The Conduct of Other Nations.

The evidence from this source is merely negative; but is not on that account without a convincing effect. If the doctrine advanced by Great-Britain had been entertained by other nations, it would have been seen in the documents, corresponding with those which contain the British doctrine. Yet, with all the research which could be employed, no indication has been met with, that a single nation, besides herself, has founded on the distinction between a trade permitted and a trade not permitted in time of peace, a belligerent right to interrupt the trade in time of war. The distinction can be traced neither in their diplomatic discussions, nor their manifestos, nor their prize ordinances, nor their instructions to their cruizers, nor in the decisions of their maritime courts. If the distinction had been asserted or recognized, it could not fail to have exhibited itself, in some, or other, of those documents. Having done so in none of them, the inference cannot be contested, that Great-Britain is the only nation that has ever attempted this momentous innovation on the law of nations.

Conduct of Great-Britain.

If it be not enough to have shewn, that the belligerent claim asserted by Great-Britain is condemned by all the highest authorities on the law of nations, by the clearest testimony of treaties among all the principal maritime nations of the world, herself included, and by the practice of all other nations; she cannot surely demur to the example of her own proceedings. And it is here, perhaps, more than any where else, that the claim ought to shrink from examination. It will be seen, in the course of the following observations, that Great-Britain is compelled, under every appeal that can be made to herself, to pronounce her own condemnation; and what is much worse, that the innovation, which she endeavors to enforce as a right of war, is under that name a mere project for extending the field of maritime capture, and multiplying the sources of commercial aggrandizement; a warfare, in fact, against the commerce of her friends, and a monopolizing grasp at that of her enemies.

1st. Whilst Great-Britain denies to her enemies a right to relax their laws in favor of neutral commerce, she relaxes her own, those relating as well to her colonial trade, as to other branches.

2d. Whilst she denies to neutrals the right to trade with the colonies of her enemies, she trades herself with her enemies, and invites them to trade with her colonies.

1st. That Great-Britain relaxes in time of war her trade laws, both with respect to her colonies and to herself, is a fact which need not be proved, because it is not denied. A review of the progress and modifications of these relaxations will be found in Reeve’s* Law of Shipping and Navigation; and in the successive orders of the British council, admitting in time of war neutral vessels, as well as neutral supplies, into her West-India colonies. It will not be improper, however, to shew, that in these relaxations of her peace system, she has been governed by the same policy of eluding the pressures of war, and of transferring her merchant ships and mariners from the pursuits of commerce to the operations of war, which she represents as rendering unlawful the like relaxations of her enemies.

The object of dispensing, in time of war, with the navigation act, was avowed by the legislature itself, in the preamble to one of its acts, which was passed not long after the navigation act was adopted. The preamble recites, “And whereas by the laws now in force, the navigating of ships or vessels in divers cases, is required to be, the master and three fourth parts of the mariners being English, under divers penalties and forfeitures therein contained: And whereas great numbers of seamen are employed in her majesty’s service for the manning of the Royal Navy, so that it is become necessary, during the present war; to dispense with the said laws, and to allow a greater number of foreign mariners for the carrying on of trade and commerce: Be it enacted, &c. that during the present war,”44 &c.

Without pursuing the series of similar recitals during success{i}ve wars, one other example of later date will be given, in which the same object is avowed. The preamble of 13 G. 2. c. 345 is in the following words: “For the better supply of mariners and seamen to serve in his majesty’s ships of war, and on board merchant ships and other trading vessels and privateers, and for the better carrying on the present or any future war, and the trade of Great-Britain during the continuance thereof,” &c.

The British orders of council, and proclamations of governors, issued from time to time during war, and opening, on account of war, the colonial trade to neutrals, in cases where it was shut to them in times of peace, are too well known to require particular recital or reference. Orders to that effect are now in operation; and fully justify the position, that, as well in the case of the colonial trade as of the trade with the parent country, the same thing is done by Great-Britain herself, which she denies the right of doing to her enemies.

2d. That she trades with her enemies, and invites them to trade with herself, during war, are facts equally certain and notorious.

The efforts of Great-Britain to maintain a trade at all times with the colonies of other nations, particularly of Spain, both in peace and in war, and both by force, and clandestinely, are abundantly attested by her own, as well as other historians. The two historians of Jamaica, Long and Edwards, are alone sufficient authorities on the subject.

It has been already noticed, that, in the infancy of her belligerent pretension against the trade of neutrals with the colonies of her enemies, she favored, by special licences, a trade of her own subjects with the same colonies.

The like inconsistency might be verified by a train of examples since the pretension was, during the war of 1793, brought again into action. But it would be a waste of time to multiply proofs of what is avowed and proclaimed to all the world by her acts of parliament; particularly by the act of June 27, 1805,46 “to consolidate and extend the provisions respecting the free ports in the West-Indies.”

This act establishes certain free ports in Jamaica, Grenada, Dominica, Antigua, Trinidad, Tobago, Tortola, New-Providence, Crooked Island, St. Vincent’s, and Bermuda. These ports, distributed throughout the West-Indies, with a view to the most convenient intercourse with the colonies, and settlements of her enemies in that quarter, are laid open to all the valuable productions thereof, and to small vessels with single decks, belonging to, and navigated by, inhabitants of such colonies and settlements. In like manner, the enemies of Great-Britain are allowed to export from the enumerated ports, rum, negroes, and all goods, wares, and merchandizes, excepting naval stores, which shall have been imported thither in British vessels. Provision is, at the same time, made for the re-exportation, in British vessels, of the enumerated productions imported from the colonies and settlements of her enemies, to Great-Britain and her possessions, according to the regulations prescribed by her navigation act.

In pursuance of the same principle exercised in her laws, we find her entering into a treaty in time of war, which, in one of its articles, opened a branch of colonial trade to neutrals not open to them in time of peace, and which being to continue in force only two years after the end of the war, may be considered as made in effect for the war.

The XII. article of the treaty with the United States in 1794, stipulated that American vessels not exceeding a given size, may trade between the ports of the United States and the British West Indies, in cases prohibited to them by the colonial system in times of peace. This article, it is true, was frustrated by the refusal of the United States to ratify it; but the refusal did not proceed from any supposed illegality of the stipulation. On the part of Great Britain the article had a deliberate and regular sanction; and as it would not have been a lawful stipulation, but on the supposition that a trade not open in peace may be opened in war, the conduct of Great Britain, in this case also, is at variance with the rule she lays down for others.

But a most interesting view of the conduct of Great Britain will be presented by a history of the novel principle which she is endeavoring to interpolate into the code of public law, and by an examination of the fallacies and inconsistencies to which her government and her courts have resorted, in maintaining the principle.

It is a material fact that the principle was never asserted or enforced by her against other nations, before the war of 1756.

That at the commencement of the preceding war of 1739, it did not occur, even to the ingenuity of British statesmen labouring for parliamentary topics of argument, is proved by the debate which, on that occasion, took place in the House of Lords.47

In the course of the debate on the expediency of the war, this particular point having fallen under consideration, the following observations were made by Lord Hervey against the war:

“Some people may perhaps imagine that great advantages might be made by our intercepting the Spanish plate fleets, or the ships that are employed in the trade with their settlements in America, because no Spanish48 ships can be employed in that trade; but even this would be precarious, and might in several shapes be entirely prevented: for if they should open that trade to the French and Dutch, it is what those two nations would be glad to accept of, and we could not pretend to make prize of a French or Dutch ship on account of her being bound to or from the Spanish settlements in America, no more than we could make prize of her on account of her being bound to or from any port in Spain. We could not so much as pretend to seize any treasure or goods (except contraband she had on board) unless we could prove that those goods or treasure actually belonged to the King or subjects of Spain. Thus the Spanish treasure and effects might safely be brought, &c.”

Lord Bathurst in answer:

“We may do the Spaniards much damage by privateering, &c. If they bring their treasure home in flotas, we intercept them by our squadrons; if in single ships our privateers take them. They cannot bring it home either in French or Dutch ships,* because by the 6th article of the treaty of Utrecht, the King of France is expressly obliged not to accept of any other usuage of navigation to Spain and the Spanish Indies, than what was practised in the reign of Charles II, of Spain, or than what shall likewise be fully given and granted at the same time to other nations and people concerned in trade. Therefore the Spaniards could not lay the trade in America open to the French, or at least the French could not accept of it; and if the Dutch should, they would be opposed by France as well as by us; an opposition they would not, I believe, chuse to struggle with.”*

Through the whole of the debate the subject is taken up, not on the ground of a belligerent right, or of a neutral duty, but merely on that of commercial jealousy and policy. Had the distinction between a trade allowed in peace as well as war, and a trade allowed in war only, been maintained by British statesmen then, as it is maintained by them now, the same ready answer would have been given then, as in a like discussion, would be given now, viz. that neither France nor Holland could enter into a trade with the Spanish colonies, because, being a trade not open in time of peace, it could not be laid open in time of war.

In the debates also, which took place in the House of Lords, concerning the Spanish captures in America, and the war which followed, several of the Lords in their speeches lay down in detail, the cases in which belligerent nations may search, capture and confiscate neutral vessels in time of war: yet, although colonial trade was the immediate subject of discussion, the distinction now employed, seems never to have entered into the thoughts of the speakers.

Again, in the course of this war to which France became a party on the side of Spain in 1744, it appears that the tribunals of Great Britain proceeded on the same principle, that the trade of neutrals with the colonies of her enemies, though not open in time of peace, might be a lawful trade in time of war. For this there is the testimony of Robinson’s reports, in which it is stated, that ships taken on a voyage from the French colonies, were released before the Lords of Appeal.†

We find then, that prior to the war of 1756, this belligerent claim of attacking all neutral commerce not permitted in time of peace, a claim so broad in its principle and so baneful in its operation, never had a place among the multiplied pretensions enforced by power, or suggested by avarice. At some times nations have been seen engaged in attempts to prevent all commerce whatever with their enemies; at others to extend the list of contraband to the most innocent and necessary articles of common interchange; at others to subject to condemnation both vessel and cargo, where either the one or the other was the property of an enemy; at others to make the hostility of the country producing the cargo, a cause of its confiscation. But at no time, as seems to be admitted by Sir William Scott himself,‡ was this encroachment on the rights of neutrality devised by any nation until the war of 1756? Then it was that the naval resources of Great Britain augmented by her prosperous commerce, more especially that of her then colonies, now the United States of America, gave her an ascendancy over all her rivals and enemies, and prompted those abuses which raised the voice of all Europe against her.

The first effect of this overgrown power was seen in the bold enterprize of seizing on the whole trade of France within her grasp, in contempt of all forms of commencing hostilities, required by the usage of nations. It was next seen in the extensive depredations on the trade of neutrals, particularly of the Dutch, in defiance not only of the law of nations, but of the most explicit stipulations of treaty. The losses of that single nation, within the first two years of the war, amounted to several millions sterling.* The Dutch by their ambassador at London, remonstrated. The British ambassador at the Hague was instructed to enter into explanations. Among these it came out,† for the first time, that Great Britain meant, notwithstanding the admonitions of prudence as well as of justice, to deny the right of neutrals to carry on with her enemies any trade beyond the precise trade usually carried on in time of peace.

The origin of this novel principle deserves a more particular developement. The English government had no sooner made war on the French commerce, than the Dutch began to avail themselves of their neutral and stipulated rights to enter into it; particularly the commerce of the colonies, both to their own ports, and to French ports. The English immediately made war on this commerce, as indeed they did on the commerce to Spain, Portugal and other countries. The Dutch vessels were even pillaged on the high seas, and their seamen very badly treated. In the years 1757 and 1758 alone, the number of vessels captured and pillaged, amounted to no less than three hundred; and the damages were estimated at eleven millions of florins, between five and six millions of dollars. The Dutch appealed to their treaties with England [those in 1674 and 1675] which made enemy’s goods free in their ships, contraband only excepted, and the Dutch trade free from and to the enemy’s ports, and from one enemy’s port to another. The English were driven to the pretext that the treaty of 1674, said only that the liberty of trade should extend to all merchandizes which were transported in time of peace, those of contraband excepted; and was, therefore, not applicable to the colonial trade in time of war. Besides that the time of peace, if it had been any thing more than a mode of expressing the entire freedom of commerce, could refer only to the kind of merchandizes, not to the ports or channels of trade, the Dutch were able to appeal to the declaratory treaty of 1675,52 which stipulated an unlimited freedom of trade from and to ports of enemies, without saying any thing as to times of peace. This admitting no reply, the English found no refuge but in the pretext, that the Dutch vessels, being engaged in the colonial trade, were to be considered as French vessels. This lucky thought eluded the stipulation that free ships make free goods, as well as that which embraced the right of trade on the coasts and with the colonies of enemies. It was alledged also, but with little seeming reliance on such an argument, that the commerce with the French islands was not known in 1674, and therefore could not be comprised in that treaty. These pretexts being very little satisfactory to the Dutch, the province of Holland, the chief sufferer, talked of reprisals. The English answer is in Tindal’s Cont. vol. IX, p. 577–8.53 Undertaking to decide on a constitutional question within an independent nation, they said, if the province of Holland, which had no authority, should fit out ships, they would be treated as pirates; and if the states’ general should do it, it would be taken as a declaration of war. Such was the birth of this spurious principle.

Being avowed, however, on the part of the government, it was to be expected that it would have its effect on the courts of admiralty. As the decisions of these, during that period, were never reported, the best knowledge of them is to be gathered from references incidentally made to them, in the proceedings of other British courts, and in the proceedings of the high court of admiralty, since the reports of them have been published. The most precise information which has been obtained through the first channel, appears in the case of Berens vs Rucker, before the court of king’s bench, reported in 1 Blackstone, p. 313.54 This was the case of a Dutch ship which had taken in sugars at sea, off the island of St. Eustatius, brought along side of her by French boats from a French island; which ship was captured in 1758, on her return with that cargo to Amsterdam. Lord Mansfield, in pronouncing on the case in 1760, expressed himself as follows:

“This capture was certainly unjust. The pretence was that part of this cargo was put on board off Saint Eustatius by French boats from a French island. This is now a settled point by the lords of appeals to be the same thing as if they had been landed on the Dutch shore, and then put on board afterwards, in which case there is no color for seizure. The rule is, that if a neutral ship trades to a French colony with all the privileges of a French ship, and is thus adopted and naturalized, it must be looked upon as a French ship, and is liable to be taken—not so, if she has only French produce on board, without taking it at a French port, for it may be purchased of neutrals.”

Here the ground of capture must be distinctly noted. It is not that the trade, as a trade allowed in war only, was unlawful, and thence incurred a forfeiture of both ship and cargo; the ground and measure of forfeiture, which are now alleged. The vessel is condemned on the ground, or presumption, that it had, by adoption, been made the property of the enemy; whilst the cargo is not liable to condemnation, if not proved to be enemy’s property. In other words, the vessel is, in spite of the fact, presumed from the mere circumstance of navigating in a French channel, to be French property; and the cargo, although of French production, and found in a vessel looked upon as French, is notwithstanding these considerations, open to the presumption that it might be neutral property.

This shews only that the Herculean principle was at that time in its cradle; and that neither the extent of its powers, nor the wonders which it was to be called to perform, were at first understood. Its capacities were to be learnt and applied, as they might be unfolded by time and occasions. At that time, neutral vessels being admitted into new channels of French trade by grants of special licences to the vessels, the occasion was thought to be best answered with respect to the vessels, by the presumption or rather the fiction, that they were French vessels; and with respect to the neutral cargo, as it did not fall precisely under the presumption applied to the vessels, it was left to escape until further time and occasions should teach the other shapes and uses, of which the innovation was susceptible.

These shapes and uses soon began to disclose themselves: for it appears from the references made in the case of the Providencia,* tried before Sir W. Scott in 1799, that French West-India produce, conveyed by neutrals from Monte Christi, a Spanish neutral port, was, in the progress of the war of 1756, condemned, on the pretext that the intervention of a neutral port, was a fraudulent evasion of the rule which condemned the trade with a French port; notwithstanding the previous rule of the Lords of appeal, according to which the landing or even trans-shipment of such produce, at a neutral port, neutralized the trade, and made it lawful.

There is some obscurity, it must be owned, as to the principle on which a neutral trade with the French colonies was condemned, after the discontinuance of special licences; it being sometimes stated in the arguments referring to that period, that the condemnation was founded on the principle, that the trade was virtually or adoptively, a French trade; and sometimes, that it was founded on the general principle that it was a trade not open in time of peace. Certain it is, that the original principle was that of a virtual adoption, this principle being commensurate with the original occasion; and that, as soon as this original principle was found insufficient to reach the new occasions, a strong tendency was seen towards a variation of the principle, in order to bring the new occasions within its reach.

