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rent claim of visiting and searching neutral vessels. No treaty can be cited, in which the practice of compelling the neutral vessel to send its boat, its officers, its people or its papers, to the belligerent vessel, is authorized. British treaties, as well as those to which she is not a party, in every instance where a regulation of the claim is undertaken, coincide with the article here proposed. The article is in fact almost a transcript of the article of the treaty of 1786 between Great Britain and France.
The regulation is founded in the best reasons. 1st. It is sufficient for the neutral that he acquiesces in the interruption of his voyage, and the trouble of the examination, imposed by the belligerent commander. To require a positive and active co-operation on his part in behalf of the latter, is more than can be justified on any principle. 2d. The belligerent party can always send more conveniently to the neutral vessel, than this can send to the belligerent vessel, having neither such fit boats for the purpose, especially in a rough sea, nor being so abundantly manned. 3d. This last consideration is enforced by the numerous and cruel abuses committed in the prace tice of requiring the neutral vessel to send to the belligerent. As an example, you will find in the documents now transmitted a case where neither the smallness and leakiness of the boat, nor the boisterous state of the weather, nor the pathetick remonstrances of the neutral commander, had any effect on the imperious injunctions of the belligerent, and where the task was performed at the manifest peril of the boat, the papers, and the lives of the people. The limitation of the number to be sent on board the neutral vessel is a reasonable and usual precaution against the danger of insults and pillage.
ON ARTICLE IV. This enumeration of contraband articles is copied from the treaty of 1781 between Great Britain and Russia. It is sufficiently limited, and that treaty is an authority more likely than any other to be respected by the British government. The sequel of the article, which protects the productions of a hostile colony converted into neutral property, is taken from the same model, with the addition
of the terms, win any case or on any pretext." This addition is meant to embrace more explicitly our right to trade freely with the colonies at war with Great Britain, and between them and all parts of the world, in colonial productions, being at the time not enemy's, but neutral property; a trade equally legitimate in itself with that between neutral countries directly, and in their respective vessels, and such colonies, which her regulations do not contest.
In support of this right, in opposition to the British doctrine, that a trade not allowed by a nation in time of peace cannot be opened to neutrals in time of war, it may be urged, that all nations are in the practice of varying more or less, in time of war, their commercial laws, from the state of these laws in time of peace; a practice agree. able to reason, as well as favourable to neutral nations ; that the change may be made in time of war, on considerations not incident to a state of war, but on such as are known to have the same effect in time of peace; that Great Britain herself is in the regular practice of changing her navigation and commercial laws, in times of war, particularly in relation to a neutral intercourse with her colonies; that at this time she admits a trade between neutral countries and the colonies of her enemies, when carried on directly between them, or between the former and herself, interrupting only a direct trade between such colonies and their parent state, and between them and coun. tries in Europe, other than those to which the neutral trade may respectively belong; that as she does not con- · test the right of neutrals to trade with hostile colonies, within these limitations the trade can be, and actually is carried on indirectly between such colonies and all countries, even those to which the colonies belong: and, consequently, that the effect of her doctrine and her practice is not to deprive her enemy of their colonial trade, but merely to lessen the value of it in proportion to the charges incident to the circuitous course into which it is forced, an advantage to her, which, if just in itself, would not be sufficient to balance the impolitick vexations accruing to neutral and friendly nations.
These views of the subject have entered into my conversations with Mr. Merry, He expresses, notwithstanding, a belief that Great Britain will turn an unfavourable VOL. VI. :
ear to any proposition calculated to give her enemies the resources of their colonial trade, beyond the degree in which her present regulations permit. This is doubtless to be apprehended, but considering the proposition as an article which may find a balance in the general bargain, it may not be inadmissible ; or if inadmissible in the extent proposed, a middle ground may perhaps be accepted. The colonial trade in question consists of four branches; first, between the colonies and Great Britain herself; secondly, between the colonies and the neutral countries carrying on the trade; thirdly, between the colonies and neutral countries not themselves carrying on the trade; fourthly, between the colonies and the countries to which they belong, or which are parties to the war with Great Britain.
