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for using a just right, and not to defend the justice of that right. Moreover, this Order, even as a retaliation, is not without its fayourable circumstances; for there were several neutrals at that time beside America; and the measure may have been taken with ja view to the majority of cases, leaving to America her excep
tions, founded on time not having been given her for acquiescing batin, or resisting the French decree, which exceptions, it may be 5 said, were competent before our prize courts. After making all 7 these concessions, we shall not be accused of too much rigour
towards the defenders of the Order 7. January, if we add, that they should state , too, of the Rule 1756, on which it ultimately, and by their own showing, rests. It is a good argument against the author of
War in Disguise,' and his adherents, to quote the Rule 1756, when they attack the Order January 1807, which they cercainly never will do, unless to accuse it of not going far enough. But what defence of the Order is it to those who deny that Rule? If the rule is fairly avowed, then we are at issue with the supporters of the order upon the rule; --if it is not avowed, or if they fail in maintaining it, then we are at issue with them upon the whole of their order. Unhappily, such argumenta ad hominem, are too commonly introduced in discussing great state questions in this debating and eloquent country. Is a great measure to be
defended? Its friends never think what are its merits, but o who are its opponents; and instead of justifying their con
dụct to the world, or to the people whose interests it affects, think is they, do, enough, if they throw a sop to the barking animals
who are attacking it. You did so yourselves; or, . You did worfe; '-or, What would you have said had we not done this?" These, alas, are the arguments by which our great statesmen but too often vindicate to their country the very questionable policy which they are pursuing !--To all such topics we make one anfwer. It may be your adversaries Inve done as bad or worse ; but what is that to the country? We appear for the country, and require, not that you thall estop your opponents, by proving them to be worse than yourselves--this is no comfort to the people, but that you shall defend your cause on its own merits.?
The misery of the system we have alluded to is just this ;-that from defending measures on the ground of their being justified by
foriner example, or because the adversary's mouth is itopped by his own conduct, the transition is too easy to adopting measures with a view to fuch wretched considerations; or, at any rate, without the falutary dread of an opposition, controuling the executive, upon broad, itatesmanlike principles. Are we quite sure that 2.0.compromise is made upon the public welfare, in the cabinet as
well as in the senate ; that measures are never taken, merely left such a party would cry out on such a false pretence were they
ann due consideration of their own merits, because the former conduct of the adverfary having difarmed him, no danger of rigid scrutiny in public is apprehended? In a word, is not the country in fome risk of flipping through, between the two bodies of nien appointed to sustain her, while they are bussed with their mutual contentions ? These reflections, amounting to somewhat more than matter of fuspicions, are naturally suggested by the conduct of the argument upon the Orders of January 7th in the tract before us; and though they are connected with the vulgar clamour against all public men, lately too prevalent in this country, we are convinced that they have at least thus much of folidity, that they will either receive the attention of the higher class of fatefaen, to whom we allude, or they will raise up a third and powerful party in the naa tion to the exclusion of all the reft. od: do 13
Whatever countenance these remarks may seem to afford to the popular doctrines held by certain ignorant and thoughtless persons in the present crisis, we are confident that the next remark, suge gested by the branch of the subject now under review, will not be liable to any such misconstruction.
