These instructions, though dated the 8th of June, were not issued to the admiralty till the 28th of the month. The British Government assumed to justify them on the ground that "by the law of nations, as laid down by the most modern writers," and particularly by Vattel, all provisions were to be considered as contraband, and as such liable to confiscation, in the case where "the depriving an enemy of these supplies is one of the means intended to be employed for reducing him to reasonable terms of peace." "The actual situation of France," said Great Britain, "is notoriously such as to lead to the employing this mode of distressing her by the joint operations of the different powers engaged in the war; and the of Corn, Meal, or Flour, in the Ports of any Country in Amity with His Majesty.

"II. That it shall be lawful for the Commanders of His Majesty's Ships of War and Privateers that have, or may have Letters of Marque against France to seize all Ships, whatever be their Cargoes, that shall be found attempting to enter any Blockaded Port, and to send the same for Condemnation, together with their Cargoes, except the Ships of Denmark and Sweden, which shall only be prevented from entering on the first attempt, but on the second shall be sent in for Condemnation likewise.

"III. That in case His Majesty shall declare any Port to be Blockaded, the Commanders of His Majesty's Ships of War and Privateers that have, or may have Letters of Marque against France, are hereby enjoined if they meet with Ships at Sea, which appear from their Papers to be destined to such Blockaded Port, but to have sailed from the Ports of their respective Countries before the Declaration of the Blockade shall have arrived there to Advertise them thereof, and to Admonish them to go to other Ports, but they are not to molest them afterwards, unless it shall appear that they have continued their Course with intent to enter the Blockaded Port, in which Case they shall be subject to Capture and Condemnation; as shall likewise all Ships, wheresoever found, that shall appear to have sailed from their Ports, bound to any Port which His Majesty shall have declared to be Blockaded, after such Declaration shall have been known in the Country from which they sailed; and all Ships, which in the course of the Voyage shall have received Notice of the Blockade, in any manner, and yet shall have pursued their Course with intent to enter the same.

"G. R."

The exception in the second paragraph of this order in favor of ships of Denmark and Sweden was based on special treaty stipulations with those powers. (Am. State Papers, For. Rel. I. 240.)

The text above given is taken from an apparently authentic copy of the order in the records of the commission under Article VII. It substantially accords with the text printed in Am. State Papers, For. Rel. I 240.

Mr. Pinckney to the Sec. of State, July 5, 1793. (Am. State Papers, For. Rel. I. 241.)

reasoning which in these authors applies to all cases of this sort, is certainly much more applicable to the present case, in which the distress results from the unusual mode of war employed by the enemy himself, in having armed almost the whole laboring class of the French nation, for the purpose of commencing and supporting hostilities against all the govern ments of Europe; but this reasoning is most of all applicable to the circumstances of a trade, which is now in a great measure entirely carried on by the actually ruling party of France itself, and which is therefore no longer to be regarded as a mercantile speculation of individuals, but as an immediate operation of the very persons who have declared war, and are now carrying it on against Great Britain. On these considerations, therefore, the powers at war would have been perfectly justifiable if they had considered all provisions as contraband, and had directed them, as such, to be brought in for confiscation. But the present measure pursued by His Majesty's Government, so far from going to the extent which the law of nations and the circumstances of the case would have warranted, only has prevented the French from being supplied with corn, omitting all mention of other provisions; and even in respect to corn, the regulation adopted is one which, instead of confiscating the cargoes, secures to the proprietors, supposing them neutral, a full indemnity for any loss they may possibly sustain."1

Protest of United
States.

On the other hand the United States declared that the position that provisions were contraband in the case where the depriving an enemy of these supplies is one of the means intended to be employed for reducing him to reasonable terms of peace," or in any case but that of a place actually blockaded, was "entirely new;" that reason and usage had established "that, when two nations go to war, those who choose to live in peace retain their natural right to pursue their agriculture, manufactures, and other ordinary vocations; to carry the produce of their industry, for exchange, to all nations, belligerent or neutral, as usual; to go and come freely, without injury or molestation; and, in short, that the war among others shall be, for them, as if it did not exist." To these mutual rights nations had allowed one

1 Mr. Hammond, British minister, to Mr. Jefferson, Sec. of State, September 12, 1793. (Am. State Papers, For. Rel. I. 240.) The word "corn comprehended the seeds of cereals generally, as wheat, barley, rye, and oats, and more especially wheat. (Fiske, Discovery of America, I. 182.)

exception-that of furnishing implements of war to the belligerents, or anything whatever to a blockaded place. Implements of war destined to a belligerent were treated as contraband, and were subject to seizure and confiscation. Corn, flour, and meal were not of the class of contraband, and consequently remained articles of free commerce. The state of war between Great Britain and France furnished neither belligerent with the right to interrupt the agriculture of the United States, or the peaceable exchange of its produce with all nations. Such an act of interference tended directly to draw the United States from the state of peace in which they wished to remain. If the United States permitted corn to be sent to Great Britain and her friends, and refused it to France, such an act of partiality might lead to war with the latter power. If they withheld supplies of provisions from France, they should in like manner be bound to withhold them from her enemies also, and thus to close to themselves all the ports of Europe where corn was in demand, or else make themselves a party to the war. This was a dilemma into which no pretext for forcing the United States could be found. Great Britain might, indeed, "feel the desire of starving an enemy nation; but she can have no right of doing it at our loss, nor of making us the instrument of it."1

