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 favourable circumstances; for there were several neutrals at that time beside America; and the measure may have been taken with a view to the majority of cases, leaving to America her excep tions, founded on time not having been given her for acquiescing in, or resisting the French decree, which exceptions, it may be said, were competent before our prize courts. After making all 1. 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 more explicitly their avowal, and their defence, 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 certainly 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 sup porters 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 who are its opponents; and instead of justifying their con duct to the world, or to the people whose interests it affects, think, they do enough, if they throw a sop to the barking animals who are attacking it. You did fo yourselves;' or, You did worfe; or, What would you have faid had we not done this?" Thefe, alas, are the arguments by which our great ftatefmen but too often vindicate to their country the very questionable policy which they are purfuing!-To all fuch topics we make one an #I. fwer. It may be your adverfaries have done as bad or worse; but what is that to the country? We appear for the country, and require, not that you shall estop your opponents, by proving them to be worse than yourselves, this is no comfort to the people,but that you fhall defend your caufe on its own merits.? The mifery of the fyftem we have alluded to is just this ;-that from defending measures on the ground of their being juftified by former example, or because the adverfary's mouth is stopped by his own conduct, the tranfition is too eafy to adopting measures with a view to fuch wretched confiderations; or, at any rate, without the falutary dread of an oppofition, controuling the executive, upon broad, ftatefmanlike principles. Are we quite fure that no compromife is made upon the public welfare, in the cabinet as b. well well as in the fenate; that measures are never taken, merely left fuch a party would cry out on fuch a falfe pretence were they neglected; that refolutions are never adopted haftily, and without due confideration of their own merits, because the former conduct of the adversary having difarmed him, no danger of rigid fcrutiny in public is apprehended? In a word, is not the country in fome risk of flipping through, between the two bodies of men appointed to fuftain her, while they are bufied with their mutual contentions? Thefe reflections, amounting to fomewhat more than matter of fufpicions, 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 statefmen, to whom we allude, or they will raife up a third and powerful party in the na tion to the exclufion of all the reft. Whatever countenance these remarks may seem to afford to the popular doctrines held by certain ignorant and thoughtless perfons in the prefent crifis, we are confident that the next remark, fuggefted by the branch of the fubject now under review, will not be liable to any fuch mifconftruction. In arguing the question of public law, it would have been advifable in the writer before us, to recollect that there are unhappily many people, who have lately been feduced into a contempt of the whole idea of rights of states, and to whom a measure is rather recommended, by any proof of its repugnance to the law of nations. While fuch wild and profligate doctrines were only circulated among the ignorant multitude, we were difpofed to difregard them altogether; and, accordingly, we argued the neutral queftion in our laft Number upon the old eftablished grounds, fatisfied with proving any pretenfion to be against the public law, in order to prove that it fhould inftantly be abandoned. But fince that period, a melancholy change has taken place; and thefe fhallow and pernicious fancies have, unhappily for all Europe as well as this country, rapidly crept upwards in the ftate, until they have actually reached the very highest places,-are acted upon by our fleets and armies, proclaimed in royal fpeeches, and openly avowed in. national manifeftoes. The doctrine which denies that nations have any common laws, and afferts that Right fhould now be read Might, is therefore by no means fo contemptible a political herefy as we once thought it; and we regret that the prefent tract did not undertake a refutation of it, as preliminary to the argument on the justice of the new measures. The fecond part of this work is devoted to an expofition of the illegality illegality of the new system, or an examination of the question, Are the late Orders in Council confiftent with the municipal laws of the realm? It is proved very fatisfactorily, that they are contrary to the whole fpirit and practice of the conftitution; that they violate the laws mot firmly established 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 ftatutory enactments which it cites. We fhall only extract the concluding paffage of this part of the difcuffion, where the general tendency of fuch meafures in a conftitutional view is pointed out. If a temporary preffure of circumftances had rendered fome deviation from a particular law, or even fome infringement upon the general fpirit of the Conflitution abfolutely neceffary, and Government had, for the mean while, and as if fenfible of the illegality of their proceedings, iffued orders upon the face of them temporary like the emergency; the Parliament in its juftice might have granted them that indemnity which they respectfully afked. But here is a new fyftem of Royal enactment -of Executive legislation-a Privy Council Code promulgated by fome half dozen individuals (for as fuch only the law knows them) upon principles utterly repugnant to the whole theory and practice of the Conftitution-a full grown Cabinet Statute book, not authorizing any fingle and temporary proceeding, but prefcribing general rules for a length of time; difpenfing with the laws of the land in fome points; adding to them in others; in not a few inftances 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 fuch a daring attempt as this that fhould be fanctioned by the Parliament, against