and contraband, to and between all ports of an enemy and in all articles, although that trade should not have been open in time of peace, they were to be careful that no part of the principle be expressly or virtually abandoned as being no part of the law of nations. On the contrary, they should try to lay down the general principle in its full extent in the stipulation. But as this might not be attainable, they were at liberty, if necessary, to abridge the right in practice. Great Britain's abuses, under the pretext that a neutral trade from enemy colonies through neutral ports was a direct trade, rendered it indispensable to guard against such a pretext by some express declaration on that point. Madison said the most the United States could concede was that the landing of the goods, the securing of the duties, and the change of the ship should be requisite to destroy the identity of the voyage and the directness of the trade; and that the ordinary documents of the customhouse officers should be sufficient evidence of the facts.

Regarding blockades, Madison called attention to a communication made to the United States by the British Government in 1804, according to which the British commanders and Vice Admiralty Courts were instructed not to consider any blockade of the islands of Martinique and Guadeloupe as existing "unless in respect of particular ports which may be actually invested."

The Treaty of Commerce and Navigation with Great Britain was signed December 31, 1806.1 Four articles of the treaty dealt with the neutral rights which are considered in this survey. Article 8 followed the seventeenth article of Jay's treaty in permitting the confiscation of enemy goods in neutral vessels. In specifying the causes for capture it added to enemy property and contraband of war, "or for other lawful cause," a phrase which did not appear in the treaty of 1794. Article 9 contained a contraband list similar to the one of 1794. In the enumeration of naval stores, however, it was provided that tar and pitch should be considered contraband only when going to a port of naval equipment, in which case they might be preempted but not confiscated. No mention was made of provisions becoming contraband. Article 10, although dealing with blockades, did not include a definition of them.

Article 11 provided that during the existing war all goods of European origin not contraband of war could be freely carried from the United States to a nonblockaded port of any colony belonging to the enemies of Great Britain, if such goods should have been previously landed in the United States and the ordinary duties on such articles should have been paid; and on reexportation should, after the drawback, remain subject to a duty equivalent to not less than one per cent 1 Document 50, p. 259.

ad valorem, if the said goods and vessels conveying them were bona fide property of citizens and inhabitants of the United States. It further provided that all noncontraband articles grown and produced in enemy colonies could be brought to the United States, and after having been landed there, could be freely carried from there to any European port, not blockaded, under the same conditions, except that the deduction from the drawback on reexportation should be two per cent instead of one. After the termination of the war the rights on both sides should revive and be in full force.

REJECTION OF THE TREATY OF 1806

On May 20, 1807, Madison wrote Monroe and Pinckney that the treaty of December 31, 1806, was not acceptable to the President, who desired that their efforts should be renewed with a view to altering the treaty in such a way as might render it acceptable to the United States.1 He stated that the eighth article was framed more accurately than the seventeenth in the treaty of 1794 but, as such general stipulations had not been found of much avail in practice and as it continued to be the President's wish to avoid, especially in the existing juncture, unnecessary confirmation of the principle that a neutral flag did not protect enemy property, an omission of the article was much preferred unless it was so altered as to be free from this objection. He said this could easily be done by substituting a general stipulation "that in all cases where vessels shall be captured or detained for any lawful cause, they should be brought to the nearest or most convenient port; and such part only of the articles on board as are confiscable by the law of nations shall be made. prize; and the vessel, unless by law subject also to confiscation, shall be at liberty to proceed &c." The only "lawful cause" other than those specified to which the right of capture was applicable was that of blockade, which might have been as easily specified as provided for by such a residuary phrase, which was susceptible of Interpretation as applying to the colonial trade. The specification of the two cases of enemy property and contraband of war Madison thought unnecessary to prevent uncertainty and controversy, as the United States had sufficiently manifested acquiescence in these causes of capture.

Madison considered article 9 an improvement over article 18 of the treaty of 1794, because it exempted tar and pitch from the list of contraband when not bound to a port of naval equipment and, when so bound, substituted preemption for forfeiture. However, he thought that the exception in favor of tar and pitch should have been extended to every species of naval stores equally applicable

1 Document 52, p. 263.

to other uses than those of war and destined to places other than those of naval equipment. Further he observed that even turpentine and rosin were not included with tar and pitch in the favorable exceptions, though of a character so kindred as to leave no pretext for the distinction. These considerations urged a further modification of the article and were strengthened by the great dislike of the President for formal regulations, at the time, of principles unfavorable to all neutral nations. The President was so firm in his disinclination to take any step tending to retard the progress of these principles, that naval stores were to be left on a stipulated list of contraband only in the event of an inflexible refusal of the British Government to omit them. They were not to be retained in any event, without an addition or explanation that would exempt turpentine and rosin as well as tar and pitch, and the list of contraband was to be omitted altogether if those four articles could not be included in the exemptions from it.

