« PreviousContinue »
aiming a direct blow at our “sister-republic,” France, only served still more to exasperate our countrymen; who yet remembered the injuries they had suffered from Great Britain in the revolutionary war, and all whose sympathies had, from the beginning of the European controversy, been warmly enlisted on the side of the French nation; which was then believed to be in pursuit of the same liberty, that we had just obtained. Those persons, who are not old enough to recollect the feelings of that day, can have but a faint idea of the enthusiasm, which pervaded the whole American people, and stimulated them to aid, in every practicable mode, the efforts of a nation, who had just “unfurled the banner of freedom,” and whose very political existence as a “republic” was threatened by a powerful combination of the monarchical states of Europe. A recurrence to one of the leading measures of the American cabinet, at that period, will strikingly show the general state of feeling. It was decided by Washington and his counsellors, that it was the policy and duty of the United States to remain neutral during the contest of the European powers. But even this prudent measure, dictated as well by national interest as by justice, was so unpopular, in consequence of its preventing us from taking part with France, our old revolutionary ally, that it required all the circumspection and popularity of Washington, to enable the administration to issue and carry into effect a proclamation of neutrality. The public feeling on that occasion may be in some degree estimated, at the present day, by a circumstance stated in one of the letters of Mr. Jay, then chief justice of the United States, to Hamilton: Mr. Jay had prepared a draft of a proclamation; and, wishing to obtain Hamilton's opinion, he sent it to him accompanied with this remark: “It speaks of neutrality, but avoids the expression, because in this country often associated with others” . . The pro
clamation, which was in fact issued by the government also omitted the same offensive word; and, after all, was received in most parts of the country with loud and deep murmurs. The British order of June, 1793, was succeeded by another (in the following November), authorizing their cruisers to detain all ships laden with goods, the produce of any French colony, or carrying provisions or other supplies for the use of such colony, and to bring them in for adjudication. This, like the preceding one, was deemed a flagrant violation of neutral rights, and produced a corresponding degree of irritation on the part of the American people. The excitement produced by these measures of the British cabinet was still farther inflamed by the conduct of the French diplomatic agents residing in the United States; who naturally resorted to such means as were at hand to render more odious the indefensible acts of her British rival. Under such peculiarly trying circumstances, the eminent English judge we have mentioned—himself too, belonging to one of the belligerents—was called upon to administer the principles of the international law of Europe. That his decisions should in some cases have been then ill received by a people, whose important interests were so deeply affected by them, was natural; but that he should, with so few exceptions, have decided in a manner which we ourselves on cooler reflection are obliged to approve, cannot but excite our wonder. Environed as he was by the inevitable difficulties of his position, between the rights of his own country as a belligerent party, and the clamorous complaints of all neutral nations, whose interests, and whose real or supposed rights were sometimes injuriously affected by his adjudications, it became necessary to make known to the world the grounds upon which he administered the public law of Europe; the reasons of his decisions were loudly called for; and the publication of them accordingly took place in the celebrated Admiralty Reports, which are familiarly known to every professional reader. This publication (as we have understood in England) was most earnestly urged, if not originally proposed by our able minister, Mr. King; who, in order to aid this desirable object, engaged to take a considerable number of the copies for the use of our government and country. It was a fortunate circumstance, that the decisions of lord Stowell should have formed the first regular series of admiralty reports. For, in addition to the fact, that the important questions of international law had then been more maturely examined, and principles better settled than at any earlier period, it may be said, in the language of Jenkinson (lord Liverpool), that the duties of that most important office, judge of the high court of admiralty, had “at no time been more eminently discharged, than by the distinguished person who now (1801) presides in that court; and who,” the same writer adds, “from a conviction of the rectitude of his decisions, has suffered them, together with the reasons on which they are founded, to be published, in order that the world may determine on the truth of those principles which on all occasions, influence and guide his judgment.”" This eulogy on his talents and integrity is entirely supported by the acknowledgments even of an able writer belonging to one of those neutral nations who felt aggrieved by his decisions; we mean Schlegel, who wrote the well-known pamphlet on neutral rights, in answer to lord Stowell's opinion pronounced in the celebrated case of the Swedish convoy, in June, 1799. That writer, while he differs in opinion on the law, yet with all his national partiality, has the liberality to say of him: “This judge enjoys in England a consideration merited by his distinguished talents, his extensive acquirements in jurisprudence, and the dignities to which they have
* Discourse on the conduct of the government of Great Britain in respect to neutral nations. Preface, p. xi, 2d edit. 1801.
raised him. His work (the opinion on the Swedish convoy) indicates great knowledge, and, what is more, a sincere intention to discover truth and justice.”" We have remarked, that the decisions of lord Stowell were the first collection of admiralty cases that were published in England. It is true, however, that during the American revolutionary war, various cases were published in “one of the common papers, which should be most impartial and popular,” by order of the British government; and sir James Marriott adds the curious fact, that the government further ordered, “that a number of impressions from the very same press should be taken off, and sent immediately to the British ministers at all the neutral maritime courts, so that they might be masters both of the facts and reasonings, and ready to give an answer to the complaints of those courts.” Immediately after the publication of lord Stowell's decisions was begun, a volume was published by his predecessor, sir James Marriott, containing about sixty cases which were decided by himself and sir George Hay, between Michaelmas Term, 1776, and Hilary Term, 1779. The volume is entitled “Decisions in the High Court of Admiralty, during the time of sir George Hay and of sir James Marriott, late judges of that court; ” and it consists of cases of Dutch and other neutral vessels, captured by the British, for bringing military and other supplies to the revolted American colonies. The history of this publication (as we heard it related in England, though we cannot vouch for its entire accuracy) was this—that when sir James Marriott relinquished the office of admiralty judge, and lord Stowell, then sir William Scott, was put in his place, the former, upon the publication
* Neutral rights; or an impartial examination of the right of search of neutral vessels under convoy. By J. F. W. Schlegel, Doctor and Professor of Law, &c.
of sir William Scott's decisions, was a little piqued, that his own adjudications were not to make a part of the series of admiralty reports, and accordingly issued one volume of them himself. We allude thus particularly to this volume only because it is a part of the admiralty history, and because we observe, that the author of the digest now before us, has not made any reference to this body of decisions. It is true, indeed, they are of little value at the present day; and could hardly claim any notice, except as they were decisions in the high court of admiralty in England, all of which come within the plan of the digest. As matter of juridical history, particularly in relation to the United States, they will afford an American reader, at the present day, some amusement, from the bitterness of language and coarseness of invective against the “rebels” of the colonies, as well as the tone of contempt towards the leading authorities on international law, from Grotius to Wattel; the whole, intermixed with a sufficiency of the severest animadversion upon those subjects of his majesty, particularly the British merchants, who were “supporting the American rebellion;” for, says sir James, in one case, “the spirit of commerce, in all countries, rising beyond a certain degree, absorbs all public duties and spirit, and almost every moral and natural obligation.” (!)' In point of intrinsic utility, therefore, the decisions of almost.any vice-admiralty court at the present day would be more important than these to the practising lawyer; indeed, if it had been within the plan of Mr. Curtis to digest any other English cases than those of the high court of admiralty, a reference to the decisions of the late able vice-admiralty judge at Halifax, sir Alexander Croke, from the year 1803 to 1813 (reported by Stewart) would be valued by the profession. We now proceed to give a brief account of the highly use
* Page 163.