodities would not in the ports of Portugal and Spain 
be in equal demand. 

^ A war with 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 Greaf 
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 retied upon. My first opinion on that subject remains ; but 
even the most sanguine will admit that there is great room for 
doubt. The Gmperor of France is evidently collecting a mighty 
force for the reduction of Spain ; and Portugal must share its 
firte. And even if that force should be destined (as some sup- 
pose) first to contend with Austria, the speedy subjugation of 



[404.1 

Sfrtioi is not the len certmin. If France shoolcl flncoeed^ Spiii 
and Portiif^al W(Hild «|(ain M\ under the British orders u{ \o> 
vemher, as wvU as under the operation of the French decivei 
Our ciu-goes wrouM scarcely have found their way to the oonm 
m search of the boasted market, before they would be once noff 
in a state of prohibition, and we should in the mean time have 
incurred the scandal of suffering an improvident thirst of gain to 
•edwe us from our principles into a dilemma presenting no alto^ 
native but loss in all the senses of the word. 

<^ But it is not even certain what Great Britain would bersdf 
finally say to such a partial suspension of the embargo. She 
would doiibtless at Jirsi approve of it. But her ukimn^ cminr 
(especially if war between France and the United States were 
not the immediate consequence^ or if the measure were eventuafly 
less beneficial to herself than might be Supposed at the outsrt) 
•ttfbt not to be trusted. That she should approve at first, s 
hardly to be tyuesdoned, and the considerations apon wiiich she 
would do soy are precisely tluise which should dissiwde us froa 
it. Some of these are^*>the aid it would afford to her 9Uieg, u 
well as to her own troops co-operatinfs with them, and its conse^ 
quent tendency to destroy every thing like system in our condaot 
«-its tendeficy to embroil us with France, its tendency to induce 
nsy by overstocking a limited market, to make our commodities of 
no vah]e--to dissipate our capital— to ruin our merchants witb> 
out benefiting our agriculture — to destroy our infant mnnufacturas 
without benefiting our commerce — its tendency to habitiuce us ta 
a trammelled trade, and to fit us for acquiescence in a maritime 
despotism. But there are other reasons— our trade with Spaia 
and Portugd, while it lasted, would be a circuitous one witk 
Qreai Briimm tmd her ceUmiei, for their benefit Our fH^doe- 
tions would be carried in the first instance to Spain and Poita- 
gal, would be bought there for British account, and would find 
their way to the West Indies or centre here, as British convc- 
aienre might lequire, and thus in effect the embargo be removed 
as to Great Britain, while it continued as to France, and «f 
professed to continue h as to both. And if any profits shosM 
arise from this sordid traffic* they would become a ftrnd, lo eaa- 
Ue us to import into the Uniltd Slates directly or indirectly the 



[ 405 ] 

manaractitres of Great Britain, a»d thitf relieve her in anotW 
iMray, while her orders would prevent us from receiving the 
commodities of her eaemy. It would be for better openly to 
take off the embargo as to Great Britain, than while affectii^ to 
eontinue it as to that power to do what must rescue In^r com- 
pletely (and that too without advantage to onrselves) from the 
pressure of it, at the same time that h would promote her views 
against Fraooe In Portugal and Spain. 

*' As to withdrawing the embargo as to Great Britain, as weH^ 

aa Spain and Portugal, while the British orders are uarepealed, 

the objections to tbat coarse are just as strong now as they were 

IVMir months ago. The change in Spain and Portugal (if it were 

even likely to fast) carniot touch the prmciple of the embargo, as 

regards Great Britain, who re-asscrts her orders of November, in 

the very exfAanations of the 4tlr July, u»der which we must trade 

with those eonntrles, if we trade with them at all. If we include 

Oreat Britain in ^ae suspension, and ezelade France, we do now 

what we have .dedlned to do before, for the sake of a delusive 

commerce, wMch 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 eoK 

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 ovf cupidity and impatience to forget what was 

due tp consistency, to character and permanent prosperity. We 

sanction too the maritime pretensions which insoh and injure us ; ^ 

we throw ourselves, bound hand and foot, upon the geaerosily 

of a govetament thft has hitherto reftised us justice, and all this 

when the aihir of the Gliesapeake, and a host of other wrongs, 

are unredressed, and when Great Britain has just rejected an^^ 

overture which she must have accepted wfUi eageraess if her 

• views were not snch 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 

fnflict, unless indeed some other expedient, as strong at least and 

52 



\ 



[ 406 ] 

as efficacious in all its beariogs, cao (as I fear it cannot) be 
stiloted in its place. 

^ War would seem to be the unavoidable result of such • atep. 
If our commerce sliould not floiinsb in consequence of this mea- 
sure, nothing wpuld be gained by it but dishonour ; and how it 
could be carried on to any valuable purpotfk it would be diffieolt 
to shows If our commerce skmtld flourish in spite of French and 
British edicts, and the miserable state of the world, in spiae of 
war with France, if that should happen, it would, 1 doubt not, be 
assailed in some other form. The spirit of monopoly has aeiied 
the people and government of this country. We ahall not 
under any circumstances be tolerated as rivab in navigation and 
trade — ^it u in vain to hope that Great Britain will voluntarily 
foster the naval means of the United States. All her pffejudic ca 
all her calculations are against it. Even as allies we should be 
subjects of jealousy. It would be endless to enumerate in detail 
. the evils which would cling to us in this new career of vasaallagf 
and meanness, and tedious to pursue our backward course to the 
eitinction of that very trade to which we had sacrificed every 
thing else. 

*^ On the other hand, if we persevere we must gain oar par- 
pose at last By complymg with 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 loas of our trade are deeply felt here, and will be kit with moce 
severity every day. The wheat harvest b like to be alanningly 
short, and the state of the continent will augment the eviL, llie 
discontents among their manufecturers are only quieted for the 
moment by temporary causes. Cotton is rising, and soon will 
be scarce. Unfavourable events on the continent will sobdae 
the temper unfriendly to wisdom and justice which now preyaih 
^ here. Bat above all, the jrorld will I trust be convinced that 
our firmness is not 'to be shaken. Our measures have not been 
without effect. They have not been deostve, because we have 
not been thought capable of persevering in self denial, if that can 
be called sdf 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 luch 
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 United States. 

*' I beg you to excuse the frequency and length of my private 

jCtCNSa 

<< I need not tell you that I am induced to trouble you with 
my hasty reflections^ because I think you stand in need of them. 
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. 24ih. Mr. Canning's answer received last 
night confirms all my late anticipations. It is a little extraordi- 
iMiry that If a written proposal was required from me with the 
idle motive memtumed in the aceomj^anying papers^ no such mo- 
tive was suggested at the time, and eyen 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. Camung's statement, I should 
wish my reply to be received." 

[In order t6 understand the above passage, it is necessary to 
observe, that Mr. Canning in a letter accompanying, his note of 
the 2Sd September, 1808, in reply to Mr. Pinkney's overture on 
the -subject of the repeal of the orders in council, had stated, as 
a reason for requiring their communicatioos to be in writing, the 
mlsTPpresentation which had taken place in America of former 
conferences between them, at the same time adding ; *^ You gave 
me on that occasion the most satbfactory 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 saiQe lime, that a foithful report 
of a conference on your part, is not a security against its misre* 



[ 408 ] 

prcMnUtioD." In bis reply to this letter^ Mr. PiolKiiey observedi 
that no person could be less disposed than lie was to find faidt 
with the objea of Mr. Canaing's letter, which appeared to be to 
guard against all misrepresentation o( what had passed in ihw 
late interviews '< beyond what you find recorded in my note. 
You have told me that 1 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 Tor 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 unsolicit^ 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 neeesaaiy 
for me to speak, for yon have yourself done justice to it." 

[The following extracts from Mr. Pinkney's official reply to 
Mr. 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 recapitidates what had passed 
in conference between him and Mr. Canning, and states in a con- 
dense form the arguments by which he supported the proposal 
he had made.] 

<< I meant to suggest, then, that npon your own prindples it 
would be extreo^ely difficult to decline my proposal ; that year 
orders inculcate, as the duty of neutral nations, resbtance 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 juatificatioB; 
that of those orders, that of the 7th of January, 1807, (of which 
the subsequent orders of November are said, in your official re* 
ply to my note of the 2Sd of August, to be only an eztensioB, 
(^^ an extension in operation not in principle,") was promulgsied 
and carried into effect a few weeks only after the Berlin decree 
had made its appearance, when the American government couU 



[ 409 3 

BoC j^ouMy know that such a decree existed, when there had 
been 'DO attempt .to enforce it^ and when it had become probable 
that it would not be enforced at all, to the prejudice of neutral 
r4;ht8 ; that the other orders were issued before the American 
goivernmenty with reference to any practical Tiolation of its rights, 
bjan attempt to ezecwte the Berlin decree in a sense different 
fir om the stipulations of the treaty sobsisting between the United 
States and France^ and from the explanations given to General 
Armstrong by the French Minisier of Mtjrine, and afterwards 
impliedly confirmed by M. Chan^Mignyy as well as by ,a corres- 
pondent practice, had any sufficient opportnnity 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, tliroogh 
the rights o( the Umted States, wrongs rather threatened than 
fek, which you were not authorised to presume the United Stales 
would not themselvte vcp^ly ^ <^v 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 
taking 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 ether rights justly the objects of yet greater 
sensibibty, and by inflictii^ upon neutral nations, or rather 
upon the Unhed States, the only neutral nation, injuries infi- 
nitely more extensive and severe than it was in the power of 
France to inilict, you embarrassed and confounded, and ren- 
dered impracticable, that very resistaace which you demanded 
of us : that very proposal destroyed all imaginable motives 
fo contimnng, whatever might have been the motives for adopt- 
ing, this new scheme of warfore ; that it enabled you to withdraw, 
with dignity and even with advantage, what should not have 
come between France and us ; that its neeessary tendency was 
to place tts at issue with that power, or in other words, in the 
precise situation in which yon have maintained we ought to be 
placed, if it should persist in its obnoxious edicts ; that the con- 
tinuance of oar embargo, so modified, would be at least equiva- 
lent to yottt orders ; for that, m their most eilicitnt slate, your or- 



[ 410 ] 

I 

den could do no more at regards the United States, tbao, cut off 
their trade with France and the comtries connected with her; 
and that our embargo, remaining as ko France and those coontriesi 
would do exactly the same ; that if the two courses were barely, or 
even nearly upon a level in point of etpedieBcy, Great Britain 
ought to be forward to adopt that which was consistent with the 
righto and respectful to the feelings of others; that aoiy propoaal, 
however, had powerful recommendations which the orders in 
•ouncil had not ; that it would re-establish, without the haxard of 
any dtsadvankage, before new habits bad rendered it difficult, if 
not impossible, a traffic which nourished your most essential 
nanuftictures, and various other important sources of your pros- 
perity ; that it would not only restcire a connexion valuable in ail 
its views, but prepare the way for the return of mutual kindness for 
adjustments greatly to be desired^-and in a word, for all those 
consequences which follow in the train of mafnanimity and con- 
ciliation, associated with prudence and justice. 

^ Among the observations intended to illustrate my opinion of 
the certaiil, probable and possible eiects of the concurrent acts 
which my proposal had in view, were those to which you allude 
in the sixth paragraph of your letter. Havii^ stated that renewed 
commercial intercourse between Oreat Britain and the United 
States would be the first effect, I remarked in the jurogress of the 
conversation, that the edicts of France could notprevent that inter- 
eourse, even if France should adhere to them ; although Great 
Britain^ by her superior naval means, might be able to prevent 
the converse of it; that the power of France upon the sens 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, resumqg 
their lawful commerce with this country after the recall of the 
British orders in council, would take no measures against sy^ 
tematic interruptions of that commerce by force and iraolence, 
if such should be attempted. 

'< If, when I was honoured by the different interviews before 
mentioned, I had been able to conjecture the nature of the vph 
ments which were to have an influence against my proposal, as I 
now find them stated in your answer to my note, I should prifaa- 
bly have ventured to suggest, in addilMin to the remarks actually 



[ 411 ] 

submitted to your consideration, that if ^< the blockade of the Eu- 
ropean contineoty" by France and the powers subservient to, or in 
combination with her, to which yoqr 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, 'f 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 jostificadon 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 
comblnatioa, and ready to fulfil her fiur neutral obligations, if 
you will suffer her to do so« Under such circumstances, to aban* 
don what is admitted to have Jost its only legitimaie object, is not 
^< concession ;" it is simple justice. To France, indeedh, it might 
be conce^ion. But it is not France, it is the government of 
America, neither subsorvient 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 shoidd remain to distant times 
of the determination and the abili^ 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 
mistakea by your enemy. If this might, 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 
of Great Britain are not for herself oidy, but for the world." 

^ I nugbt abo 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 inlen- 



1 

1 



[412] 

tiott, the AmericaD embargo did come in aid of ^"^ the before 
mentioned blockade of the European continent^ predaely at the 
rery moment when, if that blockade could have succeeded at all, 
this interposition of the American government would most effec- 
, tnally have contributed to its success." Yet I should prohaUj 
have thought myself bound to renund you that, whatever may be 
the truth of this speculation, the same embargo withheld oQr 
tonnage and our productions' from that communication with the 
colonies of your ene^iies and with the European continent, which 
you had asserted your right to prevent ; which, as a direct com- 
munication, (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 trafic for the United States to engage in, you had at least 
discouraged, not only by checks and difficulties in the way of ils 
prosecution, but by manifesting your intention to mould it into 
all the shapes which the belligerent, fiscal, or other peculiar 
policy of Great Britain might require, and to subject it to the 
exclusive jorisdlction 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, PxNKNfiT to Mr, IMadison. 

Frivafe. ^ Lokdon, October 11 /A, 1808. 

*^ Dear Sir,— I am not able to judge, whether my reply ta 
Mr. Canning's letter (enclosed in my public despatch) will be 
approved by the Premdent. I need not say diat I hope it wifl. 
At any rate it can do no harm, as it is simply my act. What wiH 
be its reception here I know not. If ill received, as perhaps it 
may be, although perfectly polite, it can affect only myself. This 
last reflection suggests another. I can say with perfect tnA 
that I have no desire to vemain here a moment longer than I 
ought. Dispose of me, therefore, as shall be thought best, and 
do not think that I am inclined to overrate myself, if I 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- 
srtoDd. I may misconceive them, but I suppose them to be at 
once insulting and 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 insinuationi 
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 knoWy 
been a favourite purpose here to make out that the President 
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 



* ** The goTdrnmeDt of the United States is not now to be iaformed that 
the Berlin decree of November 21st, 1B06, wea the preoticel commenee- 
meot of en aitenpt, not merely to oheck or impair the protperitj of Great 
Britain, but utterly to aonihilate her political ezietenoe* through the ruin 
of her oommeroial proeperity ; that in this attempt almost all the powers 
of the European continent have been compelled, more or less, to co-ope- 
rate ; and that the American embargo, thouj^h most assuredly not 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 aoy im- 
pulses egaioit the real interest of their country,) but by some unfortanate 
ooaeurrence of circumstances, without any hostile intention, the American 
embargo did come in aid of the ** blockade of the European continenty" 
precisely at the very moment when, if that blockade could have succeeded 
at all, this interpoeition of the American government would most effeo* 
tuaily have contributed to its success. 

»* To this universal combination, his Majesty has opposed a temperate, 
but a determined retaliation upon the enemy ; trusting that a firm resist- 
ance would defeat this project, bat knowing that the smallest conoemion 
would infallibly enccarage a perseverance in it.^ 

53 



( 414 ) 

what that paper calls the ** universal eomhinatimi?^ I hare 
thought it my indispensible duty 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 embargo. You will, I am 
persuaded, be of opinion that the course I have pursued was ab- 
solutely forced upon me. Nothing could be more disagreeaUe 
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 1 had 
declined iu* 



* " My sogi^estiODi were to the folbwing effect: tbet I believed that do 
copy of yoar orders of Norember had arrived in the United States at the 
date of the President's messag^e ; that a reeent change in the condvct of 
France to oar prejudice did appear to be known ; that inteUigaiice had 
been reoeiTed* and a belief entertained of yonr intention to adopt womt 
farther ineaeorei at a neainre of retaliation against France, by which oor 
commerce and our rights would be affected ; that there was reason to con- 
clude that you had actually adopted such a measure ; that (as 1 collected 
from American newspapers) this had appeared from private letters and 
the newspapers of this country received in the United States some days 
heforo 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 assailad by the combined efforts of both the balli^e- 
rent parties ; and that the embargo was a measure of wiae and peaceful 
precaution', adopted under the view of reasooa'bly anticipated peril." 

[The nature of the evidence npon which the embargo was recommended 
in the President's message to Congress of the 18th Deo. 1807, is not stated 
so strongly by Mr. Piokney in the above extract as it might have beent 
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 Britisb orders in 
eounoil of Novemkier 11th, 1807, as pnnted in an English newspaper, 
stating them to be ready in that form to be signed and issued, was actually 
lying on the President^ table at the time when the message was sent. Be> 
aides the precise warning contained in the newspaper, it was generally 
understood that some such measure was contemplated by the British 
cabinet. Amoi^ other grounds for this belief vras the following passage in 
a private letter to 'Mr. Madison, of October 5, 1807, from a very intelligent 
and dose observer in London of the indicated views of the cabinet to- 
wards this country : ^ The Gaxette of Saturday has gone by without as- 
nooacing the tnjuriont blockade of all French ports and all porta under the 



[415] 

^^ 1 look with anxiety for the packet. It will not^ I trust, appear 
that we are ready to submit to what (^reat 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." 



inflaene^ of Franoe, whidi was threatened all the week, and Yery gene- 
rally expected.'' Attother letter from the taine of Oct. Ilth, add% ** two 
more Gasettes have beea publiahed without aoDounciug the rigorous 
hlockade, one of them as late as last aig^ht. I hope they hare thought 
better of it." 

Although it is true therefore that no official evidence existed in this 
ooQDtry of the orders in oouncil when the embargo was recomotended, 
there was a mqral certainty in this evidence, connected with all the facts 
and circuDstancet referred .to by Mr. Pinkneyi and more, diitioctly enu- 
merated by yir. Brougham in his speech on the orders in coancil, whicb 
warranted the measure, and which was so speedily confirmed by official 
intelligeDce. To this view of (he case the language of the message was 
accommorlated, and the subsequent mesbage of February S, 1808, founded 
on official information of the orders, comports with the idea that they had 
been unofficially known when the provident measure of the embargo was 
recommended. Speaking »f the circumstances under which the measure 
was adopted, Mr. Brougham remarks : ** If it be said that this measure 
of embargo w^s adopted suddenly (a charge which I think cannot be attri- 
buted to it) 1 aoswer 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 contemplation, the 
United States were obliged, not to r^ent it, indeed, for it had not yet 
attacked them ; but at least to provide against its certain effects by some 
measure of precaution. Therefore I saj let it not be argued that' the 
aaddennesi of this precantionary measure, a measure in its very nature 
sodden and applicable to an unexpected and pressing emergency, affords 
any ground for believing that the orders in council were not thd occnttMi 
•fit."] 



[ 416 ] 

Mr, PiNKNKY to Mr. Madison. 

Private. " Lovdon, November 2</, 1S08. 

" Dkar Sib, — 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 cookpletely 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 ; but his letter to me of the 23d of September, (which 
will not, I am confident, bring any accession of honour to him,) 
renders it quite probable." 



Mr, Madison to Mr, Pinknby. 

Privattf "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 Ignited 
Stiltes, prove 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 tu believe that, with the pros|)ects at 
home and abroad in F2urope, so great a foUy would have been 
committed. As neither, the public nor Congress have yet had 
time to dbclose the feelings which result from the posture now 
given to 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 strcjngiy 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 
strengthened by the communications now going forth to the 
public. 

<^ Among the documents communicated confidentiMy to Con- 
gress, I hope you will excuse us for including (with the exception 
of some small passages) your private litter 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 confidently presumed the good effect would outweigh the ob- 
jections in the case. A like liberty was taken with a private letr 
ter from General Armstrong." 



Mr. Madison to Mr, Pinknet. 

