rapidly and eagerly spread itself among the public and private 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 fatal 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 he 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.

trabands and blockades. Neutrality is not a new state of things, as it respects the conduct of the neutral ;—he is placed in that situation by the conduct of other parties. The state of war or peace of a third party cannot, by any natural right, affect the right of a neutral nation to conduct its commerce, for neutrality is a continuation of its former condition. The condition of the belligerent is changed;-the right to disturb the condition of the neutral is, therefore, a conventional one. If the war opens a new course of trade in innocent articles, the neutral has a right to take advantage of it; he may in this way remunerate himself for the privations the laws of nations compel him to submit to. A neutral has a right to carry neutral commodities from one port to another of the mother country. Why not from a colony to the mother country? In time of war, the mother country may alter her commercial regulations ;-she may allow the neutral to export or to bring to her articles not permitted in time of peace. We see no difference, in this respect, between the trade of a colony and that of the mother country. Both are systems of monopoly; both subject to such commercial regulations as the parent state may choose to adopt. This right cannot be conceded to the belligerent, because it would really throw into his hands the principal part of the commerce of the world. The neutral has no interest in the war; and the just construction of the laws of war is, that they should abridge the rights of a third party to the smallest possible degree ;-for example, the whole business of contraband is one of convention. We allow, too, the legitimacy of a blockade only on the consideration, that the belligerent has actual possession of the waters, or the territory, and has the means of establishing and enforcing on it his own municipal regulations, precisely as he could do at home. Great Britain has, also, repeatedly suspended her own colonial acts, in time of war, and opened new trades to the neutral. Contrabands, as they are specified in most conventions, constitute but a very small portion, indeed, of the trade of every country. But to supply one belligerent with them, may do a vast injury to the other. On this ground, the neutral

foregoes the slight benefit of a trade in those articles. The colonial trade has a very different character. To arrest vessels, engaged in this business, upon any part of the ocean, is conceding to the belligerent the exercise of a great power, exerted in an oppressive manner.

war.

In itself the right of navigation is, of course, as unlimited as the ocean, and the right of commerce depends on the pleasure of the nation, whose ports we wish to frequent. The privileges of commerce do not depend upon the laws of nations, but upon the will of the parties; and these privileges are regulated by treaties. Nations are not under any obligation to account to the world for their commercial regulations; and regulations that depend upon treaties are (of course) not affected by a war in which either party may engage. War does not deprive neutrals of a single right,their commerce remains unshackled, with the exception of those articles, that are directly and immediately useful in Undoubtedly, it is for the benefit of the belligerent to contract as much as possible the trade of the neutral; but utility does not constitute a right. The neutral abandons the trade in contrabands because the belligerent considers these articles dangerous ;-it is difficult to understand why he should abandon a trade, perfectly innocent. If belligerents are allowed to cut off the trade of neutrals,—to abridge their commerce, it is difficult to conceive, why the neutral should not be allowed to profit by all the trade that is open. Great Britain allows a relaxation in her navigation laws in time of war ;-she allows a trade to a colony whose supplies are intercepted by the war. She allowed a license trade, to a very great extent, during the war with France from 1802 to 1811.* The rule of '56 annihilates the neutral character; it makes all trading nations parties to a war; it denies to a neutral the right of commerce during the war, for if the principle may be made to apply to a colony, it is obviously perfectly easy and just to transfer the whole seve

* From a statement, made to the House of Commons, it appears that 53,277 licenses to trade with the enemy, were granted during this period.

rity to the mother country. But, in truth, the belligerent has nothing to do with enforcing the municipal laws, the colonial acts of its enemy.

Mr. Pitt died in January 1806, and the formation of a new ministry in the beginning of February, in which Mr. Fox was Secretary of the Foreign Department, awakened hopes that American affairs would assume a more favourable aspect. No change, however, in the views or proceedings of government, took place. The new ministry appear to have imbibed the sentiments that governed former administrations. England had entered too deeply upon a system of policy, to be disturbed by the private or personal wishes or opinions of individuals. Nothing seemed to remain to ministers, from whatever political party they were taken, but to keep the nation firm and steady in its course. Mr. Fox died in September of the same year.

Our own government determined, at this time, to make a fresh and stronger effort for a maritime arrangement; not only induced to this step by a change of ministry in England, but feeling every day more and more the great necessity of securing a formal protection for neutral commerce. In May, a commission was issued, appointing Mr. Monroe, still resident in London, and William Pinkney, of Maryland, jointly and severally, ministers plenipotentiary and envoys extraordinary to the court of St. James.* They were directed to propose the terms of a convention more ample, and embracing a greater number of points, than the one unsuccessfully presented in 1804 by Mr. Monroe. These commissioners - concluded, on the 31st December 1806, a treaty of amity, navigation and commerce with lords Holland and Auckland. Although this instrument was not ratified by the United States, yet, as the most favourable arrangement ever made with Great Britain, it is in every view an important event in the diplomatic history of the country. We shall briefly

* It is proper to state in this place, that Anthony Merry, appointed in February 1803, succeeded Mr. Liston as envoy extraordinary and minister plenipotentiary. He remained till the appointment of Mr. Erskine.

state the principal provisions of it. The articles of the treaty of 1794, not expired, were confirmed in their full tenor;

-the trade to India was made a direct one ;* the treaty of '94 allowed any trade to, but only a direct trade from, the British possessions in the East Indies;-a reciprocal and perfect liberty of commerce and navigation was agreed on between the United States and British dominions in Europe. As to the West Indies, all parties remained in full possession of their rights; but the colonial trade (11th article) with an enemy's colony, was regulated in a manner satisfactory to this country. The commissioners were permitted, by their instructions, to adopt the principle, in relation to a colonial trade, that is found in the supplement of the treaty (added in October) of June 1801, between England and Russia. This was not a departure from the principle of the rule of '56, though not a full enjoyment of the right on the part of the belligerent; it was only an abridgment of the right. The United States could not consent to destroy the continuity of the voyage more than by landing the goods and securing the duties on changing the vessel. This is all the government could concede, and no other evidence of this fact could be furnished, than the documents of the custom house officers. The American government have never acknowledged the validity of the rule of '56; but as the commerce of the country had accommodated itself to the various relaxations, introduced since '92, and as this commerce was exceedingly valuable,—without renouncing any principle whatever, they were desirous of conferring upon it all the consistence and protection, circumstances would admit. precise meaning of the 11th article, taken in connexion with the British orders, instructions and decisions of courts, does not appear to have been altogether understood. At the time the convention was made, the only point in controversy, on the application of the rule of '56, between the two governments was, what constituted a continuity of a vogage.

The

* In this respect Jay's treaty was preferable, the homeward trade being only a direct one. A direct outward trade would be attended with many inconveniences to this country.