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Les diagrammes suivants Hiustrent la m6thode. rata D elure. n 32X 1 2 3 1 2 3 %/ et \/ n \ !' ■ id/'y^K ■ BELLIGERENT RIGHTS ASSERTED AND VINDICATED \J AGAINST NEUTRAL ENCROACHMENTS BEING A-N ANSWER •iO AN EXAMINATION OF THE BRITISH DOCTRr>;E WHICH SIOJECTS TO CAPTl P.L A NEUTRAl a'BADE SOT OPEN IN TIME OF PEACl.* LONDON; PRINTED FOR J. JOHNSON', .ST.PALl's C ULR. HY.VIU) ; ANl> VV. J. AND J. RICHARDSON, NEAR THE ROVAl. F.XCIIANGF. 1806. (Pike. Three Shillings.) I I f > I ! '^'^\^(sri mzz Bj3 1 < — .p ,... ,x.vv., p.M^■^.^lM.S■ POtM-.N's-COrUT, FLKl-T-STUKyT. ADVERTISEMENT. r-STKKET. The attention of the public has lately been called to the injury which the power and pro- sperity of this country have sustained by the conduct of America, in a most masterly per- formance under the title of " War in Disguise, or the Frauds of the Neutral Flags." But the very learned and eloquent advocate who wrote this tract, directed his attention, almost exclu- sively, to detect the fraudulent evasion of the royal instructions, and to lay before the public a very detailed account of the shifts and arts by which the American flag has been enabled to carry on the domestic and colonial commerce of our enemies. This publication has had a powerful effect on the nation ; and no one has A 21 1 IV yet ultcniplod to qiujbtion the accuracy of its do tails, or to controvert the conclusions which its learned author has drawn from them. Only a short time since, a pamphlet was transmitted from America, and is now re-printed in London, which is ascribed to a gentleman high in the confidence of the American govern- ment. I In this tract, the injurious consequences to the prosperity and power of this country, from neu- trals covering the commerce of our enemies, is most fully admitted : (Po3, 78, 134, 137, 189.) but the author contends, that notwithstanding this consequence, the trade, so carried on by neutrals, is one warranted by the law of nations, and sanctioned by the principles upon this sub- ject, which have been recognised in various treaties. This author seems encumbered with his au- thorities, and unaccustomed to the right appli- cation of principles i and has involved liimself i in considerable confusion. Yet the great weight of tlie gentleman to whom this puWication is attributed, has drawn towards it so large a por- tion of the public attention, that it has been deemed requisite to have its inaccuracies and inconsistencies pointed out, and its unwarranted conclusions combatted. In order to do tliis in the most satisfactory manner, no reference is made to any fact, or to a quotation from any authority, but such as are fomid in this If print of the American tract itself, and to whicli correct reference is made. While the present pamphlet was writing, the resolutions from the committee of congress (to whom that part of the president's message waa referred which relates to the disputes between this country and America) has been received, with their subsequent connrmation, and are as follows : — FIRST. Resolved -That the capture and condemnation, under the orders oi' the Britisli government, and adjudication of their courts of admiralty, of American vessels and their '1 „aJe with the enem.o. "[^'^i;..' J,^ „,,„„ ,h. ,„e tto. of peace . au -J^^^%^^, States, . viola- tion of their neutral rights, and au their nationaliuaepcndenee. SECONT», „._ThatthePre*„tof.he^tI..eaS.a^,'.^- .frrPatBiitain. prohibited m lime ot peace, '^"Z:: ^ — iftc.l of such Amencan citi.en. : t ri e and dan.ages sustained by these capture. tov then lo«^^^ ^^^ ; i,^^„ ,„eh arrangements and condemnations ; and to enter . States; and man.fe.i the.r ^egociation. themselves and then- cm.ens. bv .u acable g that justice to which they urcMnfiWd. Til IK IX rr" o: :: x^^^^^^ .>.e growth, pro. f.:'e\ TanuLn-e. of the United Kin.ao,„ of G « • 1 T .V,nd or the dependencies thereof; that i. Bntam and IreU.d o th p ^^^^^ ^^^..^g,^,,,,,,. to «^y---^^^"^^'"V";,f ,,,1 books, shoes, ribbon., rum, hardwares, slate, salt, coal, dooks, . These words were struck from the contacd resolutions. i •» VII ix\H and phted-glass wares. The said prohibition t« commence from the day of , unless previously thereto equitable arrangements shall be made between the two governments on the diflerences subsisting between them, and to continue until such arrangements shall be agreed upon and .stttkd. la The Rubicon then is past ; argument is at an ^nd; and discussion closed. America has as- sumed in her own favur the very question which she pretends a wish to make the subject of nego- ciation. America must either retract her threat- enings, and abandon her claims, or tliis country, relinquishing her rights, must be prepared to sustain the injury of having France aided in her prosperity and revenue, and enabled to carry on the war with more vigor and eftect, by pretended friends and liostiie neutrals. Who/ May, 1806. ened on account of the war, in order to avoid its pressure ; and the neutral who enters into it, thereby relieving one belligerent from the pressure of the contest iij which he is engaged, gives him succour; and therefore, on the authority of Bynkershoek, takes a part in the war, or in other words departs from his neutral character. And this explains the observation of Puffen- dorf, that " If the northern princes can maintain their trade with France, by sending strong con- voys with their fleets, I see nothing to blame in it;" (p. 16.) for it is very well known that the jurists admit of a state of hostility and reprisal short of absolute war ; that state in which the injured nation does itself right upon the injuring individuals, without engaging in a general war \ ! ! ! 1 with the nation at large ; and the very circum- stance of Puffendorf requiring a strong convoy, is an evidence that in his opinion the injured bcl- hgerent has a right of capture whenever strong enough. This is also confirmed by Vattel, when he says, " It is therefore very proper and very suitable to the law of nations, which disapproves of multiplying the causes of war, not to consider those seizures of the goods of a neutral natron as acts of hostility." (P.29.) This v/riter is quoted at great length by the American author : and only observe one propo- sition of his, and then it will be easy to decide whether the American has not equally failed in this witness: — " Whatever a nation does in use of its own rights, and solely with a view to its own good, without partiality, without a design of favoring one power to the prejudice of another, cannot, in general, be considered as contrary to neutrality ; and becomes such only upon particular occasions, when it cannot take place without injury to one of the parties, who has then a particular right to oppose itr {p.26.)— If it is an injury to aid the prosperity and revenue of one of the bel- ligerents—if it is an injury to enable him to carry on the war with more vigor and eftect — is not Vattel clear that the sutTering and injured belligerent has a particular right to oppose it ? — II Is it necessary to enter into proof that these services to a belligerent are injuries to the other ? But the American author is fond of being a critic — Vattel too is erroneously translated. — In what way ? why because siiivre tout unimcnt leur commerce is rendered " continue their cus- tomary trade;" and he mends the matter by saying it should be " simply pursue their com- merce." (p. 28.) Uniment is evenly, uniformly, plain, or ■ smooth. Strange ignorance of lan- guage which would consider any of these words as synonymous with simply ! Suppose it were rendered " follow quite uniformly their commerce ;" where is the real difference between this and the old translation ? Martens, the advocate of the armed neutrality, is also called uponfor his testimony : but he remarks, that " the right a nation eiijoys in time of peace, of selling and carrying all sorts of merchandise to every nation who chooses to trade with it, it enjoys also in time of war, provided that it re- mains neuter." ( P. 32. ) In the first placfe. Martens wrote after "the rule of 1756" had been acted upon ; and yet only admits the con- tinuancfc v>f that trade which the neutral had en- joyed in time of peace : and, secondly, only admits this upon the condition that it remains neutral ; and it has already been shown that the 12 authorities of Grotius and Bynkcrshock decide it to be a departure from neutrality, a siding with one side, and a taking a part in the war, to render one of the belHgerents a service in preference to the other, while the author himself acknowledges that the trade prohibited by the " rule of 1756'* aids the prosperity and revtnue of one of the bel- ligerents, and enables him to carry on the war with more vigor and elfect. Hubner too is examined by the American au- thor; yet he, like the rest, talks of the " right which belligerent nations have of opposing cverij thing which tends to the immediate assistance of their enemies;" and of neutrals "merely exercising their industry, as in time of peace'* (p. 178-9.) The author aiVects not to understand him, and to call these opinions the rambles of Hubner: he was, however, careful to quote aim at the end of his book, and not under his head of written u athorities. — Mark too that Hubner is a Dane, and wrote during the war of 1756. Henning is the last author here quoted; and as far as the extracts make, he is certainly against the ''rule of 1756;" but he wrote within these twenty years, and is one of the most hardy and extravagant champions of neutral claims. The American author closes his review of the writers on public law by the sweeping remark, that " the other numerous ^\ riters of most modern ■■■HIM asgatwaawgwy w decide ng with > render ence to wledges 1756" the bel- the war can aii- « right ig evei'ij iistauce merely peace.'* lerstand ibles of ote aim head of ner is a d; and against n these dy and r of tlin 'cmark, modern date, though generally strenuous advocates for the neutral rights [claims] of commerce, make no allusion to the British principle ; for it would be absurd to regard in the light of an allusion to, and consequenlh) a recognilion 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 thex) did before the zvar broke out.'' (p. 182.) Now it is very necessary for those who mean to judge fairly upon this controversy, to recollect that these " numerous v/riten> of most modern date" have all of them wrote since " the rule of 1756 " was avowed and enforced, and most of them since the royal instruction of November 1793. It is therefore impossible but that this rule, which the author deems a greater injury to neutrals than all the other belligerent rights (p. SQ.), could have escaped their notice; and he himself ad- mits, ihsit if tlieij did consider this ] Mvle, or had it in view, when saying " proceed . . _ir trade on the same footing in time of war, as they did before the war broke out," it ivould " conse- quently be a recognition of it." The author relies a great deal on the silence of all the old writers on the general subject of neu- tral commerce relative to this "rule of 1756;" and even deems it " an unanswerable proof that ! W u the exception now conteiulea for could not be known, or could not be recojj;nised, by \hosc writers." (P. 36.) If it was not known to theni; their ^iience does not make any thing on either side-, but if it was known to them, their silence is ccntrary to the conclusion here drawn from it, that the "rule of 1756" could not be recognised by them ; for they were calked upon to have noticed and condemned the rule, since in 1705 friendly vessels were introduced by the French into their colony trade, and zm'c captured (P. 37-) Their silence therefore well warrants the conclusion, that they considered the " rule of 1756 " legal and acknow- ledged: But in fact are they silent?— This American gentleman seems incapable of apply- ing principles to the qnestion he has undertaken to discuss; and l)ecansethc ^* rule of 1756 " has not been formally recited paid cor. idered, he declares all these writers silent upon it, though, in his own quotations from them, they lay down the prin- ciples on which neutral commerce may be car- ried on ; and the principles thus generally laid down are applicable to the "rule of 1756," and in the preceding pages have been shown to sup- port and approve it. Having thus gone through those jurists, whom the advocate of American claims thought it for his argument to examine, and found that their authority is in favor of that belligerent right which mercantile avarice and republican partiality not be t)y tliosc to tlU'lll; \\\ either silenee is 111 it, that ;nise(l by iticed and ily vessels ir colony nr silence that they [ acknow- :? — This of apply- ertaken to " has not ic declares in his own the prin- ly be car- lerally laid 756," and vn to sup- ists, whom ight it for that their 'ight which partiality would seek to destroy, it will be proper to pro- ceed to the author's second head of TREATIES, Which he begins with saying may be considered in the four views, of affirming the general law i'orming exceptions to the general law — expla- natory of the general law — and as constituting a voluntary or positive law of nations : and then adds, that, " in the present case, it having been, shown, from the sources generally allowed to be the most authentic, Ihal the law of nations is viclafcd by the principle asserted by Great Britain, it is a just inference that every article in trea- ties, contradicting that principle., is an affirmance and direct proof of the general law; and that any stipulation of the principle would, as an ex- ception to the general law, be an indirect proof ofit." (P.40.) Now as it has been attempted to be shov/n that the law of nations is not violated by the " rule of 1756," and as the attempt has been made by a reference to this American writer's own authori- ties, the reader who tiiinks the attempt has been successful, and that the neutral advocate has fliiled in establishing his argument in the first instance, will see that the very reverse of the above inference must be the explanatory I li> , ' m; i I I' (I key tlnougb the remainder of the discussion, and that every article in treaties contradicting the "rule of 1756" 's aii exception to th * > ''* ,,,,) In, however, -'-^f"';;* ^,.,, .t tho „u,t not be forgotten that bn^aml ^^.