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is their interest to consent; and that, considering the obstacles which lie in the way, the attainment of the object must be "a work of time." It presupposes, in some of the principal maritime powers, a great change of ideas, which is not to be looked for very suddenly. It was not, therefore, to have been expected of our envoy, that he was to have accomplished the point at so premature and so unfavorable a juncture.

The assertion, that he has abandoned it, is made in too unqualified a manner. For while he admits the operation for the present, of the general rule of the law of nations, he has, by the 12th article, engaged Great Britain in a stipulation, that the parties will, at the expiration of two years after the existing war, renew their discussion, and endeavor to agree whether in any, and what cases neutral vessels shall protect enemy's property. It is true, it will be in the option of Great Britain then, to agree or not: but it is not less true that the principle is retained with consent of Great Britain in a negotiable state. So far perhaps some ground has been retrieved.

I confess, however, that I entertain much doubt as to the probability of a speedy general establishment of the rule, that friendly ships shall make friendly goods, and enemy ships enemy goods. It is a rule against which, it is to be feared, the preponderant maritime power, to whatever nation this character may belong, will be apt to struggle with perseverance and effect, since it would tend to contract materially the means of that power to annoy and distress her enemies, whose inferiority on the sea would naturally cause their commerce, during war, to be carried on in neutral bottoms. This consideration will account for the resistance of Great Britain to the principle, and for the endeavors of some other powers to promote it-and it deserves notice, that her last treaty with France was severely assailed by some of the chiefs of opposition, for containing a stipulation in favor of that principle. The motive for consenting to it, in this instance, probably was, that the stipulation was likely to be rendered, in a great degree, nugatory by the relative situation of the two nations, which, in almost any war in which one of the two was engaged on one side, would probably render the other a party on the opposite side.

If these conjectures be right, there is a reflection which lessens much the value of stipulations in favor of the rule; that so long as one or more of the maritime powers disavow it, there will be a strong temptation to depart from a scrupulous observance of such stipulations, as we, in relation to France, have experienced in the present war.

In the course of the arguments against the 17th article, for virtually admitting the right of search in time of war, the objectors have had the temerity to cite the opinion of Vattel, as being opposed to that right; and a mutilated quotation has given an appearance of truth to the assertion. It has been heretofore shown, by passages extracted from his work, that his opinion, so far from denying explicitly, supports the right to search. But it may be useful to examine the part of it which has been tortured into a contrary inference.

After affirming the right of search (B. 3, chap. 7, 8. 14) he proceeds thus: "but to avoid inconveniences, violence, and every other irregularity, the manner of the search is settled in the treaties of navigation and commerce. According to the present custom, credit is to be given to certificates and bills of lading produced by the master of the ship." Hence it is alleged the right to search is turned into the right of inspecting the ship's papers, which, being entitled to credit, are to preclude further scrutiny.

But what immediately follows, destroys this conclusion; the words "unless any ground appear in them, or there be very good reasons for suspecting their validity," are subjoined to the clause just quoted. This admits clearly, that the ship's papers are not to be conclusive-but that, upon just cause of suspicion, the papers may be disregarded, and the right of search may be exercised.

Who is to be the judge of the credit due to the papers and of the just cause of suspicion? Manifestly the officer of the belligerent party, who visits the neutral vessel. Then what does the whole amount to? Merely this-that ship's papers are enti tled to a certain degree of respect and credit; how much, is left to the discretion of the officer of the belligerent party!—who, if he be not satisfied of the fairness and validity of the papers, may

proceed to their verification, by a more strict and particular search, and then if he still sees, or supposes he sees, just cause of suspicion, he may carry the vessel into a port of his own country, for judicial investigation. In doing this, he acts at his peril, and for an abuse of his discretion exposes himself to damages and other punishment.

This is the true and evident sense of Vattel, and it agrees with the doctrine advocated in these papers, and, I will add, with the treaty under examination.

