their produce to Europe by Dutch fhips, manned with Dutch feamer, and that the navigation act originated in the double view of punishing fome of thefe colonies, who had difcovered an attachment to the caufe of defeated royalty, and of curtailing the means enjoyed by the Dutch, of increasing their wealth, influence, and power. An intercourfe has always been admitted; at fome times very restrained; at others more extended, as fuited the caprice of the governours, or as the neceffity of the colonies required.

Until a period fubfequent to the treaty of Utrecht, France feems to have paid no attention to her Weft India colonies. Previous to that time, they do not appear to have enjoyed any conftant correspondence, or direct intercourse with the mother country; and at all times, as well before, as fince the independence of the continental colonies of Great Britain, a direct trade has existed between the colonies of France and thofe of Great Britain in the West Indies, and also with the settlements on the continent of North Amer ica, more or lefs limited, as real or pretended convenience demanded.

Great Britain, prior to the independence of the United States, had less occafion to admit the entry of veffels and merchandize from, or the export of the produce of her colonies to, any other than her own dominions; yet, inftances are not wanting of the relaxation of her navigation act, for both purposes; and in the year 1739, a bill paffed the parliament, allowing the fugar colonies, for a limited time, to export their produce to foreign ports. In fact, colonies depending on other countries for their fupplies, and at a distance from their parent country, muft, at times, admit the intercourse of foreigners, or fuffer the greatest impoverishment and diftrefs. It will not be denied, that the British provinces in the West Indies depend, in a great mea fure, if not altogether, on the United States for their corn. True it is, that the shipment is generally made in British veffels; but fhould the Uni ted States deem it for their intereft, to infift on its being tranfported thither in American ships, it is not certain that the convenience, not to say the ne ceffities of the colonies, would not render an acquiefcence advisable. The fact is, in regard to the colonies in the Weft Indies, whether belonging to France or Great Britain, that the monopoly has not been, and in the nature of things never can be, very strict, constant, and exclusive. The United States always have enjoyed, and without hazarding much one may pronounce with confidence, that they always must enjoy, a direct intercourfe with their colonies, however adverfe to the difpofitions or supposed interest of the parent countries in Europe. Thus ftands the fact of an accustomed trade, in time of peace, as relates to the Weft Indies. In regard to the Eaft Indies, it is certain that the veffels of the United States have always gone freely to the British fettlements there, and it is believed, that the veffels of our country were the first to export fugars from Bengal, and that their exportations have augmented immenfely the culture of that article in that country. To many of the Dutch fettlements our veffels have gone with but little interruption; and to fome of these, and to the French poffeffions, more especially to the ifles of France and Bourbon, the trade of the United States has been conftant, uninterrupted, and increafing, ever fince the year 1784. It is difficult then, sir, for thefe gentlemen to conceive how the doctrine or the fact, affumed by Great Britain, can be supported by the law of nations, or reconciled to the truth.

'Moreover, Great Britain profeffes, that the decifions of her admiralty courts are always regulated by the law of nations; that they do not bend to particular circumstances, nor are guided by the orders or inftructions of the government. The principles of this law are immutable; being founded on truth and juftice, they are ever the fame. Now it appears from the practice of Great Britain herself, that in the war of 1744, and in that which was concluded in 1783, whether the trade was an accustomed one in time of peace, made no part of the difcuffion, nor was it pretended, that the trade not ha ving been profecuted in peace, subjected the veffel or cargo to forfeiture, in

war. It seems more like the offspring of her pre-eminent power on the ocean, in the two wars of 1756, and that which lately ended, than the legitimate doctrine of right and justice. In the war of 1756, Dutch vessels by special licenfe from France, were permitted to export the produce of the French colonies. These were captured and condemned, on the ground, that by adop tion they had become French veffels. Afterwards the property was carried to Monte Chrifti, and exported thence in Dutch veffels. Particular trades, and special privileges were alfo allowed by France, to veffels belonging to citizens of Amfterdam, as a gratification for their peculiar exertions to induce the stadtholder to take part with France against Great Britain. Veffels and their cargoes fo circumftanced, were captured and condemned by the British, and this principle was then brought forward to justify their conduct, as covering, in their courts, all the cafes by a rule as extenfive as was the power and cu pidity of their cruifers on the fea.