^^^ ,„.e in peace -'^^:^''^^o^oi^ , loUaud, and that s>r AVdl.am rempl^ ^ ^^^^^ „„,e. of his eftovts in obtau.ng «" ^ Uovvn to have been the ^-<^f^f^^ ^f^, ,,- „f Uis time , and why *-^j;;;^°",;,,,,tovy or ,e.s, had these treaties me«l3^been d^c^ >^^^^^ .onfnmatoryofthesene>n..^ ^^^^^^ ^^.^,^_^ vather to V'^;^^- ^ ^'^ ;o,tive national law Uibited by the " f^f']"^ " free ships should .rant to eaeh other that the hi ^^^.^ ^ 1^." now it IS tUivj"*-" ^ „ake tree goods ";; „;,,,,i,oek, ^P. 23.) „-dter that Grotms (P. 23 ) «) ^^ ^^^^^ Vattel, i- ^0) - ;X' - -t protect the the neutrality ot the smp ^ (p. 23.) tio from capture and ^dem— J .,„i Ofcourse this art. eom^^rea^y^^^^^ lothegenealUw^Jjy ^^^^ ^^^^^ „, ^^^•^ T' l: dTrect ianee to each other, be '^'"r r„le ^terpretation of the same treaty? apphed m the mterp ^^^^^.^^^ tlierelore. ^-^ s, it the with )i'the ciator s svic- ory or ?y not driven lal law id that idc pro- ties also i should hy this , (P. 23.) ::ide that )tect the ' (P. 23.) exception le vest of 5 of con- other, bo tie treaty ? therefore, itral trade I being shown to be exceptions, are to be taken as an indirect proof of that general law asserted bv Great Britain in the " rule of 17.^»6." The treaty with France of 16/7 is said to be favorable to tlie neutral claim, while that of 1689 with Holland went to prohibit all neutral comnicree whatever with France. Tlie treaties of navigation and commerce with France and S[)ain, of 1713, are exhibited as if conclusive on the question -, but it is needless to enter into their detail, since they were rejected by the British parliament. Unwilling that this important fact should appear too abruptly be- fore his readers, the advocate of neutral claims only says " that it w^as for some time under a legislative negative;" (P. 59.) and then enume- rates nine treaties with France and other nations, in which the treaties of Utrecht are, among others, contlrmed. But to what does this amount ? Is this writer ignorant that the treaties of Utrecht settled the limits and boundaries of many of the nations upon the continent, and affected even the owner- ship of the West-Indian islands— that these treaties so confirmed, were confirmed subject to their ori- ginal limitations — and that the acts necessary to have given the navigation and commercial treaties force, were never passed by the British parliament, and that they consequently remained in a state of abeyance? — Besides, granting it to be true that these treaties stipuhUe for all what America 22 claims, America was no party to them ; and if it be true that they were thus anxiously and carefully renewed and conhrmed in every treaty of pen^^e, is it not evidence that the parties to them, and consequently those only who were interested in them, felt that these claims were encroachments on belligerent rights, and excep- tions to the general national law of Europe, which required the sanction of an express treaty in order to be claimable ? The treaties of 1734 and 1766 with Russia do not, according to the account given of them, appear to decide any thing; while that of 1780 with Denmark "determines that merchandise, not contraband, may be transported to places in possession of enemies." (P. 61.) But can this exy)ression be supposed to extend to the transport of merchandise from one enemy's port to another ? most clearly it means that a direct trade, con» tral)and excepted, may be carried on between a neutral and a belligerent by the neutral ; but this is not opposed or obstructed. The commercial treaty with France in 1786 is also brought forward ; but as it renewed the navigation treaty of 1713, it can merely be con- sidered as the tenth confirmation of it, and to fall under the same course of observation. This examination of treaties is closed with the armed neutralities of 1780 and 1800, and the convention with Russia of June 1801. The armed luutralities have been suiliciently siiowu to be unprincipled attempts to take advantage oi' tlie diiiiculties i;nd distresses into whieli Great Britain was involved at the time of tlieiv forma- tion 5 and as they have not only never been re- cognised by her, but have always encountered her most determined oppositioUj tiiey cannot Im brought as evidence against those riglits for which she is now contending ; and, wiliiont en- tering into any particular vier of the same year, it stated the convention '' does not au- thorise a n(?utral [)ower to carry, in time of war, the })ro(iuce and merchandise of the colonies of tjie belligerent }>o\\er direct to the continental possessions ; nor, vice versa, from the mother country to the enemy's colonies." [v. Ciu.) And even granting that this" convention had conceded to Russia, Denmark, and Sweden, some of our belligerent rights, are they therefore ceded to America, -who was no party to this treaty? " The treaty is expressly declared (by Russia and Great Britain) to be an invariable determinatio]i of their principles upon the rights of neutrality, in Ihcir applicat'ion to their respeelive iNO/uir- chies:'' (i\(j.5.) and notwithstanding this last contniing and limiting clause, the neutral advo- cate sa\s the contents oi' the treaty should be ex- ! I! I ; tended and applied to other states and monar- chies; for that "principles and rights must be the same in all cases, and in relation to all na- tions." (P. 6.5.) In what school of logic could this writer have been educated? — " principles and rights the same m all cases!" — Pray what is a principle? ^ It is the first cause or foundation of any thing, whether act or substance. — What is a right? It can only exist by means of a correspondent obligation : he who claims a right, imposes an obligation on another; he who grants a right, imposes an obligation on himself. But because one grants a right to another, does he necessarily grant it to all ? If A allows B a right of passage through his meadow, does he grant a public right of passage to ail the world?—- A mere stu- dent at law would be enabled readily to say. No ; rights then are not the same in all cases, nor to all persons or nations ; and a principle being the hrst cause or foundation, it follows that friendship or interest may lead or cause, or be the foun- dation for, the grant of rights. And the last clause — " in their application to their respective monarchies"— is evidence that the terms "prin- ciples" and "rights" were used in this sense, and confined to the contracting parties only. To close the list of treaties, the advocate of American claims adds—" The UNITED STATES 25 lonar- . 1st be ill na- r have its the iciple ? thing, right ? ondent >ses ail - right, )ecause essarily passage public sre stil- ly. No ; nor to ?ing the endship e foun- the last spective 3 " prin- s sense, nly. 3cate of States Vi have, or have had, treaties with France, Hol- land, Sweden, Russia, Spain, and Great Bri- tain. In all of these, EXCEPT THE tkeaTY wrni Great Britain," (p. 73.) they have maintained the neutral right of trading with belli- gerent colonies, Grant they have had such treaties : but how came it that this stipulation was omitted in the treaty with Great Britain —the only power whose situation rendered it beneficial to entbrce the "rule of 1756?" — For the very plain rea- son, that Great Britain would not relinquish the right ; that it was a right founded on the law of nations, and therefore one which the United States could not insist on her relinquishing. It is difficult to say how it is : but though this gentleman talks very fluently of " the progress of the law of nations mitigating the evils of war," (p. 4.) he deems it expedient to strengthen his diplomatic references, by saying — " To these might be added their treaties (those of America) with the coast of Barbary!!!" "which are all favorable to the neutral rights of commerce! ! ! " (p. 73.)-— I will not indulge in those remarks which instantjy occur to the mind on reading such an appeal : argument is scarcely necessary for combating such claims as those to which the Barbary states are favorable. Perhaps ,ome fu- ture pleader for what is called the " freedom of Wr^ !i 2G the seas," may appeal to the Bav])ary states in behalf of piracy; and they certainly will, as tar lis their authority goes, support his appeal. But to end this most barren part ot the dis- cussion, the advocate of neutrality contends that the decision of the board of commissioners be- tween this country and America, on captures founded on the instruction of November 1793, is conclusive in his favor. The board consisted ot two named by Great Britain ; two by America ; the fifth was drawn for j and tlie ballot lell on an American 1 1 1 * For their decision to be authority, it is there- fore necessary that it should have been sanc- tioned by the two English commissioners : on this circumstance, however, nothing is said. The author indeed remarks-" Whether the British commissioners concurred in the decision, does not appear : but whether they did or did not, the decision was equally binding, and affords a pre- cedent of great weight in all similar controversies between the two nations." (P. 74.) It is readily granted that it is equally binding, but strenuously denied that it affords any precedent whatsoever. If the board were known to have been unani- mous, it would have afforded a precedent to the extent of their judgements and knowledge: but * See Appc'udix, tor further reinurks ou the report of WiU board. i ■11 4 ates ill , as fur I. he (lis- (Is that lers be- aptui'cs 793, is iistcd ot* mcrica ; fell on is therc- 11 sauc- ers : on id. The ) British jn, does not, the [Is a pre- :roversies s readily eniiouslv iatsoe\er. ;n unani- nit to the di^e : hut ■port of tlii^ as this is not known, and as three out of five are known to have been Americans, it does not al- I'ord any decision at all. Thus out of all these treaties ton are repetitions or confirmations of those of 1713; three do not decide one way or the other ; seven are said to be against Great Britain ; and eight support the principle of the « rule of 1756." And let it be marked and remembered by the reader, that no authority is reverted to but such as are (j noted by the American writer himself j and his account of the treaties which he brings forward are taken lor granted as correct. The third head of tiiis pleader on behalf of neutral claims is THE CONDUCT OF OTHER NATIONS, Which he acknowledges is merely negative, " but not on that account without a convincino- cflect; " (p. 75.) forgetting that no nation has been in the condition to be injured by neutral inter- ference in the colonial trade of her enemy but Great Britain, since it has become a policy to open that trade in time of war which is always kept j closed in time of peace. Great Britain was never Icalled upon to apply the " rule of 1756 " till her ^enemies opened their colonial trade, in order to jevade the power of her arms ; and her false fiiends I 3S were ready to depart lorn their neutrality, in order to assist her enemies in canying on their warfare with more vigor a.,d eftect rh.» „.omentous innovation" (P. 75.) on colonial mo- nopoly on the one side, a.id neutral good a.th on the other, is the cause which forced Great Britain to apply the principles on wh.ch bd- ligerent rights are founded, to redress tl e grievances a..d injuries to which she was oh- noxious. ■ i.u« The fourth head of the American author is the iH Ml i CONDUCT OF GREAT BRITAIN. Which he divides into two parts; and first, that « whilst G.-eat Britain denies to her enennes a right to relax their laws in favor of neutral conv- merce, she relaxes her own, those relatiiig as wel to her colonial trade as to other branches ; (V. 70- ) in which he says slie is "governed by the sanic policy of eluding the pressnres of war, and ol transferring her merchant-ships and marmers from the pursuits of commerce to the operations of war-" (P. 78) aw^ *ese remaiks occur again in P. 79, 81, 160, d «<6. and 190.-Pray m what do these remarks impugn the " rule ol 1756 >" Does Great Britain deiiy to her enemy the right to open her colonial ports in time ol war > No ; not a bit more than she dcmes her the I Ltrality, in ig on their t. '' This olonial mo- good faith need Circat which bel- redress the he was ob- author is the VIN, nd first, that er enemies a nentral com- bating as w ell hesr(^-76.) by the same war, and of md mariners the operations LS occur again )0.