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tion, I consider it equally repugnant to the principles of that agreement. In both these views your lordihip will permit me to make some additional re. marks on the fubicct.
By the law of nations as settled by the most approved writers, no other re, ftraint is acknowledged, on the trade of neutral nations, with those at war, than that it be impartial between the latter ; that it fhall not extend to articles hich are deemed contraband of war; nor to the transportation of perfons in military fervice ; nor to places actually blockaded or befieged. Every other commerce of a neutral with a belligerent is considered as a lawful commerce ; and every other restraint on it to either of the belligerents by the other, an unlawful restraint.
The list of contraband it well defined, as are also the circumsances which constitute a blockade. The best authorities have united in confining the first to fuch articles as are used in war, and are applicable to military purposes ; and requiring, to constitute the latter, the disposition of such a force, confift. ing of stationary ships, fo near the port, by the power which attacks it, as to make it dangerous for the vessel of a neutral power to enter it. The late treaty been Great Britain and Rufia, designates these circumstances as necess sary to constitute a blockade, and it is believed that it was never viewed before in a light more favourable to the invading power.
The veftels condemned were engaged in a commerce between the United States and some port in Europe, or between those states and the West India
lands, belonging to an enemy of Great Britain. In the European voyage the cargo confitted of the goods of the power to which the colony belonged and to which the flip was destined. The ship and cargo in every case, 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 veficls and cargoes were condemned on the principle that the commerce was illegal. I beg to refer more especially in this ftate. ment to the case of the Effex, an appeal from the judgment of the vice admi. ralty court at New Providence, in which the lords commissioners of appeals in confirming that judgment established this doctrine.
It requires but a night view of the subject to be satisfied that these condem. nations are incompatible with the law of nations as above stated. None of the cases have involved a question of contraband, of blockade, or of any other kind that was ever conteited till of late, in favour of a belligerent against a neu. tral power. It is not on any principle that is applicable to any such 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 circumstances which recommend, the arguments which support it ? For information on these points we cannot refer to the well known writers on the law of nations ; no illustration can be obtained from them of a doctrine which they never heard of. We must look for it to an authority more modern ; to one which, however respectable for the learning and profeflional abilities of the judge who prefides, is nevertheless one which, from many confiderations, is not obligatory on other powers. In a report of the decisions of the court of admiralty of this kingdom, we find a notice of a series of orders issued 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 issued since the commencement of the present war. It is there orders which have authorized the seizures that were made at different times in the course of the last war, and were lately made by British cruisers of the vessels of the Unie ted States. These too form the law which has governed the courts in the deci. fions on the several cafes which have arifen under those seizures. The first of thefe orders prohibits altogether every species of commerce between neutral countries and enemies' colonies ; and between neutral and other countries, in the productions of those colonies ; the second and subsequent orders modify
it in various forms. The doctrine, however, in every decifion, is the farme: is contended in each, that the character and just extent of the principle iste found in the the first order, and that every departure from it fince has been a relaxation of the principle, not claimed of right by neutral powers, but a ceded in their favour gratuitously by Great Britain.