It is remarkable that, notwithstanding the broad principle asserted by the cabinet through its diplomatic organ at the Hague, which interdicted to neutrals every trade not allowed to them in time of peace, the courts of Admiralty not only limited the principle at first, and hesitated afterwards to extend it, in the manner which has been seen; but never undertook to apply it to the coasting trade; though so strongly marked as a peace monopoly, and therefore so clearly within the range of the principle; nor does it appear, even, that the principle was applied to the trade with the Spanish colonies, after Spain joined in the war, notwithstanding the rigorous monopoly under which they are known to be generally kept, in time of peace.

It is still more important to remark, as a proof of the inconsistency always resulting from false principles, and the indulgence of unjustifiable views, that the English themselves, if the annual register is to be believed, were actually trading, by means of flags of truce equivalent to licences, both directly with the French islands, and indirectly through Monte Christi, during the very period when they were confiscating the property of neutrals carrying on precisely the same trade, in the same manner.

Such is the state of the question as presented during the war of 1756. The next enquiry relates to the war of the American Revolution, or the French war of 1778.

Here it is conceded on the British side, that the new principle was, throughout that period, entirely suspended. On the other side, it may be affirmed, that it was absolutely abandoned.

One proof is drawn from the course of decisions, in the British high court of Admiralty, by Sir James Marriot, the predecessor of Sir Wm. Scott.

The first volume only of his decisions has yet found its way to this country. In that are contained the cases referred to below;*55 all of which are adjudged on the principle, that the coasting trade, and of course every other branch of trade, not allowed to foreigners by a nation at peace, and which may be opened to neutral foreigners by such nation when at war, are lawful trades.

Although some of the ships, in these cases, were Danish, and others Dutch, and consequently within the stipulations of treaties which have been heretofore cited; yet there is no appearance that the Judge was guided in his decisions by that authority; nor is it in the least probable, that they will now be explained by a resort to it. But should such an attempt be made, it could be of no avail; because, among the cases, there are two, one of a Lubeck and the other of a Prussian vessel, which could be decided by no other rule than the general law of nations; there being no British treaty, with either Prussia or Lubeck, applicable to the question. There is another case, a colonial one too, decided 21st January, 1779, in which the law of nations must of necessity have been the sole guide. It was that of a French ship, bound from St. Domingo to Nantz.56 The general cargo, as well as the vessel, were condemned as enemies’ property; reserving the question concerning the claims of considerable value, made by two passengers as neutrals, the one asserting himself to be a subject of Bohemia, the other of Tuscany. The articles claimed were, ultimately condemned as enemies’ property; without the slightest allusion to the illegality of a neutral trade between a belligerent country and its colonies; which, if then maintained, as it is now, would at once have put an end to the claims.

It is strictly and incontrovertibly just, then, to say, that these decisions maintain the law of nations as asserted in this investigation; and abandon and renounce it, as asserted in the decisions of the same court, under its present Judge. During the war of 1778, the Judge had no guide whatever in prize cases, turning on this question, but the law of nations. Neither treaties, nor acts of parliament, nor any known orders of council, interposed any special rule controuling the operation of that law. That law, consequently, was the sole rule of the decisions; and these decisions, consequently, complete evidence of the law, as then understood and maintained by the court: and let it be repeated, that if such was the law in the case of the coasting trade, it was equally the law as to every other channel of trade, shut in peace, and laid open in war.

These decisions were, indeed, made by the high court of Admiralty, and not by the Lords Commissioners of Appeal, the authority in the last resort, on such subjects. But this consideration does not impeach the inference drawn from the decisions; which having not been reversed, nor appealed from, are fair evidence for the purpose to which they are applied. It is impossible to account for an omission to enter appeals, where the captors were in their own country, and must have had the best counsel, without supposing that the appeals afforded not the smallest chance of a more favorable decision.

But as a further and more unexceptionable proof that the principle was abandoned, it is stated by Sir Wm. Scott himself, that “in the case of the Verwagtig,* (a vessel trading between France and Martinique during the war of 1778) and in many other succeeding cases, the Lords of Appeal decreed payment of freight to the neutral ship owner.” This, it must be observed, is a case of colonial trade; and a colonial trade of the most exclusive kind in time of peace; a trade between the colony and the parent country.

To these authorities, an explanation equally singular and unsatisfactory is opposed. It was understood, says sir William Scott, that “France in opening her colonies, during the war [of 1778] declared that this was not done with a temporary view relative to the war, but on a general and permanent purpose of altering her colonial system, and of admitting foreign vessels; universally and at all times, to a participation of that commerce. Taking that to be the fact, (however suspicious its commencement might be, during the actual existence of the war) there was no ground to say that neutrals were not carrying on a commerce, as ordinary, as any other in which they could be engaged; and therefore, in the case of the Verwagtig, and many other succeeding cases, the lords decreed payment of freight to the neutral ship owner.”

At what particular time, and in what particular terms, this important declaration by France was made, is not mentioned; nor has any such declaration been discovered by a search which has been carried through all the French codes, and such of the annals of the time, as were most likely to contain it; and without some further account of this “declaration”; or this “profession” on the part of France, as it is elsewhere called in Rob. Reports, it is impossible to decide on the precise character and import of it.

But supposing the fact, as it was taken to be, how account for so unexampled an instance of blind confidence by Great-Britain, in the sincerity of an enemy, always reproached by her with the want of sincerity; and on an occasion too, so peculiarly suspicious, as that of a profession at the commencement of war, calculated to disarm Great-Britain of a most precious branch of her rights of war.

If her suspension of the new principle is not to be explained by an intentional return to the established law of nations; and the explanation of the fact lies in the alternative between her respect for a suspicious declaration of France, made in the suspicious crisis of a war, more than any other charged by her on the perfidious ambition of France; and her respect for those prudential motives which her own situation may have suggested for abandoning, rather than renewing, the attempt to maintain such a principle; it will not be easy to avoid preferring the explanation drawn from the following review of her situation.

However bold it may have been in Great-Britain to advance and act upon the new principle in the war of 1756, it has been seen that she went but a small part of the length of it; and with an evident desire to make the innovation as little conspicuous and obnoxious as was consistent with her object. In this caution she was probably influenced by a regard, not only to the progress of opinion in Europe in favor of neutral rights; but particularly to the king of Prussia, whose friendship she courted, and who was known to be a patron of those rights. His dispute with Great-Britain, produced by her seizure of Prussian vessels in the preceding war, and by his seizing in return, the Silesian funds mortgaged to Great-Britain, is well known. The issue of this dispute has been represented as a complete triumph of the belligerent claims of Great-Britain, over the pretensions of the neutral flag. The fact, however, is, that she was obliged to redeem the Silesian debt from the attachment laid on it, by paying to Prussia the sum of 20,000 pounds sterling, as an indemnity for the prizes made of Prussian ships.*

At the commencement of the war of 1778, the public opinion had become still more enlightened and animated on the subject of neutral rights. The maritime success of Great-Britain in the war of 1756, had alarmed, and the abuses of her power had sharpened the feelings of every commercial nation. Champions had started up all over Europe, maintaining with great learning and strong reasoning, the freedom of the seas, and the rights of the neutral flag. The principle that free ships make free goods, more especially employed a variety of very able pens; and had made a rapid progress. Other principles, the offspring or auxiliaries of this, and equally adverse to the maritime claims of Great-Britain, were also gaining partizans. In a word, that state of fermentation in the public mind was prepared, which being nourished by the example and the policy of France, enabled Russia, in concert with France, to unite and arm all the maritime nations of Europe, against the principles maintained by Great-Britain. To these discouraging circumstances in the situation of Great-Britain, it must be added, that the cause in which she was fighting against her colonies, who had separated from her, was unpopular; that their coalition with her enemies, weakening her and strengthening them, had a double effect in depressing her; and that it happened, as was to be foreseen, that the fleets and cruizers brought against her, and the distress to which her own West-Indies were reduced by her inability to supply their wants, made it questionable, whether she might not lose, rather than gain, by renewing the principle which she had formerly asserted. Early in that war, Mr. Burke, in the house of commons, exclaimed, “we are masters of the sea, no farther than it pleases the house of Bourbon to permit.”58

The effect of this state of things, in tempering the policy and pretensions of Great Britain during the war of 1778, is attested by a series of her public acts too tedious to be here inserted, but which may be seen in Henning’s collection.

But to whatever causes, the relinquishment by Great Britain of the new principle, is to be ascribed, the fact of the relinquishment remains the same; and that it did not proceed from any declaration made by France, that she had permanently abolished her colonial monopoly, is fully demonstrated by the following considerations.

The first is, that such a declaration, or such an abolition by France, however satisfactory the evidence of it might be to the British Cabinet, could have no legal effect on the decisions of a Court, without some notification or instruction which is not pretended; and which is sufficiently contradicted, by the guarded terms used by Sir William Scott in speaking of the declaration. And that the then judge of the court, Sir James Mariott, was not in fact influenced in his decisions, either by the declaration of France itself, or by any instruction of his own government founded on such a declaration, is put beyond the possibility of doubt, not only by the want of reference thereto in the decisions, but by an acknowledgment made by Sir William Scott, in the case of the Emanuel in 1799 (1. Rob. p. 253); the case of a neutral vessel carrying from one Spanish port to another, salt owned by the king of Spain, then at war with Great Britain. “With respect to authorities (says he) it has been much urged, that in three cases, this war, the Court of Admiralty has decreed payment of freight to vessels so employed: and I believe that such cases did pass, under an intimation of the opinion of the very learned person who preceded me, in which the parties acquiesced, without resorting to the authority of a higher tribunal.” If the decisions of Sir James Mariott in the war of 1778, had been guided by the declaration of France, and not by the law of nations, it is evident, as that declaration was inapplicable to the war of 1793, and had even been falsified on the return of peace in 1783, as stated by Sir William Scott himself, that the opinion intimated by Sir James Mariott with respect to cases, Spanish too, and not French cases, in the beginning of the war of 1793, could have no other basis than the principle, that according to the law of nations taken by itself, the trade of neutrals on belligerent coasts was a rightful trade.

Secondly. Were it admitted that a declaration by France had been so made and communicated, as to become a rule binding on the admiralty court, it is clear that the rule must have been restricted to cases of trade with the French colonies, and could have no effect on those of a trade with Spanish or Dutch colonies, whose governments had made no such declaration as is attributed to France: Yet it is not pretended, nor is it known, that any distinction was made by the British courts, between the former and latter cases. The principle in question seems to have been equally renounced in all.*

Thirdly. The alledged change in the system of France was restricted to her colonies. It is not pretended that any permanent change was either made, or declared in the system of her coasting trade. But the decisions of the British court above cited, relate principally to the coasting trade. The principle then must have been drawn, not from the alledged change of France, but from the law of nations: And if the law of nations authorised in the judgment of the court, a coasting trade shut in peace and opened in war, it must have authorized, in the same judgment, the colonial and any other trade shut in peace and opened in war.

It is an inevitable conclusion, therefore, not only that the trade of neutrals to belligerent coasts and colonies, was sanctioned by the British courts, throughout the war of 1778, but that the sanction was derived from the law of nations; and, consequently, that the new principle, condemning such a trade, was not merely suspended under the influence of a particular consideration which ceased with that war, but was, in pursuance of the true principle of the law of nations, judicially abandoned and renounced.

Passing on to the war of 1793, it appears, however, that the policy of the British government, yielding to the temptations of the crisis, relapsed into the spirit and principle of her conduct towards neutral commerce, which had been introduced, in the war of 1756.

The French revolution which began to unfold itself in 1789, had spread alarm through the monarchies and hierarchies of Europe. Forgetting former animosities, and rival interests, all the great powers on the continent were united, either in arms or in enmity, against its principles and its examples: Some of them, doubtless were stimulated, also, by hopes of acquisition and aggrandizement. It was not long before the British government began to calculate the influence of such a revolution, on her own political institutions; as well as the advantages to which the disposition of Europe, and the difficult situation of her ancient rival and enemy might be turned. War was, indeed, first declared by the French government; but the British government was, certainly, the first that wished it, and never perhaps entered into a war against France, with greater eagerness, or more sanguine hopes. With all Europe on her side, against an enemy in the pangs of a revolution, no measure seemed too bold to be tried; no success, too great to be expected.

One of her earliest measures was accordingly that of interdicting all neutral supplies of provisions to France, with a view to produce submission by famine.*

The project, however, had little other effect, than to disgust those most interested in neutral commerce, and least hostile to France. This was particularly the case with the United States, who did not fail to make the most strenuous remonstrances against so extraordinary a proceeding. The correspondence of their secretary of state with the British plenipotentiary, (Mr. Hammond), and of Mr. Pinckney the American plenipotentiary with Lord Grenville, the British secretary of state,61 are proofs of the energy with which the innovation was combated, and of the feebleness and fallacy with which it was defended. The defence was rested on a loose expression of Vattel. Bynkershoek, who had not altogether got rid of the ideas of the former century, and by whom Vattel probably was misled, could have furnished a still stronger authority.*

The next experiment of depredation on neutral commerce was directed, notwithstanding the former abandonment of the principle, and the continuance of the abandonment into the early cases of the war† of 1793, against that carried on with the possessions of France in the West Indies. This experiment too fell with peculiar weight on the United States. For some time the irregularities went on, without any known instructions from the government reviving the abandoned principle; but without the licentious excesses which followed.

As early, however, as November 6, 1793, instructions were issued, which struck generally at the neutral commerce with the French West Indies. That of the United States was the principal victim. The havoc was the greater, because the instructions being carried into operation before they were promulged, took the commerce by surprize.

This instruction of November 6th, 1793, was addressed to the commanders of ships of war, and to privateers having letters of Marque against France, in the following terms:

“That they shall stop and detain all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony, and shall bring the same with their cargoes to legal adjudication in our courts of admirality.

In some respects this instruction went farther than the new principle asserted by Great-Britain: in others it fell short of that principle.

It exceeded the principle in making the produce of a French colony, although owned by neutrals, and going from a neutral port where it might have been regularly naturalized, the criterion of the trade. The principle would have extended only to produce exported immediately from the colony, in a trade not permitted in time of peace.

Again, the principle was not applicable to an immediate trade from certain ports* and places in the colonies, authorised by permanent regulations antecedent to the war. The instruction extends to any colony, and consequently violates a trade where it was permitted and customary before the war.

On the other hand it falls short of the principle, in as much—1, as it spares articles directly exported from, though not the produce of the colonies—2, as it does not affect the coasting trade of France, and other branches of French trade, laid open in time of war, on account of the war.

With these mitigations, however, the instruction had a sweeping operation on the neutral commerce with the French colonies, carried on chiefly from the United States.

The resentment produced by it, and which was doubled by the ensnaring concealment of the instruction, appeared not only in the outcry of the suffering merchants, but in the discussions and proceedings of the government. Important restrictions on the commerce of Great Britain were agreed to by one branch of the congress, and negatived by a single vote in the other. A sequestration of British funds and effects in the United States was proposed and strongly supported. And an embargo withholding supplies essential to the subsistence of the British West Indies, actually passed into a law, and remained in force for some time.64 These measures, at length, gave way to the mission of a plenipotentiary extraordinary to the British court, which terminated in the treaty of 1794.

The British government, in the mean time, aware of the powerful tendency of such depredations, to drive the United States into a commercial, if no other warfare, against her, prudently retreated from the ground taken by this instruction, as early as the 8th of January, 1794, when she revoked the instruction to her cruizers, of November 6th, 1793, and substituted the following:65

“1. That they shall bring in for lawful adjudication all vessels with their cargoes, that are loaded with goods the produce of the French West India Islands, and coming directly from any port of the said islands to any port in Europe.”

“2. That they shall bring in for lawful adjudication, all ships with their cargoes, that are loaded with goods the produce of the said islands, the property of which goods shall belong to subjects of France, to whatsoever ports the same may be bound.”

“3d. That they shall seize all ships that shall be found attempting to enter any port of the said islands that is, or shall be blockaded by the arms of his majesty or his allies, and shall send them in with their cargoes for adjudication, according to the terms of the 2d article of the former instructions, bearing date the 8th day of June, 1793.”

“4th. That they shall seize all vessels laden wholly or in part with naval or military stores, bound to any port of the said islands, and shall send them into some convenient port belonging to his majesty, in order that they, together with their cargoes, may be proceeded against according to the rules of the law of nations.”

As the three last articles cannot be regarded as any relaxation or remodification of the instructions of November, 1793, since they relate only to principles well known to have been long enforced by Great-Britain, as a part of the law of nations, it is not easy to discern the motive to them. The only effect of the articles, as an enumeration and definition of belligerent rights, in certain branches of trade, seems to be, to beget perplexing questions with respect to these rights, in the branches of trade pretermitted.