-— Pray in the " rule of to her enemy )rts in time ot ! denies her the «9 rloht of conveying her colony produce in her own ships during war. But Great Britain say^ this to the belligerent—" Open your ports, and welcome; but I will intercept your own trade with them, and all neutral commerce with them too which you have admitted contrary to your cuslomary peace .egulations/'-Does any one deny to a belligerent to levy troops m a neutral country? No one, certainly; yet such levy in any country is a good ground of war, and an evident departure from neutrality; and therefore an act which the injured belligerent has a right to oppose. Does anyone deny to the belligerent the right to purchase contraband of war of a neutral nation, and to have it conveyed in a neutral ship? No one denies this right to the belligerent: but the right of affording this supply, help, and succor, is by all denied to the neutral. It is not the right oTthe belligerent to idceive assistance, but the right of the neutral to give it, which is the question. In the case of a blockaded town, no one denies the right of the besieged to receive supplies, but the neutral conveys them at his peril; and subject, if intercepted, to capture and condemnation. , • i The relaxations, therefore, of her colonial monopoly by Great Britain, afford no sort of argument against the right which she exercises I ( ill 30 of capturing and condemning a neutral trade shut in peace and opened in time of war by her enemies. The second position of the author is — that " whilst Great Britain 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." (P. 76.) And to what does this amount ? Great Britain lias a clear riglit to interdict such commerce, but she finds it for her interest to let the right sleep. In so doing, she loes not the least injury to any neutral state whatever, nor does she invade anv one neutral righ'. ; in so doing, she makes her enemy's colonies subservient to her revenue and her naval greatness, and thereby is enabled to carry on the war with more vigor. While her enemy loses the supply of his colonies, and can Only obtain part of their produce, after it has extended her navigation, and swelled her revenue, thus does this trade of Great Britain with her enemy essentially aid her in the war; while the interference of neutrals reverses the whole, and casts the balance of advantage into the scale of France, this is weakening the means of annoy- ance, and injuring the prosperity of one bellige- rert*: at the time of aiding the revenue and pro- sperity of the other, and of enabling him to carry on the war with more vigor and ef- 4 4 31 tral trade ar by her is — that the right mies, she ites them at Britain lerce, but !^ht sleep, ry to any vade anv lakes her enue and labled to Vhile her and can er it has ' revenue, with her tvhile the lole, and ! scale of f annoy- ? belhge- md pro- log him and ef- fect, {p. 3.) This, in the language of Grotius, is to side with the enemy; (p. 10.) and, in that of Bynkershoek, is to take part in the war. (p. 20.) In other words, it is a departure from neutrality, and an injury which the belligerent has a parti- cular right to oppose. The neutral advocate says — " It is a material fact that the principle was never asserted or en- forced by England against other nations before the war of 1756." (p. 81.) " At some times," he adds, " nations have been seen engaged in attempts to prevent all commerce zvhatever zvith 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 pro- perty of an enemy * ; at others, to make the hos- tility of the country producing the cargo a cause of its confiscation. But at no time was this en- croachment on the rights of neutrality devised by any nation until the war of 1756 :" (p. 84-5.) and so to prevent all commerce whatever with an enemy, does not include the interdiction of a particular branch of trade with him ! The fact however is — that until the war of 1756, the French and Si)aniards never attempted *■ This has always been the law in France. k', Jll If It'll) 32 to eluJe the pressure of war by relaxing their colonial monopoly -, for the attempt of France in 1705 can scarcely be deserving of mention; or if it is, then the " rule of 1756" is of as ancient date as the neutral vessels so employed were captured, and the effort crushed at the outset. The author shows the great error into which he has fallen throughout his argument, when he remarks that " certain it Is, the original principle was that of a virtual adoption, this principle being commensurate with the original occasion; and tliat, 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." (P. 90.) In truth, the original principle is that on which enemy's property is confiscated when found on board a neutral vessel ; that on which is founded the list of contraband and the other rights of belligerents ; namely, that it is the duty of those who are neutral not to succor one belligerent against the other, nor to assist either one or other with those things which may furnish and foment the war. Now the American author admits that the trade prohibited by the "rule of 1756" does enable a belligerent to carry on the war with more vigor and effect. (P. 3.) Such a trade. r their nco ill ; or if LTiciciit I were tset. which hen he rinciple e being 1 ; and s found L strong I of the :casions n which lund on founded ights of of those Higerent or other i foment that the 6" does war with a trade. 33 therefore, is within the principle ; and the '' virtual adoption" of which he was speaking above was only one of the modes in which it has been applied; and when new occasions arise through the arts, frauds, and encroachments, of neutrals, new rules must be devised in order to carry into effect and apply the original principle. In England the law condemns a man to death for some species of robberies, and to transportation for others. The principle is but one — to prevent theft j and the punishment is proportioned to the extent and mode of the offence, that the remedy may be commensurate with the evil; and so, while America did not abuse the in- dulgence granted in the royal instruction of January 1794, the grand belligerent principle of opposing every neutral act which benefits or strengthens an enemy, was in full action. But when America, under cover of this indulgence, carried on the colonial trade of France, the action of the principle was suspended, and England was driven to a more rigorous enforcei ment of the « rule of 1756," in order to again bring the original princi]r>le into action. . It is very necessary to notice the extreme unfairness, to speak in the mildest manner, of this American writer when commenting upon the treaties of 1674 and 1678, between this country and Holland, in pages 51, 52, 53, 54, D 34 r Olid 55. They are in these five pages triumphantly introduced and dilated upon as particularly important in the present discussion, (P. 53.) and as granting to the Dutch the very trade pro- hibited to neutrals by the "rule of 1756.'* While the author concealed the fact, that during the war of 1756 those treaties came under dis- cussion between the two countries, in order to ascertain how far the rule was compatible with them, when it was urged by Great Britain " that the treaty of 1674 said only that the liberty of trade should extend to all merchandises* which were transported in time of peace, those of con- traband excepted-, and was, therefore, not applicable to the colonial trade in time of war:" (?. 86.) while the treaty of 1678 only stipulated an " unlimited freedom of trade from and to ports of enemies :" (Mark, not from port to port'.) yet the Dutch began to avail themselves of the war, and " to enter into the colony com- merce, both 10 their own ports and to French ports." (P. 86.) Either way, then, they violated their treaties, while in the first the " rule of 1756" is recognised, and the coasting trade of an enemy is excluded in the other. ^ hi the convention with Great Britain and Russia, mer- chandises are taken to include "produce, growth, and inanu- tactures.** 35 The author through many a page contends that Great Britain rehnquishcd, abandoned, and renounced, the "rule of I756" during the American war; yet he quotes the Danish Ken- ning, who is known to have maintained the most extravagant notions in behalf of neutral claims ; wherein it is said, speaking of her con- duct during the American war, •' nothing, on neutral trade, has been expressly conceded by Great Britain; yet the commerce of neutrals with the colonies has been generally permitted'* (P. 98.) Well; and is this at all resembling an aban- donment or renunciation, when nothing is expressly conceded, and the trade only generally permitted ? Surely the permission may be with- drawn, for there has been no concession of the right. Is it not better and more true to say that the « rule of 1756" was suspended from policy during the American war ? and is not the policy readily found in the embarrassed state of Great Britain at the time, rent with civil war, and con- tending with France, Spain, and Holland, while the maritime states of Europe, urged by the intrigues of France, and led by the policy of Russia, combined together, in order to make a permanent encroachment upon belligerent rights? But while Great Britain from policy suspended the " rule of 1756," she was anxious the world ll 36 sliouia know that.-iv ^ul not renounced it; for she virtually gave ^ parliamentary sanction by the act of 1778, after the capture of Grenada by the French, legalising a neutral trade with that island in consideration of the misfortunes of those who had but just ceased to be British subjects. — Rightly indeed does Ilenning ask, *' If there ',5 no such principle (the " rule of 1756"), whv is the permission of Great Britain required ? " (P. 18 1 .) He indeed demos the legality of the principle, but that is another point; for he is only quoted to show in wdiat light he con- sidered this act of parliament. The American author reviews the instructions of 1793, 1794, 1798, and 1803, with all the .severity of a critic and all the acuteness of a special pleader. It is to be lamented he was not consulted upon their wording; and perhaps it is not too late for use to be made of his remarks. If at any relaxation of her belligerent rights by Great Britain every American lawyer is to be set at work to discover the modes m which the friendship and moderation of this country can be turned to her injnry — if congress too is to aid the fraudulent neutral trader in his attempts to take advantage of British indulgence, by acts enabling him to render lier prize-court rules (lor bond fde landing, and paying the duties upon 37 West-Iiidlan produce) a mere farce — America should nut be surprised, and cannot have cause to comphiin, that Great Britain retorts her arts by a more rigid enforcement of belligerent rights. (P. 66, 104, 140.) This discussion does not relate to the inaccu- racies or omissions in the royal instructions; and it would therefore be a waste of time to criticise the review of them by the American writer, though few will think he has much cause for triumph in the remark, " Unpleasant as the task is — to trace into consequences so selfish, and so abounding in contradictions, the use made by Great Britain of the principles assumed by her." (p. 111.) And pray what are the motives of America in opposing the rights of this coun- try r — Are not they too selfish? Is her zeal for carrying on the colonial trade of France pure benevolence and perfectly disinterested ? Is there no commission ? no factorage ? no freight ? — The whole jut of the argument is, that the " rule of 17.56" prohibits a neutral conduct beneficial to France and injurious to Great Britain : this is the ground and principle of all belligerent rights, and it is wholly, intirely selfish. So also are the clamors, the frauds, and the claims, of neu- trals; and the author, who thinks he has dis- graced Great Britain by sucli a remark, must be ignorant of liuman nature, and unacquainted 38 with the springs of action, as well as the foun- dation of all public policy. The advocate of neutral claims does not at- tempt to deny the position of Mr. Ward, that a neutral trade is unlawful which " is not with, but /or, an enemy:" (p. 188.) and he acknowledges, as a " principle settled by ancient judgements," the position laid down by sir Wilham Scott, " that neutrals are not permitted to trade on freight:" (p. 141.) yet he quibbles upon thes^ propositions, and essays to fritter them down to nothing. He appears incapable of considering commerce in any other relation than that ex- isting between the immediate individuals con- cerned in it, and never once recollects that in this discussion it is to be considered in its rela- tion to the belligerents and the neutral as na- tions. A belligerent's coasting trade, of belli- gerent produce, may be carried on by neutrals, as property belonging to the neutral owner of the ship ; and then to him individually it is not a trading on freight : But is this the just view of the principle, or its just application? — A neu- tral buys wine at Bourdeaux, ships it in his own ship, and sails, intending to carry his cargo to Caen, and there dispose of it. Is not this to every national purpose a trade on freight ? and most decisively is it not a trade /o7', instead of with, an enemy ? 