right to offer such a premium to preponderance of naval strength as is offered by the theory of belligerent rights as maintained in Great Britain."

Wharton, Com. Am. Law, § 242.

The last reason above stated refers to the rule, abandoned by Great
Britain at the time of the Crimean war, of seizing enemies' property
in neutral ships.

"With respect to the general principle which disallows to neutral nations, in time of war, a trade not allowed to them in time of peace, it may be observed:

"First. That the principle is of modern date; that it is maintained, as is believed, by no other nation but Great Britain, and that it was assumed by her under the auspices of a maritime ascendency, which rendered such a principle subservient to her particular interest. The history of her regulations on this subject shows that they have been constantly modified under the influence of that consideration. The course of these modifications will be seen in an appendix to the fourth volume of Robinson's Admiralty Reports.

Secondly. That the prinicple is manifestly contrary to the general interest of commercial nations, as well as to the law of nations, settled by the most approved authorities, which recognizes no restraints on the trade of nations not at war, with nations at war, other than that it shall be impartial between the latter; that it shall not extend to certain military articles, nor to the transportation of persons in military service, nor to places actually blockaded or besieged.

“Thirdly. That the principle is the more contrary to reason and to right, inasmuch as the admission of neutrals into a colonial trade shut against them in times of peace, may, and often does, result from considerations which open to neutrals direct channels of trade with the parent state, shut to them in times of peace, the legality of which latter relaxation is not known to have been contested; and inasmuch as commerce may be, and frequently is, opened in time of war, between a colony and other countries, from considerations which are not incident to the war, and which would produce the same effect in a time of peace; such, for example, as a failure or diminution of the ordinary sources of necessary supplies, or new turns in the course of profitable interchanges.

Fourthly. That it is not only contrary to the principles and practice of other nations, but to the practice of Great Britain herself. It is well known to be her invariable practice in time of war, by relaxations in her navigation laws, to admit neutrals to trade in channels forbidden to them in times of peace, and particularly to open her colonial trade, both to neutral vessels and supplies, to which it is shut in times of peace; and that one at least of their objects in these relaxa

tions is to give to her trade an immunity from capture, to which, in her own hands, it would be subjected by the war.

"Fifthly. The practice, which has prevailed in the British dominions, sanctioned by orders of council and an act of Parliament (39 Geo. III. c. 98) authorizing for British subjects a direct trade with the enemy still further diminishes the force of her pretensions for depriving us of the colonial trade. Thus we see in Robinson's Admiralty Reports, passim, that during the last war a licensed commercial intercourse prevailed between Great Britain and her enemies, France, Spain, and Holland, because it comprehended articles neces sary for her manufactures and agriculture, notwithstanding the effect it had in opening a vent to the surplus productions of the others. In this manner she assumes to suspend the war itself, as to particular objects of trade beneficial to herself, while she denies the right of the other belligerents to suspend their accustomed commercial restric tions in favor of neutrals. But the injustice and inconsistency of her attempt to press a strict rule on neutrals, is more forcibly displayed by the nature of the trade which is openly carried on between the colonies of Great Britain and Spain, in the West Indies. The mode of it is detailed in the inclosed copy of a letter from will be seen that American vessels and cargoes, after being condemned in British courts, under pretense of illicit commerce, are sent on British account to the enemies of Great Britain, if not to the very port of the destination interrupted when they were American property. What respect can be claimed from others to a doctrine, not only of so recent an origin, and enforced with so little uniformity, but which is so conspicuously disregarded in practice by the nation itself, which stands alone in contending for it?

wherein it

"Sixthly. It is particularly worthy of attention, that the Board of Commissioners, jointly constituted by the British and American Governments, under the seventh article of the treaty of 1794, by reversing condemnations of the British courts, founded on the British instructions of November, 1793, condemned the principle, that a trade forbidden to neutrals in time of peace could not be opened to them in time of war; on which precise principle these instructions were founded. And, as the reversal could be justified by no other authority than the law of nations, by which they were to be guided, the law of nations, according to that joint tribunal, condemns the principle here combatted. Whether the British commissioners concurred in these reversals, does not appear; but whether they did or not, the decision was equally binding, and affords a precedent which could not be disrespected by a like succeeding tribunal, and ought not to be without great weight with both nations, in like questions recurring between them.

"On these grounds the United States may justly regard the British captures and condemnations of neutral trade, with colonies of the enemies of Great Britain, as violations of right; and if reason, consistency, or that sound policy which cannot be at variance with either, be allowed the weight which they ought to have, the British Government will feel sufficient motives to repair the wrongs done in such cases by its cruisers and courts."

Mr. Madison, Sec. of State, to Mr. Monroe, min. to England, Apr. 12, 1805,
3 Am. St. Papers, For. Rel. 101.

The principle that “ a trade opened to neutrals by a nation at war, on
account of the war, is unlawful," has no foundation in the law of
nations. (Mr. Madison, Sec. of State, report of Jan. 25, 1806, MS.
Dom. Let.)

Mr. Monroe, in a dispatch to Mr. Madison, August 20, 1805, states that
the British position is declared by Lord Mulgrave to be "that a neu-
tral power had no right to a commerce with the colonies of an enemy
in time of war which it had not in time of peace, and that every
extension of it in the former state, beyond the limit of the latter, was
due to the concession of Great Britain, not to the right of the neutral
power." (3 Am. St. Papers, 105. For a conference with Mr. Fox on
this subject, see Mr. Monroe to Mr. Madison, April 28, 1806, 3 Am.
St. Papers, For. Rel. 118.)

