reasoning which in these authors applies to all cases of this sort, is certainly much more applicable to the present case, in which the distress results from the unusual mode of war employed by the enemy himself, in having armed almost the whole laboring class of the French nation, for the purpose of commencing and supporting hostilities against all the governs ments of Europe; but this reasoning is most of all applicable to the circumstances of a trade, which is now in a great measure entirely carried on by the actually ruling party of France itself, and which is therefore no longer to be regarded as a mercantile speculation of individuals, but as an immediate operation of the very persons who have declared war, and are now carrying it on against Great Britain. On these considerations, therefore, the powers at war would have been perfectly justifiable if they had considered all provisions as contraband, and had directed them, as such, to be brought in for confiscation. But the present measure pursued by His Majesty's Government, so far from going to the extent which the law of nations and the circumstances of the case would have warranted, only has prevented the French from being supplied with corn, omitting all mention of other provisions; and even in respect to corn, the regulation adopted is one which, instead of confiscating the cargoes, secures to the proprietors, supposing them neutral, a full indemnity for any loss they may possibly sustain."1

Protest of United
States.

On the other hand the United States declared that the position that provisions were contraband in the case where the depriving an enemy of these supplies is one of the means intended to be employed for reducing him to reasonable terms of peace," or in any case but that of a place actually blockaded, was "entirely new;" that reason and usage had established "that, when two nations go to war, those who choose to live in peace retain their natural right to pursue their agriculture, manufactures, and other ordinary vocations; to carry the produce of their industry, for exchange, to all nations, belligerent or neutral, as usual; to go and come freely, without injury or molestation; and, in short, that the war among others shall be, for them, as if it did not exist." To these mutual rights nations had allowed one

1 Mr. Hammond, British minister, to Mr. Jefferson, Sec. of State, September 12, 1793. (Am. State Papers, For. Rel. I. 240.) The word "corn comprehended the seeds of cereals generally, as wheat, barley, rye, and oats, and more especially wheat. (Fiske, Discovery of America, I. 182.)

exception that of furnishing implements of war to the belligerents, or anything whatever to a blockaded place. Implements of war destined to a belligerent were treated as contraband, and were subject to seizure and confiscation. Corn, flour, and meal were not of the class of contraband, and consequently remained articles of free commerce. The state of war between Great Britain and France furnished neither belligerent with the right to interrupt the agriculture of the United States, or the peaceable exchange of its produce with all nations. Such an act of interference tended directly to draw the United States from the state of peace in which they wished to remain. If the United States permitted corn to be sent to Great Britain and her friends, and refused it to France, such an act of partiality might lead to war with the latter power. If they withheld supplies of provisions from France, they should in like manner be bound to withhold them from her enemies also, and thus to close to themselves all the ports of Europe where corn was in demand, or else make themselves a party to the war. This was a dilemma into which no pretext for forcing the United States could be found. Great Britain might, indeed, "feel the desire of starving an enemy nation; but she can have no right of doing it at our loss, nor of making us the instrument of it."1

For the purpose of regulating the execution Order as to Freight of the order in council of the 8th of June 1793, and Expenses. the admiralty adopted an order to the effect that freight and reasonable expenses should be allowed to all masters of neutral ships, if no mala fides or prevarication should appear or be justly presumed or suspected. Demurrage however was allowed as a reasonable expense only where the proceedings of the captor were unjust, irregular, or injurious, or where the ship was unduly detained."

Mr. Jefferson, Sec. of State, to Mr. Pinckney, minister to England, September 7, 1793, (Am. State Papers, For. Rel. I. 239); same to Mr. Hammond, British minister, September 22, 1793 (Id. 240). See also Mr. Pinckney to Lord Grenville, undated (Id. 449); Mr. Hammond to Mr. Randolph, Sec. of State, April 11, 1794 (Ibid.); Mr. Randolph to Mr. Hammond, May 1, 1794 (Id. 450).

The text of the order of the admiralty is as follows:

"Ordered, That freight and reasonable expenses shall be allowed to all masters of neutral carrier ships, and be a charge upon the cargoes, whether condemned or restored, or ordered for further proof of neutral property: Provided always, That no mala fides, or prevarication, shall appear, or be

Order in Council, November 6, 1793.

On the 6th of November 1793 a new order in council was issued by which British ships of war and privateers were directed to “stop and detain all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony," and to "bring the same, with their cargoes, to legal adjudication in our courts of admiralty."1

By the doctrine of the British prize courts known as the Rule of the War of 1756, because it was first applied in that war, all trade was forbidden to neutrals in time of war that was not open to them in time of peace.2

justly presumed, or suspected, on the part of any neutral master, and that such neutral master shall make oath that such freights are not already paid for, or engaged to be paid for by the owners of the said cargoes, in view of every event of capture, or otherwise. Demurrage shall be allowed, and considered as a reasonable expense, only in cases where the ship shall be pronounced to have been unjustly seized and brought in for adjudication, or bulk broken, and his Majesty's instructions disobeyed, or where there has been actual and wilful damage done, and misusage of persons or property by the captor, or when the time of detention for the purpose of unlivery of the cargo, or repairing such damage, shall exceed the time specified in the charter party, or when the neutral master shall not refuse or neglect to take away his ship upon bail offered to be given by the captors for freight, and reasonable expenses. That, where the value of corn, and naval stores, sold to his Majesty, shall be decreed to be paid to any neutral claimant, the owner, in cases where such corn, provisions, and other naval stores, by any treaty or particular stipulation, shall be held to be not coutraband, and so not confiscable, the captor who shall have brought in such privileged ships and cargoes, in consequence of his Majesty's orders and instructions, and who shall have given bail to be auswerable, upon delivery of the same, for freight and reasonable expenses, in case that any shall be allowed, shall be discharged from his bail; but that the freight, and such reasonable expenses, shall be decreed to be added to the price of the cargo, and to be paid for by his Majesty to the neutral owner, in cases of restitution, and in cases of condemnation shall be added, in like manner, to the price of the cargo, and paid to the captor by his Majesty.