In the war for the independence of America, this principle, fet up for the first time in that which preceded it, and contrary to former practice, was abandoned. This is exemplified in the following cafe, viz: A veffel bound from Marseilles to Martinico, and back again, was taken on the outward voyage; the vice admiralty court at Antigua gave half freight. On appeal, the lords of appeal gave the whole. It is faid in anfwer to this, that France opened her colonies, and though it was during the existence of war, yet it was the profeffion of keeping them always fo, but was afterwards found delrfive. The lords of appeal, however, in the cafe of the Danish veffel, could not have acted upon fuch grounds: for their decifion was in 1786, three years after the peace, and after it was manifeft, if any doubt had before exifted, that the general opening of the trade between the colonies and the mother country, to foreigners, was a temporary expedient, and dependent on the duration of the war. The claim before them was merely equitable, being for freight of that part of the voyage which had not been performed, and to obtain which the party claiming is bound to fhew, that he has offended no law and interfered with no rights of the belligerent.

What renders the conduct of Great Britain peculiarly injurious to the mer chants of our country at this time, is the extenfion of this offenfive doctrine, contrary to her own exprefs and publick declaration of the law during the last war; for it was then declared, that the importation from an enemy's colony, to the country to which the fhip belonged, and the fubfequent exportation was lawful; and fo of property, the produce of the parent country, going from the United States to the colony-Vide cafes of Immanual and Poly, in Robinson's Admiralty Reports, before cited. Whereas property going from the United States, the produce of an enemy's country, to her colony, although bona fide imported and landed in the United States, and exported on the fole account and risk of the American merchant, is now taken and condemned, on the grounds that the fame perfon and veffel imported and exported the fame articles; and thus, by an arbitrary interpretation of the intention of the merchant, the fecond voyage is adjudged to be a continuance of the firft. If this new and extraordinary doctrine of continuity is maintained on the part of Great Britain, and acquiefced in by the United States, a very large property, now afloat, may be fubject to condemnation, and it must follow, that an extenfive trade, which has been carried on with great advantage by the United States for thefe twelve years, and admitted to be lawful, will be totally annihilated.

The Indus, and cargo, have been condemned on the mere poffibility, that the fame might go to Europe, from Boston, in cafe of a peace, in which event Great Britain could pretend to no authority to queftion the voyage the mould make.

Now, to adopt a principle of dubious right in its own nature, and then to extend fuch principle to a further reftriction of the trade of the neutral withVol. III. Appendix.

D

out notice, is fpreading a fnare to entrap the property and defeat the acknow ledged rights to which he is entitled.

Such are its effects, both on the individual owners of this property, as well as on the underwriters. For Mr. Sears and Mr. Chapman, in planning this voyage, and indeed in every one they ever profecuted, have endeavoured to afcertain what the law authorized them to do, as that law was understood and practifed by the belligerents, and for this purpofe they examined the or ders to the British cruifers, the adjudications in the British courts during the laft war, and conceived themselves clearly within even the narroweft limits to which Great Britain profeffed to circumfcribe the trade of neutrals. The underwriters ako have been uniformly guided, in infuring property, by the rules declared and promulgated by the belligerents themselves. In the prefent cafe, they confidered, that according to the cleareft evidence of thofe rules, they incurred no risk from British cruifers.

Should then Great Britain undertake to prefume, that the law would authorize the interruption of fuch a trade, thefe gentlemen cannot bring them⚫ felves to believe, that under even fuch impreffions of her rights fhe would fo far forget what is due to her former understanding of the law, and to the encouragement given to fuch a commerce, as without notice of her altered fentiments to feize and confifcate the property of thofe, who had fo conformed their voyages to rules pronounced by herself.

I have the honour to be, fit,

With great refpect, your obedient fervant,
(Signed)

Honourable James Madifon, efq.
fecretary of State.