The material article is the first. It varies the preceding instructions in three respects: 1st. in substituting “the French West-India islands” for “any colony of France;” of which there are some not islands, and others not West-India islands: 2d. in limiting the seizure, to produce “coming directly” from any port of the said islands: 3d. in the very important limitation of the seizure, to vessels bound from those islands to any port in Europe.

By these limitations it was, apparently, intended to take the direct trade from the French West-Indies to the United States, out of the operation of the order of 1793: and, probably also, the trade from the United States to the West-Indies; leaving the trade to Europe, from the French West-Indies, a prey to British cruizers. Whether it was also meant, as seems to be implied, that the neutral trade from Europe to the French West-Indies was to be undisturbed is a distinct question. This question was actually raised under the ambiguity of the instruction, and decided, not without some marks of self distrust, by Sir Wm. Scott, in the case of a trade from France herself to a West-India colony.*

The explanation of this change in the instructions of the British government is given, by the Reporter of Sir Wm. Scott’s decisions, in the following passage extracted from the appendix to 4 Rob. p. 4. “The relaxations that have since [the instructions of November 6, 1793] been adopted, have originated chiefly in the change that has taken place in the trade of that part of the world, since the establishment of an independent government on the continent of America. In consequence of that event, American vessels had been admitted to trade in some articles, and on certain conditions, with the colonies, both of this country and of France. Such a permission had become a part of the general commercial arrangements, as the ordinary state of their trade in time of peace. The commerce of America was therefore abridged by the foregoing instructions, and debarred of the right generally ascribed to neutral trade in time of war, that it may be continued, with particular exceptions, on the basis of its ordinary establishment. In consequence of representations made by the American government, to this effect, new instructions to our cruizers were issued, 8th January, 1794, apparently designed to exempt American ships trading between their own country and the calonies of France.”

One remark suggested by this explanation is, that if it be a just defence of the orders of January, 1794, it is a severe imputation on those of November, 1793: for the sole reason which is stated, as requiring this revocation of the orders of 1793, was in existence at the date of those rigorous orders; and ought, therefore, to have prevented them. Yet they were not only not prevented, but were permitted to have a secret and extensive operation on the American commerce. Nor does it appear, that in any of the decisions on the captures made within that period, conformably to the instructions, but contrary, as is here admitted, to the law of nations, which, on the British principle, authorized the American commerce, at least as far as it had been actually enjoyed with the French, in time of peace, the court ever undertook to modify the instructions; as is alledged to have been done, in the war of 1778, in consequence of the professions of France that she had opened her colonial ports, generally, to the permanent trade of other nations.

The explanation calls for two other remarks. The first is, that the instruction goes beyond the reason assigned for it. The reason assigned is, that the trade between the United States and the French islands had, by the permission of France, become “the ordinary state of their trade in time of peace.” Now so far as this was the fact, the trade is expressly and truly stated, in the explanation itself, to have been limited to “some articles,” and “on certain conditions.” But the instruction is admitted to have been designed to exempt, without any such limitations, American ships trading between their own country and the colonies of France.

The second remark is, that it is not a fact, that the representations of the American government were made to the effect here stated; namely, that the instructions of 1793 debarred them of the right of trading with the French colonies in time of war, according to the ordinary state of the trade permited to them in time of peace. The representations of the American government recognized no such principle, nor included any such complaint; as is proved by official documents* on the subject.

A third remark might be added. If the ordinary permissions of France to trade with her colonies, was a good reason for exempting the trade of the United States from the orders of November, 1793, the exemption ought to have been co-extensive with the permissions; and, consequently, to have embraced the neutrals of Europe, who enjoyed the same permissions as the United States; instead of being restricted to the latter.

One is really at a loss, which most to admire, the hasty and careless facility with which orders proceed from the government of a great and an enlightened nation, laying prostrate the commerce and rights of its friends; or the defective and preposterous explanations given of such orders, by those who undertake to vindicate or apologize for them.

But whatever may have been the origin, or the intention of the second orders of 1794, revoking the restraints imposed by those of 1793, on the United States; whilst they suffered those restraints to continue, in great part at least, on other nations; two consequences resulted, which seem not to have been taken sufficiently into foresight.

One of them was, that the nations of Europe, excluded from the trade not forbidden to the United States, were not a little soured by the distinction; and which, very possibly, may have contributed to the revival of the sympathies which brought about the armed neutrality of 1800.

The other was, the vast growth of the carrying trade of the United States, which supplied all parts of Europe, with the produce of the West-Indies, and without affording to Great-Britain any of the profits of an entrepot.

The developement of these consequences could not fail to awaken the attention of the British government, and is the best key to the instruction which was issued January 25, 1798;67 and which was extended to the possessions of Spain and Holland, then united with France against Great-Britain.

It revoked the instructions of January 1794, reciting as the consideration which rendered the alteration expedient, “the present state of the commerce of Great-Britain, as well as that of neutral countries”; and in lieu thereof, the following was issued;

“That they should bring in for lawful adjudication, all vessels with their cargoes, that are laden with goods, the produce of any island or settlement belonging to France, Spain, or the United Provinces, and coming directly from any port of the said islands or settlements, to any port in Europe, not being a port of this kingdom, nor a port of that country, to which such ships, being neutral ships, shall belong.” The residue of the articles merely extend to the islands and settlements of France, Spain, and Holland, the three last articles in the instructions of January 1794.

The effect of this new change in the instructions was, to sanction a direct trade from all the French islands, as well as from those in the West-Indies, and also from the French settlements which were not islands, with a like sanction, to a like trade, from the islands and settlements of the other enemies of Great-Britain; to extend to neutrals in Europe, the enjoyment of this trade, with a refusal to the American states, of the direct trade, from those islands and settlements to such European neutrals; and finally, to permit to these states, as well as to the neutrals of Europe, a direct trade from the hostile islands and settlements to Great-Britain herself.

The explanation attempted by the reporter, Dr. Robinson in his appendix to the 4th vol. p. 4–5,68 is, that “In consequence of the relaxation [in 1794] of the general principle in favor of American vessels; a similar liberty of resorting to the colonial market, for the supply of their own consumption, was conceded to the neutral states of Europe, a concession rendered more reasonable by the events of war, which, by annihilating the trade of France, Spain, and Holland, had entirely deprived the states of Europe of the opportunity of supplying themselves with the articles of colonial produce in those markets.”

With regard to the permission to all neutrals to convey the produce of the enemies colonies, directly to British ports, he is silent.

From a summary, however, of the discussions which had taken place on cases before the lords of appeal, as it is given in the appendix to 4 Rob. p. 6, an explanation of this part of the regulation, might be easily collected, if it were not otherwise sufficiently obvious. Among the arguments used for so construing the last order of 1798, as to justify a Danish vessel in trading from a Spanish colony, to a neutral country, to which the vessel did not belong; it is observed, “that, originally, the pretension to exclude all neutrals, was uniformly applied on the part of the belligerent; by which the effect of reducing such settlements for want of supplies, became a probable issue of the war: now, since the relaxations have conceded to neutral merchants the liberty of carrying thither cargoes of innoxious articles, and also of withdrawing the produce of the colony, for the purpose of carrying it to their own ports; now, to restrict them from carrying such cargoes directly to the ports of other neutral states, becomes a rule apparently capricious in its operation, and one, of which the policy is not evident. From the northern nations of Europe, no apprehensions are to be entertained of a competition injurious to the commercial interests of our own country. To exclude them from this mode of traffic [that is of trafficking directly from such colonies to other neutral countries] in the produce of the enemy’s colonies, is to throw a farther advantage into the hands of American merchants, who can, with greater ease, import it first into their own country, and then, by re-exportation, “send it on” to the neutral nations of Europe.

No other key is wanted to let us into the real policy of the orders of 1798; which placed the neutral nations of Europe, and the United States on the same footing, by extending the rights of the former, and thereby abridging the advantages of the latter. This change of “the actual state of the commerce of this country (G. B.) as well as that of neutral countries” was expedient for two purposes: It conciliated the Northern nations, then perhaps listening to a revival of the armed neutrality, and from whom “no apprehensions were to be entertained of an injurious competition with the commercial interests{”} of Great Britain; and at the same time, it so far took the advantages of re-exportation out of the hands of the American merchants, from whom such a competition, probably was apprehended.

But a mere adjustment of the balance between neutrals in their advantageous trade with the enemy colonies, did not answer all the purposes which were to be consulted. It gave Great Britain herself, no share of the forbidden fruit. She took at once, therefore, the determination, whilst she would permit none of the neutral merchants of any country to carry on this colonial trade of her enemies with another neutral country, to authorize them all to carry it on with herself; disguising, as well as she could, the policy of making herself the centre and thoroughfare of so extensive a branch of profit, under the general expediency of changing “the state of commerce both British and neutral” as it had resulted from her regulations of 1794; and avoiding, as much as she could, to present to notice, the palpable inconsistency of making herself a party to a trade with her colonial enemies, at the very moment when she was exerting a belligerent pretension, having no other basis, than the probable reduction of them, by suppressing all trade whatever with them.

This subject is too important not to be a little further pursued. Unpleasant as the task is, to trace into consequences, so selfish and so abounding in contradictions, the use made by Great Britain of the principle assumed by her, the developement is due to truth and to the occasion. It will have the important effect, at the same time, of throwing further light on the checkered scene exhibited by the admiralty jurisprudence of Great Britain.

It must be added then, that the commercial policy for which she employs her new belligerent principle, is the more apparent from two subsidiary pretensions, as new, as they are at variance with the maritime rights of neutral nations.

The object of drawing through her own warehouses and countinghouses, the colonial trade of her enemies, on its way from the West Indies to the other countries of Europe, being counteracted by the extensive intercourse between the United States and those colonies, and by the re-exportation from the United States, of the imported surplus of colonial produce, the project was adopted, of forcing this trade directly from the West Indies to, and through, Great Britain—1st, by checking the West India importations into the United States, and thereby lessening the surplus for re-exportation. 2d, by embarrassing the re-exportation from the United States; both considerations seconded, no doubt, by the avidity of her cruizers and by the public interest, supposed to be incorporated with their success in making prizes; and the first consideration, seconded also, perhaps, by a desire to give an indirect check to the exportation of contraband of war from the United States.

In order to check importations, the principle is advanced, that the outward and the return voyage are to be regarded, as forming but a single voyage; and consequently, if a vessel is found with an innocent cargo on board, but on her return from a hostile port, her outward cargo to which, was as contraband of war subject to capture, the vessel is thereby rendered liable to capture, and the chance for capture, by that means, doubled.

That this principle is of modern date, can be shewn by more than negative evidence; and from a source highly respectable. When Sir L. Jenkins was judge of the high court of admiralty, in the latter period of the 17th century, it was the practice, sometimes for the king, at others, for the commissioners of appeal, to call for his official opinions in writing, on cases depending in other courts, or diplomatically represented to the government. These rescripts are valuable, not only as one of the scattered and scanty materials composing the printed stock of admiralty precedents in Great Britain; but as the testimony of a man, who appears to have been not undeservedly regarded as an oracle in his department of law; and to have delivered his opinions with a candor and rectitude, the more meritorious as he served a sovereign who gave little encouragement to these virtues, and as he was himself of a temper and principles sufficiently courtly.

The case of a Swedish vessel, which had conveyed enemy’s goods, having been seized on her return, with neutral goods, was represented to the government by the Swedish Resident; and by the Government referred to Sir L. Jenkins, the judge of the high court of admiralty. His report is so interesting in another respect, as well as that for which it was required, that it shall be given in his own words.

“The question which I am (in obedience to his Majesty’s most gracious pleasure) to answer unto, being a matter of fact, I thought it my duty not to rely wholly on my own memory or observation, but further to inquire of Sir Robert Wiseman, his majesty’s advocate-general, Sir William Turner, his royal highness, the lord high-admiral’s advocate; Mr, Alexander Check, his majesty’s proctor; Mr. Roger How, principal actuary and register in the high court of admiralty in England; whether they, or any of them, had observed, or could call to mind, that in the late war against the Dutch, any one ship, otherwise free (as belonging to some of his majesty’s allies) having carried goods belonging to his majesty’s enemies, from one enemies port to another; and being seized (after it had discharged the said goods) laden with the proceed of that freight which it had carried and received of the enemy upon the account of the ship’s owners, had been adjudged prize to his majesty; they all unanimously resolved that they had not observed, nor could call to mind that any such judgment or condemnation ever passed in the said court; and to this their testimony I must (as far as my experience reaches) concur: And if my opinion be (as it seems to be) required, I do not, (with submission to better judgment) know any thing, either in the statutes of this realm, or in his majesty’s declarations upon occasion of the late war, nor yet in the laws and customs of the seas, that can (supposing the property of the said proceed to be bona fide vested in the ship owners his majesty’s allies) give sufficient ground for a condemnation in this case. And the said advocates (upon the debate I had with them) did declare themselves positively of the same opinion. Written with my hand this 6th day of February, 1667.”* Sir L. Jenkins’ works, 2 vol. p. 741.69

Here the point is clearly established, that a vessel found with a lawful cargo, on a return voyage, cannot be affected by the unlawfulness of the cargo immediately preceding it; and, consequently, that an outward and return voyage, cannot be considered as but one voyage, or the character of one as transfused into the other.

It is true that, in this case, the cargo in question, was not contraband of war, but enemy’s property. But there is no room for a distinction in the principle applicable to the two cases. If the two voyages in fact, make one and the same voyage in law, an outward cargo of enemy’s property must authorise capture in the returned voyage as much as an outward cargo of contraband would authorise it. If the two voyages do not make one and the same; the contraband of war, in one voyage, can no more affect another voyage, than enemy’s property, in one voyage, can affect another voyage.

It will not have escaped attention that, in the case stated in the report of Jenkins, the voyage in which enemy’s property had been carried, and which it was imagined might thence have vitiated the return voyage, was a coasting voyage from one enemy’s port to another. Yet so immaterial was that circumstance, at that time, that it appears not even to have been taken into his consideration, much less to have influenced his opinion. Had it been otherwise, it would indeed have made his decision so much the stronger against the amalgamation of two voyages, on account of the unlawfulness of one of them: For on that supposition the first of the two voyages would have been doubly unlawful, as engaged both in carrying enemy’s property, and in carrying it from one enemy’s port to another.

But this particular principle is not only of modern date, but of very recent date indeed. Its history, like that of many other belligerent innovations by Great Britain, is not unworthy of attention.

In December, 1798, in the case of the Frederick Molke, a Danish vessel that had got into Havre, then deemed in a state of blockade, and was taken on her way out, August 18th, 1798, it was urged to be like the case of a return voyage, where the cargo of the outward voyage had been contraband. Sir William Scott admitted that, in the latter case, “the penalty does not attach on the returned voyage,” but denied the affinity between the cases: “there is this essential difference” said he, “that in contraband the offence is deposited with the cargo, whilst in such a case as this, it is continued and renewed in the subsequent conduct of the ship”;* the act of egress being, according to him, as culpable as the act of ingress.”

In August, 1799, in the case of the Margaretha Magdalina; a vessel returning to Copenhagen from Batavia, her outward cargo having consisted of contraband goods, was seized at St. Helena, September 1798. On the ground, however, that the ship and cargo were neutral, and that the outward shipment from Copenhagen was contingent and not absolutely for Batavia, but sent under the management of the master to invest the proceeds in the produce of Batavia, restitution was decreed by Sir William Scott, notwithstanding the fact that the contraband “articles were actually sold at Batavia,” with a remark only, that there was great reason to bring this case to adjudication, as a case very proper for enquiry. On this occasion the judge made the following observations: “It is certainly an alarming circumstance in this case, that although the outward cargo appears to have consisted of contraband goods, yet the principal owner appears publicly at Copenhagen, and makes oath, “that there were no prohibited goods on board, destined to the ports of any party now at war.” The master himself describes the cargo that he carried out as naval stores, and in looking into the invoice I find that they are there represented as goods to be sold. That being so, I must hold that it was a most noxious exportation, and an act of very hostile character, to send out articles of this description to the enemy, in direct violation of public treaties, and of the duty which the owners owe to their own government. I should consider it as an act that would affect the neutral in some degree on this returned voyage, for although a ship on her return is not liable to confiscation for having carried a cargo of contraband on her outward voyage, yet it would be a little too much to say, that all impression is done away; because if it appears that the owner had sent such a cargo, under a certificate obtained on a false oath, that there was no contraband on board, it could not but affect his credit at least, and induce the court to look very scrupulously into all the actions and representations of such a person.”*

That the judge was beginning to be a little unquiet under the rule imposed on himself, not to consider a ship on her return voyage as liable to confiscation for having carried a cargo of contraband on her outward voyage, is sufficiently visible. He is found, nevertheless, still submitting to the restriction.

