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"Entire prohibition of commerce.
"In consequence of this last principle, and of the rights of every sovereign in general, the belligerent power may even prohibit all commerce with the enemy throughout the extent of its territory and maritime dominion, in the places and provinces of the enemy, of which it has rendered itself the master, and even with the places which it holds so blockaded as to be able to prohibit the entry therein of every stranger. In all these cases it may subjoin to its prohibitions the penalties, either of confiscation of the effects, or of the vessels, or the corporal punishment of those who exercise this commerce.1'
"' Principles of the modern law with regard to neutral commerce. Contraband merchandise.
"But the modern law of nations differently disposes of .several points which concern the commerce of neutral powers with the enemy. In the first place it is generally acknowledged that a neutral power should abstain from transporting to the enemy the merchandises which serve directly for war (b) and the use of which is not doubtful. The catalogue of these contraband merchandises is differently formed by the treaties of commerce, and in some it has even been extended to certain merchandises, which do not serve directly or solely for war, in as much as they might be useful to the enemy (e) whilst in others the latter are expressly ranged among merchandises, the commerce of which is lawful, which must also be presumed when nothing has been regulated concerning it.
"Besides this, the maritime powers have begun, particularly since the end of the last century, to make, at the commencement of war, declarations, in order to notify to the neutral powers the merchandises which they would
"(6) Such as arms, ships of war," &c.
"(c) Such as ship timber, cable?, hornp, spp< ie, grain, brandy, tobacco, smother articles of fife," &c.
regard as contraband, and to prevent them from the penalties they should exercise on those who might transport them to the enemy. These declarations are less laws than notices; but their effect cannot be extended to the powers with whom treaties subsist, which cannot be injured by them."
"Penalty attached to contraband commerce.
"A notion which authorizes this contraband commerce, is deemed to violate the obligations of neutrality; and the belligerent power is permitted to confiscate such merchandises and even sometimes the vessels. This latter point seems hitherto to have formed a rule when the proprietor of the vessel had voluntarily loaded her with contraband, either in the whole or in part. At present, however, almost all the commercial treaties have abolished this custom entirely, or at least they do not admit it, except in some cases. I3ut where no treaties exist, the conduct observed by the belligerent powers is rather inconstant."
'• Freedom of neutral commerce acknowledged in Europe.
'\ But as to merchandises which are not contraband, it is generally adopted, that it is permitted to the neutral powers to trade in them with the enemy, and to transport them to the enemy, except in places blockaded, with which all commerce is interdicted. However, neutral merchant vessels ought in open sea to submit to the customary visitation, or that which is fixed by treaties in almost an uniform manner."
Faithfully translated from the original, by
GEO. TAYLOR, Jux.
May 8, 1794.
The deductions from this author are,
1. That the neutral rights extend to every sort of merchandise, and even to arms or military stores, with certain restrictions, which do not affect grain.
2. That the places of an enemy, with which commerce is interdicted, are those only which are possessed by the. adversary power, or blocked up, so as to prevent the entrance of every stranger.
3. That treaties ol commerce have sometimes classed provisions among contraband, and sometimes among lawful merchandise, and
4. That a commerce in merchandises which do not serve directly or solely for war, is to be presumed lawful, when nothing has been regulated concerning it.
Which, sir, of these deductions confront the doctrines now advanced?
I anticipate, from a passage in your letter, the answer which will be made; that there is no other limitation upon the will of a nation to increase the number of contraband, than that treaties shall not be violated: if this were tenable, the law of nations, instead of being a stable rule, would fluctuate according to the caprice and force of the belligerent parties. But Martens obviates such a consequence by observing, that "these declarations are not so much laws, as notices or warnings." The law is, therefore, to be sought for elsewhere than in those notices—it must have existed before.