<' W ASBUI6TON, Dec. 6th, 1 808. 
" Dbar Sir, — I have little to add to the printed communica- 
tion accompanying my official 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 th^ mode best suited to the end. The disposition to 
prefer war to the course hitherto pursued, is rather gaining ^ao 
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. Crskine, that he is hioiadf 
favourably impressed by the documents laid before Congres 
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 tlie 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 ao alliance with Great Britain, seems to lie 
impossible. What sort of a commercial treaty could be made 



[ 419 ] 

between such parties F In' truth, the obstacles to one between the 
liTaited States and that nation^ arise alnAst 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 pofitical^ not commercial, 
and 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. SawyeHs communication has been pubKshed (for the first 
time in England) in the^ Observer of yesterday as an interesting 
document. I question much if the daily papers wilt 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 
•ne of my friends there, may amuse you. 

'^ The late proceedings of the Legislature of Massachusetts 
surpass my worst expectations : — Those of Congress equal my 
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 fo the 
Legislature of that State. I have sent a copy of each of these, 
docimients 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 n^t how ministers can justify their conduct towards us- 



[ 420 ] 

Mr, Anknst to Mr, Madison. 

^< London, Jan, 23^ 1809. 
<' Dbab Sir, — I dined at Mr. Canning's with the corps diph' 
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 sud 
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 (o 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 have 
been attended with this embcurreusmenij 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 not insisted upon at 
large in his reply to my official letter of the 23d of August, 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 embarriusmeniy 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- 
presentatives took away that discrimination, although not perhaps 
In the manner which Great Britain could have wished, they were 



[ 421 ] 

willing to consider the law to which the resolutions were prepv 
ratory, as putting an end to the difficulties which prevented 
satisfactory adjustments with 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 that 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 us 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 
I 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 government, retaining the 
spirit of moderation which had always characterised 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. 1 had no authority to take any official step in the 
business ; and 1 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 yon with a detail of my suggestions to 
Mr. Canning, intended to place the conduct of our goTemment in 
its true light, and to second the efTect which its firmness and wis- 
dom had manifestly produced. It will be sufficient to state that, 
while 1 declined (indeed h was not pressed) giving, or allowing 
Mr. Canning to expect, any such assurances as I had miderstood 
him to allude to in our last conversation, I said every thing which 
I thought consistent with discretion, to confirm him in hb 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 
proprr, if not indispensible, that (he 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 bis 
opinion and his wish. It followed that the whole matter ought 
to be settled at Washington ; and, as this was, moreover, dear- 
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 intervention for the purpose of guarding them against dl^cun- 
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 with what I said 
to Mr. Canning, it is fit that you should know what was said by 
liim 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 ] 

posal was made were not eveo glanced at. The principal were 
the two following : 

<M. In ease tbey should now wish, either through tne, &r 
through Mr. Enkiney to meet us upon the ground of our late over* 
ture, in what way was the effectual operation of oar embeiigo 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 to 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, heimagined, be doubted ; and he presumed, therefore, 
as he could see kio possible objection to it (on our part) that the 
government of the United States would not, after it had itself 
declared a commerce with Franee 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 her orders, should, for any time, 
however i^ort, be left subject to the emb^go 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 exdunvely to France and the powers 
connected with her. Great Britain would dishonour herself by 
any arrangement which shoold have such an effect, &c. 

^ You will recollect that my instructions (particularly your, 
letter of the 30lh of April) had rather appeared to proceed upon 
the idea that the British orders were to be repeided 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 1 inight presume that this govern 
nent 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 ctmmdment and modification, 
which I immediately discouraged, as well as of repeal^) and 'to 
offer the amende himorable, 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 the elections in America — ^the unexpected firmness displayed 
by Congress and the nation — the disappointments in Spain and 
elsewhere — a peroeptible alteration in public opinion here since 
the last intelligence from the United States — an apprehension of 
losing our market, of having us for enemies, &c., have appa- 
rently made a deep imptession upon ministers ; but nothing can 
hispire perfect confidence in their intentions but an impossible 
forgetfulness of the >past, or the actual conclusion of an arrange- 
ment with us. In a few days 1 nday calculate upon hearing from 
you. If Congress shall have passed the expected act, tiie case 
to which Mr. Canning looks will have been made, and he may 
be brought to a test from which it will be difficult to escape. 
Whatever may be my instructions I shall obey them with fidelity 
and seal ; 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. • 

''You will not fail to perceive that the ground upon which it is 
now 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 io 
the conclusion of the note, the President's proclamation is intro- 
duced 6jr the bye. Besides, what can be more shallow than the 
pretext of the supposed embarraesment ! 

^ I took occasion to mention, at the close of oor conversation 
the recent appointment of Admiral Berkeley to the Lisbon sta- 



^ 



[ 425 ] 

tion. Mr. Canning said that, with every inclination to consult 
th<* feelings of the American government on that subject, it was 
impossible for the admiralty to resist the claim of ihat officer to be 
employed, afier such a lapse of time sinte his recall from HaK- 
fax^ without bringing him to a court-martial. The usage of the 
navy was in this respect different from that of the army. He 
mt^ht, however, stilt 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 4he 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. Krskine I have caus- 
ed to be printed in a pamphlet, with my letter to Mr. Canning 
of the 2Sd 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 published 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, 
ahhoogh divided on others* Many of the friends of niovernraent 
speak well of our overture, and almost every body disapproves 
of Mr. Canhing's note. The tone has changed too, in the city. 
In short, 1 have a strong hope that die eminent wisdom of 'the 
late American measures will soon he 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 particidarly Mr. 
Canning's speech in the House of Conmions, 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 rdiise 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 onr tSrst conversation, and that during the whole of the 
evening Mr. Canning seemed desirous of showing, by mote than 



[ 4?6 ] 

usual kindness and respeciy that it had mad^ no ooAiTOurable 
impression. I incline to think that it has rather done good tkaa 
harm. 

<< I have marked this letter Private, because I understood Mr. 
Canning as rather speaking confidentially than officiallj, and I 
certainly meant so to speak myself; but you will, nevertbelessi 
make use of it as you think fit. Of course it will not in any 
event be pubrished. 

*< 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. Pikknby^ 

Private. ^ WASHiNoroNy Fe&. llM, 1 809. 

^^ Dbar SiR,^-*My official letter by this- conveyance leaves but 
little to be added to its contents. You will see with r^ret 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 sdbmit to the foreign edicts. 
The last vote taken, as stated in reports of their proceedings, 60 
odd against 50 odd, implies that a non4tttereourse 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 TioiMhteroourse as proposed should be adopted, it will 
leave open a trade to all the coiUiKent of Europe, except France. 
Among the consideratbns for not including the other powns 
with France, were, 1st, the certainty that the Etuasian edict, of 
which I enclose a copy, does not violate otnr neutral rights : sod 
2dly, the uncertainty as to most of the other powers, whether 
they have in force unlawful edicts or npt. Denmark, it is uctr- 



[427] 

tained, thougK not officially notifiedy is under 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, as far as 
alie caA, an intercourse with neutrals, in preferenee to a co-opera- 
tion with France. It would be imitating the cruelty of the foelli- 
gerents to retaliate llie reluctant injuries received from such a 
quarter. With respect to Spain, the same remark is applicable, 
even rf her decrees ^onld not have been revoked. Besides this, 
it is particularly important not to extend the non-intercourse to 
the Spanish colonic, which whilst a part of Spain would be 
within the effect of the Spanish decrees on the question. It is 
probable, aho, that if Oreht 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 coii^ult 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 huuMmity, enough not io 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 IXenmark ? 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 ? Thai 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 exchided by what ^i^as held out as the prin- 
ciple of them, it was to be inferred from the spirit and practice of 
British cruisers and courts^ that such would be the fate of vessels 
making the experiment. 



[ 428 ] 

'^ The repeal of the embargo has been the result of the opinioa 
01' many that the period prescribed by honour for that resort 
against the tyrannical edicts against our trade h&d passed by, but 
principally from 'the violence escorted against it in the eastern 
quaiter, which some wished to assuage by indulgence, and others 
to chastise into an American spirit by the lash of British spolin- 
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 commei^ 
cial and political consequences which they cannot fail to produce. 
The English market will at once be glutted, arid the continental 
idarkets, particularly for the sugar and coffee in the eastern ware* 
houses, will be sought at every risk : Hence captures and da^ 
mours against the authors of them. It cannot, I think, be dcmbted 
that if the embargo be repealed and the orders be enforced, war 
18 inevitable, and will perhaps be clamoured for in the same 
quarter which now vents its disatfppointed 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 evenli 
abroad, which lesseus 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 partisans of 
more seal than discretion at Boston, he was prevailed on to hand 
it at once to the PaUadium^ the paper in which it first appeared." 

Mr. PiNKNET to Mr* Madison. 

Privaie. << London, May Sd^ 1809- 

<^ Dbar Sir, — ^I have had the honour to receive your letter of 
the 17th of March, and thahk you sincerely for your good 
withes. Permit me to offer yob my cordial congratuUtioos upoB 



[ 429 ] 

the manner in which you have been called to the Presidency. 
Such a majority at such a time is most honourable to our Ciaintry 
and to you. My trust is tl^at with the progress of your .idniinis- 
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 publication of my letter of the Slst 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 incidf^nt, 
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, who 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 
m council.* I venture to hppe that this measure will open the 
way to reconcilement between thitf 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 ypur indulgence 
for a few words upon ir. 

^ The change does undoubtedly produce a great effect in a 
commercial view, and removes many of the most disgusting fea- 
tures of that system of violence and monopoly against which our 
efforts ^ave been justly directed. The orders of November 
were in execution of a sordid scheme of commercial and fiscal 



* [Ad order in council was iwiwd on the 2tfth of April, 1809, by which the 
blockade declared bj the previoun 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 through 
British ports to those of the European continent, which had be«^n f*stablished 
by the former orders and the act of Parliament to carry them into eflbct, 
were also repealed by an order of December, 1808.] 

55 



s 



[ 430 ] 

advantajre, 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 s>stem has a 
better air. Commerce is no longer to be forced threugh 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 dutv system is at an end. We may carry 
as heretofore enemy productions. The provision about certifi- 
cates of origin is repealed. That about prize ships is repealed 
also. What remains of the old measure is of a bdUgerent 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 whi<th 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 2Sd of January. And if 
we had agreed, either formally or by mere understanding, to Mr* 
Canning's suggestion mentioned in the same letter, the substance 
of the thing would have approached very nearly to what has aince 
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 bf an inducement to resume a friendly attitude 
towards Great Britain, and to put the sincerity of th^t intimation 
to the test. 

'^ For the gain actually obtained wc pay no price. We give no 
pledge of any sort, and are not bound to take any step whatever. 
The embargo 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 for obtaining what is yet to 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 abandoned. 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 
bad 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 y 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 
passionSj strut into the lisu with gigantic France, with a meta- 
phor in our mouths, but with no means of annoyance in our 



[ 432 ] 

hands, and professing to be the chanapions of commerce, do just 
enough to pmvoke its destruction and makf ourselves ridiculous. 

^' Our triends 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 negociatioa 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 ministeis 
would conceal their motives for a relinquishment of all whicE 
they prized in their system, are seen tturnugh ; and it is tiniver- 
saliy viewed as a concession to America. Our honour is now 
safe, and by majiageroent 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. £very 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 
ou^ht 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. 1 am persuaded that all that was practicable 
has been accomplished, 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, PiNKNET to Mr. Madison. 

Private. " London, Aug. 19**, 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 Wo" 
in D sguise as you request. 

^^ American newspapers have been received here, showing that 
the disavowal of Mr. tlrskine's arrangement has excited much 



[* One of the fir»t acts of Mr. Madison's administration bad been to con- 
clade an arrang^ement with the British minister at Washingion, Vir. Erskine, 
by Hhich the ord»*rs in council wertt to «> repealed and satisfaction was to 
be given for (he attack oo the frigate Chesapeake, and die trade becweea the 



1 

i 



[433] 

ferment in the United States.* I cannot subdue mv first regret 
that it was found to be necessary at the last rfgular 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 W€u found to 
b*^ necessary 1 have no doubt ; but 1 have great doubts whether, 
if it had fortunately been otlierwise, we should have bad any 
disftvfneals. It is to be hoped, however, that every thin? will yet 
turn out well. That ytm will do all 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 mrirked the commencement of 
your administration, I venture to prophesy that the^ 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 bAve ez> 
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. Crskine, 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 thb country that he would be charged with conci- 
liatory explanations of the disavowal of his predecessor, and 
whh 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- 



UDited Sutes and Great Britain was to he renewed. This arrangement was 
no sooner known in Bng^land, than it was disavowed by the British govem- 
nent, as not having been made conformably to tke hsstmctioiis seat to its 
minister in this couotrj.] 



[ 434 ] 

tions relative to the rejection of the arrangement, or to sabstitole 
any proposal for that part of it which regarded the British or- 
ders in council. His proposals respecting the attack on the IH- 
gate Chesapeake were founded upon what the United Slates bad 
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 ts 
the government of the United States a knowledge of the fact 
that the arrangement concluded by Mr. Erskine was not authcH 
rized by his instructions. In conseqmnce of this offensive con- 
duct, our government refused to receive any further cummimi- 
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 th^ necessity of refusing to receive any further communiai- 
tions from him.j 

Mr, PiNKNBY to Mr. Madison. 

Private, " London, Dec. lOlA, 1809. 

^^ Dear Sir,— I see with great pleasure the ground taken by 
the Secretary of State in his correspondence with Mr. Jackson 
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 eztntordinaiy 
one, and his manner 19 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 sjpstem 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 shtken nevertheless. I 



[ 435 ] 

BID re-assuredy however, by present symptomSy and give myself 
up once more to hope. The prospect of returning virtue is 
cheering ; and I trust it is not in danger of being obsrured and 
deformed by the recurrence of those detestable scenes which 
lately reduced our patriotbm to a problem. 

<< The new 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 have 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 to 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 overpowering 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 
^uite reasonable to expect, must be found in the councils of the 
two great belligerentfiarties, before the war in which they are now 
engaged can become harmless to our rights. Even if Kngland 
should recall (and I am convinced she could have been, and yet 
can be, compelled to recall) her foolish orders in council, her 
naritime pretensions *will still be exuberant, and many of her 



[ 436 ] 

practices most oppressive. Frum France we have only to Iwk 
for what hustility lo Lngland may suggest. Justice and ea- 
ligtiteried policy are out of the question on both sides. Upon 
France, 1 tear, we have no means of acting with effect, hti 
ruler sets our ordinary means at defiance. We cannot alarto 
him fur his colonit^s, his trade, his manufactures, his revenue. 
He would not probably be moved by our attempts to do so, even 
if they were directed eiclusively against himself. He is Ifss 
likely to be so moved while they comprehend his enemy. A 
war with France, I shrfll always contend, would not help our 
case. It would aggravate our embarrassments in all respedi 
Our interests would be struck to the heart by it. For our bonoor 
it could do nothing. The territory of this mighty power is ab- 
; solutely invulnerable ; and there is no mode to which we codd 
make her feel either physical or moral coercion. We might as 
well declare war against the inhabitants of the Moon or o( the 
Georgian Sidus, When we had produced the entire exclusion 
of our trade from the whole of continental Furope, and incressed 
its hazards every where, what else could we hope to achieve by 
gallantry, or win by stratagem ? Great Britain would go smof- 
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 annihiliited 
by British competition, our commerce crippled by an enemy and 
smotlier**d by a friend, our spirit debased into listlessness, and 
our character deeply injured. I beg your pardon for recurring to 
this topic, upon which I will not fatigue you with another word; 
lest I should persecute you with many. 

^^ The ministry are certainly endeavouring to gain strength bj 
some changes. It is said that Lord Wellesley 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. Camiing should not join bis old colletf ues before the 
meeting of Parliament, he will probably sooof &11 into ifae ranks 
of oppoaitiody where he will be formidable. There will scarce- 
ly be any scrapie in receiving him. If he should join his ^d 
colleagues, they will not gain much by him. As a debater in the 
House of Commons, he would be useful to them;*- but Ma repu- 
tation is not at this moment in the best possible plight, and his 
weight and connections are almost nothing. I am not sufe that 
they would not lose by him more than they could gain. 

If Lord Granville and Lord Grey should be recalled to power, 
Lord 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 arrangement 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 knotlt^, 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. SQf*, 1810. 

^ DsAR SiK^ — ^I received, some days ago, a letter from Dr. 
Logan, containing observations on the 'postnre and prospects of 
oar foreign relations. Before the answer was out of my hands, 
I received another, dated four days'after, in which he merely in- 
formed roe 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, this ]$ left to conjecture. From 
the anxiety expressed in his first letter for the preservation of 

— ^ ■ ■■ — ^- -- - ■■--■^ II, , - - ■' J -urn - - _--. 

* The only cabinet ministers nt present in the Hoii«e ' of Comtaons; are 
Mr. Pcrcival, nn<l Mr. Ryder, (ibe Su< reetary of State for the Home Depart- 
ment, uiid brother <>r Lord flarrowiiy.) The latter g^entleman excites no 
ftxperfations. 

,56 



, f 436 1 

peate with EngliiMi, which appeared to htm to he ta . pecidu 
danger^and from his known benevolence 4ttd seal on the tobjecc, 
it nay <reasoB«U|y be supposed diat his views relate, in aoasc 
form or other^ to a mitigation of the hostile tendencies which di»- 
tffss him ; and that his ulence may proceed from a wish to give 
no faaiiidle for animadTersions of any sort om the step taken bj 
him- 

<^ You will prceive from the Secretary of State, unless, indeed, 
the opportunity fail through the shortness of the notice, audi ecmi- 
raunications and observatioDs as may be thought useful to yoo. 
You will ind that the perpleiity of our aituation it amplj dis- 
' played by the diversity of opinions and proliiity of discoMana 
in Congress. Few are desirous of war ; and few are reccmciled to 
submission ; yet the fmstratiiin of intermediate courses seems to 
have left scarce any escape from that dilemma* The fole of 
Mr. Macon's bill, as it is called, is not certain. It wHl probafaljr 
.pass the House of Represeotntivcs, and for aught 1 know, may 
be concurred in by the Senate. If retaliated by Great Britain, 
it will operate as a non4mportaiion 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 Cast Indies, the proposed regulation will have the 
effect of compelling the admission of a direct and exduswt trade 
for our vessels, or a relioqiiishment 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 JRepresentatives, 
to employ our ships of war in convoys, and to permit merchant- 
men to arm. However plausible the arguments Smt this expeii- 
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 ^d 



^ # 



I 439 I 

1 

her countenance. Measures of that sort are also the more a^taiit* 
ed to our situation^ as in the event of aecomtnodation with Qrent. 
Britain they may possihly be wanted in another ^^er. The 
long debates on the resolution of Mr. Giles, on the-subject of Mr*. 
Jackson, have terminated in affirmative vote's by largp majorities. 
TThiSy with the refusal of the Executive to ht)ld communications 
with him, it is supposed, will produce a crisis in tKe British po^ 
Key towards the United States, to which the representations of 
the angry minist^^r 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, 
tbat instead of expressing resentment by open war, it will appear, 
in more extended depredations on our commerce, in declining to 
replace Mr. Jackson, and perhaps in the course, observed with 
respect to you, in meeting 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 us policy towards this 
country, it is desirable that no tim^ may be lost in allowing it 
its «*fiect. With this view you will be reminded of the sevi* 
rai 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 touching 
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 
for. As it is our anxious desire, however, if the British govern-* 
mem 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, 
and 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 ^uch a use by 
jour, own rcc|UC8t* It was, in fact, impossible to resist the 



[ 440 ] 

pcAoted call for them, vnthout giving umbrage to some, and op- 
portunity for injurious inferences to othei:s. 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 any 
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. Liogan, and which, though in an- 
swer to his letter written previous to the notification of his in- 
tended trip, he will, oT course, carry with him, I enclose a cc^y 
of the answer. 

^< The file of newspapers from the Department of State, will 
give you the debates un the case of Jackson. I enclose, however, 
a speech f have just looked over in a pamphlet form. Afohougfa 
liable to very obvious criticisnis of several sorts, it has presented 
a better analysis of some parts of tiie subject, than 1 have ob- 
terved in any of the speeches." 

Mr. PiNKNBT io Mr, Madison. 

<< London, 2Sd 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 ^t 10, A. M. 

'^ My ofiicial letter of the 2l8t inst will apprize you of die 
coujrse finally taken by this government in consequence of Mr. 
Jackson's affair, f do not pretend to anticipate your judgment 
upon it. It certainly is not what I wished, and, at one time, 
expected ; but I am persuaded that it is meant to be conciliatory^ 
1 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 conjectures. 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 doubtful whether there will be any change of admini- 
stration here. Partial changes in administration are very likely. 