In support of these orders it is urged, that as the colonial trade is a fria of monopoly to the parent country in time of peace, neutral powers har o right to participate in it in time of war,although they be permitted so to dom the parent country : that a belligerent has a right to interdi&t them tra such a commerce. It is on this system of internal restraint, this regulation 3 colonial trade, by the powers having colonies, that a new principle of the law of nations is attempted to be founded : one which seeks to discriminate a respect to the commerce of neutral powers, with a belligerent, between dife ent parts of the territory of the fame power, and likewife fubverts many otz principles of great importance, which have heretofore been held sacred anon nations. It is believed that fo important a superstructure was never raloda so fight a foundation. Permit me to ask, does it follow, because the parte country monopolises in peace the whole commerce of her colonies, that a war it should have no right to regulate it at all? That on the contrary t should be construed to transfer, in equal extent, a right to its enemy, to the prejudice of the parent country, of the colonies, and of neutral powers? li 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 colosies, more especially, it would prove peculiarly onerous and oppreffive. It is known that they are essentially dependent for their existence, on suppios from other countries, especially the United States of America, who, bring in their neighbourhood, have the means of furnishing them with greatest cera tainty, and on the best terms. Is it not sufficient that they be subjected to that restraint in peace, when the evils attending it, by the occasional interference of the parent country, may be, and are frequently required? Is it conlistent with justice or humanity, that it should be converted into a prinde ple, in favour of an enemy, inexorable of course, but otherwise without the means of lifening to their complaints, not for their distress or opprcfhoa only, but for their extermination ? But there are other insuperable objections to this doctrine. Are not the colonies of every country a part of its domaia, and do they not cnntinue to be so until they are severed from it by coaquest? Is not the power to regulate commerce, incident to the sovereiguty, and is it not co-extensive over the whole territory which any government pofTeffes? Can one belligerent acquire any right to the territory of another but by conquest ? And can any rights which appertain thereto, be otherwise defeated or curtailed in war? In whatever light, therefore, the subject in viewed, it appears to me evident that this doctrine cannot be supported. No distinction, founded in reason, can be taken between the different parts of the territory of the fame power to justify it. The separation of one portion from another by the sea gives lawfully to the belligerent which is superiour on that element, a vast afcendency in all the concerns on which the success of the war, or the relative prosperity of their respective dominions, may in any degree depend. It opens to such power ample means for its own aggrandile. ment, and for the harrassment and distress of its adversary. With these it
should be satisfied. But neither can that circumstance, nor can any of intere nal arrangement, which any power may adopt for the government of its domains, be construed to give to its enemy any other adyantage over it. They certainly do not justify the doctrine in question, which asserts that the law of rations 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 neu: tral powers, and all other rights, are to fink before it.
It is further urged that neutral powers ought not to complain of this retraint, because they stand under it, on the same ground, with respect to that commerce, which they held in time of peace. But this fact, if true, gives no Support to the pretention. The claim involves a question of right, not of intereit. If the neutral powers have a right in war to such commerce with the colories of the enemies of Great Britain, as the parent states respectively allowed, they ought not to be deprived of it by ber, nor can its just claims be satisfied by any compromise of the kind alluded to. For this argument to have the weight which it is intended to give it, the commerce of the neutral powers with those colonies should be placed and preserved through the war, in the same state, as if it had not occurred. Great Britain should in respect to them take the place of the parent country,and do every thing which the latter would have done had there been no war. To discharge that duty,it would be necessary for her to establish such a police over the colony, as to be able to examine the circumstances attending it annually, to ascertain whether the crops were abundant, fupplies from other quarters had failed, and eventually to decide whether under such circumstances the parent country would have opened the ports to neutral powers. But these offices cannot be performed by any power which is not in poffefsion of the colony ; that car only be obtained by conquest, in which case, the viétor would of course have a right to regulate its trade as it thought fit.
