It is equally necessary that the soldiers should be fed whether New York is blockaded or not.

Adopting from British and neutral cases the principle that the effect of licenses is to be deduced from the intention of the British government, as far as it can be ascertained from circumstances, let us endeavour to discover what must have been its intention with respect to these licenses. I have just observed that the object of them was for the benefit of the British military service. The armies employed in the cause of liberty, were starving in Spain Most of the ports of Europe were shut against British vessels. It was necessary to have recourse to the United States, as long as those necessities continued which these licenses were intended to remedy; it must be supposed to be the intention of government that the supply should be continued. The existence of these licenses themselves, unexpired and unrevoked, is prima facie presumptive evidence that those articles are still wanted, till that presumption is overruled by a declaration to the contrary. In the next place, though the license is general, and extends to any port in America, yet in fact the blockaded ports of the Chesapeake, and the other southern ports of America, are the only ports from which flour and corn can be expected. The northern countries of the United States do not grow enough for their own consumption, and are supplied from the southern ports. If government wishes therefore to be supplied at all, it is only from the blockaded ports that it can receive the supply.

Some evidence of their intention may be deduced from the form of the license. It says that "these articles may be imported from any port of the United States, without molestation on account of any hostilities which may exist between his majesty and the United States of America." It might not be overstraining the expressions to interpret the words "any hostilities" to mean "notwithstanding any mode of hostilities which Great Britain may think proper to employ, whether by blockade or otherwise." It is true that the blockade was not established till many months after the date of the license, but it was not improbable in the contemplation of the British government. To carry on the war with that country by blockading their ports has always been a general and favourite idea. Something of the consideration of blockade must have been present to the mind of those who drew

up this order in council, because it is thus mentioned :-" The master of the said vessel, shall be permitted to receive his freight and return with his vessel and crew, to any port not blockaded." It seems to have been understood and intended, that the license could and should protect the master against breaking a blockade, or why else should it have been thought necessary to prohibit his return to a blockaded port? Understanding the licenses then to have been a protection from the penalties of blockade breaking, though they do not forbid coming out of, and exporting the articles described, from a blockading port, it is a fair conclusion that this was not intended to be prohibited. The reason of the distinction, as it is to be deduced from the present existing circumstances, and which were probably foreseen when the license was granted, on the grounds which I have just stated, is evident. It was only by coming out of a blockaded port that the license could be executed, and its object accomplished, because the provisions to be imported to Lisbon could only there be procured.

It may reasonably be doubted whether by a license of this nature, a kind of vested interest is not conferred upon the grantee, of which he cannot be deprived capriciously, at the mere will of the granting nation, or, at least, whether he can be dispossessed of it without an express declaration of the government by which it was granted. Since it is a privilege which is to protect the property of the enemy, and for the benefit of the country which grants it, not only the interest but the good faith and honour of the country are implicated and pledged to repect them. They ought not to be revoked without full and timely notice. Adverse considerations ought not to be pressed too rigorously against them, but they should be supported by their most liberal interpretation. In case of doubt, the balance should incline in their favour; it is a contract for the benefit of one party in which the British government says, in fact, "if you will import provisions to the army in Portugal, we will protect your vessels from cap ture."-When the Americans are performing their part of the contract, it would be a trap to turn round upon them and tell them that the protection is withdrawn, without any previous notice having been explicitly given to that effect. In point of prudence, by allowing the validity of these licenses, little mischief can be done. As they were limited to nine months, they have

now nearly all expired, since it is understood that none have been issued since the beginning of October. The object of the blockade will not be defeated by allowing them. The departure of half a dozen flour ships will not materially relieve the distressed commerce of the United States, but the intercepting of them may be injurious to the British service in the peninsula, and may be considered as not very creditable to the liberality and good faith of Great Britain. By restoring this property therefore, I conceive that this court will but maintain the justice, the honour and the policy of the country.