Since article 10 did not precisely define a blockade and since it was considered defective in other respects, Madison thought that it was less admissible to retain it than to trust to the law of blockade as laid down by all writers of authority and more especially as communicated to the United States by the British Minister in Washington.

Madison stated that the eleventh article could not be admitted unless freed from the conditions which restricted to the market of Europe, the reexportation of colonial produce, and to the colonial market, European articles. Great Britain, in the earlier years of the war, had "officially communicated " the principle that indirect trade through American neutral ports was as free from enemy colonies to every other part of the world as to Europe; and as free to such colonies in the articles of all the countries, as in European articles. According to the terms of article 11 and the general prohibitory principle lately assumed by Great Britain, to which it had an implied reference, the productions both of the continental and of the insular colonies in America could no longer be reexported to any part of Asia or Africa, or even of America. Furthermore importations from beyond the Cape of Good Hope could no longer be sent to the West Indies or the Spanish Main.

RULE OF THE WAR OF 1756

In a note of March 20, 1807, to the British Minister, Madison had stated his views on the rule of 1756.1 He said it was not a principle of the acknowledged law of nations that neutrals were

not permitted to trade from one to another port of the same belligerent nation, and it would be an innovation on that law, not before attempted, to extend the principle to a neutral trade between ports of different countries confessedly open in times of peace as well as of war.

Madison wrote the British Minister again on March 25, 1808, on the subject of neutral rights.1 As the British orders had made the French decree of blockade of the British Isles the immediate foundation of their destructive warfare on American commerce, he reminded the British Government of the illegal interruptions and spoliations suffered previous to that decree by the neutral commerce of the United States. He referred to the extensive aggressions on the trade of the United States founded on the plea of blockades never legally established, and to the still more extensive violations of commerce with ports of the enemies not pretended to be in a state of blockade. The United States was given to understand that the British Government had, as proof of its amicable disposition toward her, mitigated the authorized rigor it might have given to its measures. The first of these indulgences was a commercial intercourse with the dependencies of the enemies of Great Britain, and it was considered as enhanced by its being a deviation in favor of the United States from the "ancient and established principle of maritime law, prohibiting altogether such an intercourse in time of war." Madison mentioned the frequent and formal protests against this assumed principle. He asked how it could be characterized as an ancient and established principle when it was asserted by the British Government for the first time during the war of 1756 and was, in fact, invariably cited and described in all judicial and other official transactions, as "the rule of 1756." Furthermore, it was not an established rule, as Great Britain was the only nation that had acted upon or otherwise given sanction to it, and it was not even an established principle in the practice of Great Britain herself. Madison summarized a lengthy historical examination by stating that, with the exception of the very recent period, the principle had not been in operation in the British tribunals for a longer term than five years, while in no others had it ever made its appearance but to receive a decision protesting against it.

Secretary Smith, in instructions of August 1, 1809, to the Minister to the Portuguese Court in Brazil,2 stated that it was "considered of importance that the Government of Brazil should be brought to think and act with us on the subject of neutral rights." He then stated the American position regarding neutral rights, using almost

1 Document 53, p. 271.

2 Document 54, p. 275.

verbatim the language of Secretary Madison's instruction of March 14, 1806, in which a stand was taken against the rule of 1756 and in which the abolition of the doctrine of contraband of war advocated.1

PROPOSED TREATY WITH RUSSIA

In February, 1811, the Minister to Russia was given a project for a commercial treaty.2 The project included statements that trade was "only to be interdicted with enemies ports strictly blockaded;" no port or place was to be considered blockaded except particular ports actually invested by a competent naval force; and war carried on by either of the parties with a third power was not to affect the freedom of trade between the party remaining neutral and the other belligerent except in regard to blockades. Secretary Smith explained that "the vexatious stipulation with respect to contraband" was to be omitted. This proposed abolition of contraband was in accordance with arguments used by Secretary Madison on May 17, 1806.3

1 See p. 28.

2

3

Document 55, p. 275.

See p. 30.