The case of the Immanuel succeeded November 7th, 1799. It is the case of a Hamburg ship, taken 14th August, 1799, on a voyage from Hamburg to St. Domingo, having in her voyage touched at Bourdeaux, where she sold part of her cargo, and took a quantity of other articles for St. Domingo. The question was started, whether the stores which had been discharged at Bordeaux, though originally destined for St. Domingo, were contraband or not. The inference of the judge was, that they were not of a contraband nature, at least that they were left ambiguous, and without any particular means remaining of affording a certainty upon the matter. “If so,” said he, “it is useless to imagine what the effect of contraband, in such circumstances, would have been. I shall say no more, than that I incline to think that the discharge of the goods at Bordeaux would have extinguished their powers of infection. It would be an extension of this rule of infection, not justified by any former application of it, to say, that after the contraband was actually withdrawn, a mortal taint stuck to the goods, with which it had once travelled, and rendered them liable to confiscation, even after the contraband itself was out of its reach.”*

This was not indeed a return voyage, but one link of an outward voyage. The reason, however, given why contraband, after being discharged, could not leave a confiscating taint on the expedition, namely, because itself was out of the reach of confiscation, is precisely common to the two cases; yet it would seem that the judge is becoming not a little languid in maintaining the opinion, “that the offence of contraband is deposited with the cargo.” He now “inclines to think that such would be the effect.”

February 5, 1800, the case of the Rosalie and Betsey, was that of a ship taken May 31, 1799, on a voyage from the Isle of France, asserted to be to Hamburg.71 It was made a question of property, turning on a question of fraud; the fraud in the returned voyage was held to be reinforced by the fraud in the outward voyage; and that fraud is stated by Sir William Scott, “as more noxious on account of the contraband nature of several of the articles of the outward cargo.”

Here contraband in an outward voyage was, in spite of the maxim that its offence was deposited with the cargo, allowed to have an influence on the character of the returned voyage. Still it was but an indirect and partial influence. It was held to be an aggravation only of the fraud, the fraud being the gi{s}t of the offence.

In 1800, June 24, occurs the case of the Nancy, Knudson, master, a ship taken on a voyage to Copenhagen from Batavia, whither she had carried contraband of war. The cargo appears to have been condemned, on the ground of fraud in the papers and destination, combined with the contraband quality of the outward cargo. The complexion and weight, however, which the last ingredient had assumed in the mind of the judge, are seen in the following extract from the judgment pronounced by him.

“But it is said, this is a past transaction, and that in cases of contraband, the returned voyage has not usually been deemed connected with the outward: In European voyages of no great extent, where the master goes out on one adventure, and receives at his delivering ports, new instructions and further orders, in consequence of advice obtained of the state of the markets, and other contingent circumstances, that rule has prevailed; but I do not think, in distant voyages to the East Indies, conducted in the manner this has been, the same rule is fit to be applied. In such a transaction, the different parts are not to be considered as two voyages, but as one entire transaction, formed upon one original plan, conducted by the same persons, and under one set of instructions, ab ovo usque ad mala.”† This condemnation of the cargo was confirmed by the lords of appeal, and the indulgence even allowed with respect to the ship, by the high court of admiralty, reversed by that superior tribunal.

The existence of contraband in an outward voyage, not only figures more considerably in this, than in any preceding case; but the judge gets hold of a new implement of judicial warfare on neutral commerce. In aid of presumptive fraud, of the alleged continuity of fraud from the outward into the returned voyage, and of the aggravation given to fraud, by the ingredient of contraband in the outward voyage; in aid of all these, the distance of the voyage, makes for the first time, its appearance. In the case of the Margaretha Magdelena, the voyage, like this, was a voyage to Batavia. In the case of the Rosalie and Betsey, the voyage was also into the East Indian seas. In neither of these cases, the slightest allusion is made, to that criterion of right and wrong. The discovery then may fairly be dated with the case of the Nancy, of no older date than June 1800.

But mark the reason, why distant voyages to the East-Indies are distinguished from European voyages of no great extent. It is, because, in the latter the master “receives at his delivering ports, new instructions and further orders, in consequence of advice obtained of the state of the markets, and other contingent circumstances;” whereas, in distant voyages to the East-Indies, conducted in the manner this has been, the two voyages are to be considered as one entire transaction, formed upon one original plan, conducted by the same persons, and under one set of instructions.

If the reason here given for the distinction between distant voyages and voyages of no great extent, be a good one, it is not easy to see the reason for requiring, in addition to the distance of the voyage to the East-Indies, that it should be conducted in the manner of this particular voyage; unless indeed it be, as there is too much room to remark in the decisions of the Judge, with a view to rest every case, as much as possible, on its own particular circumstances; and thereby avoid the judicial fetters formed by a chain of definite precedents.

Certain it is, that if the outward and returned voyages are to be taken as one, where the distance of them is such, that new orders cannot be given, in consequence of new advices from the foreign ports of delivery, as may be done in voyages of no great extent; but that the whole business must be executed under one original set of instructions; every voyage to the East-Indies, in whatever manner conducted, must fall within the rule which determines the outward and returned voyage to be but one voyage; in other words, that in that extensive branch of neutral commerce, the outward and returned voyage, making but one, contraband in the outward cargo, though deposited at its place of destination, is to have the same effect on the returned voyage, as it would have had on the outward voyage, if actually intercepted on the outward voyage.

Nay more; the rule must be applicable to every European voyage, of great extent; an extent so great as to require that the sale of the outward cargo at the ports of delivery, and the purchase of a return cargo, should be provided for, in the same original instructions.

In no view can the rule be less applicable to distant voyages between Europe and the West Indies, than between Europe and the East-Indies; nor more to European voyages than to American voyages to the West-Indies, where these are of so great extent as to require that the returned voyage should be provided for in the same set of instructions with the outward voyage.

Whether these analogies and inferences entered into the contemplation of the Judge on this occasion, is an enquiry which may be waved. Nor is it known to the public, whether any intermediate steps were taken by him, or by the superior tribunal, between that date and the 24th June, 1803, conducting the policy or opinion of the cabinet, towards the instructions of this last date.72 These form, however, a very natural result to those preliminary ideas, as appears by the tenor of the instructions which is as follows:

“In consideration of the present state of commerce, we are pleased hereby to direct the commanders of our ships of war, and privateers, not to seize any neutral vessel which shall be carrying on trade directly between the colonies of enemies and the neutral country to which the vessel belongs, and laden with the property of inhabitants of such neutral country: Provided, that such neutral vessel shall not be supplying, nor shall have, on the outward voyage supplied the enemy with any articles of contraband of war; and shall not be trading with any blockaded port.”

In these instructions we find the principle formally adopted, and the returned cargoes of West-India produce, actually obstructed, on their way to the United States, by the application of the principle, wherever the outward cargo had included contraband. We find, of course, the West-India trade so far forced out of the channel to Europe through the United States, into such channels to and through Great-Britain, as she may chuse to prescribe.

This being necessarily and obviously the commercial effect of the instructions, it may fairly be supposed that it corresponds with the intentions of a nation so clear-sighted, in whatever affects her commerce; and, consequently, that the principle on which this instruction is founded, was assumed as subsidiary to the commercial policy on which was founded the main principle under investigation.

Another observation, with respect to this instruction, forces itself upon us. It was a heavy reproach against the instruction of November 6th, 1793, that it was not promulged until it had for some time been ensnaring, and laying waste, the commerce of neutral nations with the West-Indies. The instruction of June 24, 1803, first found its way (probably by chance) to public notice in the United States, from the obscure island of Tortola, in the summer of 1805. It must, then, have been in the pockets of cruizers, ensnaring and destroying the commerce of this country, as far as that degree of innovation could have that effect, for a period of about two years. The reproach is heightened, too, by the consideration that the snare, in this case, was successful in proportion to the respect observed towards former instructions, the faith of which was violated by the ex post facto operation of that in question. A reparation of the damage is the least atonement that a just and wise nation can wish to make, for such a trespass on all the maxims of public morality, as well as of national honor.

The second pretension subsidiary to the commercial policy of instructions, cloathed with the language of belligerent rights, is that of subjecting to capture, colonial produce, re-exported from a neutral country, to countries to which a direct transportation from the colonies by vessels of the re-exporting country, has been disallowed by British regulations. The effect of this pretension evidently is, to check neutral nations, particularly the United States, in the circuitous transportation of West-India produce; and in the same proportion, to force the trade into channels terminating in British ports. And the effect is the more particularly in her favor, as the re-exportation of the surplus carried into her ports can be regulated by her own laws, for her own interests; whilst she will not permit the laws of other countries to regulate the re-exportation of the surplus carried into their respective ports.

That this pretension, also, is as new as it is arbitrary, will be best seen by a review of its rise and progress; which will at the same time, as in the other instance, illustrate the inconstancy and inconsistency of the maritime proceedings of Great-Britain towards other nations.

Prior to the war of 1756, no trace of any such pretension is discovered; and it is testified by the authority of lord Mansfield, as already seen, that a principle was, during that war, judicially settled in opposition to it. A neutral vessel, off the neutral island of St. Eustatius, had received on board a part of her cargo from French boats, from a French colony. “This,” says his lordship, “is now a settled point by the lords of appeals, to be the same thing as if they had been landed on the Dutch shore, and then put on board afterwards; in which case there is no color for seizure.”

Here the rule was solemnly settled by the highest admiralty tribunal in Great-Britain, that the trans-shipment, off a neutral port, of colonial goods from an enemy’s vessel, protected the goods from capture, and that where such goods had been landed and reladen, there was not even a color for seizure.

Notwithstanding this solemn recognition of the neutral right, it was found, as also has been seen, that French produce exported by neutrals from the neutral port of Monte Christi, during the war of 1756, was not protected by the rule.

During the war of 1778, the whole claim of disturbing neutral commerce on the ground of its not being open in peace as well as in war, having been relinquished, the question could not occur until the war of 1793. And what is not to pass unnoticed, the first case in which the point fell under judicial observation, appears to have been that of the Emanuel in November 1799. During the six preceding years, as may be inferred from what then fell from the judge, no doubt had existed, that an importation of colonial produce into a neutral country, converted it into the commercial stock of the country, with all the rights, especially those of exportation, incident to the produce or manufactures of the country itself.

It will be most satisfactory to present the opinion of sir William Scott on that occasion, in the words of his reporter. “It is argued that the neutral can import the manufactures of France to his own country, and from thence directly to the French colony; why not immediately from France, since the same purpose is effected? It is answered, that it is effected in a manner more consistent with the general rights of neutrals, and less subservient to the special convenience of the enemy. If a Hamburg merchant imports the manufactures of France into his own country (which he will rarely do if he has like manufactures of his own, but which in all cases he has an incontrovertible right to do) and exports them afterwards to the French colony, which he does not in their original French character, but as goods which, by importation had become part of the national stock of his own neutral country, they come to that colony with all the inconvenience of aggravated delay and expence; so if he imports from the colony to Hamburg, and afterwards to France, the commodities of the colony, they come to the mother country under a proportional disadvantage; in short, the rule presses on the supply at both extremities, and, therefore, if any considerations of advantage may influence the judgment of a belligerent country, in the enforcement of the right, which upon principle it possesses, to interfere with its enemy’s colonial trade, it is in that shape of this trade, that considerations of this nature have their chief and most effective operation.”*

Although the judge is somewhat guarded in his terms, {“}more consistent with the general rights, and less subservient to the special convenience of the enemy”; and somewhat vague, if not obscure, in his reasoning; yet he admits that an importation of goods from a belligerent country, into a neutral country, had the effect of making them a part of the national stock of the neutral country, equally entitled with the national stock itself, to be exported to a belligerent country. What circumstances would constitute an importation are not specified; nor does it appear in what light a mere transshipment, at a neutral port, would have been regarded.

The next occasion, on which the judge delivered an opinion on this subject, occurred in a case before the court, February 5, 1800, and which came before it again on farther proof, April 29, 1800.73 It was the case of an American ship taken October 16, 1799, on a voyage from Marblehead to Bilboa, with a mixed cargo of fish, sugar and cocoa. The fish, which made the principal part of the cargo, could not enter into the question. The sugar was part of a whole cargo brought from the Havanna in the same ship, had been warehoused from some time in June ’till some time in August, during the repair of the ship, and was then re-shipped. The cocoa, small in quantity, was originally from a Spanish settlement, and had been trans-shipped from another vessel, lying at Marblehead, after having been entered at the custom-house. The ship had been restored by the captors. The property of the cargo was proved. The legality of the voyage was the sole question. On this question, sir William Scott pronounced the following judgment.

“There remains then only the question of law, which has been raised, whether this is not such a trade as will fall under the principle that has been applied to the interposition of neutrals in the colonial trade of the enemy? On which it is said that if an American is not allowed to carry on this trade directly, neither can it be allowed to do it circuitously. An American has undoubtedly a right to import the produce of the Spanish colonies for his own use; and after it is imported bona fide into his own country, he would be at liberty to carry them on to the general commerce of Europe; very different would such a case be from the Dutch cases, in which there was an original contract from the beginning, and under a special Dutch licence to go from Holland to Surinam, and to return again to Holland with a cargo of colonial produce. It is not my business to say what is universally the test of a bona fide importation. It is argued that it would not be sufficient that the duties should be paid, and that the cargo should be landed. If these criteria are not to be resorted to, I should be at a loss to know what should be the test; and I am strongly disposed to hold, that it would be sufficient that the goods should be landed and the duties paid. If it appears to have been landed and warehoused for a considerable time, it does, I think, raise a forcible presumption on that side; and it throws it on the other party to shew how this could be merely insidious and colorable. There is, I think, reason to believe that the sugar was a part and parcel of a cargo said to have been brought from a Spanish colony in this vessel; and if so, the very distribution of the remainder is some proof that they were not brought with an intention only of sending them on. But I have besides positive proof in the affidavit of Mr. Asa Hooper, who swears that the duties had been paid for them. Then the only difficuly remains as to the cocoa, and it is said by one of the witnesses, and by one only, that it was transshipped from another vessel, and that it had been brought into America only ten days before; but although there is something of a difficulty arising on this small part of the cargo, yet upon the whole I cannot think it weighty enough to induce me to send the case across the Atlantic for still further proof, as to the facts of this recent importation and transshipment, or of its having been transferred to the present proprietors, or of having been exported without a previous payment of import duties. If it had composed a larger part of the cargo, I might have deemed it reasonable to have had somewhat more of satisfaction on some of these points, which do not appear with sufficient certainty to found any legal conclusion against it. It appears by the collector’s certificate that it had been entered and imported, and I think that these words are sufficient to answer the fair demands of the court.”

It must be confessed that we perceive, in this opinion of the judge, somewhat of that customary forecast, which in tying a knot to bind himself, avoids drawing it too close to be loosened a little, if there should be occasion. It is, nevertheless, established by the precedent, that the landing of the goods and paying the duties, is a sufficient test of the importation; and that the certificate of the collector that “they have been entered and imported, is all the evidence of the fact, that can fairly be demanded by the court.”

It might indeed have been expected that the rule stated by lord Mansfield to have been settled by the lords of appeals [which makes the trans-shipment to be equivalent to the landing and reshipment of goods, and this last procedure to take away all color for seizure] would have found its way into the notice of the judge. That rule, however, connot be impaired by any thing in his decision for two reasons. One is, that the further satisfaction, which, if the part of the cargo transshipped had been more considerable, he might have deemed reasonable on some of the questions; might refer not to the legality of the voyage, but to the question of property: and it is certainly agreeable to all the just rules of interpretation so to understand it, rather than to suppose a purpose in an inferior court, to decide in direct opposition to a rule settled by the superior court. The other reason is still more conclusive; it is that on the supposition of such a purpose in an inferior court, it could have no legal effect in controuling the rule settled by the superior court, the rule by which alone the conduct of individuals could be governed.

Such has been the judicial exposition of the neutral right, even under the British restrictions. The acknowledgment by the cabinet itself, was officially disclosed on the following occasion, and to the following effect.

The cruizers of Great-Britain having seized, and the vice admiralty courts having condemned, American vessels bound from the United States to the Spanish West-Indies, on the pretext that their cargoes consisted of articles the growth of Spain, then at war with Great Britain; the American minister in London, in March 1801, represented to the British government the iniquity of the proceeding, with the indignation which it inspired; and required that precise instructions should be dispatched to the proper officers in the West-Indies and Nova Scotia, to put an end to the depredations. The subject was referred to the king’s advocate general, an extract from whose report was communicated by the British secretary of state to the American minister, with information that the king had ordered the doctrine laid down in the report, to be immediately transmitted to the several inferior judges, as the law for their future guidance and direction.

The extract containing this doctrine shall be literally recited.