39 To trade xc'dh an enemy, nationally consi- dered, is to trade to and from a conntry, or bc- tzvcai the neutral state and the belligerent power-, while to trade /c^7- an enemy, is to enable him to have his commerce carried on as usual, to have his internal markets of his own produce and ma- nufactures supplied without interruption, that the consumption of his people may be continued without derangement, and his industry may be unchecked. This distinction is supported in the second article of the convention between this country and Jlu.ssia; and the declaration thereon, of October 1801, in which it is stipulated "that etfects embarked on board neutral ships shall be free •, though the produce, growth, or manufac- tures, of the countries at war, if acquired by the subjects of the neutral power, and transported on their account r (P. 64.) but that this " should not authorit^e them to carry, in time of war, the pro- duce and merchandise of the colonies of the bel- ligerent power direct to the continental posses- sions ; nor, vice versa, from the mother country to the enemies' colonies." (P. 66.) Is not this saying, in the most explicit lan- guage possible, to the neutral— You may trade with either or both belligerents, but you shall not carry on his or their trade for him or them.— But the force of this construction America has A i 'KM Ml- 40 endeavored to evade by chicaning on the word ''direct;" and this author says the use of the word leaves the indirect trade open, as well as the direct trade between a beUigerent and the colonies of another belh-erent, though in alH- ance, and waging a confederate war. It may be granted that tliis criticism would have force at the Old-Bailey, as a le-al objection taken by a special pleader to the words of an indictment ; but it is mean and unworthy to have recourse to such verbal fencing, in a discussion relating to the intercourse between nations. Besides, even of this ungenerous and severe instruction Ame- rica cannot avail herself, as she was not a party to the convention. The American author complains that Mr. Ward "does not distinguish between the carriage of enemy's property in neutral vessels, and the neutral carriage of neutral property in channels navigated in time of peace by domestic carriers only. " ( p. 1 70. ) But on the part of England it is contended, that the fact of such navigation being in time of peace confined to domestic carriers, and only opened to foreigners in time of war, is evidence that such property is merely colorably neutralised; that though it may have been really purchased by a neutral trader, yet that it xvas purchased by him only to cover and protect the voyage, and not a regular mercantile adventure .; I •d le IS e i- e Lt a. 5 > I 41 that in substance and equity, as far as the rela- tions between states are concerned, the neutral IS but the factor or agent trading for freight and commission; while, as a further evidence, that in spirit and truth this is the case, it may be ur-ed tliat neutral capitals are inadequate to carry on bond Me the trade opened to them by France Spain, and Holland, during the last thirteen years. In similar circumstances the author ad- nuts that during the war of queen Anne, when similar pretensions were advanced, and similar attempts were made to carry on the coasting and colonial trade of France under the pretence ot neutral ship and ownership— "That the pro perty was French, is the more to be prennned as the Dutch, the only nation whose capital might have neutralised the property, were parties to the war. Had they indeed been neutral, their treaties with Great Britain would have protected the trade in their vessels. The true inference oil the subject is, that the neutral carriers were Danes, or of some other nation zvho had no such treaties with Great Britain, and whose capital, [therefore] did not neutralise the cargoes of French product:' (p. S'^-H.) It is important to mark the « might have neu- trahsedr as the might relates to the right she claimed by treaties; and also the ^^ did not neu^ trahser as tlie did relates to the want of treaties ¥■ 49 Will, any other refevcnce, it mu.t luivo bccfi could have neutralised, and had not nentrahsed. _ At length, then, there is obtaine.l Ae author s admission, that neither neutral vessels, nor luu- tral capitals, will neutralise cargoes of French produce . ngaged in the coasting a..d colony trades of France, but when the particular neu ral has a special licence by treaty so to do ; and .s not this all for which Great Britain is contend- i„K?_If this does not include every possible neutral encroachment upon a trade, only opened in time of war, it certainly includes the utmost extent to which the " rule of I'/oG" has hitherto been carried. Feeling himself driven from his first position by both authority, treaty, and practice, and finding himself under a necessity of abandonmg the neutral claim to carry on openly the colony and coasting trades of a belligerent, either upon belligerent or neutral account, the American author endeavors to defend the evasion of this rule by his country. Conscious that the citizens of the United States have abused the indulgence and moderation of Great Britain, in permitting them a trade to and from the West-Indian colo- nies of France, by exporting from American ports their previous imports from French colo- nies, and that this passage through the ports and custom-houses of America were a mere farce, he u complains heavily " of subjecting to capture colo- nial produce, rc-cx/jojicd from a neutral country to countries to which a direct transportation from the colonies by vessels of the re-exporting country has been disalbwed by British regida" ^/o;?^;" (p. 124.) and contends that «*no doubt had existed that an importation of colonial pro- duce into a neutral country converted it into the commercial stock of the country, tvith all the rights, especially those of exportation, incident to the produce or manufactures of the country it- self:' (F. 126.) Now to what purpose are these remarks? — Does the author mean to say that neutrals have a right to do that indirectly which they are pro- hibited from doing directly ? Does he mean to justify that fiaud, which renders an importation of colonial produce into America a cover, for enabling the neutral flag to carry on the trade between colonies and the mother country? If he does, he will not find many to applaud the skill of his evasion, or to approve the morality or honor of his contrivance. Besides, the author admits "experience has finally shown, that the activity, the capital, and the economy, employed by the American traders, has ovei powered the disadvantages inci- dent to the circuit through the ports of the United States." (p. 134.) If this then is the case. 44 re-exportations of colonial produce are auxiliary to our enemy's prosperity and revenue, and enable him to carry on the war with more vigor and effect. (P. 3.) They are therefore on the au- thority of Grotius a siding with the enemy (P.IO.), on that of Bynkershoek a taking a part in the war (P. 20), and in the language of Vattel an in- jury which the belligerent has a particular right to oppose, (p. 26.) Confounding the modes of applying a principle with the principle itself, the advocate for neutral claims remarks that « 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 thei/ icere found necessary ; till it is finally understood that no precautions whatever are to bar the cruisers from suspecting, nor the courts from scrutinising, the intention of the ori- ginal importer;" (P. 135.) and that, "according to late decisions in the British courts, it is in future to be a rule tliat produce of an enemy's colony, lawfully imported into a neutral country, and incorporated into its c( nmcrcial stock, as far as the ordinary regulations of a sovereign state can zvork such an effect, is to be subject on re-exportation to capture and condemnation j 45 unless it can be shown that it was imported in the precedhig voyage, with an intention that it should not be re-exported." (P. 199.) In these remarks it cannot fail being obsei-ved, that the American author makes two important admissions : First, that the new modes of carrying the original principle into effect were devised and applied only " as they were found necessary. And why were these new modes found necessary, but for the evasions of the old modes, through the artifices, shifts, and frauds of neutrals ? — Second, that the importation was only incori>orated into the neutral stock as far as neutral regulations can work such an eli'ect. — He is careful not to com- mit himself w ith saying that the neutral sovereign can work such an effect, though he evidently wishes to have it inferred that he can do so. And complains of " the indignity offered to a neutral sovereign, in subjecting the integrity of its internal regulations to the scrutiny of foreign courts." (p. 199.) It is a pity writers will not express themselves with more correctness. — What foreign court interferes with the integrity of the internal regulations of America ? Not that of Great Britain : the dispute is not coi!cerning internal, but external, regulations — regulations to which belligerents are as much parties as the neutral state. If this complaint is just from America, Great 46 Britain may retort it upon her for her inter- ference with the decisions of British prize-courts. But in truth, all regulations of neutral trade with a belligerent are external regulations, must be founded upon and agree with the law of nations and existing treaties ; and therefore an interference with them, instead of being an indignity offered to the party complained of, is the right of the injured or complaining party. But these remarks of the American author must not be dismissed without further observation ; for while intending to censure the progress and va- riations in the mode of applying the original principle, he inadvertently pays a high and de- served compliment to the moderation and equity of Great Britain, acknowledging that the relax- ations of the " rule of 1756" " opening the door to neutral commerce with the belligerent colonies Wider than was compatible with the interests of British commerce, the avidity of British cruisers, or the probable intentions of the British govern- mentj" (P. 143.) and he might have added, or than was consistent with the belligerent pros- perity of Great Britain : " the first remedy tried was that of shuttingthe door gradually." (P. 143.) The reader of this American pamphlet would scarcely have dreamt that the moderation and friendly disposition of Great Britain had restrained her from every expression of resentment at the 47 succession of evasions and frauds of neutrals, and that the course which she pursued, when she found her relaxations and her favors turned against her, and her indulgences abused, was to gradually shut the door she had imprudently opened, to gradually return to the old and only efficacious application of the original principle, which prohibits a neutral from aiding her ene- mies in their prosperity and revenue, and from enabling them to carry on the war against her with more vigor and effect. Indeed, the sinister and fraudulent practice and views of America are sufficiently discovered, when this author says — first, "by checking the West-India importations into the United States, and therebi) lessening the surplus for re-ex- portation." (p. 112.) Now mark the history of American complaints and of American conduct. — By the "rule of 1756,'* all neutral commerce with a belligerent in time of war, not open in time of peace, was pro- hibited. It being deemed a hardship that a neutral should not be permitted to supply him- self for his own consumption with belligerent colonial produce, a direct trade to colonies was allowed. This not answering for the fraud which the neutral contemplated, he complained that, in the eagerness of commercial speculation, his markets were overstocked ; and he was indulged 48 with the liberty of exporting this accidental sur- pkis. And now with a hardihood scarcely ever witnessed before, he complains that, by not per- mitting him an unchecked importation from bel- ligerent colonies, his surplus for exportation is lessened. He now avows his past frauds, and demands permission to rob with impunity. He at first asked to import for his own consumption, then to export an accidental surplus, and now he threatens because he may not import in order to export; and this too at the ve.y time when he acknowledges that "experience has shown the activity, the capital, and the economy, employed by the American traders, to overpower the disad- vantages incident to the circuit through the ports of the United States;" (p. 134.) or in other words, this American author here contends for a. trade which shall be to every national and in every belligerent view equivalent to a neutral carrying on the direct trade between belligerent colonies and their mother country. This is certainly sufficient to show the futility and quibbling of the distinction between a direct and indirect trade, and the absolute necessity of prohibiting all re-exportations, unless Great Bri- tain is willing to suffer America to aid the pros- perity and revenue of her enemies, and to enable them to carry on the war against herself with more vigor and effect. 