« PreviousContinue »
the sanction of public law and public opinion, as well as of reason and equity. They are clearly sanctioned by the moral law of nations. Our republic ought to maintain and enforce them as settled principles of international law. Deeply do we regret that any American authority should have been misled on this subject by the adjudications of the Admiralty of Great Britain which have uniformally supported the municipal jurisdiction of Britain over the high seas, with some slight limitations, from the day that she claimed to be mistress of the seas. It is to be hoped that for the future the Supreme Court of the United States, our statesmen and our writers on international law will firmly assert and steadily maintain the right of neutrals, according to the treaty of Utretcht, which Great Britain, by her treaties and her statesmen admitted for more than one hundred years. Our statesmen ought to insist upon the improved rule of the entire immunity of private persons and property at sea from capture. President Madison asserted, in his Message to Congress of May 25th, 1813, the protecting power of our neutral flag in these words: “It is obvious that no visit or search, or use of force, for any purpose on board the vessels of one independent power on the high seas, can in war or peace, be sanctioned by the laws or authority of another
power.” This is the great practical principle of the treaty of Utretcht, which has received the sanction of Presidents Madison, Monroe and John Quincy Adams, May their example be followed, in this respect, by all American statesmen and jurists.
SECTION FORTIETH. OF FREE TRADE AND FREEDOM OF THE SEAS.
The right of neutral nations to free trade with belligerents in all commodities except contraband of war, and with all ports except blockaded ones, was strongly put forth by that eminent patriot and civilian, Thomas Jefferson, Secretary of State under President Washington, in a letter of instruc'tions to Mr. Pinckney, American Minister at London, dated September 7th, 1793. (See Jefferson's Works, vol. 3d, p. 287.) On another occasion Mr. Jefferson seemed not to have been aware that Great Britain for more than a century prior to 1792, had made many treaties and official declarations proclaiming the doctrine “that free ships make free goods,” according to the principles of the treaty of Navigation and Commerce of Utretcht of 1713, and he unwarily and erroneously conceded the new rule which Britain has sought to establish by her arms and by her Admiralty since 1792. But in the letter of instructions above
refered to, the secretary lays down the well settled and true rule of public law. Refering to a British order of June 8th, 1793, to her naval commanders interdicting neutral trade in provisions with
France, he well says: “The first article of it permits all vessels laden wholly or in part with corn, flour, or meal, bound to any port in France, to be stopped and sent to any British port, or to be purchased by that government, or to be released only on condition of security given by the master that he will proceed to dispose of his cargo in the ports of some country in amity with his Majesty.”
“This article is so manifestly contrary to the law of nations, that nothing more would seem necessary than to observe that it is so.” "
“The state of war, then, existing between Great Britain and France, furnishes no legitimate right either to interrupt the agriculture of the United States, or the peaceable exchange of its produce with all nations; and consequently the assumption of it will be as lawful hereafter as now, in peace as in war.”
# # # # # # #
“The President therefore desires that you will immediately enter into explanations on this subject with the British government. Lay before them in friendly and temperate terms all the demonstrations of the injury done us by this act, and endeavor to obtain a revocation of it, and full indemnification to any citizens of these States who may have suffered by it in the mean time.” The views of Washington, in opposition to the series of British orders in council restricting neutral trade, are supported by Lord Brougham. (See his Speeches, vol. 1st, p. 242.) Our view of this subject is sustained by a speech by that eminent British statesman, Henry Lord Brougham in the House of Commons in 1812. Speaking of the orders in council in restraint of neutral trade, of the rule of 1756, forbiding to neutrals a trade with a belligerent not allowed in time of peace, and of the rule that free ships make free goods established by the treaty of Utretcht, Brougham says: “Free ships make free goods, says the enemy, and so say many other powers. This we strenuously deny. Yet at the peace of Utretcht we gave it up after a war of unexampled success, a series of uninterrupted triumphs in which our power was extended, and France and her allies humiliated. The famous rule of the war of 1756 has had the same fate—that principle out of which the orders in council unquestionably sprung. The name by which it is known shows that it is but a modern invention ; but it seems to have been waived or relinquished almost as soon as it was discovered; for in the American war it was given up not only in practice but by repeated decisions in our prize courts. I allude especially to the well known judgments of Sir James Marriott upon this point.” (Brougham's Speeches, vol. 1st, p. 242.) The celebrated Earl of Chatham, in a speech in the House of Commons, is reported by the learned and accurate Macaulay, to have said in a speech on the war with Spain, “that no peace ought to be made with Spain till she should formally renounce the right of search.” These sentiments accord with the doctrine of Albericus Gentilis, by some called the father of the law of nations, and by others the forerunner of Grotius, which we have quoted above. He distinctly, in behalf of England, denied to foreign armed ships the right of searching English ships, and he claimed for England the exclusive jurisdiction over English ships on the high seas. (See 11Wheaton's R. p. 17, 18.) The natural right of neutral nations to free trade is manifest. It is a principle of the moral law of nations. Free trade reposes upon the obvious principle that all men are bound by the law of their nature to kindly and reciprocal commerce. Providence, by fixing unalterably diversity of climate and production as well as varieties of human skill, improvement and condition, has made free and recip