The 17th article admits, that the vessels of each party for just cause of suspicion of having on board enemy's property, or of carrying to the enemy contraband articles, may be captured or detained, and carried to the nearest and most convenient port of the belligerent party, to the end that enemy's property and contraband articles aboard may become lawful prize. But so far from countenancing any proceeding without just cause of suspicion, or from exonerating the officer of the belligerent party from a responsibility for such proceeding, it leaves the law of nations, in this particular, in full force, and contemplating that such officer shall be liable for damages, when he proceeds without just cause of suspicion, provides that all proper measures shall be taken to prevent delay in deciding the cases of ships or cargoes brought in for adjudication, or in the payment or recovery of any indemnifica tion adjudged or agreed to be paid to the masters or owners of such ships. Besides which, the 19th article stipulates, in order that more abundant care may be taken for the security of the respec tive subjects and citizens of the contracting parties, and to prevent their suffering injuries by the men-of-war and privateers of either party, that the commanders of ships of war and privateers, shall forbear doing any damage to those of the other party, committing any outrage against them; and that if they act to the contrary, they shall be punished, and shall also be bound in their persons and estates, to make satisfaction and reparation for all damages, and the interest thereof, of whatever nature the said damages may be. And further, after establishing that the commanders of privateers shall, before they are commissioned, give security to satisfy all damages and injuries, it adds, that in all

cases of aggressions their commissions shall be revoked and annulled.

These provisions not only conform to, and corroborate the injunctions of the laws of nations, but they refute the assertion, that the treaty is altogether deficient in precautions for guarding neutral rights; since those above-mentioned are among the most efficacious. It is not presumable that any stipulations have been or can be made which will take away all discretion from the marine officers of the belligerent parties; for this would be a total surrender of the rights of belligerent to neutral nations, and so long as any discretion is left, its right or wrong exercise will depend on the personal character of each officer; and abuses can only be restrained by the penalties that await them. Those stipulations of treaties, then, which reinforce the laws of nations. as to the infliction of penalties, are the most effectual of the precautions which treaties can adopt for the security of neutral rights; and in this particular the treaty with Great Britain is to the full as provident as our other treaties. In one point I believe it is more so; for it expressly stipulates a revocation of the commissions of the commanders of privateers, for the aggressions they may commit.

Is not the passage last cited from Vattel a true commentary on those stipulations, for regulating and mitigating the right of search, which are found in our own and other treaties? Do they not all intend to reserve to the belligerent party a right of judging of the validity and fidelity of the papers to be exhibited, and of extending the search or not, according to the circumstances of just suspicion which do or do not appear? and if this be their true construction, as it certainly is their construction in practice, which our own experience testifies, to what, after all, do they amount, more than without them the laws of nations, as universally recognized, of themselves pronounce? What real security do they afford more than the treaty with Great Britain affords?

It is much to be suspected, that there will always be found advantages essentially nominal, operating or not according to the strength or weakness of the neutral party; which, if strong, will

find abundant foundation in the acknowledged laws of nations on which to rest the protection of its rights.

It has been said to be just matter of surprise, that these precautions should have no place in a treaty with Great Britain, whose conduct on the seas, so particularly suggested and enforced every guard to our rights that could be reasonably insisted on. Observations of this kind assume constantly the supposition that we had it in our power to fashion every provision of the treaty exactly to our own taste, and that the ideas of the other contracting party were to have no influence even upon the minor features of the contract. But this supposition is absurd; and a treaty may still be entitled to our approbation, which adjusts acceptably the great points of interest, though in some of its details it falls short of our desires. Nor can any well-informed man sincerely deny that it was to have been expected, that an adjustment of the particulars in question, would fall short of our ideas. It may be answered, that we were then at liberty not to make the treaty; so we were, but does it follow that it would have been wise to split on such points?-upon a just estimate, their intrinsic value is very moderate.

NO. XXXII.

CAMILLUS.

1795.

The eighteenth article of the treaty, which regulates the subject of contraband, has been grievously misrepresented; the objections used against it with most acrimony, are disingenuous and unfounded! Yet while I make this assertion, which, I flatter myself, I shall be able to prove, I shall not pretend to maintain that it is an article completely satisfactory. I even admit that it has one unpleasant ingredient in it, and I am convinced that our envoy must have consented to it with reluctance.

But while candor demands this concession, it equally admonishes us, that, under the circumstances of the moment, the points

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