was frustrated by an exception of the "narrow seas", inserted by Lord St Vincent; an exception so evidently inadmissible both in principle and in practice, that it must have been intended as a pretext for evading the stipulation at that time. Perhaps the present ministry may neither be disposed to resort to such a pretext, nor unwilling to avail themselves of the precise sanction as far as it was given by their predecessors.

With respect to contraband which is the subject of the 4th art, it may be observed that as it excludes naval stores from the list, and is otherwise limited to articles strictly military, it must if admissible to Great Britain, leave but feeble objections to an abolition of contraband altogether. In the present state of the arts in Europe, with the intercourse by land, no nation at war with Great Britain can be much embarrassed by leaving those particular articles subject to maritime capture. Whilst belligerent nations therefore have little interest in the limited right against contraband, it imposes on neutrals all the evils resulting from suspicious and vexatious searches, and from questions incident to the terms used in the actual enumeration. It is not an unreasonable hope therefore, that in place of this article, an entire abolition of contraband may be substituted. Should this be found unattainable, it may be an improvement of the article, as it stands, to subjoin for the sake of greater caution, to, the positive enumeration, a negative specification of certain articles, such as provisions, money naval stores &c as in no case to be deemed within the meaning of the article, with a proviso, that the specification shall not be construed to imply in the least, that any articles not specified in the exception, shall on that account be liable to be drawn into question.

A doctrine has been lately introduced by the British Courts and at length adopted by the instructions of June 1803, to British Cruizers, which regards contraband conveyed in one voyage as affecting a resumed or return voyage, altho' the contraband shall have been previously deposited at its port of destination. It will be a further improvement of the article to insert a declaratory clause against this innovation, and the abuses incident to it.

The 4th article, besides the stipulation on the subject of contraband, relates to two other subject; 1st That of free ships free goods; 2nd that of a trade with enemy's Colonies.

1st With respect to the first, the principle that a neutral flag covers the property of an enemy, is relinquished, in pursuance of the example of the Russian Treaty on which the article is modelled; the relinquishment however being connected with and conditioned on, the provision required in favor of the neutral right to the Colonial Trade. The importance of that principle to the security of

neutral commerce, and to the freedom of the seas, has at all times been felt by the United States; and altho' they have not asserted it as the established law of nations, they have ever been anxious to see it made a part of that law. It was with reluctance, of course, that a contrary stipulation was authorized, and merely as a mean of obtaining from Great Britain, the recognition of a principle now become of more importance to neutral nations possessing mercantile capital, than the principle of "free ships free goods". It is to be particularly kept in view therefore that such a contrary stipulation is to be avoided if possible, and if unavoidable that the stipulation be so modified as to interfere as little as possible with the spirit and policy of any provisions in favor of the principle which may be likely to be introduced into a Treaty of peace among the present belligerent powers of Europe. Should it be known that Russia as well as France meant to insist on such a provision, and that such a stipulation by the United States however modified, will naturally affect her confidence and good will towards them, the objection to the measure will acquire a force that can yield only to the consideration that without such a sacrifice the provisions for the security of our seamen, and of our neutral commerce, cannot be obtained and that the sacrifice will effectually answer these purposes.

2a The vast importance of the Colonial trade, with the circumstances and the excitement which have taken place since the date of the original instructions to Mr Monroe, will require that the neutral right on this subject, be provided for in an appropriate article, and in terms more explicit than are used in the article under review. As the right in this case, turns on the general principle that neutrals may lawfully trade, with the exceptions of Blockades and contraband, to and between all ports of an enemy and in all articles, altho' the trade shall not have been open to them in time of peace, particular care is to be taken that no part of the principle be expressly or virtually abandoned, as being no part of the law of nations. On the contrary it is much to be desired that the general principle in its full extent, be laid down in the stipulation. But as this may not be attainable and as too much ought not to be risked by an inflexible pursuit of abstract right, especially against the example and the sentiments of great powers having concurrent interests with the United States; you are left at liberty if found necessary to abridge the right in practice, as it is done in the supplement of Octr 1801 to the Treaty of June of that year, between Russia and Great Britain; not omitting to provide that in case Great Britain should by her Treaties or instructions leave to any other nation the right in a greater extent than it is stipulated to the United States, they may claim the enjoyment of it in an equal extent.

42179-34--18

The abuses which have been committed by Great Britain under the pretext that a neutral trade, from enemy Colonies, through neutral ports, was a direct trade, render it indispensable to guard against such a pretext by some express declaration on that point. The most that can be conceded on the part of the United States, is that the landing of the goods, the securing the duties, and the change of the ship, or preferably the landing of the goods alone, or with the securing the duties, shall be requisite to destroy the identity of the voyage and the directness of the trade, and that the ordinary documents of the Custom House officers, shall be sufficient evidence of the facts or fact.

A satisfactory provision on this subject of a trade with enemy Colonies, is deemed of so much consequence to the rights and interests of the United States, and is so well understood to have been contemplated along with a like provision against the impressment of seamen, in the late act of Congress prohibiting the importation of certain classes of British manufactures, that, as was enjoined with respect to the provision against impressment, no stipulation is to be entered into not consistent with a continuance of that act, unless the provision with respect to the Colonial trade be also obtained.

