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of justice, and their own peculiar situation, forbid a resort to these means for any other purpose than the defence of their own rights, or a compliance with their own engagements. It was not a case in which force would have been deemed justifiable ; and the object, being unattainable by mutual consent, was unavoidably relinquished for the moment. Yet it was proper to enum mnerate the articles which were before contraband, and which continued to be fo, because that enumeration notified to the merchants of the United States the hazard which their commodities would encounter on the seas; and because, also, it prevents those vexatious altercations which might otherwise have been produced by the efforts of one party to swell, and of the other to reduce the list.
If, on the refusal of Britain to substitute any other rule concerning contraband, in the place of that established by the law of nations, France finds herself in a situation to be injured by an obfervance of her engagements with the United States, it is not the treaty with Britain, but that with France, which has produced this situation. This was foreseen when that treaty was entered into, and did not prevent it. The stipulation concerning contraband was formed when France was at peace and America at war; although that state of things did not long continue, yet its contimance was by no means deemed impossible. Notwithstand. ing this, the government of the United States has manifested a willingness to change this ftipulation as well as that which reSpects enemies property in neutral bottoms, so soon as France complained of them : of this the letter from Mr. Randolph to Ms. Adet, already quoted, affords conclufive testimony.
It appears then, on examining this objection to the treaty bea tween the United States and Britain, that it has not added to the catalogue of contraband a single article ; that it has ceded no privilege, has granted no right, and that it has not changed in the molt minute circumstance the pre-existing situation of the United States in relation either to France or to Britain. Notwithstanding these truths, the government of the United States has hastened to astire its former friend that, if the stipulations between them be found oppreslive in practice, it is ready to offer up these stipulations a willing facrifice at the shrine of friendship.
In vain will you search in this procedure for “a known and evident facrifice on the part of the United States of their connexions with this republic, and of the most essential and leaft contested prerogatives of neutrality.” In vain will you search for evidence of their “ having given to England, to the detriment of their first allies, the most striking inark of an inbounded condescenfion, by abandoning the limits given to contraDard by the law of nations, by their treaties with all other nali 2
tions, and even by those of England with the greater part of the maritime powers.”
The United States feel these reproaches as conscious innocence feels the imputation of guilt.
Secondly. It is also alleged, that “ the United States have consented to extend the denomination of contraband even to provilions. Instead of pointing out particularly, as all treaties do, the cases of the effective blockade of a place, as alone forming an exception to the freedom of this article, they have tacitly acknowledged the pretensions raised by England to create blockades in our colonies, and even in France, by the force of a bare proclamation." ..
The objections to this article shall be considered according to its letter, and according to its operations,
The objectionable words are" and whereas the difficulty of agreeing on the precise cales in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconvenience and misunderstandings which might thence arise; it is farther agreed, that whenever any such articles so becoming contraband according to the existing laws of nations, thall, for that reason, be seized, the same shall not be confiscated; but the owners thereof shall be speedily and completely indemnified; and the captors, or, in their default, the government under whose authority they act, shall pay to the masters or owners of such vessels the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight and also the demurrage incident to such detention."
The admissions contained in this case are: First, That provisions are not generally contraband; and that,
Secondly, They are sometimes contraband.
An effort was made to establish the precise cases in which alone they Nould be subject to seizure ; for America would only consent to consider them as contraband in the case of an effective blockade, liege, or investment of a place; while, on the part of England, this strict interpretation of the rule was not adınitted: but it was contended, that provisions became contraband when there were reasonable hopes of reducing the enemy by famine. In this opposition of sentiment, to what have the United States consented? “ To extend the denomination of contraband even to provisions"-" to acknowledge tacitly the pretensions raised by England to create blockades in your colonies, and even in France, by the force of a bare proclamation? "_" in a word, to have commerce only with England."-Reconsider the words theinfelves, and it will require no comment to prove how inapplicable to them are these assertions. The clause complained of having
stated stated the admillion of the difficulty already mentioned, proceeds to say—“ It is further agreed, that whenever any such articles fo becoming contraband according to the laws of nations, shall, for that reason, be seized, the same shall not be confiscated, but the owners thereof Mall be speedily and completely indemni-' fied." regulated by its price at the port of destination; and, confequently, the actual as well as axwed principle of such decifions was, that the goods seized had not become contraband, 66 according to the existing law of nations."
It is too clear to admit of contestation, that this clause does not declare provisions to be contraband, or admit of their seizure in any other cases than when, so according to the existing law of nations, they should become contraband ;' in such case, the right to seize them is not given by this article, but it is admitted by France, and by all the world, to exist independent of treaty. In such case, they would have been seized, had this ftipulation never been entered into, and would had been confiscated also. The only alteration which is, by the letter of the clause, produced in the law of nations, is, to exempt from confiscation goods which under that law would have been subject to it. .
But it has been suspected to have an object and an operation in practice different from its letter. It has been suspected to cover a design to admit substantially certain principles with respect to blockades which in theory are denied. * Incapable of duplicity, America, with the pride of conscious integrity, repels this infinuation, and courts an investigation of the facts on which it is founded.
