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We have remarked in a preceding chapter that the treaty of 1794 in reality settled but few of the important points in discussion. If Europe had relapsed into its original condition of peace and quietness, this circumstance would have presented itself to the mind with little relief; but subsequent events gave to those questions an importance, no one could have anticipated. As the power of France increased on the land, that of England seemed, with corresponding industry and activity, to magnify itself on the ocean ;-fresh conquests led to new blockades, and retaliation became a pretext for renewed and aggravated outrages on neutral rights. They were repeated and enforced every year with increased severity and an alarming augmentation of power, till a place of refuge or safety could be found for the neutral, neither on the ocean, nor in any part of the continent of Europe. The peace, or rather truce of Amiens, afforded a momentary respite, but with that slight exception, it must be considered that the two belligerents actually waged a maritime war upon America from the year 1792 to 1812. Rufus King, of New-York, was appointed in May '96 minister plenipotentiary to the court of St. James, and remained till 1803, in that country.* He discussed in a full and satisfactory manner the principal provisions of maritime
* We shall give in this note a continuation, from the last chapter, of the hostile acts of Great Britain :
Horatio Nelson declared Cadiz to be in a state of
"1797, April 11. blockade.
"1799, March 22. All the ports of Holland declared in a state of rigid blockade.
"1799, Nov. 27.
The blockade of March suspended.
"1803, June 24. Instructions issued, not to interrupt the direct trade between neutrals and the colonies of enemies, unless, upon the outward passage, contraband articles had been furnished by the neutrals.
"1804, January 5. declared in blockade.
Certain ports of Martinique and Guadaloupe The siege of Curacoa converted into blockade. "1804, August 9. A rigorous blockade established at the entrances of the ports of Fecamp, St. Valiery, and other places on the French coast."
law, in which the United States feel an interest, though with the exception of two conventions in relation to the treaty of '94, already mentioned, he did not succeed in agreeing on any formal instrument, regulating the commerce or defining the rights of neutrals. To the article of impressment, Mr. King gave particular attention, and made great progress in securing an arrangement that would have afforded essential protection to our seamen. But it failed from a cause that will be hereafter mentioned. Violations of neutral rights, though very galling, were trifling during his residence in England, compared with those of the preceding or succeeding years. Mr. King returned to this country in 1803, and was succeeded by James Monroe of Virginia.*As it will be necessary to examine with some attention the points. in dispute between the two countries, in giving an account of the treaty concluded with the British government in 1806 by Messrs. Monroe and Pinkney, we have presented only a very brief summary of Mr. King's negotiations. For the same reason, we shall pass rapidly over the diplomatic intercourse of Mr. Monroe. Early in 1804 he proposed to the British ministry, by direction of his government, a convention regulating the right of search, blockades, contrabands, &c. A copy of this document will be found in the state papers for that year. The war, between France and England, having been renewed in 1803, the British government hav, ing given indications of returning to her former maritime pretensions, and in consequence of the peace of Amiens, the commercial part of the treaty of London having expired in the autumn of the preceding year, it was matter of very pressing importance, not only that the rights of the neutral should be finally ascertained and secured, but that the trade of Great Britain and the United States should be placed upon a firmer and more permanent footing than the law of the respective countries afforded. From that period to the year 1815, the whole American commerce to the British
* Robert Liston (afterwards Sir Robert Liston) succeeded Mr. Hammond, as envoy extraordinary and minister plenipotentiary. He was appointed in March 1796.
possessions, in every part of the world, rested upon the uncertain and most unsatisfactory protection of acts of Parliament. Undoubtedly, it might be expected, that mutual interest would maintain, on both sides, a continuance of such regulations, as should be just and equal. But the convention, submitted to lord Hawkesbury by Mr. Monroe, embraced only articles having a reference to our maritime rights; it failed, for the same reason that all other negotiations of the like tenor have failed, with the British government.
