Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1811-07-25
Court of Admiralty.
LONDON, MAY soth, 1911.
t'oa' and oihers--indgmest


part ctthe osptorS, that under the order in
council at SSth April. 1909, this ship and
cargo, being destined 10 port of France,
arc aaole TO eoaiisoation. On the part OF the
Claimants i has oces replied that the shin
snd cargo arc not ConSScable under the or
GERS us Council; first. because these orders
have N tact become eXtiect, being profess
sSslis founded upon measures which the
enemy had -ctractcd; and secondly. that
4 the orders in council are to be considered
As existing, there arc circumstances ofc;uisv
II the present case, and in the others that
solssw, which ought TO iuiiuoe the court 20
sosd them cSoner2sed sion the penal Isct
& these orders
IN the course q the discussion a question
hSs Seen Starsea. What so,ii DC the duty
q iSe court under ofdecsin council, that were
repeSrantso the law Of nat;enss !, has been
ooa.eaded en- one side, that the court would
at al events bel bound to enforce the orders
N council: On the other, that the Court would
b bound to apply the rule of the law Of na-.
sicus applying 10 the particular CASE. in DIS
regard II the orders in council have nyt
Observed, however, that these orders ia5coun-
ca IN their rotaliSsory character, have been
oescA1oed "A the argument as at all icprg-
hanf % the law Of nations, however liable to
De 50 described If merely original and abstract
and therefore il is rather TO correct possi-
Die miSarpreaelsiono on the subject than from
the se:'Se OF any-ooi;gat;on which the present
0'scnssren imposes upon me, that 1 observe
sh2t this Court IS bound To administer the
law OF nations to the subjects of other Conn
tries IN the disferent relations in which they
may be placed towards this country and its
government This is wha, other countries
nave a right to demand for their subjects.
and TO complain they receive it not. This
IS rs unvritten law evidenced in the course
oi ITS decisions, aud collected from the COM
mon usage ct civilized states. AT the same
.i.ne II Is strictly true, that by the constitution
Oh tsis Country. the King in council posses
ses legislative Ilshts over this court, and has
power to issue rs and instructions which
is bound to and enforce; and these
stnte the Written law of this court.
ese two propositions, that the cour. Is
round 70 administer the law of nations, and
.nat 1t IS bound toehforoe the kings orders
In Council, are not AZ all inconsistent with each
ctner; because these orders and Instructions
are presumed to conform themselves. upder
uhe gwen circumstances, to the principles of
as unwritten law. They are either directory
Applications of those principles to the cases
indicated In them-cases which, with all the
Facts and circumstances belonging to them.
ana which constitute their legal character,
could be but impcrfectly known to the Court
iisei; or they are positive regulations, con-
s's'eht with those principles, applying to mat
pers winch require more exact and definite
rules shan those general principles are ca
pablo of furnishing.
nc constitution of this court, relatively to
.'e legislative power OF the king IN council,
- analogous 20 that ot the courts of common
law relatively to that of the parliament of
TINS kingdom. These courts have their nm
written law, the approved principIes of ma
tif al reason and Jsstice--thcy have likewise.
tne written or statute law in acts of parjia-
Iile'it, winch are directory applications of
TIE same principles TO particular subjects. or
positive regulations consistent with then, nm
on matters which rTcu,d remain too much at
krge il they were left to the impe~fec, in
mation which the. courts could extract
M mere general speculations. What
would be nty CT the individuals who
preside In courts If required, to enforce
az act OF eat which contradicted these
principles, IA question which presume
laey would not entertain priori, because
'ney wan not entertain priori the SUPPOSE |
IiOn .nat any such viii arise. In like man
ner tis Court viii not let itself loose into
.Pecuiatlons as 10 what would be its duty nm |
der such an emergency, because II c.nno,
without extreme indecency, presume that a.
~ such emergency will happen; and Il is !
ne less disposed to entert an them. because |
Is own observation and experience attest the
se1eIai coniormity Of such orders and in |
puetiens TO ITS principles Of unwritten law. |
u tne particular case Of the orders and in
'Fuct'ons which gave rise to the present
loesuon' the court has not heard il at ali |
ht'lIalned IN argument, that as retaliatorv
roers they arenot conformable 10 such r,rin-
iples--ior retaliatory orders they are. they !
fe SO declared in their own language and !
the uniform language of the government
'hich has established them. Ihaye no hest
ftlcn IN saying, that they would cease to he
ist 1t they ceased to be retaliatory: ard |
Dey would cease TO be retaliatory, from the
moment the enemy retracts in sincere man
er those measures Of his which they were
'teDded to retaliafe.
= ne hrst question is, what Is the proper
Viusnce ior this Court TO receive. under ali
ne circumstances that belong to the case, in
ROOF Of the fact that he has made bona
&c re.Faction ct those measures. Upon
"a Pohit II appeats to me that the proper
siuence Tor tne court TO receive, is the de-
larauien OF the state Itself, which issued
lese retafatory orders, that Il revokee
lem IN consequences Of saci change havine,
zen place m the conduct Of the enemy.
Vhen the state, in consequence Of gross out
ages upon the law Of nations committed Bv I,
adversary was compelled by a necessity
YlSs' II iamenis to resort to measures which
'other|ise condemns, it pledged itself 20
vocation OF those measures rs soon as the ,
scesSisy ceases.--And till the state revokes ,
rem, ttis court IS bound topresume that the :
-StssitJ conbnueS TO exist; Il Cannot with
- s~.'eine Indecency, suppose that they +
ouiu commune moment longer than the Z
ncessiw which produced them, or that the ,