our commerce should be oppressed, and our enteprise crushed, yet we are bound to acquiesce, if the sanction of universal justice require it.

Your Memorialists, however, beg leave, before they consider the law of nations in this particular, to advert to a few of the consequences resulting from this rule; and, if they do not greatly mistake, from thence will arise a strong argument of its inadmissibility.

In the first place, great evils must, in the nature of things, result from the indefiniteness of what is the accustomed trade. Nations are continually changing their policy, their imports and exports, their manufactures, their staples, and their commercial connexions. In peace, as well as in war, peculiar circumstances induce them to open or close a traffic; and these circumstances arise as often from accidental caprice as from political wisdom. Besides these, the silent operation of time, by destroying old sources of revenue, and developing new wants, and, in a more important view, by erecting the grandeur of one state on the destruction of another, with secret fatality changes the channels of commerce, and forbids it to flow in an uniform course. It seems conceded on all sides, that the rule shall not apply to every case; and that those changes, which seem not to be the result of a necessity imposed by an enemy, are exempted from its operation. But how shall these limits be defined? Every nation varies its policy in this respect in time of war; and even Great Britain relaxes her navigation acts to meet the ordinary exigencies of it. On such occasions she admits neutrals to import into her dominions articles not the growth of their own country. She admits foreigners into her mercantile, as well as her military, marine. She opens her colonies to importations strictly forbidden in peace ; and allowed with jealous caution, even under the pressure of war. To changes of this nature, if they do not arise out of the predominance of the enemy's force, or out of any necessity resulting therefrom, her own civilians avow, that the rule of accustomed trade ought not to extend. According to them, it is not every convenience, or even every necessity, arising out of the state of war, but that necessity, which arises out of the impossibility of otherwise providing against the urgency of the distress, inflicted by the hand of a superior enemy, that can be admitted to produce such an effect. But in what manner shall this impossibility be determined? How shall we distinguish between the ordinary and the extraordinary necessities of war? between those evils inflicted by a superior force, and those resulting from general embarrassment? How shall we

distinguish, which is the predominant power, when one may be conqueror at one point, and conquered at another?-one all-powerful by sea, another all-powerful by land? How shall we provide for, or foresee, the changes of the day, when time with unmeasured rapidity retrieves losses in the hour of defeat, and destroys power in the hour of victory? In the opinion of your Memorialists, there is but one test of such predominancy, and that is within the old law of nations. It is, when the belligerent is able to blockade the ports of his enemy; and then his right to exclude neutrals is coëxtensive with this ability to blockade. If any other test be resorted to; if the unlimited ingenuity of the discretion of courts of admiralty be exercised in the application or denial of the rule; the rights of neutrals will change with the policy of every administration, and rise and fall with the pressure of hostilities, and the safety of depredation. Surely, no principle of the law of nations can be bottomed on so fluctuating a basis. It would reverse the nature of all law, which is fixed and determinate, and substitute a discretion little less injurious than despotism.

In

In another view, the rule appears to your Memorialists not less untenable and unjust. It is stated, as a part of it, that, if colonial produce be imported by any person with an intention to tranship it on his own account to the mother country, it is subject to confiscation; but if imported for the purpose of general commerce, and thrown into the market for general transhipment, it is within the exception. To distinguish between general and particular intentions, and to separate things so subtile in their own natures, and almost incapable of proof, for the purposes of national decisions, seems a refinement reserved for the present age. the nature of things it can hardly be possible to determine the intention of a merchant in importation. These may be formed and fixed at one moment, and abandoned from a change of circumstances at another. The fluctuations of foreign markets, the plenty or deficiency of the supply at home, the nature of the funds, the success of the incipient voyage, and numerous other accidents, must continually change the destination of importations, and divert them into various channels. In no case, therefore, can there arise an indisputable presumption, that a merchant imports with a determination to export. Indeed, as his intention must frequently be ambulatory, the presumption lies as strongly the other way. And even if in a few instances that intention could be ascertained, thousands of cases must arise, in which it would be impossible to

form a criterion for judgment. All must be doubt, caprice, or speculative construction.

These objections apply to the embarrassments attending the exercise of the rule respecting intentions of merchants. But a more serious one may be urged against it, grounded upon its inefficacy, as it respects both neutral and belligerent. As it respects the neutral, if the rule is once known, transfers of property will be immediately made. There will be an impossibility of preventing frauds in these transfers, (if they deserve the name,) by any tests applicable to them, unless restrictions are imposed, or evidence required, which no authorities could procure, and no independent nation ought to submit to. As it respects the belligerent, the same produce after sale would, according to his own principles, be admissible into the ports of his enemy; and in that way the same assistance would be supplied, and the same embarrassments be prevented. The importer will communicate a title to his vendee, which he does not himself possess, and clothe his agent with an authority, which he cannot exercise at his own hands. The rule, therefore, would require the mere formality of a sale; but it would effect none of the objects which it professes to value; and its foundation would be shaken by the extent of its exceptions. Considered in this view, your Memorialists cannot but suppose, that no such modification will ultimately prevail; but by degrees the restriction will become absolute against all neutral carriage of colonial produce to the mother country under every variety of intention. In any other way the rule might be nugatory, and with this unmeasured influence, it must be ruinous.