whofe authority it is levelled. But the Minifters, fhould they obtain an Indemnity, may now come forward, and propose to carry their new fyftem into effect by a regular act of the legislature. It will then be for Parliament to confider whe ther they can by one deed of theirs overthrow the most ancient and best eftablished principles of the British Conftitution. The ftatute 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 genu ine fpirit of our Government, men may perhaps look for the fubftance of the English law rather in those fundamental maxims of our jurifprudence which it will have fupplanted. All the proofs formerly adduced to illuftrate the unconftitutional nature of the late Orders, form, in truth, infurmountable objections to any measure which may be propofed 'for erecting them into laws, unlefs indeed fome paramount and permanent reafons of expediency can be urged, for enterprizing fo mighty an innovation upon the conflitution of the ftate. 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 theory and the hiftory of our laws. We tranfcribe, therefore, one more paffage from this divifion of the argument. 64 Thus, from the earliest times, the tenderness of the English Conftitution, for the trading interefts of this country, is remarkably exemplified. They are regarded with more peculiar favour than almost any other fubject of legiflation. Even in ages when their magnitude was but in confiderable, every measure appears to have been taken which might pro mife 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 suggested by the hiftory of all public tranfactions; and to regret that, as governments often difplay lefs virtue than prudence, fo their intentions are fometimes better than their abilities. The efforts of our ancestors may frequently have been injudicious, but their defire was always the fame-to promote the commerce of these realms. In pursuing this object, they feem not to have cared how much they encroached upon the power of the Crown, or how little they humoured the prejudices of the people. It is not unworthy of our obfervation, that, in many refpects, their anxiety for encouraging at once both trade and civil liberty, led them to more liberal views of policy than have always marked the commercial legislation of later times. Even in the prefent day, a man might incur the fafhionable imputations of “not being truly Britifb," or of indulging in modern philofophy," who fhould inculcate the very maxims handed down from the Barons of King John and his fucceffor. And perfons whofe knowledge of the English hifto ry goes no further back than the French Revolution, or who have only ftudied the Conftitution in the war of words which it has excited, would probably make an outcry about "the wisdom of our ancestors," if one were difpofed to repeat fome liberal doctrines, ancient even at the date of Magna Charta. If by fome of the laws already cited, traders are placed on the footing wit nobles, and the great baron's independence of the king's prerogative, fhared 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 pri vileges are fecured to alien enemies themselves, and they are in fome degree fecured from the abfolute controul of the Crown-what will the thoughtless perfons alluded to think, should it appear that, in the remot eft 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 induftry, did not prevent them from extending to the perfons of hoftile merchants the fame protection, in the midft of warlike operations, which the fanctity of their functions fecured to the priests? It was in thofe remote times held to be a duty incumbent on all warriors to spare the persons of enemies within the realm, if they happened to be either prieits, hufbandmen, dr merchants; VOL. XI. NO. 22. I i merchants; or as their rude verfes expreffed it (in a ftyle which some of our wife and claffical ftatefmen 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 prefent occafron, in fuch retrofpects as thefe. The remarkable facts which have been stated 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 prefcriptive title cannot be fhown for the narrow-minded views which the little men of this day entertain. They fhew that our ancestors held the rights of the people fo facred, and as intimately connected with those rights, the great interefts of trade, that they would in nowife compromise them, either to gratify a fpirit of national rivalry, or to exalt the powers of the Crown, or to humour the caprice of the ariftocracy. For it is a mere epigram to say, as Montefquieu hath done, in allufion to Magna Charta, "that the Eng. lish alone have made the rights of foreign merchants a condition of na» tional freedom." Our ancestors favoured and protected foreign merchants, out of refpect to the interests and liberties of England. They knew that no more deadly blow could be aimed at the merchants and people of thefe realms, than by allowing them an exclufive poffeffion of freedom, while their foreign cultomers fhould be placed at the difpofal of the Prince. They faw the impoffibility of long preferving any fuch limited fyftem of popular rights; and they faw too, that commerce being in its nature a mutual benefit, the power of the Crown would triumph over the profperity of the people, as well as over their liberties, the mo ment that the protection of the Conftitution was withdrawn from the merchant-ftranger. For this reafon it was, that the wife laws which we have cited were continually paffed and acted upon in a long, uninterrupted feries, from the time when they arofe out of those early traditional maxims of our Norman ancestors, down to the reign of Philip and Mary, when the judges, according to their que fpirit, declared that the rights of English fubjects were attacked by injuries offered to foriegn merchants. p. 18-22. We now come to the third queftion difcuffed in the work,-the Policy of the new fyftem. In the prefent 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 difpofe in its favour, will probably liften with fome attention to proofs of its being abfolutely detrimental to the country. When they find that we have been violating the rights of foreign ftates, 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 may |