49 In the royal instruction of June 1803, it is or- dered that neutral vessels on their return shall be subject to capture, which shall, on their outward voyage, have supplied the enemy with any articles of contraband of war. The Ame- rican author says "this principle is of modern date;" (p. 113.) and then proceeds to question the legality of the instruction : but here again he fails, from confounding the application of a prin- ciple with the principle itself, and also fails to observe, that by the " rule of 1 756 " all trade with a belligerent colony is interdicted. The instruc- tion, therefore, which only interdicts the trade, and subjects the neutral to capture, which con- veys in the outward voyage contraband of war, is a relaxation of the "rule of 1756," and is in- cluded within it, instead of being a new prin- ciple, or even a new mode of applying the old one. Commenting upon a passage of Grotius quoted by Mr. AV"ard, the American author observe?, that " according to Grotius, the right to intercept the neutral commerce accrues from its particular necessity as a measure of defence :" as a measure for preventing the prosperity and revenue of an enemy being aided, and for preventing his being enabled to carry on the war with more vigor and effect. But "according to Great Britain, the necessity is not the criterion. If there be no E 50 juch necessity, the trade is condemned, in case the channel were unlawtul before the war. Be the necessity what ic may, the trade is free, if the channel was lawful before the war." (P. 174.) Attending to the author's own account of the *• rule of 1756," it is evident that this is not a true statement of the case. Tiie very fact of opening a trade to neutrals in time of war which is shut against them in time of peace, is suffi- cient to prove that the belligerent is " governed by the 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;" (P. 78.) while the list of contraband, with all the other belligerent rights, are in oppo- sition to the remark— that be the necessity what it may, the trade is free, if the channel was lawful before the war. This is not a solitary instance of this writer's attempt to prejudice the minds of his readers against Great Britain. To mislead their judgements is a difficult task ; but the glaring falsity of this assertion prevents its dwelling upon the mind sufficiently for particular refutation ; while its declamatory impression, he hoped, might, by the aid of repetition, produce his wished-for effect. The American author is very fond of contem- plating " the progress of the law of nations, under the influence of science and humanity mitigating 51 the evils of war, and diminishing the motives to it, by favouring the rights of those remaining at peace (p. 4.), and of indulging himself with the prospect of the enlargement of neutral rights." (p. 182.) But should not this avowed tendency of neutral writers, to favor and enlarge neutral rights, excite some degree of mistrust in those to whom their speculations are addressed ; and in transactions, implicating and aifecting several parties, does not justice .require that the riglits and interests of all should be equally protected and enforced, instead of those of one only being favored and protecti^d. But the author for this departure from justice and equity appeals to the influence of science and humanity : yet when it serves his momentary turn, he can forget his appeal, and discard even reason from his mind, saying, that "were the intrinsic reasonableness of the claim admitted, it would not follow that the claim is justified by the law of nations as actually established;" (P. 150.) and that this is ** a question which is to be decided, not by the abstract precepts of reason, but by rules of law positively in force." (P. 192.) So then at last it comes to this — that though abstract and intrin- sic reason support and warrant the claims and rights of the belligerent, he is to be tied dowii to "the rules of law positively in force;" while >- " E 2 On* tlio more fortunate neutral is to have his claims ami ridits favored and enlarged, under a notion that, as far as he can be benefited thereby, the law of nations is in a state of progress. It may, however, be well asked. Why abstract and intrinsic reason should not act as powerfully in behalf of the belligerent, as science and hu- manity in bchah' of the neutral? why the bel- ligerent should be confuied to the "rules of law positi^ ely in force," and the neutral be permitted lo take advantage of " the progress of the law of nations? "—Indeed, if these propositions of the advocate of neutral claims are admitted, they ■ will successfully carry him any length, and ob- tain for his hungry clients every advantage and claim avarice can wish or concealed hostility desire. In one part of his work, the neutral advocate quotes the letter from Mr. Pinkney (the Ame- rican minister at London) to Mr. Jefterson, then secretary of state, and now president of America, in which, alluding to an interview with lord C/renville, he says, " I reminded him that the two tirst articles, though founded upon their jiriuciples — of not suffering in war a traffic which was not admitted by the same nations in time of peace, and of taking their enemy's pro- perty when found on board of neutral vessels — 53 were nevertheless contrary to what we contentlcd to be the just prmciples of the modern law of nations." (P. 107.) This quotation from the letter of Mr. Pinkney is particularly important for several reasons. — First, the American ambassador says the rights of Great Britain are " contrary to what America contends to be the just principles of the modern law of nations." Now mark — this is only contended, not as- serted, much less established ; and that it is con- tended to be only the just principles of the mo- dern law of nations, not the real and acknow- ledged modern national law ; and that it is con- tended to be the just principles only of the 7Jio^ dtrn law of nations, not those of the general and received law of nations. Pray at what period do these writers choose to date the commence- ment of this m'^dern law of nations ? or do they leave it unfixed, that, covered by the uncer- tainty of the term, they may be at liberty to revert to it as a sanction for whatever claims they may think it for their interest to advance ? And for what is a reference made to the just principles of the law of nations, unless on points where the law is obscure or doubtful ? In such cases, recourse may be had to just principles: but how are they to be ascertained, unless they are judged by their abstract and intrhisic reasonableness? Yet 54 the autliw would exclude this when reason favors the belligerent J and only admit the appeal, wlien it advances and enlarges the rights, and liivors the interests of neutrals. Second, it should be remarked that the " rule of 1756,'* and the right to confiscate enemy's property in neutral ships, are both classed toge- ther, and put upon the same footing. Now not only do the principles of Grotius, Puffendorf, Bynkershoek, and Vattel, sanction the law, but they expressly state and authorise the right; and the American minister's classing them toge- ther well warrants the conclusion, that he consi- dered them as resting on the same foundation, and warranted by the same authorities; and that th^se two belligerent rights could only be evaded or impugned by a reference to his curious ally, " the just principles of the modern law^ of nations." Third, and last, this letter was written on the 3d of January, 1794; and after this a tre?ty was entered into betw^een Great Britain and the United S.ates, in order to settle all their diffe- rences, and to cement a lasting friendship : yet in this treaty, instead of any stipulation against either of those belligerent rights, or even for any modification of them, all reference to them 15 cavetully avoided, though every other treaty to which tlie United States is a party contains pro- 65 visions and stipulations against these rights. What is this but an admission of them? and after tliis, is it not fair to demand that the pre- sent neutral claims of America should be mo^t; undeniably made out by the most unquestionable reference to both authority and practice, or that America should procure their recognition as a concession from Great Britain, instead of com- plaining of injustice, and clamoring about wrong, when neither injustice is committed nor wrong done ? The American author, in closing \\\i criticism on Mr. Ward, wdl states that " the real hinge on which the question turns, is the injury remlting to one helligerenty from the advantage given to another, by a neutral whose sliips and mariners carry on a trade previously carried on by the belligt'rent himself, and which, consequently y ena- ble the belligerent to employ his own ships and mariners in the operations of war, without even relinquishing the revenue, which has its source? in commerce." (P. 189.) This, adds the neutral advocate, " is the most plausible consideration perhaps which could be urged in the cause which he defends : '' but he thinks " it is completely subverted by three other considerations : First, that the argument is just as appUcable to cases where the vessels of the nation, before it was at war, were actually employed, xdthoiU any legal I 66 exclusion of those of the neutral nation^ as to cases where tliere was a legal exclusion of foreign vessels before, and a legal admission of them during the war:" — "Either, therefore,'* it is added, " the argument must be extended (which will not be undertaken) to the latter case, or it loses its force as to the former." (p. 190.) Surely tliis writer was rather too bold to say it would not be undertaken (not to extend, but) to show the argument embraces both cases, if in fact two cases can be made out. But the truth is, it is but one case, it is still a trade carried on by neutrals in time of war which they do not carry on in time of peace. The difference between part of such trade being subject to legal inter- ference, and part left to the fluctuations and struggles of commercial speculation, makes no variation as to the argument, or the principle it defends, though it makes a material alteration in the practice; since, where a trade prohibited in time of peace is legalised to neutrals in time of war, evidence can be adduced of each insulated and individual departure from neutrality, and invasion of the " rule of 1756." Such evidence cannot, from the very nature of the case, be procured in the second instance; and therefore it is that the trade is permitted to go free. How- ever, granting the whole force of this remark, does it really amount to any thing ? Is not the 57 ground on which the " rule of 1756'* h defended by Mr. Ward, a ground common to every other belligerent right? Is it not from the injury whicli would result to one belligerent, to the advantage of the other, that the rights of blockade and con- traband arise ? These are not even questioned by any neutral advocate : but if, because the argument is not extended to the interdiction of all neutral commerce with belligerents, the " rule of 1756" must be abandoned, then what will become of the above belligerent rights? — In truth, this is one of those sophisms common in controversy, and is scarcely worth refutation. It is suflicient that to benefit one side and to injure the other, is to take a part in the war, is a siding with one of the parties, and is an act which the injured belligerent has a particular right to oppose. Second, that Great Britain adopts in this respect the policy of France. — This has already been answered*: the controversy is not what France or Great Britain have a right to do, but what neutrals have a right to do. Every belli- gerent has a right to obtain succor, contraband of war, conveyance of his property, and relief to his fori; esses, when blockaded : but the question if> not v/hether he has this right, but whether the neutral has a right to give him this succor, to * See p. 28 of this tract. 