C. GORE..

I FLATTERED myfelf, from what paffed in our laft interview, that F fhould have been honoured, before this, with an anfwer from your lordship to my letters refpecting the late feizure of American veffels. I understood it to be agreed, that the difcuffion which then took place, fhould be confidered as unofficial, as explanatory only of the ideas which we might respectively entertain on the fubject, and that your lordihip would afterwards give me fuch a reply to my letters, refpecting that measure, as his majefty's government might defire to have communicated to the government of the United States. In confequence, I have fince waited with anxiety for fuch a communication, in the daily expectation of receiving it. It is far from being my defire to give your lordship any trouble in this bafinefs which I can avoid, as the time which has fince elapfed fufficiently fhews. But the great importance of the fubject, which has indeed become more fo by the continuance of the fame policy and the frequency of feizures which are fill made of American veffels. place me in a fituation of peculiar refponfibility. My government will expect of me correct information on this point, in all its views, and I am very defirous of complying with its juft expectation. I muft, therefore, again requeft that your lordship would be fo kind as to enable me to make fuch a reprefentation to my government, of that meafure, as his majefty's government may think proper to give.

I am forry to add, that the longer I have reflected on the fubject, the more confirmed I have been in the objections to the measure. If we examine it in reference to the law of nations, it appears to me to be repugnant to every principle of that law; if by the understanding, or as it may be more properly called, the agreement of our governments, reipecting the commerce in quef

tion, I confider it equally repugnant to the principles of that agreement. In both thefe views your lordthip will permit me to make some additional remarks on the fubject.

By the law of nations as fettled by the most approved writers, no other reftraint is acknowledged, on the trade of neutral nations, with thofe at war, than that it be impartial between the latter; that it fhall not extend to articles which are deemed contraband of war; nor to the tranfportation of perfons in military service; nor to places actually blockaded or befigged. Every other commerce of a neutral with a belligerent is confidered as a lawful commerce; and every other restraint on it to either of the belligerents by the other, an unlawful restraint.

The lift of contraband it well defined, as are alfo the circumflances which conftitute a blockade. The beft authorities have united in confining the firft to fuch articles as are used in war, and are applicable to military purposes; and requiring, to conftitute the latter, the difpofition of fuch a force, confifting of stationary ships, fo near the port, by the power which attacks it, as to make it dangerous for the veffel of a neutral power to enter it. The late treaty been Great Britain and Ruffia, defignates these circumftances as neceffary to conftitute a blockade, and it is believed that it was never viewed before in a light more favourable to the invading power.

The veffels condemned were engaged in a commerce between the United States and fome port in Europe, or between thofe ftates and the West India Ilands, belonging to an enemy of Great Britain. In the European voyage the cargo confifted of the goods of the power to which the colony belonged and to which the ship was deftined. The fhip and cargo in every cafe, were the property of American citizens, and the cargo had been landed, and the duty on it paid in the United States. It was decided that these voyages were continuous, and the veffels and cargoes were condemned on the principle that the commerce was illegal. I beg to refer more especially in this statement to the cafe of the Effex, an appeal from the judgment of the vice admiralty court at New Providence, in which the lords commiffioners of appeals in confirming that judgment eftablished this doctrine.

It requires but a flight view of the subject to be satisfied that these condem. nations are incompatible with the law of nations as above ftated. None of the cafes have involved a queftion of contraband, of blockade, or of any other kind that was ever contelted till of late,in favour of a belligerent against a neutral power. It is not on any principle that is applicable to any fuch case, that the measure can be defended. On what principle then is it fupported by Great Britain? What is the nature and extent of the doctrine? What are the circumftances which recommend, the arguments which fupport it? For information on thefe points we cannot refer to the well known writers on the law of nations; no illuftration can be obtained from them of a doctrine which they never heard of. We muft look for it to an authority more modern; to one which, however refpectable for the learning and profeffional abilities of the judge who prefides, is nevertheless one which, from many confiderations, is not obligatory on other powers. In a report of the decifions of the court of admiralty of this kingdom, we find a notice of a series of orders iffued by the government of different dates and imports, which have regulated the business. The first of these bears date on the 6th of Nov. 1793; the fecond on the 8th of Jan. 1794; the third on the 25th Jan. 1798. Other orders have been iffued fince the commencement of the prefent war. It is thefe orders which have authorized the feizures that were made at different times in the course of the last war, and were lately made by British cruisers of the veffels of the United States. These too form the law which has governed the courts in the decifions on the feveral cafes which have arifen under those seizures. The firft of thefe orders prohibits altogether every fpecies of commerce between neutral countries and enemies' colonies; and between neutral and other countries, in the productions of those colonies; the fecond and fubfequent orders modify