Such is the view which I have been enabled to take of this subject. It were to be wished that publick documents upon which the important interests of many individuals depend, should be clear and definite in their language, that nothing should be left to supposition, and that either in the license it should have been explicitly stated, that the exportation might or might not be made from a blockaded port, or that in the order for the blockade, it should have been declared whether it was to extend to licensed vessels. If this had been done we should not have been driven to the necessity of divining meanings and intentions. Parties, including captors and claimants, commanders and merchants, would not be placed in a state of doubt and anxiety, and this court would be relieved from the painful duty, too often imposed upon it, of making its way amongst various difficulties, and opposite obligations, frequently with no other guide than probability and conjecture. If the parties are not satisfied with the decision of this court, it is competent to them to apply to the superior tribunal, where the instructions and object of his majesty's government are known a priori, and not left to be deter mined by hazard and distant reasoning.

A REVIEW

[Of the cause of the New Orleans Batture, and of the discussions that have taken place respecting it; containing answers to the late publications of Messrs. Thierry and Derbigny on that subject, by Peter Stephen Du Ponceau, counsellor at law, of counsel with Edward Livingston, Esq.

Dans toutes les affaires, il y a un centre, un point principal, contre lequel toutes les chicanes doivent echouer.]-VOLTAIRE.

THE cause of the New Orleans Batture is now brought to a simple point.

The corporation of that city last year applied for and obtained the interference of the national government in their behalf, on apparently plausible grounds, supported by the opinions of the most eminent lawyers in their country.

They have since been convinced that those grounds were not tenable, and have solemnly disavowed them in a publication sanctioned by their authority.

They nevertheless still claim and expect governmental aid, on new principles, which when examined, will be found not more tenable than the former ones.

The counsel who prepared those different opinions have attacked and successfully combated each other's doctrines in the newspapers and elsewhere; one of them has expressly called on the national authority to disregard the laws, and enforce their claim by military power.

The government will now judge, wheiher under these circumstances, they ought any farther to interfere in this case.

I have endeavoured in the following sheets, to show the futility of the various doctrines on which the corporation of New Orleans have founded their claim. If I have succeeded, I owe it in a great measure to the advocates employed by my opponents, whose arguments against each other have been of the greatest use to me.

Philadelphia, 27th February, 1809.

THE AUTHOR.*

* Since this "Review" was published, Mr. Jefferson has submitted to the world a defence of his conduct in the shape of instructions to his counsel in the case of Livingston v. Jefferson. See No. I. of this volume. In this phamphlet, Mr. Jefferson,-very unfairly, we think,

REVIEW.

CAUSE OF THE NEW ORLEANS BATTURE.

BATTURE is the name given in Louisiana, to the soil which is formed by the alluvions of the Mississippi. The Batture now in question, is a piece of alluvion land situate on the banks of that river, in front of the suburb of St. Mary, abjoining the city of New Orleans. The ground on which that suburb is situated, is part of an estate which formerly belonged to the order of Jesuits, and which in the year 1763, when that order was suppressed in France, was condemned and sold as forfeited to the crown, by the Supreme Court of Judicature of that province. That estate contained thirty-two arpents, or French acres of front on the river, by fifty in depth. On the space of about seventeen of those thirty-two acres of front stands the suburb St. Mary, the Batture opposite to which alone is in controversy; for the right of the individual owners of the remainder of the Jesuits' plantation to the Battures in front of their grounds is not and has never been meant to be contested, although it is much the largest portion of the alluvion, which considerably widens as it recedes from the city.

The river Mississippi is subject to an annual inundation which lasts about six months. As the land between that river and the sea lies very low, the whole country would be at that time co

passes over the "Review" without any notice, and takes up the question as it stood before Mr. Duponceau made this second argument. A very learned friend and correspondent of the Editor, speaks in the highest terms of this defence,-calling it a replique sans reponse. It is able, but the credit of it belongs to others. It is no more than a repetition of the arguments already employed by Messrs. Derbigny and Thierry, and so ably refuted by their antagonist. From this remark we must except that part in which Mr. Jefferson justifies his taking forcible possession of the Batture, after a judgment in favour of Mr. Livingston, in the highest court of law of that Territory. This is not touched by Mr. Duponceau : but when we come to publish Mr. Jefferson's defence-which, in justice, we are bound to do, and by his politeness have been permitted to do,-we shall endeavour to show that the ground-like the alluvion which is the subject of dispute,-is easily washed away.-Editor.