58 supply him with contraband of war, to convey his property, and to relieve his blockaded fortresses. That he has not such right, is clear from every authority; and it is about this right only that the present controversy has arisen. Third, that " this fundamental argument of Mr. Ward is expressly thrown out of the question by sir WiUiam Scott ; " (P. 190.) but on turning to pages 162 and 163, where the opinion of the very learned judge is stated at length, it will not appear that he has for a moment thrown out of the question this fundamental argument, though in page 167 an attempt is made by the author to confound the right of the belligerent with that of the neutral, and so to ground the incorrect con- clusion, that sir William Scott rests the rights of Great Britain, and the legality of the " rule of 1756," on mere predominance and superiority of force, thence bursting forth into a declamatory philippic against this country. If however it be true that the foundation of all belligerent rights is to prevent neutrak from injuring one of tlie parties at war, by rendering advantage to the other belligerent in revenue, prosperity, or force — and if the proposition stated in the early part of this tract, and which is drawn up from the American author's own acimission?, be correct, that the trade prohibited by the **rule of 17oG" is one at this time bene- 59 ficial to France and injurious to England, and is one at all times beneficial to the weaker and injurious to the naval power, and that the l«^nefit and the injury are proportionably grer.ter tj the one power is stronger than the other* — thon it must follow that the same trade which is a vio- lation of and departure from neutrality, when carried on with the weaker naval power, is not such benefit to the stronger power as to con- stitute either a violation of or a departure from neutrality. Hence the conclusion of the learned judge is founded on this very argument of Mr. Ward, instead of his having disregarded his argument. The American author closes his remarks with an undistinguished and most unwarranted attack upon the admiralty courts of Great Britain, even venturing the assertion, that "the opinion has long and generally prevailed of their rot being those independent and impartial expositors of the law of nations which they have professed to be;" (p. 197.) observing, that "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 latMide of judgement improper to be confined [confided] to courts of justice however constituted." (P. 195.) Now in * Seep. 4 of this tract. I 60 what does this latitude of judgement consist ? lu determining "whether in a distant quarter of the globe a particular trade was or was not allowed before the war?" (p. 198.) But this being a simple fact, is a matter of evidence onh', and neither allows nor calls for the exercise of finy discretionary judgement at all ; in deter- mining "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." (p. 198.) Tliis too must be determined on evidence; and though it must in this case bo presumptive, is nevertheless reducible, and is reduced, to settled principles and fixed rules; and therefore does not admit of any latitude of judge- ment; in determining "whether the allowance had or had not been common to all wars :" (p. 198.) and this is a fact capable of the most direct evidence. And lastly, in determining, " whe- ther, if resulting from the particular pressure of the war, the pressure amounted to a necessity ; whether, if amounting to a necessity, the ne- cessity resulted from an impossibility, imposed by a decided predominance and superiority at sea of the adverse party.'* (p. 198.) Tiiis ques- tion could have been better commented upon if it had been less obscure. It is not easy to under- stand the author's necessity resulting from an impossibility ; and in regard to such meaning us 61 can be extracted from the passage, it involves those mistakes which led the author to suppose sir William Scott had thrown the argument of Mr. Ward out of his consideration ; but as far as determining whether the opening the trade re- sulted from the particular pressure of war, it is easily answered, that such a trade bears a -pre- sumptive evidence so conclusive of its being allowed, in order to avoid the pressure of war, that it is perfectly just to demand of the claimant to rebut the presumption with stronger testi- mony. Thus it appears, that the four points on which this author deemed an improper latitude of Judge- ment is confided to the admiralty judge, are those on which no latitude of judgement can be exercised; that they are within the common rules of evidence, instead of being " questions in their nature improper to be decided by any judicial authority whatever; and in their im- portance, 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," (p. 199) But what is the meaning of this passage? — Does the author mean that questions involving the rights of other sovereigns are too great to be decided by any judicial authority whatever? Why, are not all decisions on belligerent capture I 62 df neutral commerce contrary to belligerent rights; are not all decisions on blockade and contraband, decisions by judicial authority, which involve the rights of other sovereign states ? and are they ever questioned ? Is it possible for any belligerent right to be exercised and inforced but through the medium of a judicial decision? — The whole is either idle declamation, or an artful cast-about to feel the public pulse, whether the unheard-of claim might not be advanced of neu- tral judges exercising in the country of belli- gerents a concurrent admiralty jurisdiction with the belligerent judge. This neutral advocate quotes the duke of New- castle, " that in England tlie crown never inter- feres with the course of justice. No order or intimation is ever given to any judge;" (P. 195.) and thinks he finds a contradiction in sir William Scott's remark, that " tlie true rule to this court is the text of the instructions. What is not found there permitted is understood to be prohibited, upon this general plain prindplCy that the colony trade is generally prohibited; and whatever is not specially relaxed continues in a state of in- terdiction." (p. 196.) Yet this author adds, that " it was incumbent on sir William, if he meant to keep himself above all executive interference with the course of justice, to have resei-ved the right of testing tlie instructions by the law of na- 63 tions." (p. 197.) But has not the learned judge reserved to himself this right? Indeed, has he not exercised it when he states the general prin- ciple on which he founds the rule of the court to be the text of the instructions? for does he not appeal to the law of nations for this general principle, and consider the instructions as relax- ations of it ? and has not every person in posses- sion of a right, a power to remit or relax it? — But, further adds this author, the royal « instruc- tions have extended the belHgerent claims against neutral commerce beyond the law of nations, as asserted on the part of Grea' Britain.'* (p. 197.) Now turning to the author's review of the royal instructions in page 102, et sub. it will appear that he only considers the instruction of Novem- ber 1793 in this light; and in what does thif? consist? — First, that it interdicts the roundabout or indirect trade, as well as that immediately from the colony : but it has already been shown that in principle and spirit this indirect trade is within the " rule of 1756*," and therefore this objection falls to the ground: Second, that it interdicts a trade from certain ports and places in the colonies, authorised by permanent regulations antecedent to the war : but the author is in error * Sec p. 42, et sub. of thijs tract. 64 when he says the French free^port act of 1784 was in force in 1793: besides, that act did not ex- tend to every species of colonial produce. Thus is the author driven from these two positions, though he readily takes a third, and urges that «* the original advisers and framcrs of tlie instruc- tions do in their judicial capacity of privy-coun- cillors carry them into effect." (P. 197.) Still, however, comes the old argument — these in- structions are not enactments of a public law -, they are not even declarations of it j they arc rehLxations from the belligerent rights of Great Britain, and in favor of the neutral instead of ad- verse to him. Uneasy at not being able to establish any thing against this country, the American author has recourse to the insinuation of — " Hov^ far the authority of the instructions has been pursued by the high court of admiralty, in opposition to pre- cedents of the superior courts settling the law of nations, is a fit subject of inquiry, for xvhich the adequate means are not possessed.'' (p. 197.) — Thus without the shadow of a cause, thus without even the means of showing u reasonable suspi- cion, does this neutral advocate venture to ques- tion the integrity, and to doubt the independence, of the justice of this country. — Bad indeed must be the cause which is di'iven to such shifts! The last remark of this author which appears to require notice, is — '* that out. of three hundred and eighteen api)eals, thirty-five only of the condemnations were confirmed by the superior court." (p. 194.) But he should have also stated, how many jondemnations had occurred in the same period, from which no appeal had been made : t}{i5 he has carefuUij avoided; and as it is, pray to what conclusion does the statement — (that of the numerous and various condemnations which had occurred, but three hundred and eighteen of these were deemed erroneous) — lead ? And of this number, though objected to after mature deliberation, one in nine were confirmed. Appeals take place only in cases of doubt, or where evidence has been subsequently obtained, which shakes the previous decision : still aided by every favoring circumsfance, one in nine has been confirmed — a convincing evidence to the impartiality, independence, and ability, of the vice-admiralty courts of this country ; while the reversion of two hundred and eighty-three con- demnations bears testimony to the purity of the superior court, whose integrity this w^riter has ventured to question. Well, then may it be concluded, that a strict adherence to the " rule of 1750" is required, in order to prevent neutrals from aiding the revenue f 66 and prosperity of our enemies, and in order to prevent them from enabling the foes of Great Britain to carry on the war against her Avith more vigor and effect — While the rule itself is war- ranted by the law of nations, sanctioned by the ablest and best writers, recognised in treaties, and consonant to belligerent practice. APPENDIX. . . . ' f SINCE forwarding the foregoing pages to the press, the tract in reply to which they have been written has gone into a second edi- tion, and has had annexed to it the Letter of Mr. Monroe (the American minister plenipo- tentiary) to Lord Mulgrave (then secretary of state) dated ^23d of September, 1805; in which it is stated that "the vessels condemned were engaged in a commerce between the United States and some port in Europe, or between those states and the West-India or other islands, be- longing to an enemy of Great Britain. In the European voyage the cargo consisted of the pro- ductions of the colonies; in the voyage to the co- lony, it consisted of the goods of the power to which the colony bebnged, and to wtiich the ship was destined. The ship and cargo, in every case, F % C8 APPENniX. ,vere the property of American cUi/cns; ami the cargo had been landed, and the duty paid on it. hi the United States." [v. 3.) It is here obvious to every one what must U,- the true nature of this trade, aUliouKh. dunn^^ the transit, the ship and cargo were both mvue.bo„djidc trade «iM France. But this neutral aid to our enemies :s defended on two grounds by the American mi- nister; aiid though his first argument has been already examined, a respect for his official im- portance will prevent his mode of stating it from being passed over in silence. « If we examine it ['hese condemnations] m reference to the law of nations, it appears to me to be repugnant to every principle of t'lat law ; for " by the law of nations, as settled by the most approved writers, no other ralraint is ackno;o- kLd on the trade of neutral nations ,v,>h those at Jr, than that it be impartial between the latter; that it shall not extend to articles winch are deemed contraband of war; nor to the trans- portation of persons in military service; nor to places actually blockaded or besieged. (P. 2-) To this appeal Mr. Monroe adds-" It requires APPENDIX. C9 but a sliglit view of the subject to be satislied tUat these concleuiuations arc incompatible with the law of nations, as above stated." (P. 3.) But this remark may be either assented to. or denied, without in the least affecting the question, as there are other belligerer^ rights besides those of prohibiting the transportation of contraband of war and military persons, and succoring places blockaded. The right of bcizing enemy's pro- perty in neutral vessel. > one always maintained and exrrcised by both this country and France, cxcefd when specially suspended hy treaty ; and from the time when her enemies adopted the policy of relaxing their colonial monopoly. Great Britain has c laimed the beUigerent right of pro- hibiting neutrals engagiii , in a trade tims op< \ed for the express })urpose « ' avoiding the pressures of war. The American minister is incorrect in saying that '' None of the cases have involved a question of any kind that was ever contestea till of late." (p. 3.) Indeed, an unaiformed reader ot lis me- m( ial would conclude thai the " rule of 1756" was first invented and enforced in the royal in- struction of 1793 instead of it hav aig its origin so far back as L >. Nor should it pass unob- served, that even Mr. Monroe enumerates, among hh list of neutral duti^^s the obligation of being impartial between those at war. (P. 2.) 70 APPENDIX. Bat it can never have been deemed impartial to aid the prosperity and revenue of one of the parties, and to enable him to carry on the war with more vigor and eftect against liis adversary. (Ex. P. 3.) Tiiis the most approved autiiorities condemn; Grotius, Bynkershoek, and Vattel, as well as others. In common with the anonymous Ame- rican author, to whose work this tract is intended as an answer, Mr. Monroe says the royal in- structions " have authorised the seizures which were made, at different times, in the course of the last war, and which were lately made by British cruisers of the vessels of the United States. They, too, form the law which has go- verned the courts in the decisions on the several cases which have arisen under those seizures.'