it in various forms. The doctrine, however, in every decifion, is the fame; it is contended in each, that the character and juft extent of the principle is to be found in the the firft order, and that every departure from it fince has been a relaxation of the principle, not claimed of right by neutral powers, but conceded in their favour gratuitously by Great-Britain.

In fupport of these orders it is urged, that as the colonial trade is a system of monopoly to the parent country in time of peace, neutral powers have no right to participate in it in time of war,although they be permitted fo to do by the parent country: that a belligerent has a right to interdict them from fuch a commerce. It is on this fyftem of internal restraint, this regulation of colonial trade, by the powers having colonies, that a new principle of the law of nations is attempted to be founded; one which feeks to difcriminate in refpect to the commerce of neutral powers, with a belligerent, between different parts of the territory of the fame power, and likewife fubverts many other principles of great importance, which have heretofore been held facred among nations. It is believed that fo important a superstructure was never raised on fo flight a foundation. Permit me to ask, does it follow, because the parent country monopolifes in peace the whole commerce of her colonies, that in war it should have no right to regulate it at all? That on the contrary it fhould be conftrued to transfer, in equal extent, a right to its enemy, to the prejudice of the parent country, of the colonies, and of neutral powers? If this doctrine was found it would certainly inftitute a new and fingular mode of acquiring and losing rights; one which would be highly advantageous to one party, while it wrs equally injurious to the other. To the colonies, more especially, it would prove peculiarly onerous and oppreffive. It is known that they are effentially dependent for their existence, on supplies from other countries, especially the United States of America, who, being in their neighbourhood, have the means of furnishing them with greatest certainty, and on the best terms. Is it not fufficient that they be fubjected to that restraint in peace, when the evils attending it, by the occafional interference of the parent country, may be, and are frequently required? Is it confiftent with juftice or humanity, that it should be converted into a principle, in favour of an enemy, inexorable of course, but otherwife without the means of lifening to their complaints, not for their diftrefs or oppression only, but for their extermination? But there are other infuperable objections to this doctrine. Are not the colonies of every country a part of its domain, and do they not continue to be fo until they are fevered from it by conqueft? Is not the power to regulate commerce, incident to the fovereignty, and is it not co-extenfive over the whole territory which any government poffeffes? Can one belligerent acquire any right to the territory of another but by conqueft? And can any rights which appertain thereto, be otherwise defeated or curtailed in war? In whatever light, therefore, the fubjećt is viewed, it appears to me evident that this doctrine cannot be fupported. No diftinction, founded in reafon, can be taken between the different parts of the territory of the fame power to juftify it. The feparation of one portion from another by the fea gives lawfully to the belligerent which is fuperiour on that element, a vaft afcendency in all the concerns on which the fuccefs of the war, or the relative prosperity of their respective dominions, may in any degree depend. It opens to fuch power ample means for its own aggrandifement, and for the harraffment and distress of its adversary. With these it fhould be fatisfied. But neither can that circumftance, nor can any of internal arrangement, which any power may adopt for the government of its domains, be conftrued to give to its enemy any other advantage over it. They certainly do not justify the doctrine in queftion, which afferts that the law of Aations varies in its application to different portions of the territory of the fame power that it operates in one mode, in respect to one, and in another, or even not at all, in respect to another; that the rights of humanity, of neutral powers, and all other rights, are to fink before it.