enemies, and in the same way. We may retaliate blockade for blockade, but not monopoly for blockade, or tribute and perquisite for blockade. This would be exacting not a "tooth for a tooth," but "an eye for a tooth." Still more unjustifiable by the law of nations, are our detailed arrangements, especially those respecting licences, and the gains arising from, and the undue preferences involved in them.

The third order in Council, (Nov. 11.) declares the sale of an enemy's ships to a neutral, to be illegal. The reasons assigned are, that France considers such a compact as illegal, and that she has covered her vessels by transferences of this kind. It is evident that the latter of these is the only reason for our order, and it must be remarked that this is a practice adopted by England as far back as the beginning of last war. The stat. 54 Geo. III c. 68. s. 22. enacts that British registered ships sold to foreigners, shall retain the privileges of British ships, (i. e. the monopoly established by the navigation law) provided they are registered anew within a certain time, and lays down a variety of rules whereby this transaction may conveniently be carried on.

The illegality of the last article of the first order, declaring all neutrals good prize which

carry Certificates of origin, is manifest.-The neutrals continue trading in our goods with some of their ships; and avoid seizure by France as well as they can, admitting that she enforces an illegal regulation; but such ships as they fit out without any British goods on board, are surely entitled to carry a certificate of this fact, if they and their government please. Because France takes, or rather idly threatens to take, the ships laden with our goods, shall we be acting in retaliation by taking the ships that are laden with other goods, and endeavour in their papers to substantiate this truth? It would be retaliation, to take ships laden with French goods, and to require that al Ineutrals should carry Certificates of their cargoes not being so composed. It is no retaliation to take ships laden with neutral goods, or with British goods, because they yield to the French regulation, and carry Certificates, unless, indeed, the falsehood of such certificates in the latter case may furnish any argument, which it can only do to the enemy, not to us. In a word, if we have any right to retaliate on America for acquiescing in the French measures, we must confine our retaliation to precisely similar measures. We can

only ask the neutral to bear from us what he has borne from our enemy.

The Order in Council, January 7, 1807, is justified by the rule of the war 1756, of which it is scarcely an extension.

The countries under the enemy's dominion, or in alliance with him, are there considered as enemy's territory; and the trade from one. port to another of those different countries, as a coasting trade. The principle of the rule 1756 is, that you have a right to prevent a neutral from interfering with your just hostility, and stepping in between your naval force and your enemy's trade, for the purpose of screening it. The neutral screens most effectually the trade carried on between Holland and France, for example, if he engages his shipping in it, at a time when not a belligerent vessel can show itself upon the sea between those two countries. There may not have been any express law in either state during peace, to prevent third parties from carrying on this commerce; but in point of fact, it must always have happened, that by far the greater part of the traffic between nations so circumstanced, was carried on by their own vessels antecedent to the war; and the spirit of the rule 1756, is to prevent the enemy from benefiting by

a great and sudden change of system, which shall throw his commerce, while the war lasts, under the cover of the neutral flag. It may, however, be remarked, that the rule applies to almost all maritime states, still more closely. There are very few if any commercial countries in Europe, which have not adopted the principles of the English navigation law, and excluded as much as possible, from their carrying trade, the vessels of all foreign nations. We do not by any means contend for the rule 17.56 ; but if that rule is to be laid down at all, it clearly justifies the Order January 7th, 1807.

On the principle of retaliation, indeed, recited in the preamble, it cannot be justified with respect to America; for it was issued before her acquiescence in the French decree could be known. But as the English government had a right antecedently to that decree, to issue this order, the intention of retaliating is only stated as the motive which induced the government to exercise a just right, formerly abstained from. Let it be observed too, that the nations under the influence of France, to whom the or'der applies, had in some sort identified themselves with her, by closely following her commands in all things-nay, suffering her constantly to interfere with their municipal laws

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respecting trade. A French proclamation was good law to plead in Hamburgh and Holland, Italy and Spain. Those countries immediately adopted the decree of November 21 as their own; they were, in truth, excepting Spain, all filled with French troops, and in the habitual practice of receiving orders from Paris, through from a French commander or ambassador, as the provinces of Great Britain do from the seat of government *.

It is not foreign to the purpose to add, that the principle of considering all ports under the enemy's power, as ports of the same country, has a precedent in the stat. 22, Geo. III. c. 78, which considers all the countries under the same sovereign, as the same country quoad the regulations of the Navigation Act.

II. Are the late orders in council consistent with the municipal law, and constitution of the realm?

It is an undoubted maxim of our constitution, that the traffic of the subject cannot be restrained by act of parliament. According to Lord Coke, freedom of trade is the birth-right of Englishmen. And it is evident, from our best authorities, that the right of interfering with commerce, sometimes exer*See Appendix.