* (p. 4.) And that *Uhe strictness with which the courts have followed those orders, through their various modifications, is equally a proof that there is no other aiithoritij for the government of their decisions'^ (P. 8.) Now, though sir William Scott calls the text of the instructions the true rule of the court, in a particular case on which he was then giving judgement, (Ex. P. 196.) yet he was extremely careful that the remark should not be misunderstood, or lead to the supposition that the text of the instructions either formed the law, or authorised the court to decide upon it, nince he purposely added, that the text of thq APPENDIX. 71 msiniclions was only the rule (not the authority) of the court, "upon the general plain principle, that the colony trade is generally prohibited, and whatever is not specially relaxed continues in a state of interdiction." (Ex. P. 196.) AVIiat is the conclusion then from this? — Does tlie learned jutlge refer to the text of the in- structions for " the general plain principle, that the colony trade is generally prohibited ? " No : this he rests upon the law of nations, as contained in ap» proved autlioi-s, and modified by treaties; and considers the text of the instructions as re- laxations from the letter of the law in favor of tiie neutral. And suicly a belligerent has a right to modify, relax, or even abandon, his rights, if it pleases him, or serves his purpose : besides, Mr. Monroe falls into a contradiction in the latter part of his letter, where he com- plains " that the decree of the lords com- missioners of appeals, in the case of the Essex, produced the same effect as an order from the government would have done." (P, 14.) This is at least admitting, that in this case (which in page 3 is referred to as establishing the grounds of the late condemnations) the lords commissioners of appeal neither considered the instructions as forming the law^ or as necessary to give them aulho»-ity for condemning the trade. It must excite surprise, that^ while in one part 72 APPENDIX. |i M of his letter Mr. Monroe asserts—" If the order of the 6th of November, 1793, contained the true doctrine of the law of nations, there would have been no occasion for those which followed;" (P. 8.) he should m another part of the same letter acknowledge that " the second and subsequent orders modify it [the first] ni various forms," and that " the doctrine in every decision is the same ;" (P. 4.) while this last admission is a full and sufficient answer to his complaint of want of notice to American traders of those successive royal instructions. The first of them was merely declaratory of the law of nations as maintained and acted upon bv Great Britain for nearly a century ; and the others but modifications of the first, or relaxations of it in favor of neutral traders. Again, falling into the same error as that of the neutral advocate, (Ex. P. 76.) Mr. Monroe asks, " Does it follow, because the parent country monopolises in peace the whole commerce of its colonies, that in war it should have no right to regulate it at all?" (P. 5.) The dispute is not about the right of the belligerent to receive neutral assistance, but about the right of the ncntral to give it; and since the American minister admits that "It is known they [colonies] are essentially dependent for their existence on supplies from other countries," (P. 5.) does it not APPENDIX. 73 follow that a neutral trade which supplies them with " the goods of the power to which they belong," (P. 3.) is a trade which, hy destroying their dependence on the superior naval hel- ligerent, prevents their falling into his hands; and snatches from him the fruit of his victories, and v/hat would otherwise be the result of his maritime greatness. In answer to the remark, " that neutral powers ought not to complain of this restraint, because they stand under it, on the same ground with respect to that commerce, which they held in time of peace," (P. 7.) Mr. Monroe says, "The claim involves a question of right, not of in- terest. If the neutral powers have a right in war to such commerce with the colonies of the enemies of Great Britain as the parent states respectively allow, they ought not to be deprived of it by her;" (P. 7.) which is no more than saying Great Britain ought not to deprive neutral powers of their rights ; for it certainly does not advance the question a single inch, nor even tend to a determination of what are the rights of neutral powers in this respect. As to the appeal to humanity in behalf of tlie French colo- nies, (P. 7.) Mr. Monroe might as well have claimed the right of neutrals to succor and relieve besieged and blockaded places, where the distress and suffering are infinitely greater than APPENDIX. any pn\alioii to the French colonists, from an interdiction of neutral trade with, ar.d supply of them. AVhen the iVmerican ambassador asserts that the neutral claim to engage in a belligerent's colonial trade is " a right of which the mere circumstance of war cannot deprive them," (P. 8.) he forgets that it is this very cir- cumstance of war which originates all belligerent rights, and imposes all neutral duties. Leaving his reference to the law of nations, the American ambassador next proceeds to urge that the conduct of Great Britain is repugnant *' to the understanding, or, as it may be more properly called, the agreement of our [the two] governments respecting the commerce in ques- tion :" (p. 2.) and states, that " by the order of the 6th of November, 1793, some hundreds of American vessels were seized, carried into port, and condemned. Those seizures and con- demnations became the subject of an immediate negociation between the two nations, which terminated in a treaty, by which it was agreed to submit tiie whole subJL^ct to commissioners, who should be invested with full [)Ower to settle the controversy which had thus arisen." (l\ 9.) It is natural to expect, h'om this relation, that some reference was made to the royal instruction of November 1793, in the treaty between Ame- rica and this country. But no such thing: it is APPENDIX. 7^ not even alluded to; luiv, even all allusion to the "rule of 17^>(i" is carefully avoided; and the seventh article, by which the above-named commissioners are appointed simply and gene- rally, states, that " M'^hereas complaints have been made by divers merchants and otiiers, citizens of the United States, that during the course of the war in which his majesty is now engaged, they have snstained considerable losses and damages, b\) reason of irregnlar or illegal captures or condem- nations, under color of authority or commissions from his majesty." (Art. 7.) — Is then the antho' rityor commissions of his majesty called in ques- tion? — No: their abuse only is complained of; and for damages arising from their abuse only, is com- pensation provided. No wit can torture, no art can twist this seventh article to mean, that compen- sation is to be given for damages or losses .sus- tained by reason of any capture or condemnation^ other than such as were made under irregular or illegal color of such authority or commission; by implication, excluding from the view and con- sideration of the commissioners all captures and condemnations pursuant and consonant to the authority or commissions of his majesty. And the commissioners went be\ond their powers, when "in their decisions they condemned the principle of the order." (P. 9) Indeed they not pijly disregarded but violated the preamble to the t 76 APPENDIX. treaty, which states that all differences shall be ter- minated «in such a manner as, without reference to the merits of their respective complaints and preten- sions, may be the best calculated to produce mu- tual satisfaction and good understanding." (Pre- amble.) Now if the order was a subject matter of complaint, to decide upon and condemn its prin- ciple was to refer to the merits of such complaint. If the order was not a subject matter of complaint, by what authority did the commissioners decide upon it? Perhaps the difficulty may be solved, by noticing the circumstance, that the ballot for the fifth commissioner falling on an American, three of them were citizens of the United States, and that unanimity was not required from them. However, Mr. Monroe adds, " It merits par- ticular attention, that a part of the twelfth article of that treaty referred expressh) to the point in question, and that it was, on the solemn delibe- ration of each government, by their mutual con- sent, expunged from it." (P. 9.) To point out and expose misrepresentations in a public diplomatic memorial is painful ; but the more necessary, from the official character and authority which such a statement possesses. Now instead of the twelfth article being expunged from the treaty, on the solemn deliberation of each government, the truth is, that by the constitution of the Unite<.l States all treaties must be ratified by congress; APPENDIX. 11 and that when this treaty came before the Ame- rican legislature, this article was refused ratifica- tion. In consequence, the negociation was renewed, uhen, in an additional article the British govern- ment consented that « so much of the twelfth article" as respected tlie trade between the United States and the British islands, " should he suspended:' AVidely different this from being expunged after the solemn deliberation of each government. But this is not all. Mr. Monroe says this article " referred expressly to the pomt 'm question." Now the only part of the article relating to neutral rights, claims, or pretensions, is as follows : and " the said parties will then also (at the expiration of two years after the last war) renew their discussions, and endeavor to agree, whether lu ony and what cases neutral vessels shall protect enemy's property, and in what cases provisions and other articU-^, not generally con- trabaml may become such. But, in the mean time, theVr conduct towards each other, hi these re- spects, shall be regulated by the articles herein- after inserted on those subjects:' And so a provision for a future discussion re- .pecting neutral vessels protecting enemy's pro- perty and tlie list of contraband is an express re- ference to the -rule of 17-56," which prohibits a f I I 78 APPENDIX. trade opened by tlie belligerent to neutrals only in war, iu order to avoid its pressure. Besides, instead of this provision being ex- pnngcd from the treaty, as Mr. Monroe vv^ould insinuate, it is not even suspended -, for the sus- pension is eonlined to the })rovision eoncerning the trade between the United States and the Bri- tish island.-'. The article then is not expunged from the treaty in respeet to neutral claims: it is not even suspended ; and does not refer at all, or even allude, to the point in question. What then be- comes of the American minister's conclusion, that " it is impossible to consider this transac- tion, under all tlie circumstances attending it, in any other light than as a fair and amicable adjustment of the question between the parties?" (Prf 10.) — Why, as for as the treaty speaks, the ciuestion was never considered by them, instead of having been the subject of negociation and adjustment. The provisions, in both the twelfth article (which was suspended) and in the thirteenth ar- ticle (which zvas not suspended), alike condemn the principle and practice of re-exportations, since, at the moment of admitting the American into her Ea t and West-Indian trades, Great Bri- tain annexed the stipulations, Mhat the vessels of APPENDIX. 79 the United States shall not carry any of the articles exported by them from the said British territories, to any port or place, except to some port or place in America, where the same shall be unladen. And that the said American ves- sels do land and carry their cargoes in the United States only, it being expressly agreed and declared, that during the continuance of this article, the United States will prohibit and re- strain the carrying away any molasses, sugar, coffee, cocoa, or cotton, in American vessels, either from his majesty's islands, or from the United States, to any part of the world, except the United States, reasonable sea-stores ex- cepted." Nothing can 'be more clear, nothing more pre- cise ; and if America objected to the principle, instead of ratifying the thirteenth article, and merely suspending the twelfth, she should have procured a formal renunciation of the rights con- tained in these provisions. The remaining remarks of the American mi- nister upon the treaty of 1794, and the report of the commissioners, are sufficiently answered in the preceding observations. The treaty no-where states the "rule of 1756," or any of the royal instructions : it neither alludes nor refers to them ; and a stipulation against the "rule of 1756," in- serted in every other treaty to which the United 80 APPENDIX. ! ■J \ States have been parties, is omitted in this with Great Britain. How obvious, therefore, is the conckision, that the treaty in no way or degree affects or impugns either the *' rule of 1756," or the royal instructions, founded upon and relaxing it! Mr. Monroe next endeavors to assimilate the case of America with that of Russia, Denmark, and Sweden, and falls into the same course of observation upon the Russian convention as the American author: but the preamble, confming the application of " their principles (those con- tained in the convention), upon the rights of neutrality, to their respective monarchies,'' (Ex. p. 63.) is evidence that neither the northern pow- ers, nor Great Britain, intended those principles should be extended or applied to other countries. It should, from this examination, seem that the American minister has failed to establish the claims of his government, or to affix any charge against this country, either by his appeal to the law of nations, or by his reference to the treaty subsisting between the two countries. Though very little that is new, of either fact or argument, appears likely to be urged upon the question of law and justice, in behalf of the neutral claims, yet the advocates of America have not thought it prudent to be idle, but affect to give the discussion an air of novelty, by . ^^; APPENDIX. 