[441 ] 

'^ I think r can say with certainty that a more friendly diapo- 
^tion towards the United States exists in this country at present 
than for a long time past.*' 



Mr, Madison to Mr. Pinknet. 

** Wasbinoton, May 28rf, 1810. 

DcAB Sir, — Ton 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 the 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 prrvalting 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 aiTair 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. i 

^ From the manner in which the vacancy leA by Jackson h A 
provided for, it is inferred that a sacrifice is meant of the r«*^pf rt 
belonging to this government, either to the pride of the Br&isli go- 
vernment, or to the feelings of those who have taken side with it 
agliinst their own. On either supposition, it is necessary to coiui- 
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 pan 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- 



t m] 

dieocy of miogUn^ id every iC^p yoa take^ as moch of modeni* 
tiooy and even of coociUation, as can be justifiable, and will, in 
particular, if the present despatches should find yoa Iq actual iie> 
gociation, be governed by the result of it, in determinii^ the 
. question of your devolving your trust on a Secretary of 
Legation. 

^f 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 now to be made 
of a commerce with both, unrestricted by our laws, has resulted 
from causes whfch 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 
tfiect than was produced by the overtures heretofore tried. As hg 
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 full enjoyment of our trade, and enables her to cut it ofi* with 
every other part of the world, at the same fime 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 bj 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, o|r 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 gel the start of her. Nor is thi3 the only apprehension that 
meirits attention. Ainoqg the inducements to the experiment of 
an unrestricted commerce noar made were two, which contribo* 
led essentially to the majority of votes in its favour ; first, a ge- 
neral hope, favoured by daily accouifl^ fi;om England, that an 
adjujMm^ of difierci|ces there, and thence in France, would re» 



[ 443 ] 

der the DMsasure safe and profi^r ; secofKl, a wiilingness in net a 
few to teaeh the advocates for an open trade under actual cir- 
CQinstancrs, the folly, as well as degradation of their policj. 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^ntercourse have 
been exchanged for the greater sacrifices as well as dis^ce re- 
sulting from a submisMon to the predatory systems in force. It 
will not be wonderful therefore if the passive spirit which marked 
the late session uf Congress, should at the next meeting be roused 
to th» opposite point i more especially as the tone of the nation 
kas never been as low as that q( its representatives, and as it is 
rising already under the losses sustained by our commerce in the 
continental ports, and by the fill 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 
■lass' of tobacco is in a similar situation : and the effect must 
soon be general, with the exception of a ft*w 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 mdulge 
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 bre taught by 
experience to be equally distrustful. It wiU 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 U\ 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 
ahe be sincere, either in her late propositions for a chrooologi-* 
oal revocation of illegal edicts against neutrals^ or to a pledge 



[ 444 ] . 

from the United States not to submit to those of Great Botaiii, 
s^e oaght at once to embrace the arrangeraeot held out by Coo* 
gress ; the renewal of a non-intercourse with Great BrifaiDy 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 t ngland, 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. PiNKNCT to Mr. Madison. 

Private, '' London, August 13, 1810. 

^ DsAB Sir,— I return you my sincere thanks for your letter 
x>f the 23d of May. Nothing could have been more acceptable 
than the approbation which you are so good as to express of 
ray note to Lord Wellesley on Jackson's affairs. I wish I had 
been more successful in my endeavours to obtain an uoexoeptioii- 
able answer to it. You need not be told that the actual reply 
was, to plan and terms, wide of the expectations which I hsd 
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 
Wdlesley and his colleagues, but by the influence which they 
could not but know it had on the Britbh nation and the Parln- 
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 withoot 
their effect. It is not to be doubted that, with a strong desire io 
the outset to act a very conciliatory part, the British govenh 
ment was thus gradually prepared to introduce into the proceect 
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 tlie 
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. Tb»* chanjre in 

Lord Wellesley's notion upon it, between our 6rst inivrview 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 said to him, that it is much 

below it. It is to be observed, however, that he had hardly read 

the correspondence, and had evidently thought very little upon'' 

it. For which reason, and because he spoke for himself only, 

and Vith less care than he would perhaps have used if he had 

considered that he was speaking officially, I am glad that you 

declined laying my 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 
answer to my note has not been exactly appreciated in America? 
I confess to you that this is my opinion. — That the paper is a very 
bad one is perfectly clear ; but ii 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 
tffort to reconcile things ahn/osi incongruous, and just showing 
his wish without executing it. Lord Wellesley wished to be ex- 
tremely civil to the American government ; 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 beyond his original intention, and certainly beyond any, of 
which I was aware before \ received his answer. If the answer 
hpd 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 fl^rbear to censure him ; and that 
I always took for granted he would do. 

57 






f^- 



£ 446 ] 

^ For Jackson, personally, Lord Wellesley cares nothing. Ta 
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-coDdkioned 
minister.. His idea always appeared to be that he was wrong !■ 
pressing at all the topic which gave offence ; but that he acted 
upon gdod motives, and that his government could not with ho- 
nour, or without injury to the diplomatic service generally, dU^ 
grace him. This is explicitly stated in my private letter of the 
4th of January to Mr. Smith. There is a great difference, im- 
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 
witli the charge of gross indecency and intolerable petulance pre* 
ferred against him in my note. He might be honest, sealons, 
able ; and yet be indiscreet, ill-tempered, suspicious, arrogant, 
and ill-mannered. It is to be observed, too, this has no relereoce 
whatever to the actual case, and thttft, when the answer speaks of 
the offence imputed to Jackson by the American government, it 
does nut say that he gave no such cause of offence, but simply 
relies, on his repeated asseverations that he did not mean in ojfemd. 

^^ If the answer had been promptly written, I am persuaded 
that another feature which now diMinguishes 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 Lord Welles- 
ley thought that course objectionable from the first appears in 
my private letter above mentioned to Mr. Smith. But he did 
not urge his objections to it in such a way, at our first interview 
or afterwards, as to indbce me to suppose that he would except 
to that course in his written answer. He said in the outset (hat 
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 vphoily inad- 



[447] 

niissible 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 i^ere 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 ehargi 
d^affairtSy 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 establishments of the two countries, or even - 
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 
ojficial) 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, aqd that if he had 
not been under that impression, he should- not probably have 
spoken in his answer of a chargi tTaffaires, 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 
facU suggestions ; but I am entirely convinced that there was no 
thought of continuing a chargi d'affaires at Washington for 
more than a short time. Neither their pride, nor their interests 
nor the scantiness of their present dipldfnatic patronage would 
permit it. That Lord Wf llesley has long been looking out in 
his dilatory way for a suitable character (a man of rank) to send 
as Minister Plenipotentiary to the United States, I have the 
best reason to be assured. That the appointment has not yet 
taken place, is no proof at all that it has not been intended. 
Those whe 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 his 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 as 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, monopolj, 
.called the Orders in Cnuncil. Vet it is an unquestionable 4act 
that they have suffered, and are suffering severely under the ini- 
quitous restrictions which they and BVance have imposed upoe 
the w^orld. 

" I mean to wait a little hmger for Lord Wellesley's reply to 
my note of the 30th of April. 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 expose what has occurred in that afiair be- 
tween Lord Wellesley and me. 

, " I have a letter from («eneral 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 sufHcient 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 expediatcy, 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 I will not ven- 
ture to stir it again." 

• Mr. PiNKNEY to Mr. Madison. 

* 
« London, Oct. 3(MA, 1810. 

*^ 1 have beard nothing further of the appointment of a* Plenipo- 
tentiary to the United States. Nothing further of the case of tiie 
Chesapeake. Lord Weilesley is a surprizing man." 



( 449 ) 



Mr, Madison to Mr. Pinkney. 

" Washington, Oct. SO, 1810. 
** Dear Sir, — Your letter of August 13th was duly receivecL 
Its observations on the letter and conduct of Lord Wellesley are 
an interesting comment on both. The. light in which the letter 
ivas 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 expectktion ^ 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 lenst 
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 
fieilse 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, ma<' not 
render your longer stay incompatible with the honour of the 
United States. The last letter (»f 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 oughi not to be morr lightly expressed than by your »• 
mediately substituting a secretary of legation for the grade yoo 
hold I unless the step be absolutely forbidden by the weighty 
consideration which has been stated to you^ and which coincida 
with the sound policy to which you allude of putting an adver- 
sary completely in the wrong. The prevailing opinion here ii 
that this has already been abundantly done. 

^ Besides the public irritation produced by the perseverisf 
insolence of Jackson in his long stay, and his conduct during it, 
there has been a constant heart-burning on the subject of the Chsmr 
peake, and a deep and settled indignation on the score of im- 
pressments, which can never be extinguished without 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 groood of 
the Duke de Cadore's letter to General Armstrong, which states 
an actual repeal of the French decrees. The letter of Welleslej 
to you is a promise only, and thdt 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 warfive 
against her, evidently meaning the exclusion of her trade from 
the continent. Even the blockade of May, 1806, rests od the 
same foundation. These considerations, with the obnoxious ei* 
ercise of her sham blockades in the moment of our call for tbcir 
repeal, backed by the example of France, discourage the hope 
that she contemplates a reconciliation with us. I sincerely wiik 
your next communications may fum'ish evidence of a moic 
fiivourable disposition. 

<^ It will not escape your notice, and is not undeserving tint 
of the British government, that the non-intercourse, as now to be 
revived, will have the effect of giving a monopoly of our export* 
ations to Great Britain to our own vessels, in exduwm of Im^) 
whereas, in its old form, Great Britain obtained a substaoltf' 
monopoly of hers through the entrep6ts of Nova Scotis, E^ 
Florida, &c. She cannot therefore deprive our vessels, wbi^ 
may now carry our exports directly to Great Britalni oC tUs 



[ 451 ] 

monopoly withont refusing the exports altogether, or forcing 
them, into diflkalt and expensive circuits with the prospect of a 
coameracting interposition of Congress, should the latter exjieri* 
ment be retorted 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 eiltangle herself with 
us by •ei2ing it, eitln^r 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 he 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, yon will 
find that Great Britain is engaged in the 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 he 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 every stipulation against the equal privileges 
of all other nations in our trade, was dictated by a much better 
knowledge of human nature, and c^f the stable inteiost of France. 



[ 452 ] 

"The elections for Congress are nearly over. The resolt b 
another warning against a reliance on the strength of a BHtisfa 
party, if the British government be still under a delusion on tfait 
subject. Should France effectually adhere to the ground cif a 
just and conciliatory policy, and Great Brit»iin bring the United 
States to issue on her paper blockades, so strong is this ground 
in ri£rht and opinion here, and even in the commitment of all rhe 
great leaders of her party here, that Great Britain will seam 
have an advocate left" 

Mr. PiNKNEY to Mr. Madison. 

" London, Dec. 17 thy 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 Gobbet'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, (^thougii 
I was straightened for time,) but that 1 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 my 
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 nst have done so but for a 
conversation a few days before with Sir William Scott, who ap- 
peared to have a prodigious hankering after the nonsense about 

pr Salable conditions. It is known besides to have been the favuur- 

. : 1 

* [ftiiued in coosequftice of the supposed repeal of the French decrees, 
and declaring the revival of the non-intercourse with Great Britaioi onless 
that power thoald also repeal its Orders in Council ] 



[ 453 ] 

ite doctrine of the court and its adherents, and of all that anti- 
neutral class to which Stephen and Marryntt b^Iont!) and indeed 
of the people in general. We shall probably hear no more of 
it, however ; and I understood, indeed, last night, that there is a 
perceptible change in the tone of ministers and their friends on 
tlie whole subject. Whether they vrill act wisely in the end, t 
cannot yet say. The presumption is always against them. 

** I have observed in ^y letter that the convenience of relaxing 
the orders in council by licenses ^^ seems to be no longer enjoy- 
M." The obj(*ct of all that part of my letter was merely to 
give a slight 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 for 
several weeks. It is not, however, (as I am assured,) that they are 
ashanaed of thb mean practice, but because they hope, by abstain- 
ing from it for a time, to get better terms of intercourse in this 
way from their enemy. If their orders should not be immedl-^ 
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 hap|iy 
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 
restricti<»ns 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 terms with which he will be shack- 
led,) the mischiefs of their crooked and little policy towards the 
United States, supposing that they mean 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 will see in my letter to Mr. 
Smith of the 14th, an account of Lord W.'s late explanations to 
me on that head. I have omitted, htiwever, to state in that let- 
ter that he inadvtrtenify remarked, in the course of the confer^ 

58 



[ 454 ] 

CDCCi that great paina had been taken by some people to pemiade 
him ^ that the British interest in America (I quote hb words} 
would be completely destroyed by sending thither at this time a 
Minister Plenipotentiary." He soon perceived, by my conunpnti 
on this soggestion^that he had committed an indiscretion in talk- 
ing of it, and h^ wished me, I thought, to consider vrhat he had 
smd as confidential. May we not infer tliat these persuasions 
have had an effect, when we look to the qualify of his ostensible 
reasons for not redeeming his pledge of July last ? Who the 
persuaekrs were he did not say — but Mr. J<tchon (who, bj 
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 gentleman (if he has used such instances} 
quotes any American authorities in support of them can only 
be guessed, it would be no breach of charity to conjecture thai 
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 reason assigned in conference^ will not explain it 
satisfactorily. There is cunning at the bottom ; and f can ima* 
gine nothing so likely to throw a light upon it as the unguarded 
communication of Lord W. above mentioned. 



[ 455 J 



N^- IV. 



SPEECH IN THE CASE OF THE NEREIDE. 



If I were about to address 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 prodifirality 
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 
jspeak upon the impulse of ambition. It has left 
me only that of duty ; better, perhaps, than the 

feverish impulse which it has supplanted ; suffi- 

■I I 1 ■ I I '■ I > > ■ iii'ii ■ ■ I ■ ■ ' - — .. I ■■ -I ^.■ — 1. ■ . , . , 



[ 456 ] 

cienty 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. 1 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 
I 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 
journey, by imparting something of freshness and 
novelty to the prospect around us. To this course, 
I am alpo reconciled by a pretty confident opi- 
nion, the remit of general 8tudy as well as of parti- 
cular meditation, that the discussion 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- 
plea, which, if kept steadily in view> will guide us 
in safety, through the worse than Cretan labyrmh 
of topics and authorities that seem to c^mbarrass 
it, to such a conclusion as it may be fit for this 
Court to sanction byits judgment. 

I shall in the outset dismiss from tlie cauee 
whatever h&B been rather insinuated with a pru- 
dent del^acy, than openly and directly pressed by 
my able opponents, with reference to the person* 
al situation of the claimant, and of vbose with 
whom he is united .in blood and inti^rest. I am 
willing to admit that a Christian judicature may 



[457] 

dare to feel for a desolate foreigner who stands 
beforeit, 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 friend1e^is 
fitranger sues for the restoration of his all to human 
justice, she may sometimes vrish to lay anide 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 ded- 
siofiy it ceases to be virtue, and becomes some- 
thing infinitely worse than weakness. What may 
be 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. I 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 of this maritime state, with public honour 
and individual enterprise, with all those passions 
and motives which can be made subservient 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 \hw, before whid 
it is the duty of this Court, high as it is in digni* 
tyf and great as are its titles to reverence, to bov 
dovirn with submission. I throw into the saine 
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 efforts and at whose cost the naval exer- 
tions of the government have been seconded, 
until our once despised and drooping fla^ haf 
been made to wave in triumph where neith^ 
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 <»re 
not : It is enough for m% that they are rights* It 
is more than enough for me that they come before 
you encircled and adorned by the laurels whicii 
we have torn from the brow of the naval g-enius 
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 tha;t they are mingled in 
fancy and in fact with all the elements of our fit- 
tiire 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 spe^k with more 



[ 459 ] 

[^on fidence than may be thought to become me, I 
aitand upon this apology, that I have never been 
able to persuade myself that it was any question 
alL 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 — jna sunt, nvUumque nefas ara-^ 
cula saudent I have listened to the counsel for 
the claimant, with a hope produced by his reputa- 
tion for abilities and learni ng, that his argument 
"vrould shake from me the sturdy conviction which 
held n^e in its grasp, and would substitute for it 
that mild and convenient scepticism that excites 
iMTithout oppre3sing 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- 
8um<*d. 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 
1^ large shipment of British merchandise from 



[ 460 ] 

London (where he then was) to Buenos Ajrre«, 
(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 stipulated 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 guns. 
. 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 uf 
a neutral, who attempts to carry on his trade from 
a belligerent port, (not only under belligerent 
convoy,) but in a belligerent vessel of force, with 
full knowledge that she has capacity to resist the 



[ 461 ] 

epmmissioned vesselsi and (if they lie in her way) 
to attack and . subdue the dcfencelesa merchant 
ships of the other belligerent, and with the further 
knowledge that her commander, over whom in 
this respect he has no control, has inclinatiopi 
and authority, and is bound by duty so to resist, 
and is inclined and authorized so to attack and 
sabdue. I shall discuss it as the case of a 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 be 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 be is legihu8 soluUiSj and may do any thing. 
The boundaries whibh separate War fron) 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 mt^st 
licentious creed declares, surround itself upon the 

59 



[ 462 ] 

ocean with as much of hostile equipmont as it can 
afibrd 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 listB 
of battle with the other, and at the same moroeot 
assume the aspect and robe of peace, and chal- 
lenge 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 \oe» 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 dtf- 
cordia rtrvnij such a stupendous society of jat- 
ring elements, or (to use an expression of Tacitusi) 
of re« iniociabileSf that it throws into the shade 
the wildest fictions of poetry. 1 entreat your ho- 
nours to endeavour a personification of this motley 
notion, and to forgive me for presuming to i&ti- 



[ 463 ] • ' 

mate, that if, after you have achieved it, you 
pronounce the notion to be correct, you will 
have gone a great w^ 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 
ean accomplish it, will give you something like the 
kid and the lion, the lamb and the tiger portentous- 
ly incorporated, with ferocity and meekness co-ex- 
istent in the 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 Co- 
miUa of the iEneid, and the Peneian maid of 
the Metamorphosis. We shall have Neutrality, 
sbft 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 Ogure 
in a mere legal discussios, 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 
lawy it is not that sort of law which Hooker speaks 
of, when, with the splendid magnificence of east- 
ern metaphor, he says, that '* her scat 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, ^n common with 
others, do my best to respect it ; but until you do 
so, I enA 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 meiaf^horsj 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 1 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, 1 trust 
that they will be pardoned upon the ground that 
they serve to mark out and illustrate uiy general 
views, and to introduce my more particular argu- 

THcnt* 

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- 
gerenty 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 

license. 

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 exist 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 ? A^e 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 l)efore 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 ao- 
ihorize neutrals to foster it ipto activity by subeidies 
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 t 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 belligerent 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 



1 

* 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. Emmctt. — I shall maintain that she ha$ 
no such right She can capture only when she is 
herself assailed. She may be treated as a pirate f 
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 manned from the nature of solemn 
war, as it is viewed by the law of qations ; 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 I undertake, myself, to produce am- 
ple proof that my doctrine is in its utmost extent 
correct. 

ft is stated in RutherfortKs 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 
6ther, and, as a consequence, that by that law 
a ^eclarfition of war does in itself authorize every 
citizen or subject of the nation which issues it to 
act hostilely against every citizen or subject of the 



€4 



[ 468 ] 

op{)08ite nation. It is further rtati^ed, in the same 
book, (p. 577, 578,) that, as the nation which has 
declared war has authority over its own subjects, 
it may restrain them from acting against the other 
nation in any other manner than the public shaO 
direct, and, of course, that notwithstanding the 
general power implied in a declaration of war, it 
may happen that none can act in war except those 
11V ho 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 coub* 
'^ try. A declaratioit 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 
^Maid 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 ? 
Fattelf who is not a very precise or scientific, 
although a very liberal writer, states the law as it 
is laid down by Professor Rutherforth. (Yattel 



\^ 






[ 469 ] 

Droit des Gens, liv. 5, ch. 15, s. 2?6.) 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 Tautre/' ^^ La n^ces- 
'^ 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, Fennemi les traite sans 
'' menageinent, et les fait pendre, comme il feroit 
*' des voleurs ou des brigands." He adds, ^^ II en 
'^ est de meme de ceux qwi f>ont en course sur mer. 
'* Une commission de leur prince, ou de Tamiral, 
peut seule les assurer, s'ils sout pris, d'etre traites 
com me 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 which Vattel describes, (ad- 
mitting it to be as he supposes,) amount to this ? 

