A combination like this, formed in the midst of a war of temporary duration, and on special motives of policy, not acceded to by all the powers of Europe-not having acquired the sanction of time is clearly not sufficient to alter a rule in the law of nations. This might be done by common consent, or by long and general usage. Neither is the case here. On the contrary, some of the powers which combined to introduce the innovation, now support in arms a contrary principle; and all the neutral powers-the United States included-have expressly or virtually relinquished the ground in the whole course of the present war. None, that I know of, has seriously contended for it, even in argument.

Our government, at an early day, on full and mature exami nation and reflection, by an unanimous opinion of those consulted, gave up the ground as untenable. The President's files of Mr. Jefferson's letters are evidence of this. Indeed it is not very probable that the new principle will ever become an.established one of the laws of nations. It is too contrary to the spirit of war.

Where, therefore, the rule exists, it must depend on treaty, and apply only to the powers who are parties to it.

This article, therefore, does no more than was done before, and rightly and wisely done.

For besides that one or a few nations cannot justly make and attempt to enforce a new principle, it is folly in a young and weak country like ours to take a ground which cannot clearly be maintained on precedent and principle.

The dilemma was to renounce the pretension, or to insist upon and maintain it. To have attempted the last would have been madness.

It were to have been wished that this article had stipulated, with regard to contraband goods, what has been stipulated with regard to enemy's goods, to wit, that the contraband only should be detained—the rest of the cargo liberated; since it is contended, in certain cases, that the contraband articles will infect the ship and the residue of the cargo. But though such a stipulation would have been a point gained, the want of it relinquishes

nothing. The point is left where it was before-to the decision of the laws of nations.

Article XVIII. The first clause of this article specifies the articles to be deemed generally contraband. This specification agrees with the laws of nations, as laid down by writers, and sanctioned by long practice, in all cases in which there are not limitations or exceptions in particular treaties.

The enumeration, however, comprises articles as contraband which are excepted in our other treaties, and is so far less well than might be wished, though probably as well as circumstances would permit to be done at the present juncture.

In embracing, generally, articles for ship-building, it affects some of the staples of some of the States; but it is to be ob served, that it only leaves them, in this respect, where they are at present. It is, however, our interest to narrow, upon all occasions, as much as possible, the list of contraband.

The second clause recites the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband, may be regarded as such; to prevent inconvenience and misunderstandings, provides, that in the cases in which, by the existing laws of nations, they do become contraband, they shall not be confiscated; but, being taken, shall be paid for at their full value, with a reasonable mercantile profit, freight, and demurrage.

But one case in which such articles may be deemed contraband is, by the succeeding clause, subjected to a particular and different regulation. A vessel with her cargo, going to a port or place, blockaded, besieged, or invested, if without notice, cannot be seized or detained, but must be turned back. If she contumaciously persists, and makes a second attempt, she may then be seized, and she and her cargo confiscated.

The last sentence guards our property found in places afterwards besieged, &c., from vexations and depredations to which they have been in some cases liable.

The second clause has been the subject of much censure, as though it sanctioned generally the seizing of provisions and other articles not generally contraband, on the condition of pay

ing for them; for it is said that all the cases in which the acknowledged laws of nations authorize such seizure, are differently provided for in the third clause (those of blockades, sieges, and investments), and that consequently the provision in the second must be understood virtually to admit that there are other cases, and must be referred to the general position set up and acted upon by Great Britain, in her order of June.

But this argument is erroneous in principle and in fact.

1. The cases in which articles not generally contraband may be seized, even with compensation, are expressly those in which "they become contraband according to the existing laws of nations.” The appeal is then to these laws, as the criterion; and the gov ernment will be as free after the treaty as before it, to deny any arbitrary construction which Great Britain may think fit to put upon these laws, and to maintain its opposition in all the ways it may think fit.