81 changing their expressions, iuul by intermixing with the cK'baLe the question ol" policy. Scarcely had the able and convincing tract of " War in Disguise" crossed the Atlantic, than a gentle- man who professes to be neither connei*^ed with the law, trade, nor iio\( inrnent, of the United: States, undertook an Answer, whiv.li has been transmitted to, and re-printed, in this country. Though intemperate in some of his remarks, this writer bef;ins bv a skiliuUv devised attemnt to prejudice the English reader m favor of the < laims and encroachments of the neutral world ; and with this view, he even goes so far as to make it a doubt, whether America should not join us in our arduous contest ; (P. ?.) and after speak- ing pretty strongly concerning the abuses of the neutral trade, declares that " he considers it the interest of America to carry the British doctrine (on that subject) as far as reason and justice can, in any manner, permit." (P. 8.) — Who then could expect that, within two pages, this very writer should represent the belligerent rights claimed by Britain as equally extravagant with the claims and usurpations of France! or that he would close his tract, with quest ! • ^^^ %. «.>■»" IMAGE EVALUATION TEST TARGET (MT-3) // S. :/. 1.0 I.I f. illM 1^ IIIIM ^ lis. 1 2.2 '2.0 1.8 - 1.25 1.4 J4 ^ 6" — ► p^ ^^ ^f ^ PhotcgiHphic Sciences Corporation ^ ^ w^^ '4' .^ s \ '^ .V ^y^y^^ ^ '% 1% WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 372 5303 m 64 APPENDIX. I deed complaint might be made, for wrong would have been done, and the proud independence of British prize-comls be. n levelled to the ground. But this has not bee-; I'l- ease: the royal instruc- tions have been fomided upon what is contended to be the law of nations ; and in whatever they have varied from the rules of public law, they have relaxed and softened, not enlarged or sharp- ened it. Though it was in thi-^- sense that sir William Scott declared "the true ride of the court to be the text of the instructions (Ex. P. 196.), both the author of the Examination, and this writer, join in the attempt to pervert and misrepresent tne remark, to say, the court looked rather to the text of the instructions than to the law of nations. Notwithstanding the learned judge added (which this writer omits), " what is not found there [the instructions] permitted is understood to be pro- hibited, upon the general plain principle, that the colony trade is generally prohibited." (Ex. P. 196.) So the prohibition is to be searched for and found in the general plain princijde of the law of nations, while the instructions are only referred to for th{} }»ei'mis;^ion or relaxation. As it aware of this remark, though in op])osition to his own observations," this auHior admits that " a nume- rous class of cases mnv exist, in which the belli- AVPEXDIX. 85 gerciit shall see himself eontimially and evidently the dupe of iraud and perjury. Under these cir- cumstances, // is competent for him to establish rules, by force of Vvhich such cases shall be de- cided according to the fact, without regard to the testimony. He will in consequence issue an order broad enough to embrace his object." (P. 3.5.) Thus at length is obtained the admission, that where there is a substantial, though not an appa- rent departure from neutrality, it is competent for the injured belligerent to issue an order broad enough to embrace and obtain the object of opposing such departure, and of counteracting such injury. This is sufficient to justify the pro- liibiii'jn, capture, and condemnation of a trade, indirectly carried on after the direct channel has been closed. This is sufficient to justify follow- ing the substance instead of the shadowy and all the\ariations in the instructions which have been resorted to, in order to meet the successive frauds and perjuries which commerciil avarice, or a hollow neutrality, may have invented or prac- tised, ^\'ith the view of evading the letter of the law, while violating its spirit. Unacquainted with the authority upon which captures are made, and erroneously concluding that the fact of war existing betwi ni two nations authorises the individual members of them to m APPENDIX. make reciprocal captures, this writer brings for- ward the suspension of "the rule of 1756" during the American war, as an evidence that the British prize-courts have not considered this rule as part of the law of nations. (P.38.) But had he been connected with the legal pro- fession, or even with the government of his country, this gentleman would have known, that, besides the fact of an existing war, com- missions, or letters of marque and reprisal, are requisite to enable a subject to make a legal cap- ture : these are a species of royal instructions, and require obedience to them. Hence the ex- ample of the AmerictUi war is no evidence to the author's conclusion. It would be equally useless and wearisome to repeat the arguments which have already been the subject of examination. In this place it will be sufiicient to refer back for an exposition of the attempts to confound neutral with belligerent right (p. 22, 24.)* — to maintain that property once imported is as if it had been of native growth and manufacture (P. 46.) f — to argue against the practical right, because the theoretical principle cannot always be applied, as in the case of a nere enlargement, on account of the war, of a ncu- * See p. 28 and 57 of this tract, t See p. \5 of this tract. I APPENDIX. 87 tral trade (p. 03, 59.)*^ .i^a to bring the Dutch treatj' as evidence against our belhgcrent rights (P. 11,37.) t- Heverting to the question of policy for a mo- ment, this author argues, that " if the hnances of France be the object in contemplation, Ame- rican purchase of wine and brandy must be more beneficial than her sale of indigo and cotton:" (p. 48.) and on this mistake of his the question a good deal depends. The transporting the com- merce of the colonies to the mother country, is jather the remittance of rents to the great body of non-resident proprietors, than the exchange of colonial for European commodities. (Inquiry into the State of the Nation, 1806 — p. 190.) Instead therefore of America carrying on a trade tvith France, the intervention of her capital (if her capital be bond fide employed, as this gentleman says it is, P. 51.) is only a fraudulent device to enable the French West-Indian planter to have his rents remitted him ; and instead of weakening France, by selling her objects of luxury and ex- pense, this covering commerce enriches her to the sum of its total amount; whereas a common trade is beneficial only to the rate of profit or commission upon it. h * Seep. 56 of this tract. t Sep! p. 20 and 34 of this tract. I SS APPENDIX. . But it is asked, " Whence a belligerent de- rives bis right to make prize of a iiecitral ? " (v. 30.) And tills author answers his own question with saying, " When the neutral divests himself of his proper cluiracter, and takes part in the war." (P. 31.) This however he contends is only done when the neutral carries contraband of v^ar to a belligerent, or relieves his blockaded ports: " In both whicli cases," he acknowledges " him to be engaged in direct hostilit3\" But is not a neutral interference, which aids the prosperity and revenue of one belligerent, and enables him to carry on the war with more vigor and eiYect, yet more important in its eiiect, and yet more extensively injurious ; and therefore, yd more hostile than a cargo of contraband, or the relief of a town ? Bynkershoek says, " In whatever manner we succor one against the other, rve take part in the ivar^ (Ex. p. 20.) And therefore, according to this American gentleman's own admission, such trade is obnoxious to capture. Lest argument should fail, this writer thought he would try the effect of a feeling apostrophe, exclaiming, " Mi- serable indeed must be the condition of man, if those who are invested with power can prescribe their own convenience as a rule for the conduct of others! (P. 33.) Pray what is the right of exclusive property APPENDIX. «9 but a rule of convenieuoe ? what that of blockade, or contraband, but rules of convenience arising out of a particular state of circumstances? — The whole question is, whether the belligerent has a right to have his convenience consulted. It is conceded that he has this right in the cases of contj-aband and blockade : why not in the case of a trade interdicted in peace, and opened in war, in order to avoid its pressure ? — Are not all three, and all other belligerent rights against neutral interference, founded on the common principle, that it is the duty of a neutral to be impartial, and not to interfere on one side or the other ? But it is an interference, and a partial one too, to aid the prosperity and revenue of one belligerent, and to enable him to carry on the war with more vigor and effect. Tin's is the true hinge of the controversy; and to this common principle must ever/ belligerent riglit and every neutral duty be referred. Though the author says he « will not concede that America has not a right to import with a viezv to exportation," (p. 4^.) * he at length gives up the controversy; for when speaking of the war of 1756, and the conduct of the British prize- courts then condemning neutral vessels engaged in the colony trade of France, he says, « The * See p. 4-7 of this tract. H 90 APPENDIX. Dutch carried to Franco produce of French colonies, the property of French subjects. IVhat- evcr may have been the appearance, such was the imquestionable fact ; and certainly this property was lawful prize by the law of nations." (P. 36.) And may not this remark be applied to the American interference in 1806? may it not be said " the Americans carry to France produce of French colonies, the property of French snb- jects? — Whatever may be the appearance, such is the unquestionable fact." For what is touching at an American port, even unlading the cargo, and bonding, not pay- ing, the duties, but a fraud of which the belh- gerent sees himself continually and evidently the dupe? What is American import of French colonial produce, xo'Uh a view to its export to France, but an appearance, in order to conceal the unquestionable fact of rts being a remittance of rent to the non-resident planter residing in France ? Though the right appears thus clear, the anonymous author of the " Inquiry into the State of the Nation " questions the policy of in- forcing it ; and says, the consequence will be, " either the French will be compelled to carry their produce in their own ships, or the English will be allowed to purchase it, and then sell it to the nations of Europe, who will carry it to Franco J or the produce will be condemned to APPENDIX. 91 remain in the colonies." (p. 187.) And is it no advantage that in the fn-st case it will be liable to almost certain captnre, thereby enriching us, in proportion as it impoverishes our enemies: and in the third case, that though it may not enrich ourselves, it must impoverish those with whom we are at war, while in the second we gain those freig. s and profits which this last American author says has so increased the ca- pital of the United States, as to enable her citi- zens to horn fde own the costly exports of the Havaiina, and other Spanish ports, (p. 51.) Be- sides these extensive and important advantages, and those of enlarging our conmierciai navy, and giving life and activity to our cruisers, there is the decisive benefit, that by interrupting all di- rect and indirect communication between our enemies and their colonics, the general revenue of the nations with whom we are at war will be lessened, and thereby generate a feeling of dis- content, which must materially embarrass the French government, and eventually compel it to seek a peace, even at the price of those sacri- fices, which the honor, security, and prosperity of this country demand. THE END. r 'THIS DAY IS PUBMSHEH, • ' Prici Five SfulUma, AN^' p^XAMiii-Atr-rON OF THE BRITISH DOCTRINE tVHlCH SUBJECTS TO CAPTURE A NEUTRAL TRADE NOl OPEN IN TIME OF PEACE. The Second Edition ; to which is added, A LETTER FROM THS miXISTER PLENIPOTENTIARY OF THE UNITED STATES ♦. . TO lATE SfifcRlETARV OP STATE FdU FOBEIGN AFFAIR*. - I . K ALSO, PPvWE TWO SHILLINGS AND SIXPENCE, ANSWER TO "WAR IN DISGUISE/^ OR Remarks upon th« New Doctrine of England concerning. Neutral Trade. America, Printed. — London, Re-prinied* PUDtisHED BY J. JOHNSON, ST. PAUl'o CHURCBYAR©. , ■ '■( > ' X lfi - ' i ■ : ■ :-. ' -J Vp^ WOOD AND INNES, |»1WfJ*ERS, POPPIN'S -COURT, FLEET-STREEf^ e! . '.9