The rule in Vattel, as it applies to the peasan- 
t'Hf 9f ^ cawfitry, is connected with another— 
that they shall not ordinarily be made the objects 
of hostility. This exemption implies a corres- 
ponding forbearance jon their part to mingle with- 
out the orders of the state in oifensive 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] 

borne, and to confine the contention*, and con- 
sequently the direct effects of war to the troops 
who are appointed by the sitate to fight its battles. 
But a non-commiesioned merchant vesael upon 
the high ^eas 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. 

Bo far as the supposed usage applies to pHru- 
teers, it has no bearing upon this case. It may be 
proper to confine to commissioned vessels the right 
of cruizing for the mere jmrpoaes of war and 
prize. Yet it may be equally proper to leave to 
an armed merchant vessel the smaller and inciden- 
tal right (modified and checked in its exercise by 
such municipal regulations as ea<*.h belligerent 
may and always does find it expedient to provide) 
to act offensively against the public enemies, if she 
chances to encounter them. At any rate, as the 
armament of a merchant vessel is sanctioned by the 
state to which she belongs, and is evidenced by its 
passport, it must depend altogether upon the laws 
of that state, whether this sanction amounts to a 
permission to commit hostilities in transitu or not 
And I think 1 may venture to assert, that whatever 
inferences may be drawn from loose and g^fmeni 
dicta, to be found in a very few woi^s upon the 
law of natioqs, no instance can be produced ia 
which a merchant ship attacking an enemy vessel 
in the course of her voyage, has received the treat- 
ment which the learned council for the claimaBt 



[ 471 ] 

has allotted to such a proOeeding, or h^s iq any 
manner been punished^ or even in any degree 
eensured. 

The notions of Azuni appear (as far as any 
intelligible notions can 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 
Privaterring; or, rather, he is the undisguised 
advocate (in different parts of his book) of the 
two opposite opinions, that it is a very bad prac- 
tice^ and a very good one. Thus in Part ^d, ch. 
4, 8. 13, (p. 282 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 and the '^ virtiwui Mdhly*^) as '' pretend- 
ed philosophers," and as shallow and malignant 
dcolaimers. Admit, however, that this member 
of a score of academies does seem to have been 
steadily of opinion, that a. cruizei^ without a~ 
commission, or something equivalent to a com- 
mission, must be regarded as ** a pirate or sea- 
Jobber" — " Per mara discurrit depradandi 
eausa^ is true, as he tells . us, of a privateer^ as 
well as of a pirate. They diifer, as he also azures 
tts, in this— that the latter pursues all vessels in- 
discriminately, (as Casaregis expresses it,) *^ sine 
patmUibus atmym princyns^ ex propria tautum 



[ 472 ] 

ac privata auctoritate ;^^ or as Azuni himself 
ptiraaes it, '' without any commi:f$ion or passport 
from any prince or sovereign state ;'* whilst the 
former attacks j?u&Zic enemies only^ and has a spe- 
cicd authority for that object. Now, although I 
am not convinced that a cruizer (against puUic 
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 quot^d from Vattel) quite 
aelide from the case of an armed merchant vessel, 
sailing under the passpbrt of the sovereign, to 
whose subjects she belongs, not as a cmizer for 
prize or plunder, not depradandi causa, but for 
commercial purposes, and upon a commercifd 
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 such writers as Azuni, 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 beea 
held by her prize tribunals, and acquiesced in by 
the rest of the world. I ipight, indeed, maintain 
that when I show the unresisted and uncomplain- 
ed of law and custom of that country upon a 



[475] 

great maritime subject, I have gone very far to 
show the law and cq^tom of Europe, or at least 
ivhat they ought to be ; but as my purpose does 
not require that I should occupy so wide a field, 
I shall use the Knglish 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, whi^h 
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 
distinction, which is manifestly the creature of 
municipal law, the English authorities cannot be 
understood. In England it depends upon the 
^rize 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 commisnoned captor. A non- 
commissioned vessel cannot y therefore, take for 



[ 474 ] 

her own benefit^ but she may take (and that toe 
us an aasailant) for the benefit of the Ring or 
Lord High Admiral^ and may expect (and always 
does receive) the whole >or a part of the proceeds 
from the justice, or if you choose, the politic 
bounty of the crown, judicially not aHrifrarify 
dispensed, as a reward far the capture. If this 
be so, there is no difference, according to the 
English law, between a commissioned and a noo- 
eommissioned captor, so far as regards the legali^ 
ty of the seizures made by them of the property 
of enemies. The sole difference is that a com- 
missioned captor has a positive title (derived from 
the previous act of the government) to the thing 
taken, and that the non-commissioned captor has 
no such positive title, but is referred altogether for 
bis reward to what is called the discretion of 
the executive governmentf which, however, is not 
a capricious discretion, but .is to be guided and 
carried into effect by the Court of Admiralty, with 
a view to the circumstances of each case* 

The cases to which I shall refer, (principally 
in Robinson's Admiralty Reports,) will b^ found, 
as I trust, to be perfectly conclusive on this 
subject. 

The case of the Haase (Rob. Adm. Rep. vol. 
1 , p. 286) was that of an enemy ship, taken near 
the Cape of Good Hope, by a non-commisaioned 
captor, and. condemned by the High Court of Ad- 
miralty as a droit. The capturing ship (which 
was a South Sea Whaler) was the assailant and 



[ 476 ] 

took possession of the prize without resistance. 

The Court gave the whole of the proceeds to the 

captors upoQ the ground of peculiar merit in fol* 

lowing part of the cargo (which was gunpowder) 

on shore. . Now :if this capture was piraticalf 

the condemnatioQ as prize, and the reward de« 

creed to the captors by way bf encouraging them 

and others to the per|>etratioa of similar outrages, , 

will require more apology than the judgments 

of that great man, Sir William Scott, are usually 

«uppbsed to stand in need of. 

In the same book (in a note to the case of the 
Rebeekah, p. -231) the orders in council of 1665^ 
{containing the grant to the Lord High Admiral 
of such prizes as are now called Dnnte of Admi- 
roily) are set forth. The second article is, 
^ That all enemies' ships and goods casually met 
^' at sea, and seized by any vessel not commis* 
^ sioned, dp belong to the Li>rd High Admiral." 
I suppose that nobody can fail to ^perceive that 
this article expressly recognizes the ralidity of 
the seizures of which it speaks, without regarding 
who may be the assailants, it being suflSicient that 
the ships and goods belong to ^ enemies,'' and are 
** easaaliy met at sea.'' The article not only re- 
cognizes the validity of every sisch seizure, and 
its legal effect as producing prize of war for the 
erown, byt founds upon it a beneficial grant to the 
Lord Higb -Admiral. And the subsequent prac- 
tice has been in conformity with the article, ex- 
cept only tb»t (tbe office of Lord High Adfniral 



£ 476 ] 

being discontinued) the' crown now takes the 
prize, (as it originally took it,) subject to the cap- 
tors' claim in the nature of salvage or reward. 

The case of the San Bernardo, in the same vo- 
lume, (p. 178,) was that of a recapture in 1799, 
of a Spanish ship oiit of the hands of the French, 
by an English non-commissioned vessel. The re- 
captured vessel (being enemy's property) was 
condemned as a droit, and a reward out of the pro- 
ceeds was decreed to the recaptors, although they 
were not, and could not (under the circumstances 
stated) be attacked by either the French vessel or 
the Spanish. Upon this case it is only necessary 
to remark, that if a non-commissioned vessel can- 
not capture an enemy's vessel, (without being first 
assailed,) neither can she recapture (unless on the 
same condition) an enemy vessel from an enemy 
vessel. In truth, such a recapture is rather a dou- 
ble capture, with reference to those upon whom 
it acts — since it acts upon two belligerents at the 
same time. 

In the second volume of Robinson's Admiralty 
Reports, p. 284, in a note to the case of the Cape 
of Good Hope, the cases of the Spitfire and Glut- 
ton are reported. Ill both these cases, shares 
were allowed on account of the non-commissioned 
vessels (which not only asnailed but chased for a 
considerable time) as Droits of Admiralty. These 
were cases of what is called co-operation be- 
tween commissioned and non-commissioned ves- 
sels } and, consequently, no cases could more ex- 



I 



[477] 

plicitly assert the equality (not in point of inno- 
cence only, but in legal effect) between the acts of 
a non-commissioned vessel and those of a com- 
missioned vessel in attacking and subduing the 
ship of an enemy. If the acts of the non-commis- 
sioned vessels were on thejsie occasions consider- 
ed as piratical, or in any degree unlawful, or 
otherwise reprehensible, nothing could have been 
less admissible than to let in the crown to shares 
on the foundation of those acts,^ to the prejudice 
of those who had an acknowledged right by their 
eommission, by the King's proclamation, and by 
act of Parliament, to make the Captures for their 
own exclusive benefit. And this impropriety 
was particularly manifest in the case of the Spit- ' 
Jire, who, although she chased in concert with the 
Promdencej does not appear to have contributed 
to the capture otherwise than constructively. 

If it should be said that the authority of the 
non-commissioned auxiliary captors depended 
upon and arose out of the authority, or out of the 
principal agency, of the commissioned captors 
with whom they acted, the answer is fourfold. 
1st. That none of the other cases, support such a 
notion. 2dly. That the authority of the commis- 
sioned captors was not a communicable authority. 
Sdly. That if the non-commissioned captors 
acted (in contemplation of law) under the autho- 
rity of the commissions of the other ships, there 
could have been no question about droit — the 
whole would have been disposed of as prize un^^ 

61 



[ 478 ] 

der the act of Parliament. And^ Athly, tliat in 
the caise of the Glutton, she (having no commis- 
sion at all) was, by reason of he> being far to 
windward when the ' prize hove in sight, and of 
her using that advantage with promptitude and 
dexterity, without any orders from, or subserviency 
to, the ships that were commissioned, the main 
cause of the capture, and that it was certified by 
the commanders of the other ships that this was 
so, and that but for the Glutton the capture would 
have been impossible. Tha Glutton, the non- 
commissioned vessel, Itd^ therefore, in this enter- 
prise, and the others simply co-operated with her 
fts a principal. So that the two cases, taken to- 
gether, affirm distinctly the perfect legality of an 
attack by a non-commissioned captor, whether 
secondarily and in dependence upon, or primarily 
and (SisduxfeLcli) independently of, a commis- 
sioned captor, who co-operates with him ; and, 
consequently, they affirm that a non-commission- 
ed vessel may alone attack, and, if she is able, 
capture. And here it ought to be observed, that 
in the principal cai^e, (the Cape of Good Hope,) 
the universal legality of attack and capture by 
non-commissioned vessels is taken (as , how could 
it be otherwise 1) for granted by the Court, andad- 
mitted by every body. Indeed, I feel confident 
that it is now questioned for the first time. 
' To the cases already mentioned, may be add- 
ed that of the Fortuna, (Rob. Adm. Rep. vol. 4| 
p. 78,) as that of a recapture of an English ship, 



[ 479 ] 

with S' French cargo on board, by non-commis- 
Stoned persons who were not assailed. The ship 
was restored to her owner, but the cargo was con* 
demned as a dr&itj and the whole proceeds (of 
small amount) were decreed to the captors. Ano- 
ther protected and rewarded piracy ! 

In the case of the Afelomasne, (Rob« Adm. 
Rep. vol. 5, p* 41,) the law is laid down without 
any exception, and in the most precise terms, that 
a capture by a non-commissioned vessel is right- 
ful, although it enures to the benefit of the King 
in his office of Admiralty, in the manner already 
explained. Exclusively of the consideration that 
the Court, in laying down the general rule in that 
case, does not limit it to the case of defencfj as 
it would undoubtedly have done if it had con- 
ceived the rule to be subject to that limitation, 
even if the case in which it was pronouncing its 
judgment was not that of an a/tocA:, it is decisive 
that by its sentence it sustains the capture (as a 
droit) by the non-commissioned captor, who was 
the sole as$ailanty and rejects the claim of Cap- 
tain Aylmer of the Dragon, (a king^s ship,) who 
claimed the prize against the Admiralty, as having 
been made under his authority, which authority 
was considered by the Court, however, as o mount- 
ing to no authority at all, and therefore as leaving 
the case to be dealt with as that of a capture by 
a non-commissioned boat, and consequently a 
capture for the benefit of the crown. 

It would be idle upon such a point to accumu- 






[ 480 ] 

late authorities. It is sufficient to say that the 
High Court of Admiralty of England, which has 
for many years been adorned by the most illus- 
trious of jurists, and one of the most amiable of 
mankind, has been in the habit of offering boon- 
ties to piracy and temptations to licentious plun- 
der, if .my learned friend be warranted in his 
doctrine. 

I could, if it were necessary, cite many other 
cases, (some of which will be found in the Ap- 
pendix tq the second volume of Dr. Browo^s Civil 
and Admiralty Law,) but I hold this matter to be 
too dear to be gravely contested in a tribunal like 
this. 

1 assume, then, the truth of the position with 
which in this branch of the argument I com- 
menced, and I ask with confidence, if it is to be 
endured, that neutrals shall assemble, on the high 
road of trade for the purposes of any commerce, 
(whether altogether their own or partly their own, 
and partly that of a belligerent, as would seem 
to be the case on this occasion,) ships fitted for 
warlike purposes as well as for defence, belong- 
ing to, and commanded, and managed by the sub- 
jects of a belligerent, and therefore having pow- 
er, as far as it goes, and inclination without limit 
or control, to harm the opposite belligerent by an- 
noying his trade as well as by resisting his right of 
search ? I ask if it is to be endured, that neutrals 
shall thus make the^mselves the allies of the 
English law of droits, an important portion of the 



[ 481 ] 

SDglish system of naval hostility, tremendous 
enough in the actual state of the worlcl, without 
its aid ? It is with you to sanction this anomaly if 
you choose, and if yoi| do sanction it, the nation 
must bear the consequeinces ; but I have a firm 
persuasion that we shall not hastily be saddled 
iTvith a doctrine so fatal in its tendency, especially 
as the authority of your jjudgment, great as it is, 
will not, undoubtedly will not, obtain for us a re- 
ciprocal sacrifice in any country upon earth. 

[He then proceeds to consider the opposite ar^ 
gument, that the text writers on the law of nations 
having made no exception to the general right o( 
neutrals to carry their goods in enemy ships, this 
right must extend even to armed vessels.] 

The learned gentlemen refer us in the first 
place to Bynkershoek, and Ward, and Azuni,* 
and other writers upon the law of nations, who are 
imagined to have given opinions lipon this point* 
These writers dp certainly concur in declaring 
that neutrals cannot be prevented from employing 
the vessels of either of the belligerents for the 
purpose of continuing their lawful commerce ; but 
they lend no colour to the doctrine that the armed 
vessels of a belligerent may, by being so employ- 
ed, be made the means of withdrawing the car- 
go from the inspection of the other belligerent, 



* Bynk. Qaeest. Jar. Pub. 1. 1, c. 13. Azuni, vol. 2, p. 194. 
196. (Mr. Johnson's Transl.) Vattel, Droit des Gens, I. 3, c. 7, 
8. 116, etseq. Grotius, de J. Bac. P. 1. 3, c. 6. Ward. on CQntra- 
baDd,p. 136. 



[ 482 ] 

as well as of augmenting the perils to which the 
unarmed trade of that belligerent would otherwise 
be exposed. The treatises which have been re- 
ferred to would be very good authorities to prove 
(if it were denied) that enemy ships do not neces- 
sarily make enemy goods. They go so far and 
no farther. The single purpose of their authors 
was to investigate and condemn the sweeping 
rule, adopted by several maritime states, and at 
one time approved by Grotius — ^'ex navibus res 
praedsB subjiciuntur." And this purpose did not 
call upon them to settle, or even consider, the 
matter of the present discussion. The questron 
whether a kostiU flag ought of itself to infect 
with a hostile character the goods of a friend, 
may be answered in the negative, without in the 
least affecting the question, whether, if a hostile 
farce be added to the flag, a neutral can advisedly 
hire it without responsibility for the consequences. 
The first question looks exclusively to the nation- 
al character of a commercial vehicle, the second 
to a military adjunct, which in no degree contri- 
butes to constitute that character, or to form th^ 
vehicle. A ship is as much an enemy ship, and 
as completely a conveyance for neutral commodi- 
ties, without an armament as with it. An arma- 
ment makes her more than a mere commercial 
conveyance for the purposes of a neutral, by su- 
perinducing warlike accompaniments, and worse 
than such a conveyance, by introducing an incum- 
brance unfriendly (nautically speaking) to speed 



[ 488 ] 

and safety. In a word, the general proposition 
tbat the character of the bottom does not ipw 
Jv/re fix the character of the goods, is entirely 
^wide of a proposition which asserts the effect of 
hostile equipment and resistance, let the bottom 
be what it may ; and, consequently, nothing is 
gained, to the prejudice of the latter proposition, 
by shoeing thai jurists are agreed in favour of the 
former. 

But it is, nevertheless, possible that we may 
discover, either in. the terms in which these great 
teachers of legal wisdom have enunciated the 
former proposition, or in their reasonings upon it, 
a sufficiently clear indication of their opinion up- 
on the subject of our inquiry. It is, indeed, to be 
expected that their language and illustrations will 
point to a universal conclusion, spreading itself 
over every variety and combination of circum* 
stances, if such a conclusion was intended ; and, 
oa the contrary, that, if a conclusion, applicable 
simply to the quality and character of the owner 
of the vehicle employed by a neutral merchant, 
was in view, we shall find the phraseology which 
expresses it, and the illustrations which recom- 
mend it) suited to that view. 

The 13th chapter of the first book of Bynker- 
shoek's Qusestiones Juris Publici,to which we have 
been referred, professes. to treat '^De amicorum 
*^ bonis, in hostium navibus repertis,'^ and by the 
statement of a doubt ascribed to Grotius — ^*an 
'^bona amicorum^ in hostiuiii aavibus reperta, 



It 
tl 



[ 484 ] 

** pro hostilibus essent habenda/' annodnces the 
question to be disposed of. This question , rest- 
ing upon the single fact, that the ship in which 
the friendly goods are found, belongs to an enemy^ 
obviously inquires nothing more than whether, 
on that €UXOunti the goods may be confiscated — 
and throughout the chapter it is so treated. ^* Nam 
cur mihi non liceat uti nave amici mei, quan- 
quam tui hostis, ad transvehendas merces 
** meas ?^^ Quare si ijtis navem operamque con- 
<' duxerim, ut res meas trans mare vehat/' &c 
— ^' pro mercede ejus uti nave ad utilitatem meamj" 
&,c. In all this, and in whatever else the chapter 
contains, there is no allusion to any thing but the 
mere vehicle '' ad transvehendas merc^^^ and to 
the ownership of that vehicle. The phraseology 
is appropriate to define a merchant vessel in her 
ordinary state, with nothing to distinguish her but 
her enemy character. It is not adapted to cotivey 
the idea of a vessel which has passed into a new 
state by the union of faculties for war with those 
for transportation. 

As to the reasoning, it manifestly stops at the 
point I have mentioned. '^ Licet mihi cum hoste 
'^ tuo commercia frequentare ; quod si liceat, lice* 
^' bit quoque cum eo quoscunque contractus cele- 
'^ brare, emere, vendere, locare, conducere, atque 
'^ita porro." /'Cape quodcunque est hestis tui; 
^'sed mihi redde quod meum est, quia amicus 
" tuus sum, et impontione rerum mearum nihil 
^* molitus sum in necem team/' The general posi- 



V 



[ 485 ] 

tion that I have a right to trade with your eoeiny»ar..d 
consequently to make contracts with him» is here 
found without any one of the limits which belong 
to it ; but we know that Bynkershoek could not 
and did not mean to have it so understood. He 
iv^as aware, and has elsewhere shown, that it was 
restricted by the state of war. , He knew, for ex- ' 
ample, that a neutral could generally buy, sell, 
hire, and let to hire, from and to a belligerent : 
but not hire or sell to a belligerent a vessel of 
war, or even a passport ; or contract to send him 
contraband, or to carry his despatches, or to sup- 
ply his blockaded ports, or to disguise his goods 
as his own, or to send him goods to become his on 
their arrival, to save the risk of capture in tran- 
situ. We can only account for his arguing in this 
place upon the general right without noticing any 
modification which war imposed upon it, by sup* 
posing that he was reasoning upon the common 
condition of neutral traffic unassociated with the 
use of force, or with any other hostile quality, and 
in no situation to come in collision with any of 
the parties to the war. And this supposition is 
confirmed by the quiet assumption (without proof) 
with which the observation last quoted concludes, 
that by the employment of the enemy ship the 
neutral attejnpts nothing to the prejudice of the 
opposite belligerentr This assumption was not 
unnatural, if none but an unarmed vessel was in 
his mind : but if his view extended to a ship pro- 
vided with warlike equipment, it was rather an 

62 



[ 486 ] 

extraordinary postulate for so able a reasoner as 
Bynkershoek to assume. 