In remoddelling the provision with respect to the Colonial trade. you may with great propriety urge a distinction between the West India Colonies and the very distant ones in the East Indies and elsewhere, and the reasonableness of limiting to the former, the exception of the direct trade with their parent Countries out of the general neutral right. The distinction is supported by several considerations, particularly by the greater difficulty, in the case of the more distant Colonies, of previously knowing, and eventually proving the regulations as they may have actually stood in time of peace; and by the ruinous delays and expences attending the judicial investigations. The British Courts have in fact admitted the distinction so far as to presume the lawfulness of the neutral trade with the East India Colonies, as being generally open in peace as well as war; whilst they reverse the presumption with respect to the West Indies.

In addition to what is proposed on the subject of blockades in the VI and VII articles, the perseverance of Great Britain in considering a notification of a blockade, and even of an intended blockade, to a foreign Government, or its Ministers at London, as a notice to its Citizens, and as rendering a vessel wherever found in a destination to the notified port, as liable to capture, calls for a special remedy. The palpable injustice of the practice, is aggravated by the auxiliary rule prevailing in the British Courts, that the blockade is to be held in legal force, until the Governmental notification be expressly re

scinded; however certain the fact may be that the blockade was never formed or had ceased. You will be at no loss for topics to enforce the inconsistency of these innovations with the law of nations, with the nature of blockades, with the safety of neutral commerce; and particularly with the communication made to this Government by order of the British Government in the year 1804; according to which the British commanders and Vice Admiralty Courts, were instructed "not to consider any blockade of the Islands of Martinique and Guadaloupe as existing unless in respect of particular ports which may be actually invested, and then not to capture vessels bound to such ports unless they shall previously have been warned not to enter them."

The absurdity of substituting such diplomatic notifications in place of a special warning from the blockading ships, cannot be better illustrated than by the fact, that before the notification of a proposed blockade of Cadiz in the year 1805 was received here from our Minister at London, official information was received from Cadiz, that the blockade had actually been raised by an enemy's fleet.

It may be worth your attention that a distinction has been admitted by the British prize Courts, in consideration of the distance of the United States from the European Blockades, between their Citizens and those of States less distant; the notice required for the former being more positive than is made necessary for the latter. You will be able to avail yourselves in the discussion, and perhaps in the modification of the article, of the reasons on which such a distinction rests.

I have [etc.]

50

JAMES MADISON

Treaty of Amity, Commerce, and Navigation between the United States and Great Britain, December 31, 18061

[Articles 8, 9, 10, and 11]

ARTICLE 8th

It is agreed, that in all Cases where Vessels shall be captured or detained on just suspicion of having on board Enemy's property, or of carrying to the Enemy any of the Articles which are Contraband of War, or for other lawful cause, the said Vessel shall be brought to the nearest or most convenient Port; And if any Property of an

1

Unperfected treaty. MS., Despatches from Great Britain, vol. XIV; printed in American State Papers, Foreign Relations, vol. III, pp. 147–151.

Enemy should be found on board such Vessel, that part only, which belongs to the Enemy, or is otherwise confiscable, shall be made Prize and the Vessel, unless by Law subject to condemnation, shall be at liberty to proceed with the remainder of the Cargo, without any impediment. And it is agreed, that all proper measures shall be taken to prevent delay, in deciding the Cases of Ships or Cargoes so brought in for adjudication, and in the payment or recovery of any indemnification, adjudged or agreed to be paid to the Masters or Owners of such Ships.

It is also agreed, that in all cases of unfounded detention, or other Contravention of the Regulations stipulated by the present Treaty, the Owners of the Vessel and Cargo so detained shall be allowed damages proportioned to the loss occasioned thereby, together with the Costs and Charges of the Trial.

ARTICLE 9th

In order to regulate what is in future to be esteemed Contraband of war, it is agreed that under the said denomination shall be comprised all Arms and Implements serving for the purposes of War, by Land or by Sea, such as Cannon, Muskets, Mortars, Petards, Bombs, Grenadoes, Carcasses, Saucisses, Carriages for Cannon, Musket-rests, Bandoliers, Gunpowder, Match, Salt-petre, Balls, Pikes, Swords, Head-pieces, Cuirasses, Halberts, Lances, Javelins, Horse-furniture, Holsters, Belts, and generally all other Implements of war; as also Timber for Ship-building, Copper in Sheets, Sail cloth, Hemp, and Cordage, and in general [with the exception of unwrought Iron and Fir-planks; and also with the exception of Tar and Pitch, when not going to a Port of Naval Equipment, in which case they shall be entitled to pre-emption]1 whatever may serve directly to the equipment of Vessels; and all the above Articles are hereby declared to be just objects of confiscation whenever they are to be attempted to be carried to an Enemy. But no Vessel shall be detained on pretence of carrying Contraband of war, unless some of the abovementioned Articles, not excepted, are found on board of the said vessel at the time it is searched.

ARTICLE 10th

Whereas in consideration of the distance, and of other circumstances incident to the situation of the High contracting Parties, it may frequently happen that Vessels may sail for a Port or Place belonging to an Enemy without knowing that the same is either besieged, blockaded or invested, it is agreed, that every vessel so circumstanced may be turned away from such Port or Place; but she