"Freights and reasonable expenses, where captors and claimants can not agree, shall be referred to be settled by the deputy registrar, and merchants appointed by the court; the report, nevertheless, shall be subject to revisal by order of the court, upon objections made by either party." (Am. State Papers, For. Rel. I. 315.)

Am. State Papers, For. Rel. I. 430; Mr. Randolph, Sec. of State, to Mr. Hammond, British minister, May 1, 1794 (Id, 450).

2 See Madison's "Examination of the British doctrine which subjects to capture a neutral trade not open in time of peace." (Madison's Works, II. 229.)

The "literal purport" of the order of November 6, 1793, "went to destroy all neutral trade with the French colonies, even that which had been allowed in time of peace."1

Under it and the order of the 8th of June many American vessels were captured and, with their cargoes, taken before the admiralty courts for condemnation or such other sentence as the nature of the case and the terms of the orders might seem to justify.

The order issued on the 6th of November Order in Council, 1793 was not published till the 23d of the folJanuary 8, 1794. lowing month. On the 8th of January 1794 it was superseded by a new order in council, by which the direction to seize and bring in for legal adjudication "all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony," was modified so as to include (1) ships "laden with goods the produce of the French West India Islands, and coming directly from any port of the said Islands to any port in Europe;" (2) ships "laden with goods the produce of the said islands, the property of which goods shall belong to subjects of France;" (3) ships "found attempting to enter any port of the said islands, that is or shall be blockaded by the arms of His Majesty or his allies;" (4) and "all vessels laden wholly or in part with naval or military stores, bound to any port of the said islands."2

Hildreth, History of the United States, 1V. 481.

2 The text of the order is as follows:

"GEORGE, R.

"Instructions to the commanders of our ships of war and privateers that have or may have letters of marque against France. Given at our Court at St. James's, the 8th day of January, 1794.

"Whereas by our former instruction to the commanders of our ships of war and of privateers, dated the 6th day of November, 1793, we signified that they should stop and detain all ships laden with goods and produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony, and should bring the same with their cargoes to legal adjudication: We are pleased to revoke the said instruction, and in lieu thereof, we have thought fit to issue these our instructions, to be duly observed by the commanders of all our ships of war and privateers that have or may have letters of marque against France.

"1. That they shall bring in for lawful adjudication all vessels, with their cargoes, that are laden with goods the produce of the French West India Islands, and coming directly from any port of the said islands to any port in Europe.

"2. That they shall bring in for lawful adjudication all ships with their 5627-20

While the order of January 8, 1794, was far from conceding all that the United States claimed to be due under the law of nations, yet it served to allay the excitement which the orders of 1793 had produced, and to cause the abandonment of various retaliatory measures which had been undertaken.' It varied the instructions of the 6th of November (1) in substituting "the French West India Islands" for "any Colony of France," of which there were some not islands and others not West India Islands; (2) in limiting the seizure to produce "coming directly" from any port of those islands; (3) in limiting seizures to vessels bound from those islands to any port "in Europe."2 Of all the limitations the last was the most important, since it permitted the importation of the produce of the French West Indies into the United States, and its exportation from thence to European ports. This indirect trade, though it involved the payment of duties in the United States as the price of its existence, soon assumed large proportions."

In the instructions given by Edmund RanJay's Instructions. dolph, as Secretary of State, to Mr. Jay, on the 6th of May 1794, with reference to the latter's special mission to England, the first topic discussed

cargoes, that are laden with goods the produce of the said islands, the property of which goods shall belong to subjects of France, to whatsoever ports the same may be bound.

"3. That they shall seize all ships that shall be found attempting to enter any port of the said islands, that is or shall be blockaded by the arms of His Majesty or his allies, and shall send them in with their cargoes for adjudication, according to the terms of the second article of the former instructions, bearing date the 8th day of June, 1793.

"4. That they shall seize all vessels laden wholly or in part with naval or military stores, bound to any port of the said islands, and shall send them into some convenient port, belonging to his Majesty, in order that they, together with their cargoes, may be proceeded against according to the rules of nations." (Am. State Papers, For. Rel. I. 431.)

1 By a joint resolution of March 26, 1794 (1 Stats. at L. 400), Congress laid an embargo for thirty days on all ships and vessels in ports of the United States bound for any foreign port or place. By a resolution of April 18 (Id. 401) this embargo was continued until May 25. (See Am. State Papers, For. Rel. I. 474.) By an act of June 4, 1794 (1 Stats. at L. 372), to continue in force till fifteen days after the commencement of the next session of Congress, the President was authorized to lay a similar embargo whenever in his opinion the public safety should require it. By an act of May 22, 1794 (Id. 369), the exportation of munitions of war was prohibited for a year, and their importation free of duty was authorized for two years. Madison's Works, II. 313.

3

It was put an end to in 1806 by the decision of Sir William Scott in the case of the Essex. (Adams's History of the United States, III. 44, 63, 416.)