The foundation of this modern doctrine is laid in this principle, that the neutral has no right by an extension of this trade to afford supplies to the belligerent; because by such trade he assists the belligerent to ward off the blows of his enemy, and to oppose for a longer period the dominion of his force. But to this your Memorialists deem it a conclusive answer, that the proposition proves too much; that, if true, it is a foundation for a far more broad and sweeping principle; namely, that every commerce with a belligerent is inhibited to neutrals; for every commerce assists him in resistance, and diminishes his necessities. A doctrine thus comprehensive has never yet been avowed; and it is presumed never will be. Yet such must be the logical conclusion; and it shows irresistibly the absurdity of the assumed premises. The accustomed, as well as unaccustomed, trade, is within the terms of the principle, and must stand or fall together. Either the doctrine is unsound, and assumed

as a mere pretext for predatory seizures, or neutrals have no rights as such, and must endure the calamities inflicted by belligerents in a contest, in which they have no voice, and from which they can reap only injury.

Other considerations add force to the preceding remarks. It is well known, that in time of war neutrals cannot carry on even their accustomed trade in its full extent. They are prohibited from trading in contraband goods, and to blockaded ports. Variations necessarily arise in the relations of the hostile powers, which the neutral ought to possess a right to turn to his profit, as an indemnity for the obstructions of his old trade. These obstructions are of a very serious nature. When exercised in the mildest form, they produce oppressive searches and delays, expensive litigation, and often total failure of an otherwise lucrative voyage. Reason would therefore seem to declare, that for hazards of this nature the benefits arising to neutrals from war are not more than a just equivalent. But, if the obstructions be enforced, and no new channels permitted, it seems hardly too much to say, that they must lead to an extinction of all neutral commerce. If one belligerent adopt the rule, another has the same right; and regulations of colonial monopoly would then serve as false lures, only to ensnare and betray neutral navigation. It is somewhat singular, that a belligerent should invite a trade with itself, which it declares fraudulent with its enemy; and should lift the arm of power to crush the neutral, whose conduct is criminal only when it ceases to be partial.

Such are the remarks, which your Memorialists respectfully submit upon the rule considered in itself. On this examination they confess it appears to them fundamentally incorrect. It subjects commerce to fluctuating decisions, overthrows the ordinary rules of evidence, and places an immense power to be wielded at the uncontrollable discretion of magistrates appointed by a single party. It therefore wants all the discriminative features of a fundamental proposition of the law of nations- uniformity, precision, and general applicability. It would, in their opinion, if established, create greater evils than it professes to redress, by perpetuating strife, destroying the emoluments of trade, embarrassing commercial intercourse, and letting loose the passions to prey on the miseries and plunder the property of the innocent. It would subject neutrals to hazards nearly as perilous, as those of actual hostilities; and, independently of its influence in stimulating to revenge and retaliation, it would transfer the benefits of peace to any victorious usurper of the ocean.

But your Memorialists are unwilling to rest the question on the preceding grounds, however supported by reason. They appeal to higher considerations, and deny, that the rule is, or ever has made a part of the public law, or is recognised by usage or prescription among nations. They admit, that uninterrupted and general usage, fortified by open acquiescence, forms a strong argument, perhaps a conclusive proof, of the adoption of any rule; that, if such usage had existed in the present case, and had been invariably pursued, the presumption would have been violent, that the doctrine is just, and ought not now to be shaken. But your Memorialists have in vain sought in ancient jurists, universally consulted and approved, any principle, that bears in its bosom the present. On the contrary, every page appears to give a direct contradiction to it. They adhere to the ancient interpretation of the law of nations, which pronounces, that the goods of an enemy are lawful prize, and those of a friend are free; that the neutral, except in cases of blockade and contraband, has a right to the uninterrupted pursuit of his commerce, when carried on with his own property, at all events in a direct trade from his own country. Such your Memorialists deem to have been the incontestible rights of neutrals, established for more than two centuries by universal acknowledgment, and acted upon, while a flourishing intercourse subsisted among all maritime nations. During the same period, Great Britain, France, Spain, Portugal, and Holland, have possessed extensive colonies, and engaged in commercial enterprises with an uncommon spirit of rivalry. If, therefore, any such rule, as is now claimed, had existed, innumerable cases must have occurred in the controversies of these nations to legitimate its introduction, and authorize its application. Yet no instance has been adduced in diplomatic or admiralty annals, which savors of a reference to such a rule. The approved publicists, to whom in national contests appeals are made, intimate none, and lay down the law in as broad and satisfactory terms, as your Memorialists.

Your Memorialists are aware, that even the advocates of Great Britain have not pretended to ascertain the existence of the pretended rule previous to the year 1756. To this period they refer for its first establishment, and from this origin deduce its universal reception. They pretend not to quote any foreign adjudications as in point; but rest satisfied, that their own courts were competent to establish the law, and to give it binding efficacy over all nations. To such conclusions your Memorialists confess themselves unable