2. It is not true that the third clause provides for all the cases where the acknowledged laws of nations authorize seizure of such articles. It provides for only one single case-that of a vessel going without notice to a place blockaded, besieged, or invested. The case of a vessel going to such a place with notice is not included. Other cases in which provisions &c. may be properly contraband may be conceived. That of carrying them with the direct intent of supplying å besieging army in the act of carrying on the siege, is one; for there is no reason why the party besieged should not intercept and seize supplies going to the besiegers, as well as the last those which are destined for the besieged.

Various combinations of circumstances, which do not at first sight occur, may beget other cases in which the seizure may be justified.

The clause in question, then, speaks simply this language; that inasmuch as cases may exist, in which provisions and other articles not generally contraband become so; as it is difficult beforehand to define them, as even in the admitted cases of blockades, sieges, and investments, it may not always be easy to pronounce what is a blockade, siege, or investment; as the parties

cannot at this time agree upon a definition of the doubtful cases, they agree at least (with one exception, which has been noticed) that in all cases of the seizure of such articles as contraband, full compensation shall be made to the end that in doubtful cases, the inconvenience being thereby much lessened, the danger of rupture may be diminished by inclining the party which conceives itself injured to acquiesce in the pecuniary compensation.

But though I have no doubt that this is the true and genuine sense of the clause, and that it does by no means warrant the construction put upon it, yet as it may possibly become the pretext of abuses on the side of Great Britain, and of complaint on that of France, I should have liked the treaty better without it. On the whole, I think this article the worst in the treaty, except the 12th, though not defective enough to be an objection to its adoption.

Articles XIX. and XX. These articles require no comment. They are usual and every way unexceptionable provisions.

Article XXI. This article is liable to no just objection. The first part of it restrains generally the citizens of each party from participating in hostilities against the other. This is implied in the leading article of every treaty of peace, is conformable with every moral idea-and though more comprehensive in the extent of the inhibition, is agreeable to the principle of the law of Congress on this subject.

It is also agreeable to the true policy of the United States, which is, to keep its citizens as much as possible from being implicated in the quarrels and contests of other nations, in foreign feelings, interests and prejudices. This is an idea of great importance to our security in various ways. The only case, if at all, in which it can be our interest that our citizens should engage in foreign service, is that of young men of education entering into foreign service to acquire military knowledge and experience.

But it is conceived that the doing of this in time of peace is not forbidden. The citizens of each party are not to accept commissions from, nor to be permitted to be enlisted by, the enemies of the other. This seems to suppose a state of war when the forbidden act is done. The punishment for infractions of this

part of the article is referred to the laws of the party whose citizens commit them. No precise one is defined.

The latter part of the clause subjects to the penalties of piracy the citizens of one party accepting commissions from the enemy of the other for arming any vessel to act as a privateer.

A similar provision is to be found in all our commercial treaties heretofore made, and is familiar in the commercial treaties of other powers during the present century. It has wisely become the policy of nations to confine the mischievous practice of privateering to the belligerent parties. This is peculiarly our true policy; as from situation the contrary would never fail to compromise our peace.

It is to be observed that this crime of piracy does not extend to land service, nor to service on board of public ships of war, commonly called men-of-war.

Article XXII. This is a reasonable and usual provision in affirmance of the laws of nations, and calculated to prevent war.

Article XXIII. This article merely stipulates those rights of hospitality which the courtesy and humanity of nations owe to each other, and which it has been the endeavor of our govern. ment to observe. It does not extend to privateers, which are never denominated ships of war, and consequently does not interfere with our treaty with France as hitherto interpreted and acted upon.

Articles XXIV. and XXV. These articles, which are compatible with the rules of neutrality and the rights of belligerent nations, are becoming formulas in most modern treaties. They are to be found essentially in our treaties with France, Sweden, and partly if not wholly in that with Prussia, and in the treaty of 1786 between France and Great Britain. They stipulate:

I. That the enemies of one party shall not arm their privateers in the ports of the other.

II. That they shall not sell their prizes there.

III. That they shall not be allowed to purchase more provi sions than are sufficient to carry them to the nearest port of the prince or state to which they belong.

IV. That the ships of war or privateers of the two contracting