Matters stood in this situation till August, 1805, when, by an instruction of the British government, of the 17th, the "direct trade with the enemies' colonies was made subject to restrictions." This revived, in full force, the celebrated rule of the war of 1756. Few acts of the belligerents have more deeply wounded the rights of this country or done a more serious mischief to its commerce. We shall take an opportunity, in this place, in order to avoid future repetition, to compress into a brief form those general considerations, that belong to the history, application and justice of this assumed principle of maritime law.*
This rule, generally called the rule of the war of '56, was then first universally promulgated, and applied in strict rigour, though it existed previous to that time, particularly in 1744.† An impression has generally prevailed, that it was not exercised during the war of the revolution; but Robinson, in the note to which we have just referred, furnishes undoubted evidence to the contrary; and, if the application was not universal, it was only because some of the enemies' colonies had been opened before the war, for
* We refer the reader to a work, entitled "An Examination of the British Doctrine, which subjects to Capture a Neutral Trade, not open in time of peace." This dissertation was understood to have been written by Mr. Madison. One of the best productions on the other side, is "War in disguise, &c." by Mr. James Stephen, who made himself conspicuous, as a member of Parliament, on the American question. We shall, shortly, have occasion to refer to his speech on the orders in council.
Robinson's Reports, vol. vi. Append. Note.
the purpose of supplying them with provisions. Here the colonial trade was not altered (flagrante bello) by the pressure of the enemy. In the admiralty courts, the principal discussions have been on the modifications or relaxations of the rule. We shall give the general principle in the words of the author before quoted:
"The fundamental maxim of the trade being founded on a system of monopolizing to the parent state, the whole trade to and from her colonies, in time of peace, it is not competent to neutral states, in time of war, to assume that trade on particular indulgences, or on temporary relaxations, arising from the state of war. Such a trade is not entitled to the privileges and protection of a neutral character."—" The neutral has a right to carry on his accustomed trade. In time of peace, he is excluded from the colonial trade; he, therefore, suffers no injury, in being excluded from it in time of war. If he is admitted to it, it is only in consequence of the pressure of the enemy. But a neutral has no right to interpose in a war, and afford aid to one of the belligerents. Whenever suspensions of the colonial system have been enacted by the mother country, before war, the admiralty has always respected them flagrante bello."
The British government maintained, from the time the war with France began in 1792, to the peace of Amiens in 1802, and again upon the renewal of the war in 1803 till 1805, the substance and spirit of this rule. They did not allow the direct trade between the colonies and the mother country, but various relaxations mitigated the severity of the application. An indirect trade was permitted, and as proof, the courts required no other state of things than that the goods should have been fairly imported, and the duties paid on them; a continuation of the voyage was, therefore, made to depend upon the evidence furnished. But the court of appeal, in the case of the Essex, in 1805, established that the trade was illegal, the continuity of the voyage not being broken. The sole reason of this extraordinary decision was, that the duties on the cargo had not been paid in money, but by a bond of the importer, a distinction, that embraced the whole foreign trade of the United States. The decision
rapidly and eagerly spread itself among the public and pri vate armed vessels of Great Britain; and in the course of a few months, the ports of that country were crowded with American vessels for trial.*
The rule of '56, and its modifications, or relaxations, are liable to numerous objections. A colony is part of a country, and, therefore, as much subject to commercial regulations as any other part of the country. In peace, the parent state has the whole monopoly of a colony; in war, it has the same right to regulate its trade. A belligerent can acquire no rights to the territory of another, but by conquest; or to control its trade, except upon the acknowledged principles of blockade or contraband, so far as the neutral is concerned. If neutrals are allowed to have, in war, only the trade permitted in time of peace, it is obvious, that as few limitations as possible should be put to this trade; for war, at the best, cuts off a great deal of trade, in the customary form of con
* This decision of the Court of Appeals is not a deviation from the strict principle of the English government, in regard to the trade of a neutral with an enemy's colony; but it was exceedingly fata! to the American commerce, from the circumstance, that the whole trade which it interrupted, had been safely and confidently conducted since, at least, 1801, not only under the protection of an opinion of the king's advocate general, officially communicated, but also of the order of August 1803. That instruction has, already, been cited; but in 1801, the minister in England, Mr. King, having protested against certain decisions of the viceadmiralty courts, Lord Hawkesbury notified to him, in a formal manner, the opinion of the principal law officer of the crown, which is in these words:"The high court of admiralty have expressly decided (and I see no reason to expect that the court of appeals will vary the rule), that landing the goods and paying the duties in the neutral country, breaks the continuity of the voyage, and is such an importation as legalizes the trade; though the goods be reshipped in the same vessel, and on account of the same neutral proprietors, and forwarded for sale to the mother country."-The decision of 1805 was founded on this consideration, that as the duties were not actually paid, the greater part being returned in the shape of debentures (a provision of the custom house laws of this country, with which the English do not appear to have been acquainted), the importation was not a bona fide one. See judgment of Sir William Grant, in case of William.-Robinson, vol. v. p. 387.