It is also said, that neutral powers have no right to profit of the advantages which are gained in war by the arms of Great Britain. This argument has even less weight than the others. It does not, in truth, apply at all to the question, Neutral powers do not claim a right, as already observed, to any commerce with the colonies which Great Britain may have conquered of her enemies, otherwise than on the conditions which the imposes. The point in question turns on the commerce which they are entitled to with the colonies which she has not conquered, but still remain subject to the dominion of the parent country. With such it is contended,for reatons that have been already given, that neutral powers have a right to enjoy all the advantages in trade w hich the parent country allows them: a right of which the mere circumstance of war cannot deprive them. If Great Britain had a right to prohibit that commerce, it existed before the war began, and of course before she had gained any advantage over her enemies. If it did not then exist, it certainly does not at the present time. Rights of the kind in question, cannot depend on the fortune of war, or other contingencies. The law which regulates them is invariable,until it be changed by the competent authority. It forms a rule equally between belligerent powers, and between neutral and belligerent, which is dictated by reason and fanctioned by the usage and consent of nations,
The foregoing considerations have, it is presumed, proved that the claim of Great Britain to prohibit the commerce of neutral powers, in the manner proposed, is repugnant to the law of nations. If, however, any doubt remained on that point, other considerations which may be urged cannot fail to re, move it. The number of orders of different imports which have been iffued by government, to regulate the seizure of neutral vefsels, is a proof that there is no established law for the purpose. And the firictness with which the courts have followed those orders, through their various modifications, is equally a proof that there is no other authority for the government of their decisions. If the order of the 6th of November, 1793, contained the true doce trine of the law of nations, there would have been no occasion for thole which followed, nor is it probable that they would have been iflued ; indeed if that order had been in conformity with that law, there would have been no occa. fion for it. As in the cases of blockade and contraband, the law would have been well known without an order, especially one so very descriptive, the interest of the cruisers, which is always sufficiently active,would have prompt, ed them to make the seizures, and the opinion of eminent writers, which in that case would not have been wanting, would have furnished the courts the best authority for their decisions.
I fhiali now proceed to fhew that the decisions complained of are contrary to the understanding, or what, perhaps, may more properly be called an agrecment of the two governments, on the subject. By the order of the 6th of November, 179.3, some hundreds of American veftels were seized,carried into port, and condemned. Those feizures, and condemnations, became the subject of an immediate negociation between the two nations, which terminated in a treaty, by which it was agreed to submit the whole fubject to commiflioners, who should be invested with full power to settle the controversy which had thus arisen. That ftipulation was carried into complete effect ; commiffioners were appointed, who examined, laboriously and fully, all the cases of seizure and condemnation which had taken place, and finally decided on the fame, in which decisions they condemned the principle of the order and award. ed compensation to those who had suffered under it. Those awards have been fince fairly and honourably discharged by G. B. It merits particular attention that a part of the 12th article of that treaty, referred expressly to the point in queftion, and that it was on the folemn deliberation of each government, by their mutual confent, expunged from it. It seems therefore to be impoffible to contider that transaction, under all the circumstances attending it, in any other light than as a fair and amicable adjustment of the question between the parties ; one which authorized the just expectation, that it would never have become again a cause of complaint between them. The fenfe of both was exprefied on it in a manner too marked and explicit to admit of a different conclusion. The subject too was of a nature that when once fettled ought to be considered as settled forever. It is not like questions of commerce between two powers, which affect their internal concerns, and depend, of course, on the internal regulations of each. When there latter are arranged by treaty, the rights which accrue to each party under it, in the interioor of the other, ceafe when the treaty expires. Each has a right afterwards to de. cide for itself in what manner that concern thall be regulated in future, and in that decision to consult folely its interest. But the prefint topick is of a very different character. It involves no question of commerce or other internal concern between two nations. It refpects the commerce only, which either may have with the enemies of the other, in time of war. It involves, therefore, only a question of right, under the law of nations, which in its nature cannot fluctuate. It is proper to add, that the conclufion, above menticned, was further supported by the important fact, that, until the late decree in the case of the Effex, not one American veflil, engaged in this commerce, had been condemned on this doctrine ; that several which were met in the chanpel, by the British cruiters, were permitted, after an examination of their pa. pers, to pursue the voyage. This circumstance justified the opinion, that that commerce was deemed a lawful one by Great Britain.