“I have the honor to report, that the sentence of the vice-admiralty court appears to be erroneous, and to be founded in a misapprehension or misapplication of the principles laid down in the decision of the court of admiralty referred to, without attending to the limitations therein contained.

“The general principle respecting the colonial trade has in the course of the present war been to a certain degree relaxed in consideration of the present state of commerce. It is now distinctly understood, and has been repeatedly so decided by the high court of appeals, that the produce of the colonies of the enemy may be imported by a neutral into his own country, and may be re-exported from thence, even to the mother country of such colony; and in like manner the produce and manufactures of the mother country may, in this circuitous mode, legally find their way to the colonies. The direct trade, however, between the mother country and its colonies has not, I apprehend, been recognized as legal, either by his majesty’s government or by his tribunals.

“What is a direct trade, or what amounts to an intermediate importation into the neutral country, may sometimes be a question of some difficulty. A general definition of either applicable to all cases, cannot well be laid down. The question must depend upon the particular circumstances of each case; perhaps the mere touching in the neutral country, to take fresh clearances, may fairly be considered as a fraudulent evasion, and as in effect the direct trade; but the high court of admiralty has expressly decided (and I see no reason to expect that the court of appeal will vary the rule) that landing the goods and paying the duties in the neutral country, breaks the continuity of the voyage, and is such an importation as legalizes the trade; altho’ the goods be reshipped in the same vessel, and on account of the same neutral proprietors, and forwarded for sale to the mother country.”*

It is impossible to express the law meant to be here laid down in clearer terms, so far as it determines “that landing the goods and paying the duties” in a neutral country, legalizes the circuitous trade, even between a belligerent country and its own colonies. What inferior circumstances would have the same effect are not specified. It is not decided without a “perhaps” that the mere touching, &c. would be insufficient to legalize the trade. Nor is the legality even of a direct trade between the mother country and its colonies, denied in stronger terms than “I apprehend it has not been recognized.”

Thus stood the admiralty law in Great Britain, as announced by British tribunals, and officially communicated by the British Cabinet, to the neutral world. So it had continued to stand, as a pledge and safeguard to neutrals, conforming themselves to it, from the dates of those authorities, the last of which is as far back as the spring of the year 1801.

With what astonishment, then, must the neutral world now learn, from the decision of Sir William Scott on the 23d July, 1805,75 that, according to the rule of law just laid down, after much deliberation, by the lords of appeals “the circumstances of landing the goods, or securing the duties do not furnish complete evidence of the termination of the voyage”; and that without this complete evidence, derived from the original intention of the importing voyage, the voyage from the neutral port will be treated as the continuance of the voyage from the colony to the mother country.

This political change in the judicial rules of condemnation, admits no other satisfactory, than a commercial explanation; for the loss of character, which it induces, is a greater sacrifice than could be made to the cupidity of cruizers, or the value of their prizes to the public.

The whole course, indeed, of modifications pursued by the instructions, and by the decisions of the courts as they appear from day to day, can leave no doubt that the primary object with Great-Britain has been to transfer to herself as large a share as possible of the commercial advantages yielded by the colonies of her enemies. An absolute monopoly was embarrassed by the irresistible pretensions of neutral countries; more especially of the United States, whose neighborhood and habits of intercourse, together with other considerations, forbade a perseverance in the original attempt to exclude them. They were accordingly the first of the neutral nations towards which a relaxation was afforded. The relaxation, after considerable delay, was extended, by the instruction of 1798,76 to the neutral nations of Europe. That instruction was founded on a compromize between the interest and the prudence of Great-Britain. It permitted neutral nations to trade directly with the colonies of her enemies; without trading in colonial productions with one another; and permitted all of them to carry those productions directly to Great-Britain. This arrangement was manifestly calculated to limit the importations of each neutral country to the amount of its own consumption; and consequently to turn the immense residue of colonial wealth, through neutral vessels, into her own market; whence it might be dispensed, under her own regulations, to the neutral countries of Europe having no direct commerce with the West-Indies, and even to the belligerent nations whose commerce with their respective colonies she has as completely destroyed, as she has their commerce with foreign countries. The arrangement was specious, but proved to be deceptive. It was expected that the expence and delay of a circuitous trade through the United States would prevent importations and re-exportations, interfering with the projected trade directly from the West-Indies to herself; and as long as this expectation was in any degree indulged, the right of re-exportation was admitted, though reluctantly, both by the government and the courts. Experience, however, finally shewed, that the activity, the capital, and the economy employed by the American traders, overpowered the disadvantages incident to the circuit through the ports of the United States; and secured to them the profits of supplying Europe with the colonial productions of her enemies. In proportion as this unforeseen operation disclosed itself, the commercial jealousy of Great-Britain began to take alarm. Obstructions were to be thrown in the way of importations. Re-exportations were seen with growing discontent. The idea of continuity, by which two voyages were consolidated into one, came into vogue. The Vice-Admiralty courts, regardless of the superior decisions in England, would not allow that the landing of a cargo, and paying the duties, protected it against condemnation. At length appeared the sentence of Sir Wm. Scott, above cited, carrying into effect the construction of the inferior courts, as having been deliberately sanctioned by the Lords of Appeal. The doctrine established by that decision has been followed by other decisions, and dicta, at first requiring the re-exportation, in another ship, then a previous sale of the articles in the neutral market, then other conditions, one after another, as they were found necessary; till it is finally understood, that no precautions whatever are to bar the cruizers from suspecting, nor the courts from scrutinizing, the intention of the original importer, and that the proof of this intention not to re-export the articles, is to fall on the claimant. To fill up the measure of judicial despotism, these wanton innovations are now extended to vessels returning from the belligerent mother countries, as well as to those going thither from the United States; with the addition of demands of proof never before heard of in prize courts, on points utterly unknown to the law of nations.

These unexampled and vexatious proceedings manifestly have in view the entire obstruction of colonial re-exports from the United States; and it would be more candid in Great-Britain, if not more just, to give public notice, at once, that in all such cases capture and condemnation would be authorized.

Her present system, as subsidiary to the extension of her commerce, will be still further seen in her concurrent measures, of a type not less extra-ordinary than that of any which have preceded them.

According to the instructions issued within the period of the existing war, or to the received interpretation of them, the permission given to neutrals by those of 1798, to carry the produce of enemy’s colonies, directly therefrom to Great-Britain, has not been continued. At first view this might appear to be inconsistent with the policy ascribed to her, in obstructing re-exportations from the United States. The act of Parliament, of June 27, 1805, however, which has been already noticed, changes this appearance of departure from that policy, into a new proof, and even an extension of that policy. By the regulations of that act a direct trade is opened between the British colonies in the West-Indies and those of her enemies; and her enemies themselves are invited to enter into the trade. Whilst neutrals, therefore, are excluded from carrying colonial produce directly from the colonies to Great-Britain, the commercial views of Great-Britain are answered by the substitution of another channel through her own colonies; with the additional advantage of a monopoly to her own ships, in the transportation from her colonies across the Atlantic; and for the sake of this advantage, or for that of repressing the growth of neutral rivalship, or on both these accounts, she has been willing to encounter all the reproach of cultivating an avowed commerce with her enemies, in the very moment of laying new restrictions on that of neutrals with them.

Further; the act of Parliament, of June 27, 1805, providing for a trade between Great-Britain and the colonies of her enemies, through the medium of free ports in her own colonies, was preceded by an act of April 10, 1805,77 authorizing licences to British subjects, to import, during the war, into Great-Britain, in neutral vessels, for their own or neutral account, from the American colonies of her enemies, most of their productions; requiring, at the same time, that all sugar and coffee so imported should be re-exported; and that the value of a certain portion of the imports from such colonies should be returned in goods and commodities from Great-Britain.

Again; in concert with the act of June 27, instructions, founded on another act of Parliament, were issued, June 29, 1805, authorizing British subjects to export in neutral vessels to France, Spain, and Holland, a long list of articles, including their respective colonial productions; and to import therefrom a long list of such articles as suited her own wants.

To complete the arrangement, in all its forms, it has been officially announced in the American Gazettes, conformably to a resolution of the British privy council, of August 3, 1805,78 that the trade with the settlements and islands belonging to the enemy, in America and the West-Indies, is to be carried on through the medium of the British free ports in the West-Indies, and not otherwise.

The system of Great-Britain may, therefore, now be considered as announced to all the world, without disguise, and by the most solemn acts of her government. Her navy having destroyed the trade of her enemies, as well between the mother countries and their colonies, as between the former and neutral countries; and her courts, by putting an end to re-exportations from neutral countries, reducing the importations into these, to the mere amount of their own consumption; the immense surplus of productions accumulating in the American possessions of her enemies can find no outlet but through the free ports provided for it; nor any other market than the British market, and those to which she finds it for her interest to distribute it; with a view to which, she not only allows her enemies to trade with her possessions, but allows her own subjects to trade with her enemies. And thus, in defiance as well of her treason laws and of her trade laws, as of the rights of neutrality, under the law of nations, we find her, in the just and emphatic language of the President, “taking to herself, by an inconsistency at which reason revolts, a commerce with her own enemy, which she denies to a neutral, on the ground of its aiding that enemy in the war.”*

But let us return for a moment to the series of instructions of which an historical review has been taken; and advert to some additional lights in which the judicial construction and application of them present the conduct of Great-Britain.

Prior to the orders of November 6, 1793, the general principle forbidding to neutrals a trade opened to them during the war, must, if it be a principle of the law of nations, as asserted by Great-Britain, have been the rule of Admiralty decisions. Accordingly, it appears, by 4 Rob. Appendix p. 12, that condemnations in cases prior to that date were, in the court of Appeals, made to rest on that principle.

The orders of November 6, 1793, designated for the operation of the principle, the trade with the colonies of the enemy; as well the trade to, as the trade from, them.

The orders of January, 1794, expressly revoking the orders of November, 1793, designated for capture, the trade only from the West-India Islands of the enemy, and bound directly to Europe, only.

The orders of January, 1798, revoking expressly the orders of January, 1794, designated for capture the trade from the islands or settlements of the enemies, bound directly to any port in Europe; excepting what might be bound to British ports, or to the ports of the country to which the neutral vessels should belong.

Without entering into a variety of minute questions growing out of the varied and very inaccurate expressions in which the orders are penned, several of very great importance occur, in expounding and applying the rules laid down.

The first question is, whether the first order of 1793, which made no express reference to the general principle, and which was limited to the colonial branch of the enemy’s trade, was to be understood as merely a specification of certain cases to which the general principle was applicable, leaving the general principle in force as to all unspecified cases; or whether this specification of certain cases was to be understood as implying a legalization of cases unspecified.

The question arises, also, under the successive orders, each of them revoking the orders immediately preceding, whether it was to be understood, that the specification of certain cases did, or did not, legalize the cases omitted in the same order, but specified in the orders preceding.

The more obvious construction of the original order, even, seems to be, rather that it was meant to define the only cases to which the general belligerent claim was to be applied, than that it was meant merely to notify the claim in those particular cases; a claim not more requiring notification in those cases, than in the cases not notified.

With respect to the orders of posterior dates, the fair construction implies, that the belligerent claim was narrowed, first, by all the difference between the orders of 1793 and those of 1794; and finally, by all the difference between the orders of 1794, and those of 1798.

Taking the whole together under these constructions, the application of the general principle of capture was restricted by these orders to the trade of neutrals from the colonies of enemies, directly to ports, other than their own respective ports and the British ports, and consequently there remained exempt from capture:

1st. The coasting trade, and every branch of trade not colonial.

2d. The trade from any neutral country, to belligerent colonies.

3d. The trade by neutrals from any belligerent country to its own colonies, and to the colonies of another belligerent country.

4th. The trade between belligerent colonies, whether belonging to the same or to different belligerent countries.

Applying this rule of implication to the two orders only of 1794 and 1798; and admitting those of 1793 not to have superceded, by implication, the claims to capture in cases not therein specified, there will be no other exception to the relaxations or exemptions just enumerated in favor of neutral commerce, but the coasting trade, and other trades not colonial, to which Great Britain has applied, or may choose to apply, the general principle.

In general the high court of admiralty seems, by applying the assumed principle to the coasting trade, to have pursued that construction of the original order of 1793, which left the general principle in force as to cases not specified in it; and to have considered the relaxations in the succeeding orders of 1794 and 1798, as referring solely to the colonial trade.

There appears, however, at no time to have been any clear and fixed opinion in the court, with respect to the illegality and penal consequences of the coasting trade.

Few cases are reported, perhaps few have occurred, of discussions relative to this branch of trade. In 1 Rob. p. 104, the subject is incidentally brought into view, in a case where a French vessel had been purchased. The doctrine held by the judge is expressed as follows: “We certainly do allow it [the purchase] but only to persons conducting themselves in a fair neutral manner, &c. besides, this vessel appears to have been engaged in the coasting trade of France. The court has never gone so far as to say, that pursuing one voyage of that kind would be sufficient to fix a hostile character: But in my opinion, a habit of such trading would. Such a voyage however must raise a strong degree of suspicion against a neutral claim; and the plunging at once into a trade so highly dangerous, creates a presumption that there is an enemy proprietor lurking behind the cover of a neutral name.” Here, not the coasting trade itself, but the presumption of enemy’s property found in it, is made the ground of animadversion.

In the case of the Speculator, the same idea presents itself.*

The Emanuel† was itself the case of a coasting trade. In this case the judge descanted with great energy and rigor, on the manifest illegality of the coasting trade. “Can there be described” says he “a more effective accommodation that can be given to an enemy during war than to undertake it for him during his own inability.” He did not however proceed further than to refuse freight on the principle settled by ancient judgments, that “neutrals are not permitted to trade on freight.” He particularly refers to the case of the Mercurius [Lords, March 7, 1795] in which freight was refused. Why were not the ships confiscated in these cases? that being laid down in other cases as included in the penalty for illegal voyages, and actually applied ultimately to cases of a trade between a colony and the mother country, to which the coasting trade is strictly analogous; both being trades from one port to another port of the same nation. It is not even to be inferred from the authorities here cited, that a coasting trade, in the produce of the country, if carried not on freight, but as property belonging to the neutral owner of the ship, is subject to any penalty. This indulgence to the coasting, and rigor towards the colonial trade, is it to be explained by the fertility of the one, and the little value of the other, as a source of captures and commercial profit, or in what other way?

With respect to the orders of ’94 and ’98, and the colonial trade, it appears to have been in general understood, that they were to be construed as successively enlarging the trade of neutrals with the colonies of enemies, in the manner and to the extent above explained.

The dilemma was indeed unavoidable; either the orders were to be considered as relaxations, (and if relaxations at all, in that extent) or as leaving the general principle in force in cases not specified in the orders, and therefore as no relaxations at all.

This latter decision would have given a character of mockery to the profession and parade of making, in their orders, so many sacrifices of belligerent rights to a spirit of moderation and amity towards neutrals. The former side of the dilemma, therefore, was necessarily taken. The orders, those of ’94 and ’98 at least, were relaxations.

As relaxations however in the extent required by an obvious and consistent interpretation, the door, opened to neutral commerce with the belligerent colonies, was found to be wider than was compatible either with the interests of British commerce, the avidity of British cruizers, or the probable intentions of the British government.

What was to be the remedy? The first tried was that of shutting the door gradually, by the dint of constructions, as may be seen by tracing the colonial cases adjudged by Sir William Scott, and reported by Robinson, and the decisions of the Lords of Appeals referred to by the reporter.

The task was assuredly not a little difficult, of which there is the strongest demonstration in the crooked and contradictory reasonings and decrees, into which it forced the very eminent talents of the judge who presides in the high court of admiralty.

In addition to the evidence already presented, take the following comparison between his rule of construction in the case of the Providentia,* and the rule of construction in the case of the Emanuel†

In the former case, August 16, 1799, he observes, “the first instructions were to bring in all ships which had been trading with any colony of the enemy: but this country afterwards receded from those directions; and the second orders were to bring in all ships laden with the produce of the West India islands, coming directly from the ports of the said islands to any port in Europe. I cannot but consider this as an abandonment of the former law, [instruction] and I cannot but think that a cruiser taking this instruction, in conjunction with those given before, must have inferred that it was no longer the intention of government to bring in, and much less to confiscate,” [was there room for this distinction?] “cargoes of West India produce, unless coming to some port in Europe: this was followed by instructions now in force, which direct the bringing in of all vessels laden with the produce of the French and Spanish settlements, coming from the ports of such settlements to any port of Europe, other than the ports of that country to which the vessel belongs. It is certainly not laid down in the negative that they shall not bring in such vessels as are coming from such settlements to their own ports; but looking at the former instruction, I think it was a strong admonition to cruisers not to bring in such ships, and I believe it has been generally so understood and acted upon by them; and in this court cargoes brought from Surrinam to ports in Europe to which the vessels belonged, have been uniformly restored on proof of the neutrality of the property.”