For the proceedings of the board of commissioners under Art. VII. of the
treaty of 1794, referred to by Mr. Madison, supra, see Moore, Int.
Arbitrations.

"New principles

have been interpolated into the law of nations,
founded neither in justice nor the usage or acknowledgment of
nations. According to these a belligerent takes to himself a com-
merce with his own enemy which he denies to a neutral on the ground
of its aiding that enemy in the war; but reason revolts at such an
inconsistency, and the neutral having equal right with the belligerent
to decide the question, the interests of our constituents and the duty
of maintaining the authority of reason, the only umpire between
just nations, impose on us the obligation of providing an effectual
and determined opposition to a doctrine so injurious to the rights of
peaceable nations." (President Jefferson, annual message, Dec. 3,
1805, Richardson's Messages, I. 384.)

"The rights of a neutral to carry on a commercial intercourse with every
part of the dominions of a belligerent permitted by the laws of the
country (with the exception of blockaded ports and contraband of
war) was believed to have been decided between Great Britain and
the United States by the sentence of their commissioners mutually
appointed to decide on that and other questions of difference between
the two nations, and by the actual payment of the damages awarded
by them against Great Britain for the infractions of that right.
When, therefore, it was perceived that the same principle was revived
with others more novel and extending the injury, instructions were
given to the minister plenipotentiary of the United States at the court
of London, and remonstrances duly made by him on this subject, as
will appear by documents transmitted herewith. These were fol-
lowed by a partial and temporary suspension only, without any
disavowal of the principle. He has, therefore, been instructed to

urge this subject anew, to bring it more fully to the bar of reason,
and to insist on rights too evident and too important to be sur
rendered. In the meantime the evil is proceeding under adjudications
founded on the prinicple which is denied. Under these circumstances
the subject presents itself for the consideration of Congress." (Presi-
dent Jefferson, special message, Jan. 17, 1806, Richardson's Messages,
I. 395.)

The correspondence of Mr. Pinkney, United States minister at London,
in 1806-'08, with Mr. Canning, British foreign secretary, in refer
ence to the British orders in council affecting the trade of the
United States is found in 3 Am. St. Papers, For. Rel. 203, 221.
"To former violations [by Great Britain] of maritime rights another
is now added of very extensive effect. The Government of that
nation has issued an order interdicting all trade by neutrals between
ports not in amity with them; and being now at war with nearly
every nation on the Atlantic and Mediterranean seas, our vessels are
required to sacrifice their cargoes at the first ports they touch, or to
return home without the benefit of returning to any other market.
Under this new law of the ocean our trade on the Mediterranean has
been swept away by seizures and condemnations, and that in other
seas is threatened with the same fate." (President Jefferson, annual
message, Oct. 27, 1807, Richardson's Messages, I. 427.)

"The declaration which Her Britannic Majesty's Government proposes to issue is distinct in interdicting to neutrals the coasting and colonial trade with the belligerent, if not enjoyed by them previous to the war. In regard to this trade, you are aware that Great Britain asserted principles, in the wars resulting from the French revolution, before she issued her obnoxious orders in council, which this country held to be in violation of the law of nations. Should she still adhere to those principles in the coming conflict in Europe, and have occasion to apply them to our commerce, they will be seriously controverted by the United States, and may disturb our friendly relations with her and her allied belligerents. The liberal spirit she has indicated in respect to the cargoes under a neutral flag, and neutral property which may be found on board of enemies' ships, gives an implied assurance that she will not attempt again to assert belligerent rights, which are not well sustained by the well-settled principles of international law."

Mr. Marcy, Sec. of State, to Mr. Buchanan, Apr. 13, 1854, H. Ex. Doc. 103, 33 Cong. 1 sess. 12, 13.

Neutrals, in their own country, may sell to belligerents whatever belligerents choose to buy. The principal exceptions to this rule are, that neutrals must not sell to one belligerent what they refuse to sell to the other, and must not furnish soldiers or sailors to either; nor prepare, nor suffer to be prepared within their territory, armed ships or military or naval expeditions against either. Neutrals also may convey to belligerent ports not under blockade whatever bellig

crents may desire to take, except contraband of war, which is always subject to seizure when being conveyed to a belligerent destination, whether the voyage be direct or indirect; such seizure, however, is restricted to actual contraband, and does not extend to the ship or other cargo, except in cases of fraud or bad faith on the part of the owners, or of the master with their sanction.

The Bermuda, 3 Wall. 514, 551.

"There is no law of the United States which authorizes the refusal of a clearance to a vessel bound to a port in a state of insurrection, or the imposition of any penalty for the entrance of a United States vessel into such a port for commercial purposes only. The just belligerent rights, however, of all powers, engaged in civil or foreign war, so far as those rights may be invaded by citizens of the United States, are, it is conceived, amply protected by the act of Congress of the 20th of April, 1818."

Mr. Marcy, Sec. of State, to Mr. Almonte, Mexican min., May 14, 1855,
MS. Notes to Mex. VII. 23.

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