The first and second branches are those with which her own regulation accords. The last is that to which her aversion will of course be the strongest. Should this aversion be unconquerable, let it be tried then, and then only, whether, on our yielding, or rather omitting that point, she will not yield to us, in return, the direct trade between hostile colonies and neutral countries generally. You will be careful, however, so to modify the compromise as will mark as little as may be a positive relinquishment of the direct trade between the belligerent nations and their colonies.
Should such a compromise be altogether rejected, you will limit the article to the simple enumeration of contraband, it being desirable that, without a very valuable consideration, no precedent should be given by the United States of a stipulated acknowledgment that free ships do not make free goods. And you will omit the article altogether, if a proper list of contraband cannot be agreed on, particularly one that excludes money, provisions, and naval stores.
ON ARTICLE V. This article, taken from the convention of 1800 between the United States and France, is conformable to the general practice of the prize courts in the latter, and is the more worthy of adoption every where, as it would contribute so much to the consistency and stability of the rules of admiralty proceedings. Without a single objection justly lying against it, it will have the important advantages of being a check on the inferior tribunals, of enabling the superior tribunal, where a faulty reason appears on the face of the sentence, to correct the wrong without delay or expense, and of being a check moreover on the decision of the superior tribunal itself. As prize causes also are tried by courts not of a third party, but of one of the parties interested, it is but reasonable that the ground should be known to the other, on which judgment has passed against its citizens or subjects, in order, if deemed proper, that negotiation may be employed for redressing past, or guarding against future injustice.
ON ARTICLE VI, The fictitious blockades proclaimed by Great Britain, and made the pretext for violating the commerce of neutral nations,'has been one of the greatest abuses ever committed on the high seas. During the late war they were carried to an extravagance, which would have been ridiculous, if in their effects they had not inflicted such serious and extensive injuries on neutral nations. Ports were proclaimed in a state of blockade, previous to the arrival of any force at them, were considered in that state without regard to intermissions in the presence of the blockad
final departure, the British cruisers during the whole time seizing every vessel bound to such ports, at whatever distance from them, and the British prize courts pronouncing condemnations whenever a knowledge of the proclamation at the time of sailing could be presumed, although it might afterwards be known that no real blockade existed. The whole scene was a perfect mockery, in which fact was sacrificed to form, and right to power and plunder. The United States were among the greatest sufferers; and would have been still more so, if redress for some of the spoliations proceeding from this source had not fallen within the provisions of an article in the treaty of 1794..
From the effect of this and other arbitrary practices of Great Britain on the temper and policy of neutral nations towards her, from the spirit of her treaty made near the close of the late war with Russia, from the general disposition manifested at the beginning of the present towards the United States, and the comparative moderation obseryed in Europe with respect to blockades, (if indeed the two cases of the Weser and Elbe are not to be excepted) it was hoped that the mockeries and mischiefs practised under the name of blockades would no where be repeated. It is found, however, that the West Indies are again the theatre of them. The three entire and extensive islands of Martinique, Guadaloupe and St. Domingo have been published as in a state of blockade, although the whole naval force applied to the purpose is inconsiderable, although it appears that a part of this inconsiderable force is occasionally seen at the distance of many leagues at sea, although it does not appear that more than one or two ports at most have at any time been actually blockaded, and although complaints are heard, that the British ships of war do not protect their own trade against the numerous cruisers from the islands under this pretended blockade.
Enclosed herewith are three letters on this subject; two from me, the first to Mr. Thornton, the second to Mr. Merry, and the third from Mr. Merry to me. You will observe that he does not pretend to justify the measures pursued in the West Indies; but on the contrary wishes them to be regarded as proceeding from an officer whe does not pursue the intentions of his government. Still such measures prove that no general regulations or orders have been yet issued by that government against the evil, as might reasonably have been expected, and that a stipulated security against it is an object as important as it is just.
In the two letters to Mr. Thornton and Mr. Merry the ground is marked out, on which you will be able to combat the false blockades, and to maintain the definition of a real one, contained in the proposed article which is a literal copy from the fourth article of the Russian treaty above cited. In addition to these letters, you will find enclosed a letter of the
to Mr. Pinkney, in which some views are taken of the subject, which may also be of use in your discussions with the British government,