For the purpose of regulating the execution Order as to Freight of the order in council of the 8th of June 1793, and Expenses. the admiralty adopted an order to the effect that freight and reasonable expenses should be allowed to all masters of neutral ships, if no mala fides or prevarication should appear or be justly presumed or suspected. Demurrage however was allowed as a reasonable expense only where the proceedings of the captor were unjust, irregular, or injurious, or where the ship was unduly detained.2

1 Mr. Jefferson, Sec. of State, to Mr. Pinckney, minister to England, September 7, 1793, (Am. State Papers, For. Rel. I. 239); same to Mr. Hammond, British minister, September 22, 1793 (Id. 240). See also Mr. Pinckney to Lord Grenville, undated (Id. 449); Mr. Hammond to Mr. Randolph, Sec. of State, April 11, 1794 (Ibid.); Mr. Randolph to Mr. Hammond, May 1, 1794 (Id. 450).

2 The text of the order of the admiralty is as follows:

"Ordered, That freight and reasonable expenses shall be allowed to all masters of neutral carrier ships, and be a charge upon the cargoes, whether condemned or restored, or ordered for further proof of neutral property: Provided always, That no mala fides, or prevarication, shall appear, or be

On the 6th of November 1793 a new order Order in Council, Noin council was issued by which British ships vember 6, 1793. of war and privateers were directed to "stop and detain all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony," and to "bring the same, with their cargoes, to legal adjudication in our courts of admiralty."

1

By the doctrine of the British prize courts known as the Rule of the War of 1756, because it was first applied in that war, all trade was forbidden to neutrals in time of war that was not open to them in time of peace.2

justly presumed, or suspected, on the part of any neutral master, and that such neutral master shall make oath that such freights are not already paid for, or engaged to be paid for by the owners of the said cargoes, in view of every event of capture, or otherwise. Demurrage shall be allowed, and considered as a reasonable expense, only in cases where the ship shall be pronounced to have been unjustly seized and brought in for adjudication, or bulk broken, and his Majesty's instructions disobeyed, or where there has been actual and wilful damage done, and misusage of persons or property by the captor, or when the time of detention for the purpose of unlivery of the cargo, or repairing such damage, shall exceed the time specified in the charter party, or when the neutral master shall not refuse or neglect to take away his ship upon bail offered to be given by the captors for freight, and reasonable expenses. That, where the value of corn, and naval stores, sold to his Majesty, shall be decreed to be paid to any neutral claimant, the owner, in cases where such corn, provisions, and other naval stores, by any treaty or particular stipulation, shall be held to be not contraband, and so not confiscable, the captor who shall have brought in such privileged ships and cargoes, in consequence of his Majesty's orders and instructions, and who shall have given bail to be answerable, upon delivery of the same, for freight and reasonable expenses, in case that any shall be allowed, shall be discharged from his bail; but that the freight, and such reasonable expenses, shall be decreed to be added to the price of the cargo, and to be paid for by his Majesty to the neutral owner, in cases of restitution, and in cases of condemnation shall be added, in like manner, to the price of the cargo, and paid to the captor by his Majesty.

"Freights and reasonable expenses, where captors and claimants can not agree, shall be referred to be settled by the deputy registrar, and merchants appointed by the court; the report, nevertheless, shall be subject to revisal by order of the court, upon objections made by either party." (Am. State Papers, For. Rel. I. 315.)

'Am. State Papers, For. Rel. I. 430; Mr. Randolph, Sec. of State, to Mr. Hammond, British minister, May 1, 1794 (Id. 450).

2 See Madison's "Examination of the British doctrine which subjects to capture a neutral trade not open in time of peace." (Madison's Works, II. 229.)

The "literal purport" of the order of November 6, 1793, "went to destroy all neutral trade with the French colonies, even that which had been allowed in time of peace."1

Under it and the order of the 8th of June many American vessels were captured and, with their cargoes, taken before the admiralty courts for condemnation or such other sentence as the nature of the case and the terms of the orders might seem to justify.

The order issued on the 6th of November Order in Council, 1793 was not published till the 23d of the folJanuary 8, 1794. lowing month. On the 8th of January 1794 it was superseded by a new order in council, by which the direc tion to seize and bring in for legal adjudication "all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony," was modified so as to include (1) ships "laden with goods the produce of the French West India Islands, and coming directly from any port of the said Islands to any port in Europe;" (2) ships "laden with goods the produce of the said islands, the property of which goods shall belong to subjects of France;" (3) ships "found attempting to enter any port of the said islands, that is or shall be blockaded by the arms of His Majesty or his allies;" (4) and "all vessels laden wholly or in part with naval or military stores, bound to any port of the said islands."2

1 Hildreth, History of the United States, 1V. 481.

The text of the order is as follows:

"GEORGE, R.

"Instructions to the commanders of our ships of war and privateers that hare or may have letters of marque against France. Given at our Court at St. James's, the 8th day of January, 1794.

"Whereas by our former instruction to the commanders of our ships of war and of privateers, dated the 6th day of November, 1793, we signified that they should stop and detain all ships laden with goods and produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony, and should bring the same with their cargoes to legal adjudication: We are pleased to revoke the said instruction, and in lien thereof, we have thought fit to issue these our instructions, to be duly observed by the commanders of all our ships of war and privateers that have or may have letters of marque against France.

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

"2. That they shall bring in for lawful adjudication all ships with their 5627-20