There is another ground, on which the late seizures and condemnations are confidered as highly objectionable, and furnith just cause of complaint to the United States. Until the final report of commiflioners under the 7th article of the treaty of 1794, which was not made until last year, it is admitted that their arbitrament was not obligatory on the parties, in the fense in which it is now contended to be. Every intermediate declaration, however, by G. B. of her senie on the subject, must be considered as binding on her, as it laid the foundation of commercial enterprizes, which were thought to be secure while within that limit. Your lord ship will permit me to refer you to sever. al examples of this kind, which were equally formal and official, in which the sense of his majesty's government was declared very differently from what it has been in the late condemnations. In Robinson's reports, vol. 2, page 368, (case the Polly, Laskey, master) it seems to have been clearly established by the learned judge of the court of admiralty, that an American bas a right to import the produce of an enemy's colony into the United States, and to send it on afterwards to the general commerce of Europe ; and that the landing the goods, and paying the duties in the United States thould preclude
ail further question relative to the voyage. The terms " for his own ofe," which are to be found in the report, are obviously intended to assert the claim, only that the property thall be American, and not that of an enemy by admitting the right to fend on the produce afterwards to the general commerce of Europe, it is not possible that thofe terms fhould convey any other idea. A bona fide importation is also held by the judge to be satisfied by the landing the goods and paying the duties. This therefore is, I think, the true import of that decision. The doctrine is again laid down in ftill more explieit terms by the government itself, in a correfpondence between lord Hawkerbury and my predecessor, Mr. King. The case was precisely fimilar to those which have been lately before the court. Mr. King complained, in a letter of March 18, 1801, that the cargo of an American veffel going from the United States to a Spanish colony, hac heen condemned by the vice admiralty court of Nassau, on the ground that it was of the growth of Spain, which decision he contended was contrary to the law of nations, and requested that fuitable instructions might be dispatched to the proper officers in the West Indies, to prevent like abuses in future.
Lord Hawkesbury,in a reply of April 11,communicated the report of the king's advocate general, in which it is exprefsly stated that the produce of an enemy may be imported by a neutral into his own country and re-exported thence to the mother country : and in like manner, in that circuitous mode, that the produce and manufactures of the mother country might find their way to its colonies ; that the landing the goods and paying the duties in the neutral country broke the continuity of the voyage, and legalized the trade, although the goods were re-shipped in the same veffel, on account of the fame neutral proprietors, and forwarded for fale to the motlier country of the colony. · It merits attention in this report, (so clearly and positively is the dodrine laid down, that the landing the goods and paying the duties in the neutral coun- , try broke the continuity of the voyage) that it is stated as a doubtful point whether the mere touching in the neutral country to obtain fresh clearances will be considered in the light of the direct trade ; that no pogtive inhibition is infifted on any but the direct trade between the mother country and the colonies.
This doctrine, in the light herein ftated, is alfo to be found in the treaty between Great Britain and Russia, June 17, 1801. By the 2d section of the 30 article, the commerce of neutrals in the productions or manufactures of the enemies of Great Britain, which have become the property of the neutral, is declared to be free ; that section was afterwards explained by a declaratory article of October 20 of the same year, by which it is agreed, that it shall not • be understood to authorise neutrals to carry the produce or merchandise of an enemy either directly from the colonies to the parent country, or from the par rent country to the colonies. In other refpects the commerce was left on the footing on which it was placed by that fection, perfe&tly free, except in the direct trade between the colony and the parent country. It is worthy of remark that, as by the reference made in the explantaory article of the treate with Rusia to the U.S. of America, it was supposed that those states and Ruf fia, Denmark,and Sweden, had a common interest in neutral quefions, fo it was obviously intended, from the fimilarity of fentiment which is obfervable between that treaty as mentioned, and the report of the advocate yeneral above mentions ed to place all the parties on the fame footing. After these acts of the British government, which being official were made publick, it was not to be expected that any greater restraint would have been contemplated by it, on that com merce, than they impose ; that an inquiry would ever have been made, not whether the property with which an American vefsel was charged belonged to a citizen of the United Sates or an enemy, but whether it belonged to this or that American ; an inquiry which imposes a condition which it is believed that no independent nation, having a just sense of what it owes to its sights or its honour, can ever comply with. Much less was it to be expected