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under its subjection. It is remarkable that Puffendorf, who owed his fortune and employments to one of those northern crowns, was of opinion in this case against them; and thought that the convention might be justified. It is not meant here at present, either to censure or commend it: circumstances may sometimes make a thing to be lawsul, which considered by itself, would be unjust; but such times are truly unhappy, when necessity must be pleaded in support of a right.” “* England and the United provinces having agreed in the treaty of Whitehall, signed on the 22d August, 1689, to notify to all states not at war with France, that they would attack, and previously declared every ship bound to, or coming out of the harbours of that kingdom, to be a lawful prize. Sweden and Denmark, from whom some ships had been taken, entered into a counter treaty on the 17th of March, 1693, for maintaining their rights, and procuring just satisfaction. And the maritime powers, perceiving that the complaints of the two crowns were well grounded, did them justice.” All the major nations of Europe, and in addition to these, Denmark and Sweden, have followed the same practice in their treaties; I shall not say erclusively; because this would imply a greater intimacy with their foreign relations, than at this distance we possess. But if it will not be too assuming to conjecture under what influence they may have occasionally departed from these tenets, permit me to hazard a belief that the examples of such a departure, and especially in certain high-toned declarations of Holland in the last century, and of Louis the 14th of France will be found in motives, which bear no affinity to, and can neither illustrate nor weaken the principle. These then are striking features of the customary law of nations as defined by Wattel. “When, says he, a custom is generally established, either between all the polished nations in the world, or only between those of a certain continent, as of Europe, for example, or those who have a more frequent correspondence, if that is custom in its own nature indifferent, and much more, if it be a wise, and useful one, it ought to be obligatory on all those
* Vat. lib. 3. chap. vii. 112.
nations, who are considered as having given their assent to it, and they are bound to observe it towards each other while they have not expressly declared that they will not adhere to it. But if that custom contains any thing unjust, or illegal, it is of no force, and every nation is under an obligation to abandon it; nothing being able to oblige or permit a nation to violate a natural law."
Although the United States be without the European circle, they not only have a frequent correspondence with Europe, but in various publick acts, have proclaimed their abhorrence of enlarging the catalogue of contraband. I appeal to their treaty with France, to their treaty with Holland, to their treaty with Sweden, and to their treaty with Prussia. A passage in the last has abolished much of the embarrassment to which contracts are exposed— "And in the same case of one of the contracting parties being engaged in war with any other power, to prevent all the difficultie's and misunderstandings that usually arise respecting the merchandise heretofore called contraband, such as arms, ammunition, and military stores of every kind; no such articles carried in the vessels, or by the subjects or citizens of the parties to the enemies of the other shall be deemed contraband, so as to induce confiscation, or condemnation^and a loss of property to individuals," &c.
That such a provision is wise and useful your own candour admits. You express yourself thus—" I shall certainly not controvert Mr. Pinckney's position, that it is the common interest of mankind, that a culture, which like that of the soil, furnishes sustenance and employment to so great a proportion of them, should not be interrupted or suspended, because two nations are involved in war."
But what if these evidences of custom were less forcible than they are? When I review the events of Europe for more than a century past, and remark how much they have been crowded and diversified; how strong mercantile enterprise has been; how seldom other nations have suffered, and that Great Britain has not suffered at all from this burden on neutral commerce, l must be indulged with the inquiry, if upon the supposition of the ancient, law of nations, being as you contend, its modern mitigations, by the refinement of society, towards the rest of the world, are to be dead to them? If they are. is it because
VOi. Ii. 4
they are sovereignties of a recent date, and in the western hemisphere, although whensoever they might, they have narrowed the sphere of contraband 2 Would not the nations of Europe deem the United States indecently refractory if they should assume the privilege of dispensing with any prevailing modification of that law 7 Would Great Britain herself be silent ' Let then the inconveniences and advantages of these alterations be to us reciprocal. . As you have selected the treaty of England with Sweden in 1661, in opposition to Mr. Pinckney, it has been reserved for a test of the preceding doctrines. I acknowledge that provisions are contraband according to that treaty: but in what manner' Does it recognise them as contraband, under the law of nations ! This cannot be maintained because the treaties, for more than a hundred years past, announcing them not to be contraband, are more numerous than those of a different complexion, and therefore enjoy a better title to be declaratory of the law of nations. Does it break the uniformity of the English treaties on this head One instance and no more being exhibited, it is presumable that no more can be quoted, unless it be between England and Holland in Feb. 1673–4, which may be accounted for on different grounds, and was quickly cancelled by the treaty of December, 1674, or that in 1689, of which we have already spoken. If this be true, it deserves attention, that in two treaties, immediately preceding this of 1661, to wit, in 1654 and 1656, between the same parties, the definition of contraband does not embrace provisions. If this variation has not been wrought by peculiar causes, it is at any rate overwhelmed by the mass of conflicting authorities, to which England has herself given birth, at different stages of her comhaci'Ce. You next resort to the civilians, as being friends to the instructions. Until Grotius in 1625 published his work on war and peace, the subject had been much neglected. “He” says Vattel, “broke up the land, and it is not surprising that his mind, overcharged by an immense variety of i. and citations, which entered into his plan, could not always acquire those distinct ideas, so necessary in the sciences.” He admits I own, that if a nation cannot defend itself without those things which are sent to its enemy,
such as money, provisions, ships and naval stores, necessity will give that nation a good right to them, upon condition of restitution, if there be no just cause to the contrary. This is no palliative for the instructions, because Great Britain not only abounded in corn, meal and flour, but her European ports were shut by prohibitory duties against their importation from the United States.