The reasoning here is plain and just. The first instructions designated for capture the colonial trade, without distinguishing between Europe and America: the second designated the trade to Europe only: therefore, by fair inference, the trade to America was exempted from capture.

Again, the second orders designated for capture the trade to Europe: the third orders designated the trade to ports of Europe not being of Great Britain or of the country owning the vessel: therefore by fair inference the trade to Great Britain and to countries owning the vessels, was exempted from capture.

In the Emanuel, November 7, 1799, the case was that of a neutral ship taken on a voyage last from France to a French colony. According to the reasoning of Sir William Scott, just quoted, the inevitable inference ought to have been that the voyage was legal.

The first instructions designated for capture the trade to and from the colonies. Both the second and third designated for capture the trade only from the colonies; therefore, according to that reasoning, the trade to the colonies was exempted from capture.

Hear nevertheless the reasoning employed by the judge himself in this case.

After combating the neutral right to trade with the colonies of an enemy, by arguments applicable, in principle, as well to a trade between neutral ports and the colonies, as to a trade between the mother country and its colonies; he proceeds to state, in answer to all pleas for a neutral trade from the mother country to its colonies, “that the true rule to this court is the text of the instructions; what is not found therein permitted, is understood to be prohibited, upon this plain principle, that the colony trade is generally prohibited, and that whatever is not specially relaxed, continues in a state of interdiction.”

Now as what is not permitted, not specially relaxed, is by the instruction to continue prohibited, the question to be decided is, what it is that is permitted, or specially relaxed by the instructions? Is it what is positively and expressly permitted or relaxed? Then there is no permission or relaxation at all; for every thing positive and express in the instruction is for the capture, not for the permission or relaxation. Is it to be a permission or relaxation implied and inferred from a positive and specified prohibition in one order, and an omission of that or of a part of that prohibition, in a succeeding order? Then the neutral trade from a belligerent country to its colonies, which was prohibited in the order of 1793, and omitted in the orders of 1794 and 1798, was as much permitted, as specially relaxed, as the trade from a neutral country to the colonies of an enemy, is permitted or relaxed by the omission in the orders of 1794 and ’98, to prohibit the trade to the colonies, which as well as the trade from the colonies, was positively and specially prohibited by the previous order of 1793; or to recur to the reasoning of Sir William Scott, in the former case of the Providentia, as much permitted or relaxed as the trade from the colonies going not to Europe, was inferred to be so from the order of 1794, taken in conjunction with the order of 1793; the order of ’93 having prohibited the trade from the colonies generally, and the order of ’94 having omitted to prohibit more of the trade from the colonies than what was bound to some port in Europe.

The judge concludes with declaring, “I see no favorable distinction between an outward and return voyage. I consider the intent of the instruction to apply equally to both communications, though the return voyage is the only one specially mentioned.”

What favorable distinction, then, could the judge see between the outward and the return voyage, in a trade between a neutral country, and the colonies of an enemy, more than between the two voyages to Spain, a mother country, and the colonies? Is not the return voyage the only one specially mentioned, whether the instruction be applied to the former trade or to the latter trade? This is self evident. Either then he must admit the distinction in both, and say that the return voyage only being specially mentioned, the outward voyage is in both trades permitted; or he must reject the distinction in both, and say, that the outward voyage, tho’ the return voyage only be specially mentioned, is prohibited in both. A different course however was pursued. The instruction was applied to the outward voyage in the neutral trade from the mother country to the colony, without being considered as applicable to the outward voyage in the trade from the neutral country to a colony; which last has not as yet been subjected to condemnation. Whether that is to be its future destiny, as has happened to some other branches of commerce, where it was equally precluded by legal decisions and even official assurances, is among the arcana of the admiralty cabinet of Great Britain.

The judgment in this case, it is to be observed, did not go beyond the condemnation of the goods. The vessel was restored, but with a forfeiture of freight and expences.

By degrees, however, with the aid of alleged fraud, of false destination, and of contraband in the outward voyages, the ship as well as the cargo were brought within the rules of condemnation in the high court of admiralty. The decision of the lords of appeal has finally established, in the case of a voyage from a Spanish colony to a neutral, but forbidden port in Europe, that any illegal trade of neutrals with the colonies of an enemy forfeits both ship and cargo.*

Other examples might be drawn from the proceedings in the British courts of admiralty, to illustrate the constructive return towards the general principle which had been mitigated by successive instructions, and the anomalous and entangled decisions, which have been employed for the purpose. These illustrations cannot be here pursued, without too great an addition to the prolixity which has already been incurred. It will only therefore be remarked generally; first, that the course of proceedings, as they relate to the coasting, and different branches of the colonial trade; to the grounds on which these have been interdicted to neutrals; and to the penalties attached to breaches of the interdictions, compose a labyrinth for which no concatenation of principles, no thread of reasoning whatever, affords a clue: Secondly, that constructive decisions, as appears in the last volume of Robinson’s reports, have not only restored, in a great measure, the operation of the general principle; but have introduced collateral principles, greatly extending the mischiefs of its operation.

Whilst all the considerations therefore which originally led to the examination of this principle, are acquiring additional force, it is fortunate that so irresistible a testimony against its legitimacy, should have been furnished by the conduct of Great Britain herself.

---

In reply:

“It is an argument,” says the judge, “rather of a more legal nature than any derived from those general topics of commercial policy, that variations are made in the commercial systems of every country in wars and on account of wars, by means of which neutrals are admitted and invited into different kinds of trade, from which they stand usually excluded; and if so, no one belligerent country has a right to interfere with neutrals for acting under variations of a like kind made for similar reasons in the commercial policy of its enemy. And certainly if this proposition could be maintained without any limitation, that wherever any variation whatever is made during a war, and on account of the state of war, the party who makes it, binds himself in all the variations to which the necessities of the enemy can compel him, the whole colony trade of the enemy is legalized; and the instructions which are directed against any part are equally unjust and impertinent; for it is not denied that some such variations may be found in the commercial policy of this country itself; although some that have been cited are not exactly of that nature. The opening of free ports is not necessarily a measure arising from the demands of war; it is frequently a peace measure in the colonial system of every country: there are others, which more directly arise out of the necessities of war; the admission of foreigners into the merchant service as well as into the military service of this country; the permission given to vessel{s}, to import commodities not the growth, produce and manufacture of the country to which they belong, and other relaxations of the act of navigation, and other regulations founded thereon: these, it is true, take place in war, and arise out of war; but then they do not arise out of the predominance of the enemies force, or out of any necessity resulting therefrom; and this I take to be the true foundation of the principle. It is not every convenience, or even every necessity arising out of a state of war; but that necessity which arises out of the impossibility of otherwise providing against the urgency of distress inflicted by the hand of a superior enemy, that can be admitted to produce such an effect. Thus, in time of war, every country admits foreigners into its general service—every country obtains, by the means of neutral vessels, those products of the enemy’s country which it cannot possibly receive, either by means of his navigation or its own. These are ordinary measures, to which every country has resort in every war, whether prosperous or adverse: they arise, it is true, out of a state of war, but are totally independent of its events, and have therefore no common origin with those compelled relaxations of the colonial monopoly; these are acts of distress, signals of defeat and depression; they are no better than partial surrenders to the force of the enemy, for the mere purpose of preventing a total dispossession. I omit other observations which have been urged and have their force: it is sufficient that the variations alluded to stand upon grounds of a most distinguishable nature.”

On comparing the argument of the counsel with the discourse of the judge, there is but too much room to remark, that there are in the former a coolness and clearness not unworthy of the Bench; and in the latter a florid and fervid stile, which might have been less unsuitable to the zeal of the bar. But it is more important to examine and weigh the effect which their respective reasonings, so far as those of the judge can be extricated from the general and somewhat obscure expressions employed by him, ought to have on the point in question.

The reasoning at the bar is simply this—that as Great-Britain is herself in the practice of opening to neutrals, in time of war, channels of navigation and colonial markets, which she shuts to them in time of peace; she ought to allow, or might reasonably be presumed to allow, as equally lawful in time of war, a like relaxation of the colonial system of her enemies.

The judge does not deny the fact that Great Britain is in the practice of relaxing in time of war her system of colonial trade. He does not deny the inference that a like relaxation would be equally lawful on the part of her enemies. It might have been expected therefore, that in his reply, he would have allowed to the enemies of Great Britain the same right to capture neutrals trading with her colonies, as is exercised by Great Britain against neutrals trading with the colonies of her enemies; and have contented himself with the advantage enjoyed by Great Britain in her supurior means of intercepting the neutral trade with her enemies, and of preventing her enemies from intercepting the neutral trade with herself. This, it would seem, was a more consistent, and also a more politic ground to have taken. The judge was of a different opinion. Unwilling to make even that degree of concession, he attempts to retain the privilege claimed by Great Britain, and at the same time withhold it from her enemies; by certain distinctions between the two cases. With what success the distinctions are made, is now to be seen.

One of the distinctions is between a colonial trade which is frequently opened in peace, as in the case of free ports, and a colonial trade opened in war only.

The example of free ports was not very happily chosen; for it has been seen that the trade from such ports in the French West Indies to the United States, was not excepted in the British orders on the subject of neutral trade with the colonies of France; nor is it known that any such exception has been made in the British courts of admiralty.

The distinction, however, fails in its essential point. It is not an uncommon thing for relaxations to take place in time of peace as well as in time of war, in the colonial monopolies of all the European nations. The Spaniards, the French, and the Dutch,* never fail to open their colonies to foreign supplies, whenever a scarcity, or other cause, renders it inconvenient to supply them from European sources. Even on this ground then, as admitted by the judge himself, a neutral trade with enemy’s colonies would be lawful in time of war.

Another distinction is intimated between the ordinary measures of relaxation, to which every country has resort in every war, whether prosperous or adverse, and unusual measures of relaxation produced by a peculiar state of the war.

Here again the distinction directly militates against the object for which it is made, it being well known to be an ordinary measure with the enemies of Great Britain, in all modern wars at least, to open their colonial ports to neutral supplies. Prior to the American revolution, Great Britain had, in these states, resources which rendered it unnecessary for her colonies to invite supplies, if indeed they could have been obtained, from any foreign sources. In her wars since that event, she has followed the example of her enemies in relaxing her colonial system, as far as was necessary to obtain supplies, from the sources and through the channels which furnish her enemies. At this moment, her islands are as open as the colonies of her enemies to the supplies and the vessels of the United States, with this difference, indeed, that her ports are opened by regulations more temporizing and more special, than those of some, if not all, of her enemies; and therefore with pretensions to legality, according to her own standard, inferior to those of her enemies.

The remaining distinction is the sole fortress on which the defence of the principle maintained by the judge, must depend. This distinction is so novel, and in its appearance so refined, that in explaining it some difficulty was naturally felt, in the selection of apposite expressions. A critic, tinctured with want of candor, might be tempted to exclaim, that a distinction between a necessity arising out of a state of war, and a necessity arising out of an impossibility, which impossibility arises out of a state of war, was a subject less proper for discussion, than for a less serious treatment.

The judge, however, cannot be justly charged with a want of meaning, whatever may have been his difficulty or his caution in expressing it. It may be collected, with sufficient certainty, that he meant to establish the right of Britain, and the want of right in her enemies to interrupt neutral commerce, on the predominance of force, on the decided superiority at sea, which she enjoys, and on the inferiority of force, under which her enemies labour. When she opens her colonial ports to neutrals, although it arises out of a state of war, it does not arise, like theirs, out of the predominance of the enemy’s force. This predominance he frankly declares to be the true foundation of the principle.

And thus we are arrived at the true foundation of the principle which has so often varied its attitudes of defence, and when driven from one stand, has been so ready to occupy another. Finding no asylum elsewhere, it at length boldly asserts, as its true foundation, a mere superiority of force. It is right in Great-Britain to capture and condemn a neutral trade with her enemies, disallowed by her enemies in time of peace, for the sole reason that her force is predominant at sea. And it is wrong in her enemies to capture and condemn a neutral trade with British colonies, because their maritime force is inferior to hers. The question no longer is, whether the trade be right or wrong in itself, but on which side the superiority of force lies? The law of nations, the rights of neutrals, the freedom of the seas, the commerce of the world, are to depend, not on any fixt principle of justice, but on the comparative state of naval armaments, which itself may change at every moment, may depend on the event of a battle, on the skill of an admiral, on the tack of the wind; on one of those thousand casualties which verify the admonition, that the battle is not always given to the strong, any more than the race to the swift.

A government, which avows such a principle of conduct among nations, must feel great confidence in the permanence, as well as the predominance of its own power.

It would nevertheless not be unwise in any nation, to reflect on the vicissitudes of human affairs, and to ask herself the honest question, how she would relish the application of the principle, if in the course of events, a maritime superiority should happen to change sides? Should Great-Britain ever find the state of things thus reversed, she might wish, in vain perhaps, to let her claim pass silently into abeyance, as she alleges was done in the war of 1778.

Nor would it be less unworthy of her wisdom to reflect, that if a predominance of force on one element confers right, a similar right might result from a predominance of force on another element.

The supposition may be made to press more immediately on her reflections. Great-Britain as a maritime power is as dependant on external commerce, as the insular dominions of her enemies are, as colonies, dependent on external supplies. In this general view, the principle which she employs against the colonies of her enemies, may be turned by her enemies against herself. But a more particular view demands her attention. She has already beheld her principal enemy on a coast little distant from her own, by a decided preponderance of force on land, and a threatened co-operation of naval armaments, giving to the war an unexampled pressure on her faculties and resources. The wheel of fortune may re-produce the crisis. Her seamen may be taken from her merchant ships, to man her fleets. Her fleets may be called home from the protection of commerce, to the defence of the state. In this posture of things, her harvest may fail, her existence may depend on foreign food; its importation on neutral commerce; and the successful use of this resource, on the right of neutral ships to a navigation not open to them in times of peace. With such monitory possibilities in view, ought an enlightened nation by her own example, and her own language, to authorize her enemies to say to her friends—you have no right to step into a trade with our enemy, from which his monopoly of the navigation excluded you in times of peace; you have no right to import for him supplies which are absolutely necessary for his support, and which the distress I am inflicting, renders it impossible for him otherwise to obtain. Neither have you any right by a trade, also forbidden in time of peace, to furnish to his colonies the supplies which his command of the sea no longer ensures to them, and without which they must fall of course into our possession.

What reply could be made to such an expostulation, by a neutral, who had not refused to recognize a like claim on the part of Great-Britain; and, by the refusal, consulted better the interest of Great-Britain, than she had consulted it herself in advancing the claim.

Taking leave of the very distinguished judge, with these observations, some notice is next due to Mr. Ward and Mr. Brown.

A remark that soon occurs on opening the volumes of these writers is, that both of them confound the principle here in question, with the question whether free ships make free goods; and under this confusion, bring the former within the arguments and authorities belonging to the latter only. The confusion results not only from the more general expressions in which they describe the controversy between neutral and belligerent nations, on the subject of commerce; but is promoted by their frequent use of the terms “carrying trade” without distinguishing between the carriage of enemies property in neutral vessels, and the neutral carriage of neutral property in channels navigated in time of peace by domestic carriers only. These questions are evidently and essentially distinct; and the distinction answers, of itself, much of the reasoning employed by those writers; and most, of the authorities cited by them.

With respect to the consolato del mare, so much appealed to by Mr. Ward, it has been already observed that however direct its authority may be against the principle that enemy’s property in neutral vessels is subject to confiscation, there is not a sentence in that compilation which directly or indirectly recognizes or favors a belligerent claim, to confiscate neutral property, on the principle that it is found in channels of trade not open at all or to other than subjects or citizens of the belligerent, in time of peace. The negative testimony of the consolato, therefore, is completely in favor of the contrary principle.

In recurring to Grotius, Mr. Ward, is led, by his own comment on the passage which describes the rights of belligerents against the trade of neutrals, to conclude that the real question before Grotius, was that which Grotius said had been so much and so sharply agitated, namely, whether a belligerent had a right to interdict all neutral commerce with his antagonist; and Mr. Ward accordingly takes the defensive ground of maintaining that the neutral “claim to a carrying trade had never entered the mind of Grotius.”84

If by the “carrying trade” Mr. Ward means the carriage of enemy’s property, it must have been within the view of Grotius; because he has furnished Mr. Ward himself with an authority against the lawfulness of such a trade. If by the “carrying trade” he meant a trade carried on in war, where it was not allowed in peace, it is strictly true, that it appears never to have entered the mind of Grotius. It did not enter his mind, because no such particular claim had ever been asserted or exercised against neutrals. The general claim to intercept all neutral commerce with an enemy, did enter into his mind and into his discussion, as well as the other particular claims of belligerents in the case of contraband and of blockades; because as well that general claim, as those particular claims, had, at different periods, been asserted and exercised against neutrals. To suppose that the carrying trade could be unnoticed by Grotius, for any other reason than that no belligerent right to intercept that particular branch of trade, had been asserted, would be the more preposterous, for the reason suggested by Mr. Ward, “that Grotius lived in a time when his countrymen were raising to its height the source of their commerce, by rendering their state the emporium of trade, and becoming the carriers of the rest of the world;”85 carriers as well of their own property as of the property of others, and in every channel which might be opened to them with profit to the carriers.