The government of the United States and that of Britain' having construed the law of nations differently in this respect, each would have acted upon its own opinion of that law ; the privateers of England would have seized as contraband any goods deemed such in their courts of admiralty; and the government of the United States would have reclaimed such goods, and would have supported the demand in such a manner as its own judgment dictated. This procedure is not changed. The right to make such reclamations has not been relinquished, nor has the legality of thç seizure, in any other case than that of an attempt to enter a place actually invested, been in any degree admitted.
It is true, that the Britishıgovernment renewed the order concerning provisions about the time of the ratificarion of this Treaty; but it is not less true, that the government of the United States manifested a firm resolution to submit to no such construction, and remonstrated so seriously against it as to produce a revocation of the order. Nor is this all: claims for provisions seized in cases of a mere proclamation-blockade, have been actually made, and have been actually decided in favour of the claimants. The British government has acquiesced under such decisions, by paying the sums awarded. These fums were not limited to a realonable profit on the price of the commodity seized, but were
The intention of the government then, and the practice under the article, are in direct opposition to these injurious fufpicions, the indulgence of which has produced such pernicious effects. It is even believed that the decision on this subject will be one step towards the altablishment of that principle for which America has never ceased to contend. It is also believed, and has ever been believed, that the article objected to would have a neceflary tendency to increase, and did, in fact, increase the quantity of provilions imported from America into France and her colonies. The American commerce, being entirely in the hands of individuals, is consequently conducted by them according to their own views of particular advantage: they will' unquestionably endeavour to supply the highest market, unless re. Irained from doing so by other considerations which render it unadvisable to attempt such a supply. In their calculation, the risk of reducing the market is too important an item to be passed over or forgotten. Every diminution of this risk adds to the muumber of those who will attempt the supply ;, and consequently a knowledge that the voyage, should it even fail by the seizure of the vessel; would yet be profitable, must increase the number of those who would make it.
It is, plain then, that this article admits the seizure of provisions in no situation where they were not before seizable ; and encourages their transportation to France and her colonies, by diminishing the risk of such transportation.
It is also complained of, that this treaty has not, “ as all treavies do, pointed out particularly the cases of the effective blockade of a place," as alone forming an exception to the freedom of provilions,
Articles in a treaty can only be inserted by confent. The United States therefore can never be responsible for not having inserted an article to which the other contracting party would not aflent. They may refuse to make any change in the existing ftare of things prejudicial to themselves or to other powers; and they have refused to make any, such change: but it is not in their power to insert, as by common consent, an article, though merely declaratory of a principle which they considered as certainly existing, and which they mean to support if such common consent be unattainable. All that can be done in such a case is, to leave the principle unimpaired, reserving entirely the right to affent it. This has been done: the principle was left unimpaired, and has been fince successfully asserted,
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The United States are at all times truly solicitous to diminish as much as possible the list of contraband. It is their interest, in common with all other nations whose policy is peace, to en- . large, so far as they can be enlarged, the rights of neutrals. This interest is a sure guarantee for their using these means which they think calculated to effect the object, and which a just regard to their fituation will permit. But they must be allowed to pursue the object in such a manner as may comport with that situation. While they surrender no actual right, in preserving which there is a common interest, while they violate no pre-existing engagements (and these they have not surrendered or violated), they must judge exclusively for themselves how far they will or ought to go in their efforts to acquire new rights or eslablish new principles. When they surrender this privilege, they cease to be independent, and they will no longer deserve to be free. They will have surrendered in other hands the most sacred of deposits—the right of self-government; and instead of the approbation they will merit the contempt of the world.
Those parts of the treaty between the United States and Bri. "tain, which 'have been selected by France as injurious to her, have now been examined. The undersigned are too well convinced that they in no degree justify the enmity they are alleged to have produced, not to rely on a candid reconsideration of them as a sure mean of removing the impressions they are supposed to have made.
Before this subject is entirely closed, one other objection will be noticed. The very formation of a commercial treaty with England'seems to be reprobated, as furnishing just cause of offence to France; and Mr. Adet has permitted himself to say— • It was a little matter only to allow the English to avail themselves of the advantages of our treaty: it was necessary to assure those to them by the aid of a contract which might serve at once as a reply to the claims of France, and as peremptory motives for refusals; the true cause of which it was requisite incessantly to disguise to 'her under specious pretexts. Such was the object of Mr. Jay's million to London ; such was the object of a negotiation enveloped from its origin in the shadow of myrtery, and covered with the veil of diffimulation.”
Paffing over this extraordinary language, the underligned, being only desirous of producing accommodation by the exhibition of truth, will consider the opinion which is obliquely hinted, and the fact which is directly averred.
The practice of forming commercial treaties is so universal among other nations having any commercial intercourse with each other, that it seems unnecessary to discuss their utility. The right to form those treaties has been so universally asserted and admitted, that it seems to be the inseparable attribute of sovereignty
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