The passage in the controversial treatise pub- 
lished by Mr. Ward in 1801, on the relative rights 
and duties of belligerent and neutral powers,* 
which has been referred to on the other side, runs 
thus : ^' The right of an impartial neutral to con- 
'^ tinue his trade with each belligerent, so long as 
'* that trade can in fio regpect do injury to 
'^ either J is certainly uncontested and incontesti- 
*^ ble ; and it would be difficult to show the in- 
^'jury, or what interference there is in the war, by 
^ placing such goods as are sacred, from their 
'* neutrality, and' have, therefore, a right of pas- 
'^ sage all over the world, under the care and pro- 
tection of a belligerent flag. Something in 
point of prudence may be ' urged, to prevent 
their being exposed to the accidents of war; 
'^ but if the neutral chooses to risk this, it is im- 
" possible, I think, to conceive a well-founded rea- 
'^ son for supposing, that any confliction of rigkU 
** between him and the other belligerent can arise 
" from the procedure. This, then, seems an in- 
" nocent, and, therefore, a natufal right in the neu- 
" tral ; as such formed one of the provisions of 
" the consolatOy and as such was approved by 
** Bynkershoek,'' &c. (Q. J. Pub. c. xiv.),p. 136. 
Now what is maintained in this passage is, that a 



u 



*[The title of thii book is << An Essay on Contraband : hemg 
a continuation of (he Treatise of the Belative Righu and Datics 
t^{ Belligerent and NeuUal Nations in Maritime Affairs.''] 



[ 487 ] , 

neutral may trade in a belligerent vessel and under 
a belligerent ,/Za^, in opposition to the doctrine, 
that the natioTMl character of the ship ought to 
conclude that of the cargo — or as he elsewhere 
phrases it, 'Uhat all should obey the national 
character of the ship." The author states ex- 
pressly, that the right of which he is speal^ing, and 
which only he had in his view, formed one of the 
provisions of the consolato, and was approved by 
Bynkerijihoek. What right was approved by Byn- 
kershoek, we have already seen ; and every 
body knows that the cansolato refers only to the 
property of the vessel, and makes no provision 
for the case of a military equipment which nothing 
but a direct provision could sanction. Besides, 
the main ground upon which Mr. Ward places 
the right is, that the goods are sacred from their 
neutrality. Now it is impossible that this should 
be known without the exercise of that right of 
visitation and search, to which he insists that eve- 
ry belligerent is entitled : and consequently he 
must mean that the belligerent vessel which 
carries the goods said to be neutral, is not to he in 
a situation to contest by force the exercise of that 
right. Moreover, the expressions, ** so long as 
^ that trade can in no respect do injury to either^' 
show his meanipg to be that it is n6t to be a 
trade, which provides resbtance to the right of 
search, and increases the hostile means of one of 
the belligerents on the seas. And, again, when in 
)iis reasoning he says that he cannot conceive 



[ 48» ^ 

how the privilege which he admiis can prodoce 
'* any confliction of rights'' between the neutral aod 
the opposite belligerent, it is quite impossi bit' thit 
he should have in his mind the case of a delibe- 
rate resistance to that very right of visitation and 
search which it was the great object of his trea- 
tise to uphold. 

In truth, Mn Ward is in this place contendiDg 
that the principle of ** free ships free goods'* k 
not '^ a natural right," — and he endeavours to 
prove it by showing (among other things) that the 
principle which is usually associated with it in 
treaties, — that ^* enemy ships shall make enemy 
goods" is a violation of natural right. For tli» 
purpose it was hot necessary to discuss or decide 
the present question: and, accordingly, he does 
not meddle with it, unless what he says about ^ tbe 
accidents of war," to which neutral property is 
exposed in belligerent vessels should be thoagbt 
to touch it. 

The fitst passage referred to in Azuni's bo<A 
amounts only to this — ^that neutrals cannot be 
prevented from employing tht ve^seh of eiAerof 
the belligerents for the purpose of continuing their 
peace trade, unless by interfering in the iw 
" they depart from that perfect neutrality wkiA 
" they are bound to observe.^'* It is a gratuitous 
supposition that this passage was meant to in- 
clude vessels fitted for aggression and resistaoce. 
Nayr— the supposition is worse than gratuitbus. R 
is impliedly forbidden by the reference to the 



J 



[489] 

peace trade of the neutral as thatihftrhicb is to be 
authorized in the vessels alluded to, and by the 
exception of all cases in which the neutral inter- 
feres in the war, or in any degree deserts his 
neutrality. 

Such a large exception goes the whole length 
of my doctrine, if it means any thing : and there 
was no necessity to make it special, unless it was 
presumed that common sense had left the world. 
It was too obvious to require any particular men- • 
lion, that it was an interposition in the war and 
inconsistent with pure neutrality to employ a 
vessel equipped for battle and certain to engage 
in it (to exempt the neutral from the observance 
ef his known duties) if it could be done with a 
prospect of success, and certain also to act offen- 
sively if a suitable occasion presented itseIC It 
was enough to lay down the wide caution against 
any we or employmeM of hoHile force, which not 
being capable of any check, on account of the 
direction to which it is subject and the disposition 
which belongs to it, cannot be employed without 
embarking in the war and taking an unneutral 
attitude. We are told by Ward, (vol. f I. p. 10,) 
in the language of Hubner, who has been called 
**the great champion of neutral rights," that 
•* Toute neutralite consiste dans une inaction en- 
" tiire relativeinent a la guerre ;" And I know 
not how a neutral can be said to be wholly inac- 
tive relatively to the wftr, who allies himself by 
MDipact with warlike means and hostile disposi- 



. [ 490 ] 

tions and intentions, which, when he has once coo- 
nroted himself with them, he knows he cannot 
restrain, and to which he alone gives all the acti- 
vity and all the power of mischief which they pos- 
sess. It is difficult to conceive how he wlio has 
prepared and hired the power of warlike combat, 
with a knowledge that the desire, duty, and deter- 
mination to combat are united with that power, 
can be said to be thus inactive, and especially 
when combat has actually followed his arrange- 
ments as their regular consequence. Self-evident 
propositions do not require to be set forth in de- 
tail, and the wonder is that we should expect it. 
On the other hand, if a neutral can do this, it is 
but reasonable to suppose that his right to do so 
would be stated with precision even by such scio- 
lists as Azuni. 

But if the exception in Azuni does not plainly 
exclude, (as I have no doubt it does,) from the 
neutrars privileges, the employment of ships 
equipped for battle, it does at any rate reduce all 
that he says as an authority on the extent of that 
privilege to nothing, since the phraseology in which 
Azuni has defined the privilege is at least as equi- 
vocal as the exception. An ambiguous general 
rule given by a feeble writer, who qualifies it by 
an ambiguous general exception, may afford mat- 
ter for controversy, but can scarcely contribute to 
settle one. 

Heineccius, Grotius, Hubner, Vattel, and oth- 
ers are quoted by Azuni, (vol. 2, p. 194, 195») 



[491] 

but they simply state, what doubtless Azuni meant 
to state, the general doctrine (which I do not mean 
to dispute, although it was once disputed) that 
friendly goods are not prize merely because taken 
in a vessel belonging to the enemy. It is impos- 
sible to make any thing like an authority, for the 
doctride of the learned counsel, out of any or all 
of these loose dicta, the subject of which was, as I 
have already said, the effect of the flag and owner- 
ship of the vessel upon the character of the cargo. 
The other passage in Azuni which the counsel 
refers to is no more to his purpose than that which 
1 have examined. 

'^ Belligerents have no right over the effects of 
friends and neutrals, in whatever place they 
may be found, though within the territory or in 
*' the vessels of enemies. For this reason, when a 
maritime city is taken by assault, or^ in any 
other way, the belligerent cannot seize the neu- 
^ tral vessels found in the port, nor their cargoes, 
unless they are contraband of war, and unless 
the captains have taken up arms or voluntarily 
^^ seconded the enemy in their resistance. For 
^* a stronger reason ought the goods of neutrals, 
*' found on board the skip of an enemy, to be con- 
'* sidered as free, since it cannot be regarded as 
^' the territory of the enemy." 

Now there is nothing in this passage whioh re- 
quires to be noticed, save only what relates to neu- 
tral vessels and cargoea found in the port of a 
captured city, which seems to be much confided 



tc 



tt 



€1 



U 



tt 



4t 



[ 492 ] 

m by the Teamed counsel as favourable to hu 
case! I shall concede that the law is as Azuni 
states it. I only marvel that it is thought to have 
any bearing upon the present subject. 

It cannot be doubted that a neutral who is found 
on a lawful errand, in a captured place on land 
with which he has contracted no hostile obliga- 
tions of any sort, (as is supposed in the case put by 
Azuni) is innocent in every view, and cannot be 
the lawful object of hostility : if it were otherwise, 
every belligerent maritime city would be in a state 
of constructive blockade of a perfectly new in- 
vention. The supposed position of the neutral 
relatively to Uie captured place necessarily ex- 
cludes the idea of penalty. He has not given, 
or contributed to give to that place the military 
capacity which it has exerted. He did not erect, 
or assist in erecting its fortifications, in levying 
or. paying its garrison, in furnishing its arms or 
stores. He has not hired those fortifications witk 
their appendages, or in any way produced or in- 
creased their means of annoyance or defence. 
He has no connexion with the place, further than 
that he is in it, upon a fair and altogether neutral 
motive, not injurious to any body, or capable of 
becoming so. But suppose that, for the purposes 
of his trade, or for any other purpose, he had 
hired the fortresses, the troops, the cannon, the 
ammunition, the provisions, and all the means and 
implements of war, with which, as with a milita- 
ry force, he bad united himself and his concerns. 



[ 493 ] 

Suppose that the fortifications had been erected 
for his accpminodation; or being erected before, 
had become bis by special covenant, that but for 
his vi^ws and conduct they had been impotent and 
harmless, or had not been there at all : suppose, 
in a word, that he is not only the tenant of them, but 
creator of all that constitutes their faculty to mis- 
chief his friends, and that he has left the command 
of them to those who are at public enmity with these 
friends, without reserving any power in hiviself 
to counteract the effects of that enmity, and that 
then he has placed his property and himself un- 
der their auspices ! Will the learned gentleman 
tell us that he and his property would then be neu^ 
tral in the view of those by whom the place is as- 
sailed and captured, and against whom it has used 
the power which he has furnished, or contributed ^ 
to furnish to it ? I am sure he will not. Ifet this 
is the analogous case. The Nereide was a move- 
able fortress which the claimaoit brought upon the 
seas. She would not have been there but for 
him. Her armament was his armament. Her 
power was his power. He drew that armament 
and that power into conflict, or into the opportu- 
nity of conflict with the opposite belligerent, with 
a thorough conviction that conflict and opportu- 
nity would, and must be the same thing- From 
the master to the meanest sailor, every man on 
board, fought at his cost and by his original pro- 
curemenL But in the other case, it is assumed 
by Azuni that the neutral has nothing to do with 

63 



[ 494 ] 

tbe matter. He entered the plaoe before it wai 
attacked* He had the clearest right to do so. He 
sought DO protection from the force oa which tf 
relied for its defence. He did nothing towardi 
the organiaation or mcdntenance of that force. 
He made no covenant with it, or its owners. Eb 
did not enipl(^ it, or assist in its operations : audi 
oonaequently , had no more connexion with it thao 
if he and his property had been on the opposite 
pmnt of tbe globe. The place would not haivt 
been the less attacked if he and his property bad 
not been in it, nor would it have been better or 
worse defended. The whole transaction paaiei 
without involving or touching him in the slighteit 
manner. 

We have then, at the threshold, a wide disuoc^ 
tion between Azuni's case and ours: but thisii 
not all, although it is sufficient. The resistance 
of a city attacked by its enemies caoMfA be iocoa- 
sistent with the obligations of a nimtral who fiiida 
himself there, unless he mixes in it. What rightof 
the assailing party is that resistance calculated 
to violate with regard to him f Certainly nose. 
The right of visitation and search (tbe only one 
diat can be imagined to be material in this view) 
does not apply to the subject. He is, for the pre- 
sent, rightfully out of the reach of it : and can, u 
fact, do nothing to facilitate visitation and seareii 
otherwise than by taking his goods out of port 
to the assailant, or by co-operating with the aasaii- 
Mit to snbdue the plaice* The first, undoubtediyi 



( 496] 

he. 18 not obliged to do, and probably ieHviAOt, a^d 
will not be permitted to do> even if there be tim^ 
for it. The second would make him a traitor to the 
city which had hospitably received him. During thie 
contention of two hostile forces, (neither of which 
he has raised up, or fostered, or adopted,) he 
18 justified in remaining a mere spectatori and 
18 bound to do so. The right of visitation and 
search, therefore, (of which, indeed, the ocean is 
the only theatre,) is not infringed on thid occa- 
sion. What other right then is violated ? I know 
of none : I hare heard of none. But this is not 
BO in our case, if we have succeeded, or should 
yet succeed, in proving that the claimant acted un- 
lawfully from the first preparation of his expedi- 
tion to its last catastrophe — that he violated his 
neutral duties by employing hostile force at all-~ 
and that when this hostile force resisted the visi- 
tation and search of an American cruiser, the 
climax of illegality was completed. 

It is said, however, that Mr. Pinto, as a mer- 
chant of Buenos Ayres, had a peculiar justifica- 
tion for this armament, in the danger to his pro- 
perty and himself produced by the cruizers of 
Carthagena ; that it was the usage of this trade, 
and the only adequate mode of carrying it on, be- 
fore the breaking out of the war between the 
United States and England ; and that Mr. Pinto 
intended no resistance to United States' cruizers. 

As to his %ntention$, I do not profeM to know, 
with certainttfy what they were, and I suppoM 



.[ 496 ] 

that hia eounsel know as little of the matter as I 
do. It may be very well for them and him to say 
that it was not bis intention that the privateers of 
the United States should be resisted, when tbey 
pould be resisted witli a prospect of success^ and 
thus be prevented from interrupting a voyage, 
which promised to-be so' Tucrative, by the cap- 
ture of the vessel in which he was performing 
it: but I am not apprized of the proofs by 
which he could be judicially exculpated from 
such an intention if I chose, as my learned col- 
league has done, to press it against him. I do 
not-think it material, however. For let his inten- 
tions in this particular have been what they might, 
the law infers from his conduct all that my argu- 
ment requires. Mr. Pinto set in motion upon the 
Atlantic a warlike force, hostile by notorious dut^f 
to the United States, a duty which he was boand 
to know he could not neutralize, and the effects of 
which he was also bound to know he could not 
check. Every man must be taken to intend, 
where intention is important, the natural and or- 
dinary results of his own acts. The municipid 
'law of our country, and every civilized country, 
proceeds upon that rule, so as always to create 
responsibility for those results. The particular 
intention does not need to be inquired into. It is 
enough that the result in question ought to have 
been foreseen. Thus (to put a familiar case) if 
a man rides a horse, accustomed to strike, into a 
crowd, upon an errand ever so lawful, he is liable 



[ 497 ) 

for the mischief which ensues, whether he intend- 
ed that mischief or not. 

The natural consequences of Mr. Pinto's acts 
were, th^^ if an American cruizer (not of an over- 
whelming force) met him in his voyage, resistance 
would be made, even if he should forbid it, to the 
right of that cruizer to examine his property ; and 
that, if he was met by an unarmed American ves- 
sel of sufficient value to tempt the commander of 
the Nereide, that vessel would be assailed. The 
first of these consequences has happened, and by 
every system of law known to mankind would be 
visited with penalty. 

The right of Mr. Pinto to make a provision of 
defensive force against Carthagena cruizers can- 
not serve him in this cause. If he armed for 
limited purposes, it was for him to take care that 
' he suited his armament to those pwyoseSj and that 
its exertions were confined to them. He could not 
arm in such a way as to give uncontrollable power 
(where there already existed the desire) to exceed 
those purposes to the injury of those against whom 
he had no right to arm. If he does so arm, all 
that I insist is that he does it at his peril. If his 
purpose is exceeded, from causes palpably inhe- 
rent in the nature of the armament, and the direc- 
tion under which it is placed, it cannot be unrea- 
sonable to say that he must at least answer for 
that surphiSj if it were only upon the maxim re- 
spondeat superior ; a' maxim as universal in the 
law of prize as any maxim can be : for although 



in the municifml law it generally imports only ci?tt 
responsibility, in the jus gentium it produces con* 
fiscation. Even in the municipal law it is a cardi- 
nal rule $ic utere tuo ut alienrnm nan l^edas ; and 
this rule applied to Mr, Pinto would of itself re- 
strict his right of arming to a mode that would be 
compatible with the rights of others* He who 
should go into the streets accompanied by a mastilT 
of a surly and ungovernable temper and accustomed 
to bite, (I mean no slur upon any body by this 
homely comparison) even although he goes up- 
on lawful business, and makes the dog his com- 
panion with a view to his defence against some 
ruffian who has threatened him, must abide the 
consequences if his associate bites those who are 
his master's friends, and who have, moreover, a 
right to stop him on his wey for the purpose of 
some inquiry, and who have been bitten in the at- 
tempt to exercise that right. 

As to what is said of the manner of carrying 
on this trade before the breaking out of the war 
between the United States and England — is it 
meant to tell us that a trader continues after the 
breaking out of a war to have all the rights which 
be possessed before, merely because he is a neu- 
tral ? That the war does not affect all his previous 
rights or habits I admit ; but it does affect them 
largely, nevertheless ; and it affects them exactly 
as far as his former rights and habits would now 
in their exercise and continuance be an interfe- 
rence in the war. Thus before the commence- 



[ 499 ] 

ment of bostiiities he could carry articles usually 
deBOQUfiated contraband of war. After hostili- 
ties commence, he. does so at the hazard of seizure 
and confiscation, even if his peace traffic had 
been to a great extent, or altogiether in such arti- 
cles. And why is this so ? Simply because the 
carry mg of such articles in peace was injurious 
to nobody^ but upon the breaking out of the war 
does injury to one of the belligerents with refer- 
ence to the war. And various other instances 
might be given of the same class. If, indieed, that 
which was the previous trade of aneutral has no 
relatiiMi in its substance or manner of conducting 
it to hostility, tlte war does not affect it otherwise 
than by producing detention for inquiry and 
search ; but when it has that relation ( as it al- 
ways has when by seeking the armed ships of a 
belligerent it generates collisions) the war invari- 
ably affects and reduces it. 

Even if it be truci therefore, (of which however 
tbere is no. proof in the cause) that British armed 
vessels had before been used in this trade, the 
moment the war broke out between the United 
States and England, the continuance of that prac- 
tice became as completely unneutral as did the 
carrying of articles of contraband, and bepame liar 
ble te the same penal visitation. It would be idle 
to multiply words upon such a point. 

It has further been suggested that if Mr. Pinto 
had not used an armed ship of England, he could 
not have undertaken his voyage at all. Be it so. 



[ 500 ] 

^though there is no evidence to countenance 
such an apv)logy, I am willing without reserve to 
admit the fact, while I utterly deny the conclusion 
of law. We are fallen upon strange times, when 
every sort of absurdity — I beg my learned oppo- 
nents to pardon the accidental freedom of this 
expression, and to believe that I respect them 
both too much to be willing to give umbrage to 
either. To one of them, indeed, I have hereto- 
fore given unintentional pain, by observations to 
which the influence of accidental excitement im* 
parted the appearance of unkind criticism.* The 
manner in which' he replied to those observations 
reproached me by its forbearance and urbanity, 
and could not fail to hasten the repentance which 
reflection alone would have produced, and which 
I am glad to have so public an occasion of avow* 
ing. I oflTer him a gratuitous and cheerful atone- 
ment—cheerful because it puts me to rights with 
myself, and because it is tendered not to ignorance 
and presumption, but to the highest worth in in- 
tellect and morals, enhanced by such eloquence 
as few may hope to equal— to an interesting stran- 
ger whom adversity has tried and affliction struck 
severely to the heiirt— to an exile whom any 
country might be proud to receive, and every man 
of a generous temper would be ashamed to 
offend. I feel relieved by this atonement, and 



* [In the case of the Mary, argued al the same term, in wbicb 
Mr. Kmmct (of counsel for the captors) spoke, as jVU. Pinkney 
supposed, a little too harshly of one of the claimants.] 