Notwithstanding this relinquishment of the authority of Grotius, in relation to the carrying trade, Mr. Ward has shewn a strong inclination to extract from certain terms employed by Grotius, on the subject before him, some general countenance to the British principle.

Grotius, it must be admitted, is less definite in explaining himself in this particular instance, than he is in others; and much less so, than other jurists who have succeeded him. It is impossible at the same time to put on his words, any construction that will avail Mr. Ward.

Although the passage has been heretofore analized, it will not be improper to re-examine it with a particular reference to the argument of this writer.

Grotius having made his distribution of the articles of neutral commerce into three classes—1st, of such as are wholly of pacific use—2d, such as are wholly military, and 3d, such as are, usus ancipitis—of a doubtful or double use, enlarges on this 3d class in the words following—“In tertio illo genere, usûs ancipitis, distinguendus erit belli status. Nam si tueri me non possum nisi quæ mittuntur intercipiam, necessitas ut alibi exposuimus jus dabit sub onere restitutionis, nisi causa alia accedat. Quod si juris mei executionem rerum subvectio impedierit, id que sciri potuerit qui advexit, ut si oppidum obessum tenebam, si portus clausos, et jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpa dato, ut qui debitorem carceri eximit,”* &c. &c. He proceeds next to graduate the injuries done to the belligerent and the penalties due to the neutral, according to certain distinctions since exploded, particularly the distinction between a just and unjust war, on which he founds a rule; “Quod si præteria evidentissima sit hostis mei in me injusticia, et ille eum in bello iniquissimo confirmet, jam non tantum civiliter tenebitur de damno sed et criminaliter, &c.”

From this text, Mr. Ward makes the following deduction; “The tenor of these words “status belli” which is a general description; of “juris executione” which is the very right to take arms; of “pax expectabatur” which is a final termination of hostilities, not surrender of the besieged place; and lastly of “bello confirmet” which is demonstrably applicable to the whole field of war: These (he says) prove him to be occupied with the general plan of operations, and the general exigencies of a state of hostility.”86

The great importance attached to this passage in Grotius, and the extensive consequences drawn from it by this learned champion of the British principle, will be apologies for a more critical attention to the passage, than it could be thought, of itself, to require.

Whether Grotius did or did not limit his meaning to the nature of contraband articles, and the case of blockades; it is demonstrable that his words are inapplicable to the distinction between a trade permitted, and a trade not permitted in peace.

1. According to Grotius, the articles in question are of the third class only, the class of a doubtful or double use: The principle of Great Britain makes no such distinction. Articles of every class and kind found in the new channel of trade, are rendered unlawful by the channel itself, however inapplicable they may be to the uses of war.

2. According to Grotius, it is one state of war compared to another state of war, that is to be distinguished—“distinquendus {sic} erit belli status:” According to Great Britain, the essence of the distinction is, between the state of war, and the state of peace; or rather between the state of the municipal laws of commerce in time of war, and the state of those laws in time of peace.

3. According to Grotius, the right to intercept the neutral commerce accrues from its particular necessity, as a measure of defence: According to Great Britain, the necessity is not the criterion. If there be no such necessity, the trade is condemned, in case the channel were unlawful before the war. Be the necessity what it may, the trade is free, if the channel was lawful before the war.

4. According to Grotius it must be such a necessity as he had elsewhere pointed out—“ut alibi exposuimus.” The British advocates have not undertaken to shew any other passage of Grotius, giving the explanation which their principle requires. No such passage exists.

5. According to Grotius, the articles intercepted, if no other cause prevent, are to be restored. According to the British decisions, no such restitution is due. Both vessel and cargo are confiscated.

6. Finally—The war to which Grotius refers, when he uses the expression “bello confirmet is a war of the most evident injustice”—“evidentissima injustitia; bello INIQUISSIMO confirmet,” not bello confirmet, as cited by Mr. Ward. The distinction between just and unjust wars, does not enter into the principle, on which Great Britain founds her belligerent claim. It is, in fact, disclaimed by Bynkershoek*87 who succeeded Grotius; and tho’ countenanced by Vattel, is generally understood to be excluded from questions affecting belligerent and neutral rights.

Whether the text of Grotius, therefore, is to be understood as confined, or not confined to the case of contraband and blockade, it cannot possibly be applied to the case of a trade asserted to be unlawful in war, merely as being a trade not permitted in peace.

It may be observed nevertheless, in justice to Grotius, that his meaning, ought in fairness, not to be extended beyond the cases of contraband and blockades: First, because it is the only construction that can satisfy one part of the text; whilst the terms used in the other part, are by no means, inconsistent with that construction. The expression least apposite to the case of a blockade, is that of “pax expectabatur,” or “the expectation of peace,” as an event which might be frustrated by the neutral commerce. But there may certainly be wars, where peace itself might depend on a blockade. It is obvious that a blockade of particular ports, such as that of Amsterdam, the chief emporium of the country of Grotius, might influence the question of peace, as well as the question of capitulation. Or to state a case still more decisive: A state at war, may consist of little more than the place actually blockaded. Venice and Genoa, formerly, Hamburgh at present, are examples. A close and continued blockade of such places as these, would necessarily involve a question of peace, with that of a surrender.

Again; the meaning of Grotius ought not to be extended, as Mr. Ward extends it, beyond those two cases of contraband and blockade “to the general plan of operations, and the general exigencies of a state of hostility”; because this construction is directly at variance with the principles heretofore cited from Grotius; particularly in the note where he condemns the practice of England and Holland, in their general prohibition of neutral trade with their enemy.

But the construction attempted by Mr. Ward not only puts Grotius at variance with himself; it puts Mr. Ward at variance with himself also; as well as with the limits affixed to the principle by his own government. For if the belligerent right laid down in the passage of Grotius be not restricted to contraband and blockades, and cannot be applied to the British distinction between a trade in war and a trade in peace; but extends to the general exigency of hostilities; it is impossible to deny to belligerents a right to intercept all neutral trade with their enemy, whenever the state of the war, the accomplishment of justice, or the expectation of peace, prescribe it; or, whenever a neutral trade may be calculated to confirm an enemy in the war. This consequence is inevitable. Yet Mr. Ward, expressly,* in another place, disclaims any such a latitude in the rights of war, with an exultation that his country had once, and once only, attempted it; and, on seeing its injustice, candidly renounced the attempt.

The observations which have been already made on Pufendorf, and on his letter to Groningius, cited by Barbeyrac, afford a conclusive reply to the use which Mr. Ward faintly endeavors to make of that authority, on the point here in question. He seems, indeed, in general, rather to combat it as an authority claimed by an opponent, than to claim it as of much weight in his own scale.

Bynkershoek and Heineccius,88 though jointly cited as explicit authority for the principle that free ships do not make free goods, are neither of them appealed to by Mr. Ward as supporting the principle that a trade not allowed in peace was unlawful in war. This silence of Mr. Ward, considering his spirit of research, and his zeal for this latter principle, may reasonably be ascribed to his discovery that he could gain nothing by bringing it to the test of those authorities.

The same inference may be drawn from his silence with respect to the authority of Vattel, as to a trade of that description.

In Hubner, whose authority it is a great object with Mr. Ward to discredit, he finds a half concession, to which he does not fail to summon a marked attention. Hubner, it seems, referring* to the case of a neutral trade with an enemy’s colonies, opened on account of the war, admits that it is subject to some uncertainty, “quelque incertitude.” He immediately subjoins, however, “that he does not see why neutral sovereigns should refuse themselves so considerable a benefit when it offers; provided they abstain from supplying those colonies with any merchandize which is prohibited in war. It is true,” he adds, “if, besides that, they are careful not to carry provisions thither, by which I mean, articles of the first and second necessity, which, in time of war, are fully and more than equivalent to contraband of war properly so called; then it is evident that neutral nations may lawfully carry on that commerce, because the principal cause of its being opened to them during the war, will not have had the effect intended to be produced; by means of which that commerce will no longer have any thing that may directly influence the war, and which consequently may be an object of the right which belligerent nations have of opposing every thing which tends to the immediate assistance of their enemies.” In this ramble of Hubner, from the plain path in which he commenced his answer to the uncertainty suggested by himself, he bewilders both himself and his subject, and lays a foundation for real uncertainties, in his attempt to remove an imaginary one. How could distinctions be maintained, in practice, between provisions of the first and those of the second necessity, and between both and all other provisions? What is meant by the right which belligerent nations have of opposing every thing, which tends to the immediate assistance of their enemies?

But were the concession free from these incumbrances, it could not avail the advocates for the British doctrine: First, because the concession is limited to the colonial trade, not extending even to the coasting trade: Secondly, because it is limited to the case of those necessary supplies to the colonies, which were the object in opening the trade to neutrals; whereas the British doctrine extends to all trade to and from the colonies.

If any thing further be requisite to invalidate this fugitive concession, or rather hesitation of Hubner, it is amply furnished by Hubner himself, in sec. 5, of the same chap. and book, in which he systematically establishes principles, by which the rights of neutral commerce are to be determined.

“But let us suppose,” says he, “that the commerce of a neutral nation with one of the belligerent parties, however innocent it may be, should indirectly strengthen the latter, does it follow, that his adversary has a right to hinder it, to the detriment of the neutral nation? who, in carrying it on, neither had nor could have that particular object in view; which merely exercises her industry as in time of peace; and which, besides, will be very glad to trade with that same adversary, upon the like terms, as far as his commercial laws will permit, and the nature and interest of its own commerce may require.

“To attempt to render a neutral state responsible for the increase of the strength of an enemy, because that increase arises from the commerce which that state carries on with him, is to impute to one, a thing which he has caused by mere accident.”

Again—“Neutral nations by trading with those who are at war, merely avail themselves of their incontestible right. Now whoever makes use of his right, and merely does so, never can do an injury to another, which he can have a right to complain of. The possible consequences of just, innocent, and lawful acts, never can hinder us from doing them, at least there is no one who has a right to prohibit us, &c.”

With such principles in his mind, it is not wonderful, that if Hubner was startled, as Mr. Ward expresses it, by the terms of his own premises, he should be more startled at his own concession; and that finding himself at a loss to explain the ground on which such a claim as that of Great Britain could in any degree be reconciled with the rights of neutral commerce, he should be in a hurry to resume his principle, “that there is no reason why sovereign states who are neuter, should refuse the advantage presenting itself, provided they abstain from supplying colonies with contraband.”

Hubner wrote in the war of 1756. Another Danish writer, Hennings, published a treatise on “neutrality,” in the interval between the war of 1778 and the war of 1793. His authority is precise and peremptory against Mr. Ward.

After the capture of Grenada, and the Grenadines by the French, in the war of 1778, an act was passed by the British parliament* “to protect goods or merchandize of the growth, produce, or manufacture of those islands, on board neutral vessels bound to neutral ports during the present hostilities,” with provisoes, that the protection should not extend to cargoes from any other island, nor affect any sentence of any vice admiralty court, which prior to a given day should have condemned productions of the said islands.

There is some obscurity in the object and the text of this act. To make it consistent, however, with itself, as well as with the acknowledgment on all hands, that a neutral trade in neutral property was free, during that period, with French colonies, it must be understood, as intended either to exempt the trade of those islands, which had become French, from the operation of British laws, and to put them on the same footing with other French islands; or to exempt from capture the property of the inhabitants of the islands become French property and French subjects; an indulgence† that might be thought due to those who had but just ceased to be British subjects, and who might be restored to that character by a peace.‡

Hennings, however, conceiving the act to have been intended to legalize a neutral trade with French colonies, which otherwise might be subjected by the British courts to condemnation, is led to the following assertion of the law of nations in opposition to such a principle:

“An important subject which ought to be here noticed, is the trade with the colonies in America. Is there any principle on which the sugar islands in the West Indies ought to be considered as blockaded? And if there is no such principle, why is the permission of Great Britain required for neutral ships to take sugars from the islands of Grenada and the Grenadines, since those islands have fallen into the hands of the French, and the French had opened a free trade to Martinico, and to their other islands, &c.

“This law is evidently contrary to the rights of neutral powers, and they might refuse to acknowledge its obligation, as France alone has a right to permit or prohibit trading with her colonies, and as long as she permits it, no neutral ought to be molested therein.”

Hubner and Henning appear to be the only writers who have taken notice of the principle in question. The former having written at a period when the principle was in operation, was doubtless influenced by that consideration. The attention of the latter seems to have been drawn to the subject by the act of parliament concerning Grenada and the Grenadines, which he was inserting in his collection of state papers, and by the construction which he gave to the purport of that act.

The other numerous writers of most modern date, though generally strenuous advocates for the neutral rights of commerce, make no allusion to the British principle: For it would be absurd to regard in the light of an allusion to, and consequently a recognition of this particular principle, the language they happen to use in stating the general principle, that when war arises between some nations, the nations at peace with all, are to proceed in their trade with all, on the same footing in time of war as they did before the war broke out. The obvious meaning of these phrases is, that with the particular exceptions of contraband and blockades made by all of them, the neutral right to trade with a nation at war remains the same as if that nation was at peace; and consequently the right to trade to whatever places, in whatever articles, and in whatever vessels, their regulations might mutually permit. That such must have been the intention of such writers as Galiani, Azuni, and even Lampredi, as well as of Schlegel91 and the German writers, cannot be questioned, without setting up a forced construction of a particular phrase, in opposition to the whole tenor of their publications; without supposing that whilst they contend for the general system of the armed neutrality, of which this is an essential principle, and have for their main object the enlargement of neutral rights, they could, by a loose stroke of the pen, sacrifice a neutral right, far more important than those which they took up their pens to maintain. Such suppositions cannot for a moment be entertained. Nor indeed have any of the partizans of Great Britain undertaken to advance them.

With respect to the opinion of these very late writers, indeed, it is impossible to doubt that their sentiments are in opposition to the belligerent principle of Great-Britain. If they have not been more expressly so, their silence is readily explained by the period when they wrote, that is, after the abandonment of the principle during the war of 1778, and before their attention could be called to the subject by the occurrences of the war of 1793. As late even as the year 1799, it was affirmed at the bar of the high court of admiralty, that “in the late practice of this court, during this war, there have been a variety of cases from the French and Dutch colonies, in which the court has either ordered further proof, or restored in the first instance.”* And in a prior case, in the same year, Sir William Scott in reply to an argument at the bar, that the illegality of a trade between the mother countries and their West-Indies had been in a good measure abandoned in the decisions of the lords of appeal, does not pretend that any contrary decisions had taken place. He says only—“I am not acquainted with any decision to that effect; and I doubt very much whether any decision yet made has given even an indirect countenance to this supposed dereliction of a principle rational in itself, and conformable to all general reasoning on the subject.”* Even the orders of council, commencing in January 1793, could not have been known to these writers; and if they had, were so loosely expressed, so frequently changed, and had their effects at so great a distance from European jurists, that the innovation could not be expected to become an immediate subject of their attention and discussion.

To the incidental hesitation of Hubner, then, opposed by his own deliberate explanation of his principles, are to be opposed the direct authority of one of his countrymen, and the unanimous authority of a host of modern writers, all of a date later than Hubner, and many of them more distinguished for their talents and their erudition on subjects of public law.

It will be found that Mr. Ward is not more successful in his definitions and reasonings on this subject, than in his appeal to the authority of Jurists.

That the obscurity and uncongruity into which this heresy in public law betrays the votaries who engage in its defence, may be the better seen, Mr. Ward shall be exhibited in his own words.