In arguing the question of public law, it would have been advisable in the writer before us, to recollect that there are unhappily many people, who have lately been seduced into a contempt of the whole idea of rights of states, and to whom a measure iş rather recommended, by any proof of its repugnance to the law of nations. While such wild and profligate doctrines were only circulated among the ignorant multitude, we were disposed to difregard them altogether; and, accordingly, we argued the neutral queftion in our last Number upon the old establifhed grounds, fatisfied with proving any pretension to be against the public law, in order to prove that it should instantly be abandoned. But since that period, a melancholy change has taken place ; and these shallow and pernicious fancies have; unhappily for all Europe as well as this country, rapidly crept upwards in the state, until they have actualJy reached the very highest places,--are acted upon by our fleets and armies, proclaimed in royal speeches, and openly avowed in. national manifestoes. The doctrine which denies that nations have any common laws, and afferts that Right should now be read Might, is therefore by no means fo contemptible a political herely as we once thought it; and we regret that the present tract did not undertake a refutation of it, as preliminary to the argument on the justice of the new measures. The second part of this work is devoted to an exposition of the
illegality of the new system, or an examination of the questiorf, Are the late Orders in Council consistent with the municipal laws of the realm ? It is proved very satisfactorily, that they are contrary to the whole spirit and practice of the constitution; that they violate the laws mot firmly eltablished for the protection of trade, from the Great Charter down to the present times; and that they, moreover, directly infringe a fundamental branch of the Navigation Act. For the proofs of these propofitions, we must refer to the Tract itself, and the numerous authorities and statutory enactments which it cites. We shall only extract the concluding passage of this part of the discussion; where the general tendency of such measures in a conftitutional view is pointed out.
• If a temporary pressure of circumstances had rendered some devia. tion from a particular law, or even some infringement upon the general spirit of the Conflitution absolutely necessary, and Government bad, for the mean while, and as if fenfible of the illegality of their proceedings, issued orders upon the face of them temporary like the emergency; the Parliament in its justice might have granted them that indemnity which they respectfully asked. But here is a new fyftem of Royal enactment -of Executive legislation-a Privy Council Code promulgated by some half dozen individuals (for as such only the law knows them) upon principles utterly repugnant to the whole theory and practice of the Conftitution--- full grown Cabinet Statute book, not authorizing any single and temporary proceeding, but prescribing general rules for length of time ; dispensing with the laws of the land in some points ; adding to them in others ; in not a few inttances annulling them. It is an entire new Law.merchant for England during war, proclaimed by the court, not of Parliament, but of St James's, with as much regard to the competent authorities, or to the rightful laws of the realm, as the Refcripts of the latter Roman Emperor. It is not such a daring -attempt as this that should be fanctioned by the Parliament, agaiuit whose authority it is levelled.
• Bat the Ministers, should they obtain an Indemnity, may now come forward, and propose to carry their new system into effect by a regular act of the legiNature. It will then be for Parliament to consider whether they can by one deed of theirs overthrow the moft ancient and belt eftablished principles of the British Constitution. The Itatute may indeed have all the formalities of law—it may fupply the folemnity which the illegal orders now want. But repugnant as it must be to the genuine spirit of our Government, men may perhaps look for the subitance of the English law rather in those fundamental maxims of our jurisprudence wbich it will have fupplanted. All the proofs formerly adduced to illustrate the unconftitutional nature of the late Orders, form, in truth, insurmountable objections to any measure which may be proposeul "for erecting them into laws, unless indeed some paramount and permanent reasons of expediency can be urged, for enterprizing fo mighty an innovation upon the conftitution of the state.' p. 34–36.
It is not inconfiftent with the plan of a literary Journal to give a place among its extracts to remarks upon the general thecry and the history of our laws. We transcribe, therefore, one more pafsage from this division of the argument.