He afterwards treats of the right of one enemy to intercept provisions going to another. "If the supplies sent thither, hinder the execution of my designs, and the sender might have known as much ; as, if I have besieged a town; or blockaded a port, and thereupon I quickly expect a surrender or a peace, that sender is obliged to make me satisfaction for the damage that I suffer on his account." Upon what data the citizens of the United States could calculate, that their accustomed trade would hinder the execution of the designs of Great Britain, will be hereafter touched upon. But let their speculative opinion be such. Barbeyrac the commentator of Grotius, whose notes enhance the dignity of the text, and are the efforts of an enlightened pen, in an enlightened age, when the law of nations had been critically investigated, liberates us from eveiy dilemma in this respect.
'i Provided, that in furnishing corn, for instance, to an enemy besieged, and pressed by another, it is not done with design to deliver him from that unhappy extremity, and the party is ready to sell the same goods also to the other enemy, the state of neutrality and liberty of commerce leave the besieger no room for complaint."
"There is the more reason for this, if the seller had been accustomed to the traffick in the same goods before the war."
He puts the strongest possible case,—that of a siege, and yet decides for the neutral. Your West Indies are conscious that we have been always ready to sell to them our corn, meal, and flour—Your merchants have enjoyed full liberty of purchase. Your own inquiry into our trade must have convinced you, that long before the war we were in the habit of exporting those commodities to France.
You are certainly correct in your estimate of Martens's elementary treatise on the modern law of nations, but arc you equally so in inferring from his 274th section, that he regards coin as contraband? That we may discover his genuine sense, it may be well to present together all the .important sections on nentral commerce.
(i Of neutral commerce, according to the universal laze of nations.
"One of the most important points relatively to the conduct which the neutral powers are to hold, is the commerce to be carried on with the enemy. Now in considering the thing on the part of the neutral power, the right which that power has in time of peace to sell and transport every sort of merchandise to each nation which is willing to carry on this commerce with it, also remains to it, when a war takes place between two powers, so thai it may permit its subjects to transport every sort of merchandise, and even arms or warlike stores to the two powers engaged in the war, or to that one of them with which this commerce may be continued or established most advantageously; as long as the state does not meddle itself with it, either by prohibiting the commerce with one or both the parties who are at war, it would seem that she does not, by that, deviate from the duties of neutrality. However, the belligerent power having a right to hinder its enemy from being re-inforccd by whatever serves for the use of war, the necessity of its situation may authorize it to prevent these merchandises arriving to the enemy, still it ought to confine itself to the holding of these merchandises during the war, or to the appropriating of them to herself, on paying the value of them to the neutral proprietor. But this right to confiscate such merchandise, or even the vessels carrying them, seems not to belong to the enemy, except when (4) the neutral power has violated the laws of neutrality, or when this confiscation is made at a place amenable to the laws of the sovereign exercising it."
"(ij) The pretext of depriving, by this confiscation, the neutral subjects of the desire of carrying on such a commerce, seems not in strictness sufficient io justify the punishment of those w ho do not offend us ; nor does tha right of nwessity appear to eitend to that."