■ 



[ 501 ]. 

proeeeci With more alacritjr. I say that it i» pafl»- 
iog strange that in tbd nineteenth eenturv we 
should have rtiMimiate^ that the provisionci of 
public law, or of any law, are to bend before the 
private convenience of an individaal trader. Thie 
low of nations did not compel Mr. Pinto to trad6« 
It aUmosd him tfo do so^ if he could with inno- 
oenoe. fk did not convert his rights into obKga 
tions : It left them as it found them, except only 
that itiflipresfied upon them (with a view to the 
state' of war whri;b bad supervened) the condi^ 
tions and qualifications . annexed to bis predica-* 
ment as a neutral. If he could safely and advan* 
tftgeoiialy trade in this new state of his rights, it 
was well ; if not, it was either his duty to forbear 
to trade at all, or to make up his mind to defy tki 
ekmsequeneei. And is this such a harsh alternative ? 
Is it not the dilesima to which God and the laws 
have rednced us all — and some of us more em* 
phatically than others ? Is not tbe vocation of 
every man in society more or less limited by posi- 
tive institution^ and does not the law of nations 
deal with, what I may oalU a benigasnt profusion ia 
•uch lintttationii ? 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 
him fellow creaUihesi» and he should, therefore, 
bear, not merely li^ith! a philosophic, but with a 
Christian patience, the evils with which these h^ 
nefits 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 deep 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 apon 
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 P*^ 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 by 
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, not ex- 
aggerated by his counsel ? I ask if his situation 
was worse than that of any, other neutral whose 



[ .503 3 

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 effects of their 
defeat ? Nothing could be more intolerable than 
Buch 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 
by an ingenious reinforcement of his own rights 
with those of the belligerent master P 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 
Qi^ly — 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 bias a right 
to carry contraband if he can — and only superior 
force can 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. 



150*] 
If he ooiML he woulilniye a larger and moreef* 
factual right than tliajl imder which he takes 
shekor ; f&r the belligerent's - right is aubjeot to 
be defeated bj force> and mo much of his pro- 
periy an is engaged in the enterprize becomea 
priiK) of war, if he is conqtiersd^ Jaist as in tliia 
case, his right of reaistaifce is net on the ocber 
sid^ by a right lo attack and seize ae prize, aad 
^very thing depends upon the issue of the com- 
bat. It is, indeed, self-evident that a aeutrdl, 
who is driven to rely upon the rights of war, veat* 
ed in others, nojt himself, leans upon a broken 
reed, if thQS^ rights fail of being auceesafuUy 
maintained ^gaipst the opposite party to the war ; 
and sure I am that q^ e^e can be imagined, ia 
whicl^ ^ neutral can cover himaelf with the right 
pf a belligerent whom he chooses to employ, 
find thMs x;Iaii)i tbe combined advantagee of a bel- 
ligerent and a neutral character* If he can ad^ 
vance such a clainif tbe ea^es of domicil have all 
been adjuxiged upon f^lae principles, for they ex- 
pressly fiffirm the cootri^ry, afid 9tand upon no 
other reason. 

But the true ligbi: in which to view this poiat 
is^ that the right of resistance vested in the bel- 
ligerent master is precisely that which aggra- 
vates int$l;pad of taking away the guilt of tbe neu- 
tral charterer, or in other words, is exactly the 
oon^idep-atioa which ought tp make tbe rie^iatance 
his own, in the ^ye of the law, and, cQa/sequently, 
to render bim w4 his prpp^rty liable to sImps 
the fate of the belligerent master' and vessel. 



4€ 
U 
U 



[ 605 ] 

It is iodifiipiitible Umt if Mr. Piiila, iBitead of ' 
eharteriDg the Nereide, bad hired a neutral ship, 
and the neutral master, without his concurrence, 
had reaisted visitation and search^ the goods of 
Pinco would have been prize as well as the neu* 
tral vessel. We have for this the express autho* 
rity of Sir William Bcott, in the celebrated case 
of the fc^wedish convoy and others;* '^ The 
penalty for the violent contravention .of this 
right, is the confiscation of the property"^ (cargp 
as well as vessel) " so withheld from visitation 
'' and search." 

Upon what ground is the cargo forfeited in that 
ease ? 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 ior that respect, although th^ 
roaster is not, strictly speakings the agent of the 
cargo, and the owner of the cargo is not gene- 
rally affected by his acts in the view of a Court of 
Prise, 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 impcfrtance 
attached to the right with which suob resistant 
interferes~4o a right without which all the other 
belligerent rights with whiob the law of pdf^ is 

, • 

• The Maria, Rob. Adm. Rep. vol. 1, p. 287. The £lsebe> 
'Rbb. Adin. Rep. vol. 5. p. ^74. The Catharina Eliftabetb, tV 
"^Si: Tlie 9e9petch^ Rbb. AdiM. ftep.'2S0. 



[ 506 ] 

concerned, are mere sliadows. The owner of a 
neutral cargd forfeited by the resintance 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 resistauQe— 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 not have 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 master would forbeiu* 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 
be not go to sea with an absolute assurance that 
his goods would be withheld fix>m the visitation 
and search ot the opposite belligerent by all the 
resistance that could be made ? Nay, further — 
is not the neutral owner of the goods interested 

4 

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 yessel, the penalty of 
confiscation for resistance by that vessel is unim- 
peachably just. If it is established that a neutral 
should be riesponsible 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 



\ 
I 



[ 508 ] 

himself am interest in defeatinf; it, should be re- 
warded with restitatioii, (or to speak more cor* 
rectly,) by a concession of all the benefits of suc^ 
cessful resistance^ and hj an exemption A*om 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 master 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 aelact 
a case in which. the confiscation of the cargoof 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 modem law of 
nations to employ a belligerent vehicle, employs 
just such a vehicle as under belligerent command 
and conduct will inevitablv be made to withdraw 
his property from examination, so far as its physi* 
cal force can so withdraw it. And certainly a 
greater anomaly can scarcely be conceived, thao 
that I shall answerfor the hostile conduct of hiniy 
upon whose neutral and peaceful conduct I was 
warranted, when I employed him, to rely ; and yet 
shall not answer for the hostile condact of hiai» 
from whom I was warranted, when I employed 
him, in anticipating nothing but hostility aud vio* 
lence ! 



[ 509 ] ^ 

f IVf r. Pinkney then examined the case of the 
Swedish convoy in 1798, and insisted that thc^re 
was no difference between a ship sailing unrler 
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 coijvoy 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 to think might 
be rebutted, but which Sir William Scott con- 
sidered to be a crmcltisive presumption ; and that 
the distinction between hostile and neutral con- 
voy, favourable to the latter, was, that where the 
onvoying force was neutral, the captors must 
show an actual 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 
constituting a part of the offence, but as rendering 
it probable that there was actual resistance, whilst 
in the ease of the ' Nereide, the intention to re- 
sist, (independent of the fact,) was rendered cer- 
tain by the general hostile character of the force 
employed. 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 \o»U In the case of the Maria^ the 
eounsel for the claimant, in contending that the 

65 



[ 510 ] 

presumption arisiDg from a hostile convoy was not 
conclusive against the ships and cargoes sailing 
under its protection, cited the case of the Samp- 
$on^ 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 
«« actual resistance. To which intimation Sir W. 
Scott observed : 'M do not admit the authority of 
** that case to the extent to which ypil push it. 
** That question is still reserved, although the 
^* Lords might wish to know as much of the 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 Sampsim, Barney^ was subse- 
quently affirmed by the Lords.^] 

« * * « « * » 

The case of the Catkarina Elizabeth (Rob. 
Adm. Rep. vol. 5, p. 232) has also been produced 
against us. It would seem, indeed, that my les!rn- 
ed friend entertains some doubts of its appticabi- 
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 cargOy being the property of a ne^ 
*^ tral merchant :'' and my learned friend, taking 
or rather mistaking this for a universal posidoiit 

* Cranch's Reports, vol. ix, p. 442. Note. 



[ 511 ] 

IS fio well aatisfied with it that he deairea to look »o 
farther, and would have us trouble ourselves as little 
as possible with the reasoning of the Court and the 
particular cireumstances of the transaction, bj 
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- 
eiofif 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 
aot fail to find the nature of that occasion. This 
IB what I have done, and what I trust your.Ho^ 
nours will do. *' Territus insisto prions margin» 
rip«B,''* may come with a good grace from, the 
learned counsel whose interest it is to take refuge 
there from 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 reg&rds 
the enemy master himself, and that it is'quite clear 
that it cannot afiect the neutral owner of the car*- 
go. As to the enemy master, the quotation from 
Terence (" Lupum auribus toneo,'') explains the 
whole matter. If I capture an enemy I must 

* Territaque ifuisto priarn margine ripa, 

Ovid, Lib. v.. Fab. ix, 1. 597. 



* \ 



t 612 ] 

take care to hold him. He is not bound (^nl 
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 da. He violates no duty, and infringes 
no- obligation. I admit all this to be perfectly 
true ; and i 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 rengt the Gover- 
nor Tompkins, but to capture her if he could. 
What 1 object against the claimant is, not that the 
Cfiptaifi of the Nereide resisted unlawfully, 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 
Nereide, 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, I 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, that a neutral cannot 
at all employ such a force, placed under such 
hostile control, without iruilt ; and that he incurs the 
confiscation of his goods if they are found conneot- 



[513] 

ed with itj although tfa^re be no refiistance 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 not from its character hurtful to the 
opposite belligerent, or inconsistent with a pei^ce- 
able compliance on bis part with all his neutral du- 
ties. And, surely, there is nothing in the case of 
the Gatharina Elizabeth which says otherwise^ 

Another case in the same collection (vol. 5, p. 
278. The Despatch) tells us that if ^,'neutral mas- 
ter endeavours to rescue or recover by force the 
captured property, it shall be condemi\ed, because 
the captor is not bound a:< against a neutral to 
keep military possession of the thing captured, 
or justified in holding the neutral master and 
«rew as prisoners. On the contrary, he is to rely 
upon the duty of the neutral to submit, and hope 
for restitution and compensation 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 
Gatharina Elizabeth, and is there used by Sir 
William Scott for that purpose. It shows, as the 
facts of the case also show, that the Gourt intend- 
ed to confine its decision in the Gatharina Fliza- 
beth to the case of an enemy master already cap- 
tured, for whom, as he is in the custody of the 
captor (whose business it is, not to trust, but to 
guard and J^eep him) the neutral shipper is no 
longer answerable. That the enemy master ceases 
the moment he becomes a prisoner, and his vessel 



C 5*4 ] 

prize, to be for any purpose^ the agent, or in anj 
aense the adsociate of the neutral owner of the 

I 

eargo, and that their connexion ia utterly dissolved 
by the seizwe, is perfectly clear. It would, there- 
lore, 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 mindi 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 resiat visita- 
tion, search, or seizure ; that the single circum- 
stance upon which condemnation of the Americas 
cargo was urged, was some hostile attempt of the 
enemy master after cloture consummated-* 
which attempt was really and constructively hii 
own pert^onai 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 cai 
persuade himself that there is any resemblance be- 
tween that case and the present, or that, if in that 
case there ww supposed to be an wfguaide reasoa 
(if I may he allowed that expression) lor 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. 

In our case, at the epoch of the resistance, the 



[ 515 ] 

relation was subsisting in its full extent between 
him w^o made that resistance, and bim 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 bim to the direction of a bos* 
tile agent, who used it, as he could not but be 
sure he would, hostilely ;-*— in the other c<^se, there 
w^as no original force; and that which was used 
waa 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 vessel was an ordi- 
nary, unarmed commercial vehicle, which the neu- 
tral miglit hire and employ with perfect innocence 
and safety. 

« 9t « « * * * ' 

The little strength with which I set out is at 
last exhausted, and I must hasten to a. conclusion. 

r 

I commit to you, therefore, without further discus- 
sion, the cause of my clients, identified with the 



[ 516 ] 

rights of the American people, and with those 
wiiolesome rules which give to public lawsiimpli^ 
city and systeniy and tend to the quiet of the 
world. 

We are now, thank God^ once noore 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 them to 
awake, and when it does arrive, I feel undoubrhig 
confidence that they will rise from their slumber 
in the fulness of their strength and majesty, un- 
enfeebled and unimpaired by the judgment of this 
high Court. 

The skill and valour of our infant navy, wliich 
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 contixiue 
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 see it, 
and, therefore, the nK^re do 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 justice 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 tp hope ; but it is equally 
our duty to hope that we shall not be so inordi- 
nately just to others as to be unjust to ourselves. 



[517] 



N** V. 

» 

SPEECH IN THE HOUSE OF REPREdE^ITATIVES ON THE 

« 

TBEATY*if AKINO POWER. 



[In the debate upon the bill to carry into effect 
the British convention of 1815, Mr. Pinkney saidj . 
he intended yesterday, if the state of bia 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 



t 518 ] 

with singular propriety be said of ine, that I am 
naves 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, 1 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 I have already felt that this assembly is 
distinguished. The subject is the fundamental 
law. We owe it to the people to labour with 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 habits. 

Before we can be in a situation to decide 
whether this bill ought to pass, wamust know pre- 
cisely what it is ; what it is not 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 subsidiary 
enactments, no dependent provisions, flowing as 
corollaries from the 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. 

Ingeminat voceSf auditaqtte verba reportat. 
It may properly be called the twin brother of the 
treaty; its duplicate, its reflected image, for it re- 
enacts with a timid fidelity, somewhat inconsis- 
tent with the boldness of its pretensions, all that 
the treaty stipulates, and having performed that 
work of supererogation, stops. Jt once attempt- 
ed something more, indeed ; but that surplus has 
been expunged from it as a desperate intruder, as 
something which might violate, by a misinterpre- 
tation of the treaty, that very public faith.which we 



[520) 

art now prepared to say the treaty has never plight- 
ed in aiqr titB smallest degree. In a word, the bill is 
tBifaC'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 
pruritai leges ferendif by which this body can 
never be afflicted, 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 wifl 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 aod self-effictent, from the obligstton 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 
BB to become a formula, that, when ratified by the 
President 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- 
changed, and what it is now, if our bill be sound 



[ 522 ] 

in its principle. . Has it not been, and is it not 
an unintelligible, unbaptized and unbaptizable 
thing, without attributes of any kind, bearing 
the semblance of ah 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, 
presume 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 ah act within the treaty- 
making capacity, 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 
tabled 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, aiid affecting by 
that paternity to give to it life and strong ; and 
as I think that the convention does not stand in 



[ 528 ] 

need of any such filiation, to make it eitjier 
strong 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 oonsitution 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 involved 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 iji the final perfection of it. The 
President and Senate are explicitly pointed out as 
the sole actors in that sort of transactioQ. The 



[524] 

prescribed ooaeurrence of the SenatCf and thai 
too by a majority greater than the ordinary legis- 
lative majority, plainly excludes the necessi^ of 
congressional concurrence. If the consent of 
Congress to any treaty had been intendedt tbe 
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 Benate 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, may be by a smaller 
number thdn 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 efiect, it is a mockery by 
which nobody would be boimd. 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 bjare 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 3 

The effect of cJie power, when exerted withia itiB 
lawful sphere, is bejrond the neach of ea^trovei^sy. 
The cQttstilirtion bM declared, that wbatooever . 
amouats ito a treaty^ made uuder the anthori^ (tf 
the United States, shall immediately (be supreme 
law. It has contradistinguiabed a tremtif im law 
iram un act cf Congtmn as law.. It has evected 
treaties, so ootitradistiii^ished, into a binding 
judicial rule. It has givea ihem to our /co«irts pf 
justicA, ia defining their juimdjlction, as a portion 
of the Ux lerrm, which ihey are to interpret and an- 
force* ha a word, lit has conmuiiirated 10 ilheiay 
if ratified *by the department which tt has fipaeia% 
provided for the making of ihem, the tank »t 
law, or it has spoken without meaning. A^ if 
it has elevated them to chat rank, it is idle to at- 
tempt to raise them to it hiy ordinary iegislation. 
Uponibe extent of the power^ or the aub^ts 
•upon which it may act, there is as little room for 

- controversy. The power ss to make treoHeM. 
The word treaties is nomen generaiimfnm$n^ aad 
will comprehend commercial treaties, ualess there 
be a limit upon tt by which they are eseluded. It 
is the oippellatifDe, which will take in the whole 
apecies, if there he nothing to narrow sis acope. 

- There is no suchtimit. There is not a syllable in 
the ocNtttext of the clause to restrict the natural 
import of its phraseology. The power is left to 
the force o£ the geoeric term, and is, therefore, 
88 wide as a treaty«making poiwer can be. It em- 
braces aH the variaties of treaties 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 nation 
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, promisitig, not indeed a victory over the lion 
of Nemaea, or the hoar of Erymanthus, 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 of this great nation were irrevocably 
comtnercial ; that the ocean would be whitened by 
our sails, and the uttima Thule of the world com- 
pelled to witness the more than Phoenician spiiit 



[ 527 ] 

and intelligence of our merchants. With thiA 
glorious anticipation dawning upon them-^with 
this resplendent Aurora gilding the prospect of 
the future ; nay, with the risen orb of trade ilki- 
minating the vast horizon of American, greatnessi 
it cannot be supposed that the framers of the 
constitution did not look to the time .when we 
should 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- 
iperce with foreign nations ; and that, jsince 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 treaty- 
making power. Never were premises, as it ap- 
pears to my understanding, less suited to the 
conclusion. The power of Congress to regulate 
oiir 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 alone, would touch only a portion of the 



[ 528 ] 

A wider and more gener ttl power 
therefore iirdispensiUe, and it was properly de- 
volved on Congress, as tbe legislature of the 
Union. 

On the other hand, a power of mere mnnict* 
pal Legislation, acting upon views exclnsitely our 
own, having no reference to a reciprocation of 
advantage^r by arrangements wi}h a foreign state, 
Would also fall short of the ends of government 
ill a country of which the commercial relations are 
complex a-nd extensive, and liable to be etnbar- 
rassed by conflicts between its own interests and 
those of other nations. That the power of C<m- 
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, tiothing 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 tbe consti^ 
tution to be lodged somewhere* It is just as evi*^ 
dent, that the legislative capacity of Congress does 
not amoufnt to it ; and cannot be exerted to prd^ 
duce a treaty. It can produce only a stMute, witd 
which a foreign state cannot be made to concur^ 



[ 5» ] 

nmd whicii will not yield ta any inodificttroi»8 which 
a foreign nuite may desire to impreM apon it for 
suitable eqcNValeots* There is no w<^ in which 
Congress, as such, can mould its lawd into trea* 
ties, if it respects the constitution. It may legis- 
late and counter- legislate ; 'but it must for ever be 
beyond its capacity tp combine in a law, emana- 
ting from its separate domestic authority, itb own 
▼lews with those of other govern meats t and« to 
produce a harmonious reconciliation of those jar« 
ring purposes and discordant elements which it is 
the business of negooiation to adjust. 

I reason thus> then, upon this part of the sub* 
jeot. It is clear that tbe power of Coogress, as 
to foreign commerce, is only what it professes to be 
in the constitution, a legislative power, to be ex* 
erted municipally without eonsultatioii or agree** 
ment with those with whom we hav^ an intercourse 
of trade ; it is nndeniable that the eonstitution 
aieant to provide for the exercise of another pow* 
er relatively ta commeroe, which shoold exert it* 
self in concert with the analogous power in other 
aonntries, and should bring about its results^ not 
by statute enacted by itself, but by an internation- 
al Gompact called a treaty ; that it is manifest, that 
this other power is vested by the constitution in 
the Fresident add Senate, the <Mity department of 
the government which it authorisei to make any 
treaty, and which it enables to-make all treaties ; 
that if it be so vested, its regnlmr exercise must re- 
sist in that which, as fiir as it reaches, is law in itself, 



\ 
I 



[«80) 

and'coQAequently 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 forme^d. The ordinary 
power 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, iuk- 
ject to the treaty-making pmoer^ is a position per- 
fectly intelligible; but the understanding is in 
soifte 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 power 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 that the 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, ij9 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 modifiejs 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 th^ir advice 
in the making of them, and because the vast range 
and complication of the English laws of traide 
and revenue, render legislation unavoidable, not 
for the ratification, but the execution of their com- 
mercial treaties. 



