The enquirer. [volume] (Richmond, Va.) 1804-1815, 1811-07-23

foy nifty Of such orders and instructions to
its principles OF unwritten law. In the par
t,cular case of the orders aud instructions
which give rise to the present question. the
Court has not heard il at all maintained in
argument, that as retaliatory orders they arc
not conformable to such principles--for
Tetaiiatory orders they are They are so
declared in their own language, * in the
uniform Language of the government which
has estabi. shed them. / have no hesitate
on in saying, that they would cease to be
&c talatory, II ON the moment the enemy re-
tracts in a sincere manner those measures
OF his whch they were Intended to retail
ate
The first question is. what is the proper
evidence for this Court to receive, under all
the circumstances that belong to the case,
in proof OF the fact that ne has made bona
ade retraction of those measures. Upon that
point it appears to me that the proper EVIL
aence for the court TO receive, is the deCla
ration of the Stateitseli. which issued these
retaliatory orders, that it revokes them in
consequence of such change having taken
place in the conduct Of the enemy.---When
the State, in consequence of gross outrages
upon the law oil nations committed by its
adversary, was compelled by a necessity
which 1t laments, to resort to measures
which it otherwise condemns. it pledged it
soon as the necessity ceases. And till the
state revoKes them, this Court is bound to
presume that the necessity continues to ex-
as 1t cannot, without extreme indecency
suppose that they would Continue a moment
longer than the necessity which produced
the, N. or that the Notification that such mea-
Snres were revoked, would be less public
and lorna than their first establishments
Their establishment was doubtless a great
and signal departure from the ordinary ad.
ADMINISTRATION OF justice in the ordinary state
OF the exercise of pubic hostility, but was
justified by that extraordinary deviation fl ON
che CommcD exercise OF hostility in the Con-
duct OF the enemy. 1t would moi have been
within the competency of the Court itself to
have applied originally such rules, because
Il was hardly possible for this Court to
possess that distinct and certain information
ofthe facts to which a.orie such extraordina-
ry rules were justly applicable II waited
therefore for the communication OF the facts.
Ii waited likewise tor the PRONUNCIATION OF
the raies that were 10 be practically applied.
For the state might not have thought fit to
act up to the extremity of its rights on this
extraordinary occasion; it might, from mo-
Owes of torbearance OF even of policy I'M
mixed with any injustice to other States,
have adopted more indulgeht rule than
che saw of nations would authorize, though
1t is not at liberty even to apply a harSher
euie than that law warrants
III he case of the Swedish convoy, which
has been alluded to, no order or instructi-
on whatever was issued and the court,
there! ore, was left to find its way to that le-
gal conclusion which its judgment of the
principles of the law led it to adopt. But
certainly 1.-THE state had issued an order. tn at
a rule Of less SEVERITY should be applied, this
courl wo,.'a not have considered it as any
departure from its duty to act upon the mild
er rule which the prudence of the state was
content TO substitute IN support of its own
rights In the present case, 1t cwAited for
the communication nf the fact and the pro.
mitigation Of the rule. 1t is its dsty in ike
manner, 10 wait for the notifcatic of the
fact, that these orders are revoked in con-
sequence of change IN the conduct of the
enemy. ~, - ".:,..,~gA, ~.
The .edicts of the enemy themselves. OBJ
scpre and ambiguous in their usual Ian
Soage, and most VIGOROUSLY and frequently
contradicted by his practice, would hardly
afford it a satisfactory evidence of any such
change having actually ard sincerely taken
place This State. has pledged itself to
rhske such notification when the fact hap
pens: l. is pledged SO to do by its public
Extraordinarily its acknowledged inter
pretatjons or Law OF fations--by every act
WHICH Sdh C-NSltC dh uTlNGTsat expectation
and t1eGand that it shall redeem such "a
pledge. Is such an expectation peculiar 20
this conrti Most unquestionabiy net 1t is
universally felt, and universally e2.prest.-
VIVA a,e the expectations signifed by the
Amer,c an government in the public CORES
pondence referred to! Not that these Or
der would become silently extinct under
ere ju'eTpretations of this court, but that
si. stage would resCind and revoke them
Wa, IS the expectation expressed in the
name, Gus private letters exhibited to the
court amongst the papers found on board
This class of vessels Not that the British
Orders hail expired ofthemselves. but tba,
they would be removed and repealed by pub
lie authority. Ii took upon myself to an
sifiilate them by interpretation, should
act in opposition TO the apprehension and
Judgment of all parties concerned--of The
individuals whose property is in question
md Of the American government itself
which is boundto protect them.
Allusion has been made to two or three
eases. in which this Court is said-4o-h av,
exercised .. power 1f-1aITying and mode
:-afipg- Lh---geDeral terms of an Order il
q, Gil, as in the case of the Lucy. Taylor
=, ~; ch the general terms of the order
.,.h;sce. i to conhscation all ships transfer
80 -, N enemy 60 neutrals during the W ar
80 ,s, d, IS Court held that.these genera
s.S,os Aid no, extend to prize ships sol trans
$500 hv the cnemy-But what was thu
t. n .