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the islands, store in the United States, and transport to neutral ports in Europe convenient for the supply of France herself, every hogshead of sugar, and every bag of coffee that can be furnished by the plantations, on such terms that the French colonies shall not feel the war. They shall not be annoyed by the British naval arms, but shall even flourish the more for their superiority. Depending entirely on neutrals, they shall lose nothing by captures, because, having sold their produce, they risk nothing; while British produce is liable to capture, and, if not captured, to high war premiums of insurance. The French colonist would ultimately, if not immediately, command a price for his crops, the more advantageous by reason of the cheap and safe navigation of American vessels; he would prosper in full peace, while the British colonist would feel the effects of war on his profits. His only market would be England, because he would be undersold on the continent. The seamen withdrawn from the French colonial commerce would be, as in fact they are, on board their men of war, or in the armies; and the resources of the colonies would be steadily and without diminution by capture drawn by France into her own territory, and employed to equip flotillas and array armies of invasion against England. “I cannot help observing, if all this be right in principle, it is a principle that will never be of any authority or value in practice. For whoever may happen to have the power to hinder these consequences, will surely employ a superior fleet to hinder them. It seems, therefore, to be a discouraging labor, to establish such a nugatory interpretation of the maritime law of nations as we are sure from its very nature the powerful must reject. “We claim a right to trade to the French, Dutch, or Spanish colonies, and to convey their produce to any countries that will receive it. We say, that these nations, though enemies of England, are our friends, with whom we have long been accustomed to trade; that they have adequate authority to adjust with us the terms of our intercourse with all their territories, the colonies as well as the parent countries; and that, as our neutral traffic with these colonies is carried on in consequence of acts or laws Wol. xxi.-No. XLI. 9
of those parent countries, it is a lawful trade, and the interruption of it by the British cruisers has all the qualities of tyranny and injustice. “The British cabinet might, I am afraid, confound our logic by replying: you have a right, as neutrals, to traffic with our enemy to as great extent as you could before the war; and to that extent we do not now disturb your trade. But your trade with the enemy's colonies is not of that description. It is not a privilege you derive from his grant, but from our arms. It is a species of trade you did not enjoy before, and never would have derived from the friendship of our enemy towards you. He makes use of your neutrality to escape from us. By your means the proceeds of his colonies become an effective branch of his force. This we cannot suffer. His concession in opening his colonial ports is valid and legal, as regards the transactions between him and you; but as between us and you, it is a fraud, out of which no right can grow. It is a fraud, because it invalidates our belligerent rights; and because, notoriously, our enemy never opens his colonies, till he can no longer resist that reason for opening them. Every fraudulent deed or grant is absolutely void, as it respects third persons who have bona fide titles. “If we attempt to answer this argument by ever so loud an invective against the sweeping tyranny of their principle, they would not fail to insist, that no principle can be less chargeable as arbitrary or indefinite than that which they enforce. It is not arbitrary, because it does not depend in the least on Great Britain to open the colonies of her rivals in time of peace; it is not indefinite, because England even now forbears to urge her claim beyond the practice and course of trade before the war. “What then, she might say, do I restrict or abridge of the American liberty of commerce Surely not your usual intercourse with France, Spain, and Holland. I allow all that they ever allowed, till, in fact, they had nothing left to allow or refuse, having lost all power of protection or control over their colonies by the superiority of my navy. You may supply your own consumption by your direct trade with those colonies. You may trade with such of those colonies as were open to you before the war. I abstain from condemning your cargoes of colonial produce, if I find it has been landed in the United States, and mixed with the mass of your property. A voyage from those colonies to the United States, as a mere cloak for the prosecution of the voyage to Europe, I consider illegal.
“Had this doctrine of the British admiralty been early and publicly known, I cannot but suppose it would have been acquiesced in.” pp. 493–496.