£5^2 1 

It 18 suggested again, that the treatjr-iQaking 
power (unless we are teoants ib common of it 
with the President and donate, to the extent at 
least of our legislative rights) is a pestilent monaler, 
pregnant with all sorts of .disastf^rs !-*-*It teeias 
with ^ GorgoBs, and Hydras, and Chtmeraa dire !' 
At c^ny rate, I may tftke for granted that the case 
before us does not justify this array of metap^ 
and fable ; since we are all agreed tlmt tiie ood- 
mention with Engiajod is not only luarmlesa but 
salutary. To put this particular ease, however, 
out of the argumeat, what have we to do wkh 
considerations like these ? are we here to fbriBf ar 
to submit to the constitiitioa as it has been |rirtn to 
us for a rule by those who are our iQaaters ? Omi 
we take upon ourselves the office of political 
casuists, and because we tiiink that a power ought 
to be less than it is, compel k to ishriak to our 
standard'? Are we to bow with reverence befoie 
the national will as the ooostiliition diaplaya it, 
or to.fasiuon it to our own, to quarnel mCh 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 k>dged, as I contead it is, in the 
President and Senate^ likely to disaster us, as we 
are required to* apprehend A will ? Sufficient 
checks have not, as it seems, beea provided, ekher 
by the constitution or the nature of things, to pre- 
vent the abuse of it. U m in the House of Re- 
presentatives alone, that the amidet, which fasds 



[533] 

defiiuce to^ the approaches of political dtseaeei 
or cures it when it ha^ commenced, can in all vi- 
cisBitudes 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 (tlie 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 wKicb 
ia short of it. Have they not, as respects the 
President, all the security upon which they rely 
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 
tliat he will not appoint to office the refuse of the 
worid ; that he will not pollute the sanctuary of 
justice by caUing vagabonds to its holy ministry, 
instead of adorning it with men like those who 
now give to the bench more dignity than they re^ 
oeive from it : that he will not enter into a treaty 
of amnesty with e^&y conspirator against law and 
order, and pardon culprits from mere enmity to 
virtue } The security for all this, and infinitely^ 
more^ is fomid in the constitution and in the order 
of nature ; axid we are all satisfied with it. One 
idiould think that the same security, which thus 
far tine has not discredited, might be sufficient 

68 



[584] 

to tranquillize us upon the gcore 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. first ma§^- 
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 from the people, is 
lifted by them into place and authority, and after a 
short season returns to them for censure or ap* 
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 
ago 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- 
coiint of the singleness of 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, unrelieved and 
undiluted by the infusion of ours, is the danger 






[ 5S5 ] 

of ill-ad?u9ed conduct likely to be present to 
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 feelingSi and views, 
and passions which even a misanthrope could at- 
tribute to the ^remost 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 conspicubus measure. It speaks 
for itself^ It cannot take 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 



[ 336 ] 

tbfe loTe of glory ; the instio^t of ambitioii ; tiie 
domestic atfections ; the cold ponderings of pro- 
denoe ; and the ardent inetigations of seatiment 
and passion, are all oa the side of duty. It is in 
1^ exercise of this power that responsibiUty to 
public opinion, which even despotism feels and 
truckles to, is of gigantic force. If it were pos-^ 
sible, as I am aure 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 penrerted 
ambition with the great concerns of his country, 
as embraced by a commercial treaty, and to aacri* 
jfice her happiness and power by the stipulatioiis 
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 bat 
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 faeredi* 
tary nobility, and a House of ComoMns elected, 
in a great degree by rotten boroughs and over- 
flowing with placemen. And if this influence is 
potent there against all the effiirtar of indepmideBt 



[ 587 ] 

power tuad wide spread corruption, it must in tbie 
country be omnipotent. 

But the treatjr-making power of the* President 
18 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 
office is that of a lew years ; their numbers are 
eonsiderable ; their constitutional responsibility as 
great as it ean be ; and their moral responsibility 
beyond all calculation. . ^ 

T%e power of impeaohment has been mention^ 
ed as a check upon the President in the exercise 
of the treaty*making capacity. I rely upon it iess 
than upon others, of, as I think, a better etass ; but 
as the constitution places some reltance upon it» 
so do L It has been said, that impeaohment ha$ 
been tried and found wanting. Two impeachments 
have failed^^as I have understood, (that of U' judge 
was one)-^4Mit they may have failed for reasons 
consisleiit With the general efficacy of such a pro* 
eeeding. I know n^^thing of their teerits, but I 
an justified in supposing that tbe evid^ice was 
defective, or that the 'parties were inn<lcent an they 
were pronounced to be :«*-Of this, bbwevel*, I fed 
assured, tbat if it should ever happen that the Pre* 
•idcoit is folwd to deserve the punishmedt which 
impeaehmfeat seeks ta ioffict, (evea for tnaking a 



[558 ] 

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 thooe who 
dare to acquit him ? 

If there be any power explicitly granted by the 
constitution to Congress, it is that of declaring 
war ; and if there be any exercise of human le- 
gislation more solemn and important than ano- 
thet*, 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 pnihibit- 
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 
fiiU and continuing effect of it. A power to make 
peace in any other branch of the government, is 
utterly inconsistent with that full and continutng 
effect; It may even prevent it frote having any 



[ 599 ] 

effect at all ; since peace may follow almost imme* 
diately (although it rarely doea 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 he 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 
treaQr 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 too 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 competently enacted, or, as it is 
sometimes expressed, cannot trench upon the le- 



[ 540 ] 

gtslativer rights of Congress ? Such a 
aot only sQeois to be reproached by all the theo- 
riea, aumeroua as they are, to which this bUI has 
given birth, but is against notorious fact and re* 
cent experience. We have laiely witnesaed the 
operation in this respect of a treaty of peai^e, 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 tre^y, 
than your war-denouncing law, your act for- letters 
of miarque, your prohibftory statutes as to inter- 
course and licenses, and all the other ooncomitaat 
and dependent statutes, so far as they affect the na- 
tioni^l relations with a foreign enemy, pass away 
as a dream, and in a moment are ' with years be- 
yond the flood.' Your auxiliary agency was not 
required in the production of this effect ; and I 
have not heard that you even tendered it Yoo 
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. Int 
word, you did nothing. You suffered them to 
flee as a shadow, and you k^ow that they were 
reduced tp shadow, not by the necromancy of 
usurpation, but by the energy of oonstitational 
power. Yet, you had every reason for interfer- 
ence then which you can have now. The poww 



[ 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. 
It is 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 ler^s 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 untiMt has exhausted it- 
self; and it never can exhaust itself until it has 
gathered into the vortex of the legislative powers 

69 



I 



[ 542 ] 

of Congress the whole treaty-making capacity of 
the government. For if, notwithstanding the di- 
rectness and precisiop 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 up,on 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 muat be 
few, and we have been told, as I think, of no 
more than ond. It is the case of contraband of 
tear. This case has, it seems, the double recom- 
mendation of being what is called an intema- 
tionel case, and a case beyond the utmost grsMf 
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 ] 

interibrei a^ well as any other treaty, with an act of 
Congress. A law encouraging, by a bounty or 
otherwise, the exportation of certain comniodi- 
ties, would be counteracted by an insertion in- 
to the list of contraband of war, in a treaty with 
£ngland or France, any one of those commodi- 
ties. The treaty would look one way, the law 
another. And various modes iQight 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 to dis- 
^nguish 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 ] : 

Tariety 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 efiect, 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- 
tjotk to the winds. I 

And now that I have again adverted to the ex- J 
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 a^ Executive 
magistrate and a Senate, who are npt ip^mediate- 
ly elected by the people, should possess thb autho- 
rity. We hear from one quarter that. if if. 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 ] 

tiition a^ hysterical, and erroneous in the case of 
a treaty of peace ? Do you not see that if there 
be any thing ia this high coloured peril , it is a 
treaty of peace that must realize it t Can we in 
this view compare with the power to make such A 
treaty, that of making a treaty of commerce ? 
Are we unab)e to conjecture, while we are thus 
brooding over anticipated evite which can never 
happen, that the lo% character of our country 
(which is but another name for strength and pow- 
er) may ^e made to droop by a mere treaty of 
peace ; that the national pride may be humbled ; 
thp just hopes of the people blasted ; their cou- 
raj^e 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 atreaty of com- 
merce should ever be made to shaokle the free* 
dam of this nation, or check its march to the 
greatness and glory that await iu I know not, 
indeed, how it can seriou^y be thought that ow 
liberties are in hazard from the small witchery of 
a treaty of eommer/oe, and yet in none from < the 
potent enchantments J>y which a trc^aty of peace 
may strive to enthral thqm* I am at a loss to 
conpeive by what form of ,wQrd$, by what hitherto 
uQheardTof stipulations^ a. conmurcial treaty is.to 
barter away the freedom of United America, or 
of afkj the 9VM41est portiof) qf it. I cannot figure 



[546] . 

to myself the possibility that sach 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 eflfect than the destruc- 
tton 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, yoo 
may and must come to the conclusion, that there 
ought not be, and is not, any government in this 
country, or in the world. Disorganization 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 beeii confided to him ? 
May not toe, as well as the other brandies 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 f 
And does it not, therefore, after having served 



[ 547 ] 

for an instant the puq)08e8 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 
Aver 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 wheii 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 ^rdon, pro hoc vUe^ a rer 
peat of the penal law against which it gives pro- 
tection ? Does it not ride over the law, resist its 



' r 548 ] 

command, and extinguish its effect? Does it not 
even control the combined force oC judicatare and 
legislation ? Yet, have we ever heard that your le- 
gislative rights Were an exception out of the pre- 
rogative of mercy ? Whu has ever pretended that 
this faculty cannot, if regularly exerted, wresde 
with the strongest of yocir 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. Tou legislate, in both 
cases, subject to the power. And this instance 
flirnishes 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 p6wer is in the President alone. 
He is not even checked bf the nece£isity of Sena* 
torial concurrence. He may by his ninglejiat ex- 
tract the sting from yoiir proudest enactments — 
and save from their vengeance a convicted of- 
fender. 

Sir, yoa have my general notions upon the bin 
befofe you. They have no claim to novelty. I 
imbibed theni 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 hi6 coudtry. My under- 



t- 



^rtanding approved them, with the full concurrence 
of my hearty 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 liigh question ; but I want health and strength. 
It 18, perhaps, fortunate for the House that I do ; as 
it prevents me from fatiguing them as much as I 
fatigue myself. 



70 



[590] 



N^- VI. 



ARGUMENT ON THE RIGHT OF THE STATES TO 

THE NATIONAL BANK. 



After the exordium,* which the reader will fin^ Id the Firtf 
Part of thii work, Mr. Pinknej proceeded to inquire' whether 
the act of Congreat establishing the Bank was repugnant to die 
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 fonaer 
was a mere federative k-ague ; nothing, more than a species of 
alliance offensive and defensive between the States, such as 
there had b«>en many examples of in the histcNrj of lAie 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. Th^^ was its great and radical vice, 
which the new constitution was intended to reform. Tfab 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, precisely as hi the State go- 
vernments. But the change intended to be produced by the new 
constitution consisted much less in the addition of new powers to 
the Union, than in the invigoration of the original powers. The 
power of regulating commerce was, indeed, a new power. Bat 
the powers relating to war and peace, fleets and armies, treaties 
and finance, with the other more considerable powers, were aH 



* See Part Fint, p. 161. 



[551 ] 

netted in Coogress by the aiticks of confederation. The propos- 
ed change only substituted a more effectual mode of administer- 
ing them. 

Under the constitution^ the powers belonging' to the federaL 
goremmenty whatever may be' their extent, are just as sovereign 
as those pf 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 powers by which nations are 
known to one another. It acts upon the people as the State go- 
Ternments 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 
Ae 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 of universality 
shows that they are not sovereign powers. But the State go- 
Temments are not unlimit;pd 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 t^e people tta the national govemmeni, are those adapted ^ 
to the end ; fitted to promote, and having a natural relation and 
connexion with, the objt cts of that government. The constitu- 
tioh by which these authorities and the means of executing them 
arc given, and the laws made in pursuance of it, are declared to 



[ 562 ] 

1m the fopreme 1^ of th« land. The kgUaliiMt aii^ jniigwf 
the Stdt^ are to be bound by oalh to sup|K>ct that cooatitotioB. 

Taking these leading principles along with us, the qnaaticxii of 
the constitutionality of the Bank is to be considered at aqoestioB 
of authority ; and consideried as such a question^ it has 
long since settled by the most revered authoritioa, legislative, 
cutive^ and judicial* U is not pretended that a manifest 
croachment and usurpation can be sanctioned in this mode. 
But on a doubtful point — veiusiaUs €t comueimdinU wuixiwut ^* 
Thu is such a doubtful case, that Congress may expound the na- 
ture and extent of the authority under which it acta, and tliis 
practicable interpretation become incorporated into t)ie constitu- 
tion. They did expound it by the act establishing the first Book 
in 1791. 

There are two distinguishing points which entitle this pneth 
dent to great respect. The first is, that it was a cotemporaneoos 
interpretation ; the second iS| that it was made by the authors of 
the constitution themselves. 

Tht* authors of the Letters of PuiUus, or the FedermKstf 
(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 construetive powers ; of powers implied as tlie necessary 
means of executing the principal powers granted, and na having a 
relation to them. They maintain this^^lst, upon general principks, 
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 uf every kind granted to Congress — ^and that ail the 
laws of Congress should be the supreme law of the land when 
made In pursuance of the constitution. 

1 he principal members of the convention who framed the con- 
stitution, passed into the new government organised under it 
The first Congress enacted the law for incorporating the Bank, 
after the most mature deliberation and full discussion. Prvsidmt 
Washington deliberated upon the bill with his usual caution, and 
before he decided, consulted his cabinet. General Hamiltoa, 
the principal author of the Federalist^ made a report upon the 
subject, which aAer the passions and prejudices of the day have 



[ 558 ] 

soMdMiy It iBty bt flowed to call a omlerl j aod coneluiive ar- 
gtUMfit in Aivoar of the tafidity of the act. Both the people and 
^le Statm wittia«ed aU thia dncuMloD^ and acquiesced id the 
result. The President was re-elpcted, and no man lost his seat in 
Congreie fka his yote on thb momentons question. The courts 
of jastiee etecoted the law, with all its penal sanctions ; and in the 
nmnerous qnestions arising under it, no lawyer ever thought of 
questioning its constitutionality. There was this onanimotts 
concnmnce of the national will antil the cliarter expired in 
1811. ■ 

Political eonsideratioas alone might hare produced the refusal 
to renew the charter at that period } at any ratCi we know that 
they mingled' themselves in the debatCi and the determination. 
In 1815, a bill was passed in the two Houses hicorporating a 
national Bank ; to which Mr. Madison aefosed hi* assent, hut 
upon considerations of expecKency alone^ waiving the question 
of conadlnlionaUty aa kiTing been settled by cotemporaneous ex- 
position, repealed subsequent fecognitions^ and general acqmes* 
cence for twenty years. Mr. Madison well knew what title to re- 
spect the deeisioir in 1T91 possessed. He Was intiahately ac- 
quainted with all the circumstances attending the formation and 
adoption of the constitution in which he had so large a share. 

In 181 69 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 conchnive upon a doubtfiil 
and specdatlTe question like this. It would be unfoitunate if it 
were othsrwise. The government coald never acquire that sta- 
bility wUch can alone ^ve it strength at home and respect abroad, 
unless such delicate questions were considered as finally settled 
when thus determined. Congress Is, prima fiwie, a competent 
jadge of its own constitutional powers. It b 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 oonstitation, aa well as the considera* 
tions of political expediency which might justify the mnasure. 
It had repeated opportunities of exercising its judgment in this 
respect, upon the present subject, not only in the principal acts. 



t \ 



[ 554 ] ^ 

incorportthig tlM^fortner and the present Buik, bat ia the irtri- 
OU6 inbidenlai atatutes rabsequently eoact«d on the.sam«* subject. 
On all these occasious, the qoestkni df ooMlitutioiMiity was 
equally open to debate. ' 

There can be little danger in the Coort receivinf the dectaiiMi 
. of Congress as strong, though not conclisuve evidence, of die 
extent of Hs own constitutional powers. Experienoe has shova, 
what wisdon had anticipated, that its inclination is to ahstain 
from the exercise of doubtful f lowers. Many of its express and 
unquestionable authorities it has omitted to exercise. In tres- 
passing apon State rights, or those of the people, its responsibi- 
lity is strong and direct. All its own prqodtoes and attachawoli 
are so many pledges of its virtue in this respect. But, sorely, as 
to the question of neesssily, (which relates to political economy,} 
the repeated decisions of Congress and the executive government 
are entitled to peculiar consideration, as the grneral question of 
constitutionality is mixed'and complicated with the other question, 
iriiether the establishment of « Bank is a natural neuns of car- 
rying into effect other powers expressly given. 

The abstract quesdon then reverts, has Congress authority to 
erect any cotporatiemf 

It has been already shown that the powers of the natioual go- 
vernment are sovereign powers for sovereign objects. These 
t>bjects are generalised in the preamble to the constitvtioo, and 
are afterwards more specifically enumerated. A more perfect 
union is to be formed ; justice established ; domestic tranqi^lity 
insured ; the common defence provided for ; 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 u armed widi 
powers and facuhies corresponding in magnitude. The means 
were intended to be commensurate with the ends, or the consti- 
tntion was not intended to accomplish its own purposes — which 
is an inadmtssibfte supposition. The security ^[ainst 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 
wilt redress it. 



[5551 

To deal more in detail. The objecfs of the powers of the 
aational goveminent wei^, 
. lat. Security against ^foreign danger. 

2d. RegaMon of the intercourse, of every kind (diplomatic 
and coameremi) with foreign nations. 

3d* The maintenance a( harmony , and firee and friendly inter- 
coQAe among the states. 

4th« Certain miscellaneoiis objects of general utility.^ 
5tfa. Restraint of the States from certain injarious acts. 
6th. An express provision for giving efficacy to all these 
powers. 

l.« 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 eflfecto- 
ally confided to ihe federal councfls. 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 snppdrting armies, and of providing 9nd 
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 
e^tcises, of paying the debts of the nation, and of borrowing 
■Boney oh 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 aj principal mo- 
tive for the formation of the new constitution. The power over 
this too b given without limit. It includes, besides the authority 
of r^ulating commerce, and forming treaties of comfnerce and 
other conventions with foreign States, that of sending and re- 
ceiving ambassadors, and of defining and punishing ofi*ence8 
against the law of nations. The States are prohibited from in- 
terfering with the exercise of those authorities. 

S. For the maintenance of harmony and of friendly intercourse 
among the different States of the Union, are given the power of 
eatablislung uniform naturalization and bankrupt laws ; to coin 
money, and regulate the circulating medium, and the standard of 
weights and measures ; to regulate commerce among the States ; 



[ 556 ] 

to MteUiih poift-oflkat and po»t«roBds | ta preacfibe tbp 
in which the records of one State shall be proved and 
in other States. 

4. The viisoeUaneous objects of general utilitj were to foe at- 
tained by the powe^ to grant parents and copjr-ngfais ; to eictcite 
exclusive legislation over the District of rdMinhia^ and pUeea 
purchased for the use of fortifications and dockpyafds ; to declaia 
the punishment of treason ; to admit new States into the Uosoa ; 
ido dispose of and make all needful rules and rcgulationa reaped- 
ing the territory and other property belonging to the Uaioii } in 
guarantee to every State a republican form of government* 
. 6. Tlie provisions of restriction upon the Statea are, aa to 
making trealiea, and alliances with foreign stales or with cash 
other } granting lelters of marqufs and reprisal ; emitting billa of 
credit ; making any thing but gold and silver a tender; in |Mtt8<- 
ing any bill of attainder, ex post fiuto law, or law impaipaif tkie 
obligation of contracts ; granting any title of nobility } laying 
any duty on imports or exports ; keeping troops or ships of war, 
in tinse of peace ; engaging in war, &c 

6. The proviaioDs for giving efficacy to all those po«ei% nie 
the power to make all laws necessary and proper for cairying i^" 
to execution the other powers vested in Congrem, or in the gn- 
vemro^nt of the United States, or in 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 therefagr ; and that the mem* 
hers 6f die State legtslatures 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 inhcFent in and inseparable from all idea of sovetmgn 
power? 