Thus, from the earliest times, the tenderness of the English Constitution, for the trading interests of this country, is remarkably exemplified. They are regarded with more peculiar favour than almost any other subject of legislation. Even in ages when their magnitude was but in. confiderable, every measure appears to have been taken which might pro. mise to cherish or promote them. To say that these endeavours were often fruitless, and very hurtful in their effects, is only to make in this inftance an observation fuggefted by the hiftory of all public transactions ; and to regret that, as governments often display less virtue than prudence, so their intentions are sometimes better than their abilities. The efforts of our ancestors may frequently have been injudicious, but their desire was always the same-to promote the commerce of these realms. In pursuing this object, they seem ngt to have cared how much they encroached upon the power of the Crown, or how little they hamoured the prejudices of the people. It is not unworthy of our obfervation, that, in many respects, their anxiety for encouraging at once both trade and civil liberty, led them to more liberal views of policy than have always njarked the commercial legislation of later times. Even in the prefent day, a man mighe incur the fashionable imputations of " not being truly British,” or of " indulging in modern philosophy,” who should inculcate the very maxims handed down from the Barons of King Solin and his fucceffor. And persons whose knowledge of the English hittory goes no further back than the French Revolution, or who have only Audied the Constitution in the war of words which it has excited, would probably make an outcry about the wisdom of our ancestors,” if one were disposed to repeat some liberal doctrines, ancient even at the date of Magna Charta. If by some of the laws already cited, traders are placed on the footing wit nobles, and the great baron's independence of the king's prerogative, thared with the merchant; if by a multitude of others, foreigners at amity with the realm are protected and highly favoured ; if within the period of our written law certain rights and prie vileges are secured to alien enemies themselves, and they are in some degree secured from the absolute controul of the Crown—what will the thoughtless persons alluded to think, should it appear that, in the remoteft times to which the history of our law reaches, and before the men were born who obtained the great charter of our liberties, all the warlike fpirit of the day—all the inveterate hatreds of a military people towards the enemy, and their contempt for peaceful industry, did not prevent them from extending to the persons of hoftile merchants the same protection, in the midst of warlike operations, which the fanctity of their functions secured to the priests? It was in those remote times held to be a duty incumbent on all warriors to spare the person of enemies within the realm, if they happened to be either prieits, bufandmen, dr VOL. II. NO. 22.
mercha"ta; merchants; or as their rude verses expressed it (in a style which some of our wise and classical statesmen may now-a-days deride)
Clericus, Agricola, Mercator, tempore belli,
Ut ovetque, colat, commutet pace fruantur. « Nor let it be thought mere matter of curious reflection to indulge, upon the present occasion, in such retrospects as these. The remarkable facts which have been ftated deserve our most serious attention, as defcriptive of the liberal and politic spirit of the Conflitution from its moft ancient times. They prove that at least a prescriptive Litle cannot be shown for the narrow-minded views which the little men of this day en. tertain. They thew that our anceitors held the rights of the people fo facred, and as intimately connected with those rights, the great interests of trade, that they would in powise compromise them, either to gratify a spirit of national rivalry, or to exalt the powers of the Crown, or to humour the caprice of the aristocracy. For it is a mere epigram to say, as Montesquieu hath done, in allusion to Magna Charta, “ that the Eng. lith alone have made the rights of foreign merchants a condition of national freedom.” Our ancestors favoured and protected foreign merchants, out of respect to the interests and liberties of England. They knew that no more deadly blow could be aimed at the merchants and people of these realms, than by allowing them an exclusive poffeffion of freedom, while their foreign customers should be placed at the disposal of the Prince. They saw the impossibility of long preserving any such limited system of popular rights; and they saw too, that commerce being in its nature a mutual benefit, the power of the Crowo would triumph over the prosperity of the people, as well as over their liberties, the mo. ment that the protection of the Constitution was withdrawn from the merchant-stranger. For this reason it was, that the wise laws which we have cited were continually passed and acted upon in a long, uninterrupto ed series, from the time when they arose out of those early traditional maxims of our Norman ancestors, down to the reign of Philip and Mary, when the judges, according to their we spirit, declared that the rights of English subje&s were attacked by injuries offered to foriegn merchants.'
p. 18-22. We now come to the third question discussed in the work,—the Policy of the new system. In the present temper of men's minds, this is perhaps the ground upon which it will be most willingly put by both parties; and many, whom every view of its repugnance to the law of nations, and to the municipal law of the land, might fail to move, or even dispose in its favour, will probably liften with some attention to proofs of its being absolutely detrimental to the country. When they find that we have been violating the rights of foreign states, and breaking through our own conftitution, for nothing-nay, to our great and manifest injury in point of profit;- that we have been breaking all laws public and municipal, and gained nothing-nay, loft a great deal by it they