Let us now turn from the question of contraband to your second vindication of the instruction, namely, the probability of its successful operation against France. To this end you state", that "at the period of issuing the instruction, the situation of France was notoriously such as to point out the prevention of its receiving supplies, as one of the means of reducing it to reasonable terms of peace." And again, that "it is at least a questionable point, whether the interests of humanity be not best consulted by a recurrence on the part of the belligerent power to all honourable means of imposing on an enemy the necessity of submitting to reasonable terms of accommodation, and of thereby abridging the duration of the calamities of war," and that " the expectation of imposing this necessity is the motive, under the influence of which this instruction has been issued, and is the acknowledged ground of your former explanations of it," &c.
You will not conceive, sir, that I meddle with this branch of the subject farther, than the stress which you lay upon i.t demands. In defence therefore of the commercial risdit* of the United States, I must be pardoned for asking, if the actual situation of France does in truth afford a clear and unequivocal prospect of defeat by famine? The soil, the climate, the population, which can spare from war a quota for labour, the agriculture, the total of the internal resources of France, induce so much of doubt at least as to sanction our complaints against the check to our commerce. If the two seas which wash her territory, and her coasts of many hundred miles, can be so guarded as to render the importation of subsistence impracticable, if she cannot send forth naval convoys competent to protect her transports of provisions from abroad, still who can pronounce upon firm ground that she can be starved? If for the possible difficulty which a scantiness of external supplies might create, if from the possible clamours and tumult which the want of imported bread might stir up, or if from any other speculation, a neutral trade of many years standing is to be suppressed, some of the belligerent parties, in every war, will seize pretexts for harassing neutrals.
To counterbalance the innocence of individuals, and drive all from the course of their commerce, upon the vague suspicion, that the ruling power of France is gathering supplies under their names, as you seem to intimate, is to humiliate and to punish.
Vattel remains to be examined. "Commodities, he says, particularly used in war, and the importation of which to an enemy is prohibited, are called contraband goods; such are arms, military and naval stores, timber, horses, and even provisions in certain junctures; when there are hopes of reducing the enemy by famine.
Well might the principle which has been canvassed, the usage of nations, and the opinions of other respectable writers, be repeated to controvert this dictum. But without dwelling longer on such considerations, if the judge of these hopes of reducing the enemy by famine be one of the warring power*, it must be guided, upon this, as upon every other occasion, affecting an independent people, by the great duty, that " each nation ought to contribute all in its power to the happiness and perfection of other nations." It ought not to thwart, without demonstrable justice, the rights of another nation. It ought not to be seduced by sanguine expectations of advantage, to forget our full claim to whatsoever neutrals can reasonably require. At the very moment when our citizens were navigating the ocean, ignorant of any penalty which they had to avoid, as soon as the instructions had undergone the forms of office, they were the victims. Those who undertake to judge for us should remember what the impression must be, if the proclamation of the President of the United States reached London before they were published; that we were not advised of Great Britain having associated herself in the war through any official channel, for months after it had been brought hither by report, and that the instructions of the 8th of June, operating immediately, and not handed to us by you until the 12th of September, were disturbing our commerce for more than three months, before we were admonished of our danger.
Denmark and Sweden, it is true, are involved in the words of the first clause in the instructions. But if the late tables of Arnould are to be believed, the interest of those nations, in the direct exports of corn, meal, and flour to France, and the carrying trade in those articles thither, has received no wound, of which they greatly complain. So that in fact " Of the nations inhabiting the shores of the Atlantick ocean, and practising its navigation," the instructions essentially interfere with the United States alone.
2. With our rights thus fortified, we have no room for discussing the moderation which you attribute to the exercise of your pretensions. We are not free from injury by the exemption of rice, or the forbearance to confiscate corn, meal, and flour. We are not compensated for our injuries, because no more than two out of three of our agricultural productions are wrested from the channels, chosen for tnem by ourselves. Compute, sir, the value of those prohibited goods, and their importance to the growth of our shipping. Although it will always be a serious object to keep our rice markets unclogged, the losses - by the instructions are neither covered nor concealed by the indulgence to rice. Its freedom plainly speaks that France was not presumed to be relieved by it; or else the belief of a famine by arresting corn, meal, and flour, was vain. Hence the profit of this exportation would be an inadequate atonement even upon your own scale, for the rnher wrongs. Farther, the original destination of tin? voii. if. S