There is no expreu prohibition in the constitution to prevaat 
Congress from creating a corporation, tt is admitted that the 
Sutes possess the authority aa a distinct, substantive power of 
sovereignty, which remains entire in them because not expressljy 
granted to the national government. But the power of legislar 
tion in the State governments is not unlimited. There 9fP sevcni 



[ 557 } 

Kmiuti(^iis to if, lit, From the Qaturt of tU gavcmmcnf, cipe. 
ciaUy of republican goveromeac, in which the residuary povei* 
of .aovereigotj, not granted specifically, or by inevitable implit 
cation, are reserved to the people. 2dly, From the express limi. 
tatioos contained in the State constitutions : add, 9dly, From the 
express prohibitions to the Stmes contained hi the national constit 
tution. Admit that the State governments have the right of esl»* 
blisJiing corporations : the question is, whence did they derive 
it ? It is no where expressly granted to the State legislature^ in • 
their several constitutions. It is taken by implication as a ne- 
cessary meaos of giving effect lo the general powers of legislation i 
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* 
pUshing some ol the ends of government. Laws aie 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 accomplishment of a valuable end. Spme public 
convenience— some beneficial result, is aimed at by it; and bo> 
cause the beneficial result is within the power of the State go- 
vernment, so is the establishment of the corporation If it he 
inquired whence the first legislature that exercised the- aiithoritj 
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 meaos. Upon the 
same foundation rests the authority #f Congress to create a cor- 
poration. It has not a right to create a corporation in all casein 
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 coipo- 
ration, and to^fiea a purpose exclusively belonging to the na- 
tional government, than Congress can make a corporation tp 
fulfil a State object. Neither can the State legislatures make a 
corporation to efiect any object on which they are prohibited 
fiKUtt l^islating by their own constitutioos or the coastitutioa 
of the United Stales. 

71 



[ 558 ] 

But why is the power of creating a corporatioD cooatdered « 
distinct, substantive act of sovereignty, so that it cannot be 
by implication ? Is it on account of its superior dignity and 
portance ? If so, then it must necessarily belong to the national 
government, which.is supreme within the sp^re of its constioi- 
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, wBecber 
^^upreme 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 «n authority inherent in, and incident to, 
all sovereignty. That it is an exertion of sovereign power, is 
admitted ; hot not more so than any other act which requim a 
law or a clause in a law. It is no more a distinct exercise of so- 
vereign power than that of inflicting capital punishments. 

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 comitrj. 
But, in the civil Uw, a corporation could be created by a mere 
voluntary association of individuals. And, in England, the an- 
^thority of Parliament is not necessary to create a corporate bo- 
dy. The king may do it, 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 oar 
constitution, although it can only be exercised by the legislative 
department, it ought to be regarded as a subordinate mean to 
cai;ry 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 su'^^ed to that purpose? It is not now necessary to prove that 
It is suited to any such purpose. It may be assumed, ttrgumaiti 
gratia : and supposing it to be so, it is impossible to imagine a 
reason why it should not be thus used, unless it could be showo 
that there was something of a singular character in thi» power, 
■o that no government could assume it without an express grant. 
If this were the nature of the power, the State governments 
could not. exercise it without such a grant. No government can 



- [ 559 ] 

use k othenrise than as a process towards a result* It is always 
an inGidetitai and auxiliary power. 

It had been said by one of the counsel on the otlM>r side, thai 
are no implied powers under the idea of means to an end. - 
constitution has defined both ends and means, and this is 
not enumerated among either : it is not to be taken by implicadoni 
as a mean of executing any or all of the powers eftpressly grant- 
ed ; because other means, not more important or more sovereign 
in . their character, ai^e expressly enumerated. For example : 
one of the great ends of the Union is $o .provide for the com- 
own defence ; but the means of accomplishing this object, are 
expressly given, such as the power of laying and collectiiig 
taxes, &M^ 

The answer to this argument, and the example put to illustrate 
it, is, that those means which are expressly defined, involve other 
means which must be taken by implication, and thus the prind- 
|Mil means become, with reference to those other means, ends. 
Many particttlar 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 means involve other pai^ 
licolar means, such as providing post-horses, &c. The going te 
Rome now becomes the end, and the poat-horses, Sec the meant. 
But I cannot get those post-horses without borrowing money to 
pay for them. 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 it 
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 yon can do all that is necessary for Aat 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 drcumstancea arising In such an unexampled state of 



[560 ] 

political Botieiy as ours, for ever cheagtag and for ever inprov- 
ing. How unwise would it have been to attempt to legislate im* 
flNtfabljT for otcasions which had not then oceurredy and whidi 
oould have been foreseen but didily and imperfectlj ! The oosh 
slltution is a concise Instrtttaient consisting of a few pages only- 
The eilgeneies up6n which it most act^ are almost infinite : io* 
eluding all the^omplicated concerns of a great nation, diversi* 
fied from year to year^ with new cireumstanoes, and new combi- 
nallotts of old circumstancesy n^w subjects rising into enstascSe^ 
old disappearing. 

If there be no implied powers, eonsider the details which 
have entered into the constitution itself. It woold become a 
and voluminous digest, to which some people's speeches would 
be as shbrt as a single stante eompared to the ballad of the iwoi- 
tf thousand virgins mentioned in the Spectator. The constibK 
tioa must have contained a distinct power for evely ckaae of 
tvbry act of Congress. The whole statate book of the Umlsd 
States b a record of implied powers^ withovit the use of which 
the constitution would be a dead letter* it is filled with p 
derived from implication. The power to lay and collect 
#ill not execute itself. Congress must designate in detail all the 
aaeans of exetottoo, which most necessarily involve a vast vari^ 
t^ of regulations no where specified in the conMitntionb So dsa 
the power of establishing post-offices and paflHroada Involves 
that of punishing the ofience of robbing the asaiU B«t there H 
no more necessary connexion between the ponbbnisnt of nail 
robbers, and the polrer of establishing postH>ffices and pdst«-roadS| 
than there is between the institution of a Bank, «nd the totteo- 
tion of the revenue and payment of the public dehU Md cx- 
fenses. And consider the absurdity of supposing that the flow- 
er of taking away life may be implied, or used as a meana» and 
yet. that the creation of a corporation cannot ! So, light-h#Qses^ 
beacons, buoys, and public piers, have all been establiitied under 
the general power to regulate commerce. But they are not in- 
^spensably necessary to commerce. It might linger on without 
thear aids, though exposed to more perils and looses. So, Con- 
p«ss has express authority to coin money, and to guard the pa* 
rity of the circulating medium, by providing for the punishment 
bt tmmUrfeiting the current coin: but laws are e^ made for 



. [ 561 ] 

punishing the cxffence of uttering and passing the coin thus 
counterf«fted. Here oiie of the means of accomplishing the end 
is expressed, arid the other is implied. The law which punishes 
the oflering of a bribe t« a judge of the United States ; the law 
which punishes the embesaling and alteration of records ; the law 
which punishes smuggling— whence are they derived but fk'om 
Implicacion as means necessary and proper to carry into effect 
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 
alt* needful rules and regulations respecting the territory of the 
United Slates, is one of <be Kp^cified powers of Congress. Un- 
der this power, it has never been doubted that Congress had an* 
thority to' establish corporations within the territorial govern- 
menta. But this power Is derived entirely from implication. It 
is assumed as an incident to the principal power. If it may be 
assumed in that ease upon the ground that it is a necessary means 
o^ carrying Intd effect tlw piower expressly granted, why may it 
not be assumed in the present cade Upod a similar ground ? 

Bnt it is taid, thltt the end, or principal means, may be sove* 
reign, and still Coagresi is not at liberty to nse any subordinate 
nierins it chooses : it has not a sovereign discretion to adopt all 
air any means. The mean* or law must be an aksohUtly neces* 
aary means or law. 

It is readily admitted that there must be a relation in the na- 
lute and fitness of things, between the means used and the end 
to be accomplished. Bat the question is, whether the necessity 
which will justify a resort to a certain mean, must be an absolute, 
indispensable, inevitable necessky ? The power of passing all 
laws necessary and proper to cifrry into effect the other powers 
specifically granted, is a pkUHcti power, it ii a matter of legisla* 
thre discretion, and those who are to exercise it have a wide range 
of choice in selecting means. In its exercise, the mind roust 
c«nnpare dWereiit mcnns with each other, b addresses itseV to 
a deKbenftive assembly empowered to acoompUsh certain general 
bbjects by w^t it deems the most appropriate means. In the 
choice of ihese means a connderable latitude would be allowed^ 
in Botemf^hing a politioal object^ dm mmd is eniplayed in It 



[ 562 ] 

selection of means. . But absolute necessity ezchides all choicr. 
The flec^ity which is required, can never be the subject ti 
mathematical demonstration. It is a question of politicil and 
moral science, in nrhich moral t:ertainty only can be arrived sL 
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 seroriCf 
against abuse is to b^ found inlhe constitution andnauire of tk 
government, in its popular character and structure. 

To make tlie validity of a law depend upon the more or las 
of necessity for passing it, would be absurd and ridiculoos. A 
law would never be sure of validity.^ * The judiciary has do 
means of determining by such a criterion. Even absoJirte se 
eessity cannot be judged of here; still less can practical necessity 
be determined in a judicial forum. The natural place for (be 
inquiry is in .the legislature, where a comparison of diflerent 
- 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 assooied 
have a connexion and relation in/the nature and fitness of tbiogs 
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 tbat it 
does not appear to be violently and unnaturally forced into the 
service, or fraudulently assumed, in order to usurp a newsobstsn- 
tive power of sovereignty. The criterion of absolute necessity 
would drive Congress to the exercise ot the feeblest means only. 
The true rule, therefore, must be, the .use of such meaiis asaie 
adapted to efiect the object in the most advantageous manner for 
the general purposes of the constitution, with a discretion in Con- 
gress to judsre of that question. 

The doctrine of implied powers is stated by the authors of the 
Federalist in this way : ^ Shall the Union be 4:onstitiited die 
guardian of the common safety ? Are fleets, and armies, sod 
revenues, necessary to this purpose ? The government o( the 
Union most be eiiq>owerad to pass all laws, and to mskc «D 



[ 563 ] 

r^fulations which have relation to them/' No. 2S. '' It must, 
ID shorty possess all the means and have a right to resort to all 
the methods of executing the powers with which it is entmsted} 
that are possessed hj 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 effect 
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. ISo 
axiom is more clearly established in law, or in reason, that where- 
ever the end b required, the means are authorized ; wherever a 
general 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 not strictly 
and absolutely necessary. But it is certain that this clause is not 
restrictive. It professes to give capacity, not to take it kway. It 
did neither the one nor the other. It was merely inserted ex 
abundanii cauteia : and 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 ^e qualified manner in which they 
are used in the 10th section of the same article. In the latter, 
it is provided that <^ No State shall, without the consent of Con- 
gress, lay any Imposts, or duties on imports or exports, except 
what may be absohiiely 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 y 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 
another figurative and more related. It may be qualified by 
the addition of adverbs of diminution or enlargement, such as 
very^ indispemMy^ more^ iess^ or absolutely necessary ; which 
last is the sense in which it is used in the 10th section of the 
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 
efiect 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 meaa 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 projierty 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 discoant, 
and a Bank is created. It only wants the forms of incorporafiop.. 
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, tlie 
United States are joint stockholders and appoint joint directoisj 
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 lo 
loan the government a certain amount on demand ; its notes are 
receivable in payment of public debts, duties, and taxes ; it is 
intimately connected, according to the usage of the whole world, 
with the power of borrowing money, and with all the finanasl 
operations of the government. It is ospecially connected with 



[565] 

the power of laying and co|}ecting taxes. That po#er impliea 
the authority, not only to impose the tax, bat to prescribe in what 
medium it shall b^ 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 receii^e 
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 invasioi^ 
when the aid of a great monied corporation would be essendaily 
necessary. - The resources derived from taxation are only suitad 
to the ordinary state of things. The government must occa- 
sionally resort to loans. 

The establishment of such a corporation is also closely caa* 
nected with the power to coin money, and regulate the vahtt 
thereof, and of foreign coin, and to regulate foreign commerce 
and thai between the States ; especially when it is considered that 
the States are prohibited from coining money, ensitting Uifts 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 foreign commerce and that between the States may be 
more convcmently carried on, and exchanges facilitated. It is 
true, there are State Banks incorporated by which a circiK 
lating medium to a certain extent is provided. But that only di« 
' minbhes the quantum of necessity. Besides, there is danger 
that this power of. establishing local Banks may be abused* 
Some of the States have already created Banks with the pledge 
of their own public credit for the redemption of the notes isau* 
ed. This seems to be within the constitutional prohibition as to 
bills of credit, and certainly Congress nuiy counteract Ae evils 
of these local currencies by a national currency. It is more in 
the spirit of the constitution that Congress should influence the 
medium of commerce, the aubstitule of coin, than that the States 
Aoukl control it, wbo 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 



[ fi^ ] 

of the Umted Stata. If they may establish a corporation t9 
regulate their territory, they may establish one to regulate tfaeir 
property, l 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 tarrying on the trade of banking as one 
of the ends for which the government was establbhed ; bat only 
as an instrument or means for executing its sovereign political 
powers. This instrument could be rendered effectual for tins 
purpose in no other way than by mixing the property of indivi- 
duals with that of the public: The Bank could not otherwise 
acquire a credit for its notes. 

But the greatest, and only question of real difficulty io the 
CQUse, is that which respects the assumed right of the States to 
tax this Bank thus established by Congress as an instruffient 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 Ais 
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 exempt ; 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. Rbinf 
out of an exertion of paramount authority, it cannot be subject 
to any other power. Such a power in the States, as that now conr 
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 manifest repugnancy between the power of 
Maryland to tax, and the power of Congress to preserve, this in- 
stitution. A power to build up what another may pull down at 
pleasure, is a power which may provoke derision, but can do 
nothing else. 



[ 567 3 

But we are told that it b enough for the State to show its co- 
equal taxing power on Internal objects. The equality of that 
power is not depied ; 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 i^i exception by reason of evi- 
dent inc«»mpatibility. It is an exception, 

1. Because the tax operates upon the hgislative faauky of 
Catigressw 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 legislatiTe power. 

2. Because it operates upon the public or national property, so 
fiur 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 exdusiTC ? All that can be said is, that the eo-^qual 
tasdng 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 fo 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 bj 
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 conuoUing au- 
thority of this Court. If it does not exist here, it is a nonentity. 



[ sea ] 

Bat ike Court canoot ny what » an abose, and what is a legiti- 
nate use of the power. The legislative intention ^may be to 
■tasked, as to dt'fy the scrutiny of the Court. ^ How will the 
Court ascertain, d priori^ that a given amount of tax will email 
the Bank ? It is essentially a question of political econooij, and 
tiiere are always a vast variety of facts bearing upon iu The 
iacts may be mistaken* Some important considerations belongs 
ing to the subject may be kept out of sight. They muat aU vary 
with times and circumstances. The result, then, most determine 
whether the tax is destructive. But the Bank may linger on for 
aome time; and that result not be known until the work of de* 
atruction is consummated. A criterion which has been proposed, 
is to aee whether the tax has been laid impartially upon the State 
BankS| as well as the Bank of the United States. Even this is ao 
unsa^ test ; for the State governments may wish and intend to 
destroy their own banks. The existence of any national institiH 
tion ought not to dep^rnd 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 oon- 
stitution of Maryland, that taxes shall operate on all the citiseAS, 
impartially and uniformly, in proportion to their property ; with 
the exception, however, of taxes Isad for poUHccU 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 it were 
not imposed for that purpose, it would be repugnant to tlie State 
constitution — as not being laid uniformly on all the citisens 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 
with that of Kentucky, which is yet to come before the Court, 
and the absiilute necessity of repressing such attempts in their 
infancy will be evident. Admit the validUy of tlie Maryland 
tax, and thai of the Kentucky law follows inevitably. How can 
it be said that the office of discount and deposit in Kentucky 
cannot bear a tax of sixty thousand dollars per annum, payable 
monthly ? Probably it could not ; but judicial certainty is essen- 
tial ; and the Court has no means of arriving at that certainty. 



[ 569 ] 

There it ^ theiiy here an absolute repvigDanc j of power to power. 
We we not bound to show that the particular eitercise of the 
pfiwer in the present ease, 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 
thf 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 Congresa 
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 
sapreme. The Bank and its branches are no more within the 
jurisdiction of the States than the Courts of the Union. All the 
property, and ail the institutions of the United States, are, con- 
atnictively, without the local, territorial jurisdiction of the indi- 
vidnal ^ates, 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 establish them. Their exemption from that 
jurisdiction is enth'ely matter of construction and implication. 
The Courts of the Union are paramount to the power of taxa- 
tion in the States, because they 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 instttution and an instrument of government for fiscal pur- 
poses, as the Courts are for judicial purposes. They both proceed 
Irom the supreme power, and equally claim its protection. There 
B the same necessify for rescuing them both from the taxing pow- 
er of the States. A tax by the States would have, or might have, 
the same mischievous efiects on either. And if a tax ever so 
light 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 ts in ail these c«»es extra-territttriatityi so far 9s is ne- 
cessary to give full effect to the power tu which the insthutioD 
owes its being. The immabity of foreign public vessels Irooi 
local jurisdiction^ whether State or national, was 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 implied upon the 
same ground with the fiction which exempts a foreign sovereigBy 
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 rused on the same founda- 
tions for the security of our own national government ? If a £1- 
reign ship of war, or foreign troops, coming into the territory of 
the country, by permission, would be exempt from the local jo- 
r^sdiction, shall not the army, and navy, and fiscal institotioos of 
the Union be equally exempt ? 

These apalogies show that there may be exemptions Iron 
State jurisdiction which are not detailed in the constitutioOy bat 
arising out of general considerations. If Congress has power to 
do a particular act, no State can impede, retard, or burden it. If 
some of the powers of Congress necessarily involve iocompati- 
bility with the taxing power of the States, this power may be in- 
compatible. This is incompatible ; 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 nse- 
fiil, 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 co-«xist. 

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 standi 
upon plain implication. It arises from the general nature of die 
government, and from the principle of the supremacy of the na- 



[ 571 ] 

tional powers^ and the laws made to execute them, ov^r the State 
authorities antl State laws. 

It is, however, objected that the act of Congress incorporating 
the Bank withdraws property from taxation by the State, which 
would be otherwise liable 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 fact, it withdraws 
nothing from the mass of taxable property in Maryland, which 
thiat 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 pubUc treasure. Neither 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, 
80 far from withdrawing any thing from taxation by the States, 
hrings 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 i» they 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 State taxation. Here the treasure of 
the United States and that of individuals, citizens of Maryland 
and of other .States, are undistinguishably confounded in the 
capital stock of this great national institution, which, it has been 
before shown, could be made useful as an instrument of finance 
in no other mode than by thus blending together the property o( 







[ 572 ] 

the government and of private merchants. This partnership is, 
therefore, one of necessity on the part of the Cfnited States 
Either' this tax operates upon the franchise of the Bank, or upon 
its prop4>rty. - If upon the former, then it comes directly in caa> 
flict with the exercise of a i^reat sovereign authority of Congress; 
if upon the hitter, 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 iadividiials. 

But it is said that Congress possesses and has exercised the 
unlimited authority of taxing the Stale Banks ; and therefore, dK 
States ought to have a correspondent right to tax the Bank of the 
Unifbd States. The answer to this objection is, that in taxing 
the State Banks, the States in Congress assembled, exercise ibeir 
power of taxation. Congress exercises the pow^ of the Peopk. 
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 machioes 
essential to execute the powers of the State sovereignties, and, 
therefore, such a consequence cannot follow. The people of the 
Union, and the spvereignties of the several States, have no ooa- 
trol over the taxing power of a particular State. But they have 
a control over the taxing power of the United Slates, in the le* 
sponsibility of the members of the House o( Representatives to 
the people of the State which sends them, and of the Senatora to 
the legislature by