“Let it be remembered, therefore, that the question on the part of the belligerent is not, as has been grossly supposed, whether he has a right to interfere with the neutral; but merely whether he cannot prevent the neutral from interfering with him? In other words, whether, when the former extends the bounds of his trade not with but for a belligerent; not only purchases what he wants for his own consumption, or sells his usual peace supply of articles; but sells to him articles which may be easily converted into the means of annoyance; or even turns carrier for his oppressed friend who uses the surplus strength which is thus afforded him against his opponent; whether in such case the other belligerent has no reason to be offended, and to reclaim those rights which the pretended neutral is disposed to deny him. This is in fact the true state of the question.”†

“In granting, therefore, the fair and reasonable enjoyment of their privileges to neutral nations, there must always be added the fair and reasonable caution that they use them so as not to hurt the belligerent; and that I may not seem to entrench myself in generals ‘ubi sœpe versatur error,’92 I would add that they have certainly no right to use them in any one, the smallest degree more than they did in times of peace, nor even in so great a degree, if such augmented, or the ordinary use of them, bears immediate mischief to either belligerent. For example, they may increase their purchases to any amount in the belligerent countries, provided their own consumption requires it, and provided they remain domiciled in their own country. But if they persist in carrying, much more, if they extend their faculty of carrying for the belligerent, where the latter was in the habit of carrying before; and if, in consequence, he is enabled to come to the battle, and to stand the shock of war, with augmented strength, which he never would nor could have possessed without it, I see little or no difference between this and an actual loan of military assistance. All the distinction is, that he substitutes his own people in the place of taking foreigners, for every man which the neutral lends to his trade enables him to furnish a man to his own hostile fleets. In other words, it enables him to meet his enemy with undiminished forces, and yet preserve entire his sources of revenue; when, if it was not for this conduct of the neutral, either the forces or the revenue of the belligerent must be diminished.*

“According to our principles, the same reason which applies to contraband, applies to all nocent cases whatsoever.”

A complaint in general terms that a power, which had hitherto stood by, should step in and do that for the belligerent which he was no longer able to do himself, introduces the following passage: “to come a little more into the detail and application of this argument, let us suppose, as was the case with France, a heavy duty on foreign freight had formed an almost fundamental law of her own commercial code; which in times of peace, was a kind of navigation act amounting to an interdiction of foreign interference; and that of a sudden, while engaged in war, wanting her sailors perhaps her merchant ships for hostile expeditions, at the same time wanting the pecuniary and other sources of her trade, which would thus be extinguished, she applied to nations calling themselves neutral, by taking off this duty, or even by bounties, to carry on this trade. Here is a proof how necessary this trade is to her exigencies, and how impossible it is to preserve it, consistently with her warfare. But where is the man of plain understanding, and uninterested in the question, who would not determine, that if the neutral accepted the offer, that instant he interfered in the war, &c.?”†

“These observations apply very generally to all the carrying trade, but they more particularly apply to that specific claim in the first article of the armed neutrality of 1780, to navigate freely on the coasts, and from port to port of nations at war. In so far as the coasting trade of a nation is more valuable and more necessary to its existence than its foreign commerce; in just so far is the interposition of neutrals more powerful in its favor.”‡

These extracts cannot be charged with perverting or mutilating the argumentative part of Mr. Ward’s vindication of the belligerent claim in question.

The views of this claim, which Mr. Ward here gives, are, it must be confessed, so vague and so confused that it is difficult to fix on the real meaning of the writer. As far as it can be reduced to any thing like precision, he appears to be at variance with himself; and what is perhaps, not less extraordinary, at variance with Sir William Scott; sometimes going beyond the belligerent claims of the judge, and sometimes relinquishing a part of them.

Thus, on comparing him with himself, he first allows neutrals to increase their purchases to any amount; provided their own consumption require it. He next states, that the neutral privilege is not only not to be used in the smallest degree more than in peace, but not in the ordinary degree, if it bears immediate mischief to either belligerent. Finally, he maintains, that the same reason which applies to contraband, applies to all nocent cases whatsoever.

On comparing him with Sir William Scott, Mr. Ward admits that neutrals have a right to trade, so far as to purchase and increase their purchases, to the amount of their own consumption. It has been sufficiently seen that Sir William Scott, and indeed his superiors both in the admiralty and executive departments, consider the trade of neutrals, beyond the permission to trade in peace, as merely a relaxation of the rights of war. Here then he stops short of Sir William Scott.

If we are not to consider that, as his real meaning, but pass on to his next position, which denies to neutrals a trade, even in the ordinary degree, if it bears immediate mischief to a belligerent (by which the context will not permit us to understand any possible allusion to contraband) he here expressly contradicts Sir William Scott, who lays it down with emphasis, “that the general rule is, that the neutral has a right to carry on in time of war, his accustomed trade, to the utmost extent of which that accustomed trade is capable.”93

If we recur to his last and most rigorous position, that all nocent cases whatever are within the reason applicable to contraband; he must be still more extensively at variance with Sir William Scott.

In support of the claim, whatever be the extent in which he means to give it, Mr. Ward urges the unlawfulness of a neutral trade, which “is not with, but for an enemy.” This has been a very favorite phrase with the patrons of the British claim. It probably was first used in expressing the fiction by which neutral ships, licensed to trade with the French colonies, were converted into French ships. In its application to the subsequent pretext, which determines the channel of trade itself to be unlawful, it is not easy to find any distinct signification: If by trading for an enemy be meant, carrying in neutral vessels enemy’s property, the phrase has no connection with the present question; which is not, whether enemy’s property in a neutral ship be liable to capture, but whether neutral property in a neutral ship, in a particular channel, be a lawful trade: If by trading for an enemy be meant, carrying to or from his ports, neutral property, where he used to carry it himself; then it cannot be any thing more than trading with, not for him, during the war; as he traded with, not for the neutral nation, before the war; and the case is nothing more than a relaxation of a navigation act: If by trading with an enemy be meant, carrying neutral articles of trade, which he would neither carry himself nor permit to be carried by neutrals before the war, but the carriage of which he permits both to neutrals and to himself during the war; this can no more be trading FOR, not WITH him, than it was trading FOR, not WITH each other, for either to carry to the other during war or peace, articles at one time prohibited, and then permitted by the other; and the case is nothing more than a relaxation with respect to the articles of commerce; as the former was a relaxation with respect to the vessels transporting the articles. The same distinctions and inferences are generally applicable where particular ports shut, at one time, come to be opened, at another.

The essence of the argument supposed to be compressed into this equivocal phrase, thus, evaporates altogether in the analysis. It either means nothing that is true, or nothing that is to the purpose.

But the real hinge on which the reasoning of Mr. Ward turns, is, the injury resulting to one belligerent, from the advantage given to another, by a neutral whose ships and mariners carry on a trade previously carried on by the belligerent himself, and which, consequently, enable the belligerent to employ his own ships and mariners in the operations of war; without even relinquishing the revenue which has its sources in commerce. Between this and an actual loan of military assistance by the neutral, Mr. Ward can see no difference; and this is the most plausible consideration perhaps which could be urged in the cause which he defends.

But unfortunately for this defence, it is completely subverted by three other considerations:

1. The argument is just as applicable to cases where the vessels of the nation, before it was at war, were actually employed, without any legal exclusion of those of the neutral nation, as to cases where there was a legal exclusion of foreign vessels before, and a legal admission of them during, the war. In both cases, the belligerent vessels and seamen, as far as they are liberated by the substitution of foreign vessels and seamen, may be added to his military strength, without any diminution of his exports and imports, or of the revenues connected with them. Either, therefore, the argument must be extended (which will not be undertaken) to the latter case, or it loses its force, as to the former.

2. It has been shewn that Great Britain does herself, thus relax her navigation act; and avowedly for the purposes of substituting neutral vessels and mariners in place of those which she finds it expedient to employ in the operations of war. Mr. Ward must therefore either relinquish his argument, or condemn the practice of his own government.

3. This fundamental argument of Mr. Ward is expressly thrown out of the question by Sir William Scott, who admits that Great Britain, like all countries, in all wars, relaxes her navigation acts and other regulations founded thereon, in order to obtain the service of foreigners with their vessels, where she did without it in times of peace; but that these relaxations, though they arise out of a state of war, do not arise from that predominance of force which he takes to be the true foundation of the principle.*

When Mr. Ward then asks “where is the man of plain understanding, and uninterested in the question, who would not determine, that if the neutral accepted the offer [of a trade from which the ships and seamen of the belligerent were withdrawn for the purposes of war] that instant he interfered in the war?”94 A man may be named whose determination of the question, Mr. Ward, as may be infered from his eulogies on sir William Scott, would of all men be the last to contest.

On turning to the work of Mr. Brown, it does not appear that he has presented any views of the subject, which require particular examination. He has, in fact, done little more than appeal to the authority of sir William Scott, and praise and repeat the arguments of Mr. Ward.

It may be thought, that some notice ought to be taken of a discourse of the present earl of Liverpool, prefixed to his collection of treaties. It would be injustice to the distinguished author of that defence of the maritime principles of Great-Britain, to deny it the merit of learning, ingenuity, and a vein of candor more than is always found in such discussions. His attention, however, was almost wholly directed to the question whether free ships make free goods, a question not within the limits of this investigation. He has, indeed, a few cursory observations, such as could not be here noticed without going into unnecessary repetitions, in favor of the doctrine that a trade not customary in peace cannot be lawful in war. These observations, he concludes, with one referred to by Mr. Ward as of great force, on the general question between belligerent and neutral nations; namely, “that if this right were admitted, it would be the interest of all commercial states to promote dissentions among their neighbors.”95

If there be any plausibility in this argument, it is certainly all the merit that can be claimed for it. The wars which afflict mankind, are not produced by the intrigues or cupidity of the weaker nations, who wish to remain in peace, whilst their neighbors are at war. They are the offspring of ambitious, and not unfrequently commercial rivalships, among the more powerful nations themselves. This is a fact attested by all history. If maxims of public law are to be tested, therefore, by their pacific tendency, such maxims, it is evident, must be favored as circumscribe, not the rights and interests of neutral nations, but the belligerent and commercial interests, of their more powerful and warlike neighbors.

As a further answer to the observations of this noble author, and as a final answer to all the arguments which are drawn from the intrinsic equity or conveniency of this principle, the following considerations must have weight with all candid and competent judges.

In the first place it may be repeated, that on a question which is to be decided, not by the abstract precepts of reason, but by rules of law positively in force, it is not sufficient to show on which side an intrinsic reasonableness can be traced. It is necessary to shew, on which side the law as in force, is found to be. In the present case, it has been shewn that this law is not for, but against, the British side of the question.

But secondly, it is denied that if reason, equity, or conveniency, were alone to decide the question, the decision would be different from that which the law in force pronounces on it.

War imposes on neutral commerce a variety of privations and embarrassments. It is reasonable, therefore, as well as lawful, that neutrals should enjoy the advantages which may happen to arise from war.

1. In the case of contraband, the articles of which, especially according to the British catalogue, may compose an important branch of exports in time of peace, the commerce of particular nations remaining at peace may suffer material defalcations from the exercise of the rights of war.

2. In the case of enemy’s property carried by neutral ships, (as Great Britain, at least, understands and enforces the law of nations), a branch of trade more or less important to all commercial nations, and constituting the most profitable branch of trade with some in times of peace, becomes an object of belligerent interruption and confiscation.

3. In the case of blockades the abridgment and embarrassment to which the trade of neutrals, especially those at a distance, is subjected by war, form other important items of loss on their side. This is a belligerent claim, on which much might be said, if the notoriety of its effects, to say nothing of its extravagant abuses, did not render it unnecessary.

4. The interruptions, proceeding from searches of neutral vessels on the high seas, the erroneous suspicions and inferences which send them into port for trial, the difficulty of obtaining all the requisite proofs thereon by the claimant, the delays and expences incident to the judicial proceedings, more especially where the trial is at a great distance, and above all when appeals still more distant become necessary, the changes in the state of markets during all these delays, which convert into loss the gains promised by the expedition, the suspension of the mercantile funds, the heavy sacrifices, and sometimes bankruptcies thence ensuing; all these injuries, which war brings on neutral commerce, taken together, must surely, during war, require a very great weight in the opposite scale to balance them, and the weight of these injuries is sometimes not a little increased by the piracies which a state of war generates and emboldens.

The injuries, besides, which are here enumerated, are limited to such proceedings as the laws of war may be thought to authorize. To a fair estimate of the evils suffered by neutral commerce, must be added all those abuses which never fail to be mingled with the exercise of belligerent rights on the high seas; the protracted interruptions, the personal insults, the violent or furtive spoliations, with a thousand irregularities, which are more or less inseparable from the proceeding, and which can seldom be so far verified and prosecuted to effect against the wrong-doers, as to amount to a reparation.

If the evils, brought on neutrals by a state of war, were to be traced to their full extent, a long list of a distinct kind ought moreover to be thrown into the same scale. How many condemnations are made either directly contrary to the law of nations, or by means of unjust presumptions, or abitrary rules of evidence, against neutral claimants? How often and how severely are the neutral appellants aggrieved by measuring the restitution awarded to them, not according to the actual loss, but according to the deficient estimates, or the scanty proceeds of sales, decreed by ignorant or corrupt vice admiralty courts,* in places and under circumstances, which reduce the price to a mere fraction of the value? Examples of this sort might easily be multiplied; but they may be thought of the less weight in the present case, as they furnish a just ground of resort from the ordinary tribunals of justice, to those ulterior remedies, which depend on negotiations and arrangements between the belligerent and neutral governments. But whatever may be the provisions for indemnity, obtained in these modes, it remains an important truth on the present subject, that besides the intermediate disadvantage to neutral traders from the mere delay of diplomatic and conventional remedies, the justice stipulated is always rendered very incomplete, by the difficulties in verifying the losses and damages sustained.

The principle urged against a neutral trade in time of war, not permitted in peace, is the more unreasonable, because it gives to a tribunal established by the belligerent party only, a latitude of judgment improper to be confided to courts of justice, however constituted.*

In cases, even where the tribunal has an equal relation to both the parties, it has ever been deemed proper, that the rules of decision should be as plain and as determinate as possible; in order not only, that they might be the surer guide to those who are to observe them; but also a better guard against the partialities and errors of those who are to apply them. Say, then, whether it be not an abandonment of every reasonable precaution, while the judges have, in their national prejudices, in the tenure of their official emoluments, and in their hopes of personal advancement, an exclusive relation to one of the parties; say whether it be not unreasonable to leave to the opinion, perhaps to the conjectures of a tribunal so composed, the questions whether in a distant quarter of the globe a particular trade* was or was not allowed before the war, whether if not allowed before the war, its allowance during the war, proceeded from causes distinct from the war, or arising out of the war; whether the allowance had or had not been common to all wars; whether again, if resulting from the particular pressure of the war, the pressure amounted to a necessity; whether if amounting to a necessity, the necessity resulted from an impossibility, imposed by a decided predominance and superiority at sea, of the adverse party. These are not questions of fancy or of unfairness. They are questions which it has been seen, that the enlightened judge in the British high court of admiralty has himself recognized as involved in the principle for which he contends. But they are questions in their nature improper to be decided by any judicial authority whatever; and in their importance, they are questions too great to be left even to the sovereign authority of a country where the rights of other sovereigns are to be the object of the decision.

Finally: The belligerent claim, to intercept a neutral trade in war not open in peace, is rendered still more extravagantly preposterous and pernicious, by the latitude which it is now assuming. According to late decisions in the British courts, it is in future to be a rule, that produce of an enemy’s colony, lawfully imported into a neutral country, and incorporated into its commercial stock, as far as the ordinary regulations of a sovereign state can work such an effect, is to be subject on re-exportation to capture and condemnation; unless it can be shewn that it was imported in the preceding voyage, with an intention that it should not be re-exported. Consider for a moment the indignity offered to a neutral sovereign in subjecting the integrity of its internal regulations to the scrutiny of foreign courts, and to the interested suspicions of belligerent cruizers; consider the oppression on the individual traders inseparable from a trial in a distant court, and perhaps an appeal to another court still more distant, where the intention of an antecedent voyage is to be traced through all the labyrinth of mercantile transactions. A neutral vessel goes to sea with a cargo consisting, in whole or in part, of colonial produce. It may be the produce of a neutral colony. It may be the produce of the country exporting it: The United States already produce cotton, sugar, rice, &c. as well as the West Indies. The cruizer does not forget, that the proof will probably be thrown on the claimants; that besides the possibility that it may be a licensed capture, the difficulty of proof may have the same effect in producing condemnation. He recollects also that in the event of an acquittal the costs* will, where there is the least color for seizure, be thrown on the claimants; and that, at the worst, he can only be put to the inconvenience of giving up a few men to take charge of the prize, in exchange for a few others, not unfrequently impressed into the vacancy. In a word, his calculation is, that he may gain, and cannot lose. Will not, under such circumstances, every hogshead of sugar, or bale of cotton, or barrel of rum, &c. be a signal for detention? Could ingenuity devise a project holding out a more effectual premium for the multiplication of vexatious searches and seizures, beyond even the ordinary proportion of condemnations? A project, in fact, more unjust in itself, more disrespectful to neutral nations, or more fatal to the liberty and interests of neutral commerce? Would Great-Britain be patient under such proceedings against her, if she held in her hands, the means of controuling them? If she will not answer for herself, all the world will answer for her, that she would not, and what is more, that she ought not.

THE END.