will be conformable to equity, to reciprocity and to their mutual advantage.

I have the honor to be &c

TO JAMES MONROE

D: OF S. MSS. INSTR

SIR,

DEPARTMENT OF STATE April 12th 1805

The papers herewith inclosed explain particularly the case of the Brig Aurora.

The sum of the case is, that whilst Spain was at War with Great Britain, this vessel, owned by a citizen of the United States, brought a cargo of Spanish produce purchased at the Havana, from that place to Charleston, where the cargo was landed, except an insignificant portion of it, and the duties paid or secured, on a like cargo from whatever port, meant for home consumption; that the cargo remained on land about three weeks when it was reshipped for Barcelona in old Spain, and the duties drawn back, with a deduction of three and a half p cent as is permitted to imported articles in all cases, at any time within one year under certain regulations which were pursued in this case; that the vessel was taken on her voyage by a British cruizer and sent for trial to Newfoundland where the cargo was condemned by the Court of Vice Admiralty; and that the cause was carried thence by appeal to Great Britain where it was apprehended that the sentence below would not be reversed.

The ground of this sentence was, and that of its confirmation if such be the result, must be, that the trade in which the vessel was engaged was unlawful; and this unlawfulness must rest, first on the general principle assumed by Great Britain, that a trade from a Colony to its parent Country, being a trade not permitted to other Nations in time of peace, cannot be made lawful to them in time of war; secondly, on

the allegation that the continuity of the voyage from the Havana to Barcelona was not broken by landing the cargo in the United States paying the duties thereon and thus fulfilling the legal pre-requisites to a home consumption; and therefore that the cargo was subject to condemnation, even under the British regulation of Jany 1798 which so far relaxes the general principle as to allow a direct trade between a belligerent Colony and a neutral Country carrying on such a trade.

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 4th Vol of Robinsons Admiralty Reports.

Secondly, that the principle 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 a commerce

VOL. VII.-12.

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 her objects, in these relaxations is to give to her trade an immunity from capture, to which in her own lands 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 G. 3 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 licenced Commercial intercourse prevailed between Great Britain and her enemies, France, Spain & Holland, because it comprehended articles necessary 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 whilst she denies the right of the other belligerents to suspend their accustomed commercial restrictions in favour 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

a Mr. Billings, wherein it will be seen that American vessels and cargoes, after being condemned in British Courts under pretence 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?

Sixthly-It is particularly worthy of attention that the Board of Commissioners jointly constituted by the British and American Governments under the 7th Article of the Treaty of 1794, by reversing condemnations of the British. Courts founded on the British instructions of Novem. 1793, condemned the principles 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 did 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 cruizers and Courts.

But, apart from this general view of the subject, a refusal

to indemnify the sufferers, in the particular case of the Aurora, is destitute of every pretext; because in the second place, the continuity of her voyage was clearly and palpably broken, and the trade converted into a new character.

It has been already noted that the British regulation of 1798, admits a direct trade in time of War, between a belligerent Colony and a neutral Country carrying on the trade; and admits consequently the legality of the importation by the Aurora from the Havana to Charleston. Nor has it ever been pretended that a neutral Nation has not a right to reexport to any belligerent Country whatever foreign productions, not contraband of war, which may have been duly incorporated and naturalized, as a part of the Commercial stock of the Country re-exporting it.

The question then to be decided under the British regulation itself, is whether in landing the cargo, paying the duties, and thus as effectually qualifying the articles for the legal consumption of the Country, as if they had been its native production, they were not at the same time equally qualified with native productions, for exportation to a foreign market. That such ought to be the decision results irrestably from the following considerations:

Ist From the respect which is due to the internal regulations of every Country, where they cannot be charged with a temporizing partiality towards particular belligerent parties, or with fraudulent views towards all of them. The regulations of the United States on this subject, must be free from every possible imputation; being not only fair in their appearance, but just in their principles, and having continued the same during the periods of war, as they were in those of peace. It may be added that they probably correspond, in every essential feature relating to re-exportations, with the laws of other Commercial Countries, and particularly with those of Great Britain. The annexed outline of them by the Secretary of the Treasury, will at once explain their character, and