We have made these large extracts, because they present a better summary of the arguments on each side of this great question, than we recollect to have seen elsewhere. This highly gifted statesman, who, in any other than party times, would himself be regarded as an authority, says, he does not pretend to have much consulted books, and that “books afford but dim light on such a subject.” It will not, however, be uninteresting to observe how nearly his views are in accordance with those of a writer of well known authority on international law (Puffendorf), who, in a letter to a correspondent, briefly discussed the question of the commercial rights of neutrals, a century before our own times. We give an extract from this letter, because, during the numerous discussions of our day, it has not been used (if used at all) in such a manner as to make it familiar to readers in general; and, in respect to the case before us, it cannot be liable to the suspicion of prejudice or party bias.
It seems, that Mr. Gröning, a compiler of that day, was about publishing a work, De Libera Navigatione, and consulted Puffendorf; who returned him an answer in 1701, from which the following is an extract:
“The work, sir, which you propose respecting the liberty of navigation, excites my curiosity. It is a fine subject, and one upon which no person, so far as I know, has made a particular treatise. I am apprehensive, however, (to judge by what you touch upon in your letter), that you will find people who will contest your views. The question is certainly among the number of those which have not yet been settled upon clear and undoubted grounds, that can make a rule for all the world. In all the examples that are cited, there is almost always something of legal right and something of fact. Ordinarily, each one permits or prohibits the maritime commerce of neutral nations with the enemy, according as it is important to him to keep on terms of amity with the neutrals, or as he has the power to obtain from them what he wishes. The English and the Dutch, may without any absurdity say—that it is lawful for them to do all the injury they can to the French with whom they are at war, and consequently to employ the most proper means of weakening them, which consists, in thwarting or - cutting off their commerce;—that it is not just, that neutral nations should enrich themselves at their expense, and, by drawing to themselves a commerce which is interrupted as to England and Holland, furnish to France the means of continuing the war; more especially, as England and Holland ordinarily favor in another manner the commerce of those nations, and give them opportunity to transport and vend elsewhere the articles of merchandise of their own growth or manufacture;—in a word, that they willingly leave to them, in full, the commerce which they have been accustomed to carry on in time of peace; but that they ought not to allow them to augment it, by reason of the war, to the prejudice of the English and Dutch,” &c. It is observed by our countryman above quoted, that “had this doctrine of the British admiralty been early and publicly known, I cannot but suppose it would have been acquiesced in.” Whatever might have been the result in that case, one thing is certain; that the principle itself was not so visibly the immediate occasion of complaint, as the vexations occasioned to our merchants by the varying modes of applying and enforcing it, and the uncertainty of the modes of proof that would satisfy the British courts. When the rule was first promulgated, it was simply announced, that neutrals were not, during a war, to engage in the colonial trade of the enemy, which was not open to them in time of peace ; for neutral ships had entered into that trade, under false papers and a false mask. It was then said, in applying the rule, that if the colonial articles of merchandise should be first imported into the neutral country and become incorporated into the common stock, the voyage was legalized. But still the question remained open, what should be the evidence of their being so imported and incorporated. It was stated by the court, in discussing this point, in one of the early cases, that the entry of the colonial cargo at the custom house of the neutral, and paying the duties, was evidence of that fact, and might neutralize the property. But, however well this rule might have operated in regard to countries where the payment of duties was made in money, and was attended with onerous formalities, the compliance with which would afford strong evidence of the fact in question, yet in the United States, it was otherwise. It was soon found, on the trial of cases in the admiralty court, that the entry at our custom houses, the securing of the duties by a bond, instead of paying them in money, and then the reshipping of the colonial produce in the same vessel for the mother country of the enemy, became a very easy process, and afforded but slight evidence of the property being incorporated into the common stock. And even when a sale of the property was held to be one proof of such incorporation, nothing was easier than for two merchants, who had cargoes of colonial produce, to interchange with each other by a formal transfer, and thus comply with this requisite also. Upon these new views of our mode of conducting business, for which the English courts were not prepared, though literally a compliance with their requisitions—they thought it necessary to require further evidence of the intentions of the neutral importer, as to the true destination of his colonial merchandise; whether he was making a bonā