its own territory, which is inherent in every government, is not transferred to a vessel navigating the high seas. The right of a belligerent over the goods of his enemy within his reach, is as complete, as his right over contraband of war; and it seems a position not easily to be refuted, that a situation that will not protect the one, will not protect the other. A neutral bottom then does not of right, in cases where no compact exists, protect from his enemy the goods of a belligerent power.

To this reasoning the practice of nations has conformed, and the common understanding of mankind seems to have assented. Vattel, B. 3. Sect. 115, says positively, "that effects belonging to an enemy, found on board a neutral ship are seizable by the rights of war."

Vattel is believed to be supported by the most approved writers on the same subject. It is deemed unnecessary to multiply citations to this point; because France herself is supposed to have decided it. In her maritime or donnance of the year 1744, which is considered as having been in force in 1778, enemy goods in neutral bottoms, generally, are declared liable to seizure and confiscation. From the operation of this rule are excepted the vessels of Denmark and the United Provinces, to whom special treaties secured the exception. In the ordonnance too of the 26th July, 1778, the first article of which is considered as forbidding the cruizers of France to stop and bring into port neutral vessels, having on board the goods of an enemy, a power is reserved to revoke the privilege granted to neutrals by that article, if the enemy should not grant the same privilege within six months from the publication, of that regulation. This clearly indicates a conviction, that the exemption from the capture of the goods of an enemy, which should be found on board the vessel of a neutral power, not having stipulated such an exemption by treaty, was a privilege granted by the ordonnance, and that the mere revocation of the ordonnance would abolish the privilege, and restore the ancient rule. It will not be contended that France has continued in a long course of practice and of legislation opposed to her own opinion of the law

fluenced by the wishes or the interests of a neutral or belligerent power.

It is a general rule, that war gives to a belligerent power a right to seize and confiscate the goods of its enemy. However bumanity may deplore the application of this principle, there is perhaps no one to which man has more universally assented, or to which jurists have more uniformly agreed. Its theory and its practice have unhappily been maintained in all ages. This right then may be exercised on the goods of an enemy wherever found, unless opposed by some superior right. It yields by common consent to the superior right of a neutral na❤ tion to protect, by virtue of its sovereignty, the goods of either of the belligerent powers, found within its jurisdiction. But can this right of protection, admitted to be possessed by every government within its own limits, in virtue of its absolute sovereignty, be communicated to a vessel navigating the high seas?

It is supposed that it cannot be so communicated; because the ocean being common to all nations, no absolute sovereignty can be acquired in it: the rights of all are equal, and must necessarily check, limit and restrain each other. The superior right therefore of absolute sovereignty, to protect all property within its own territory, ceases to be superior, when the property is no longer within its own territory, and may be encountered by the opposing acknowledged right of a belligerent power, to seize and confiscate the goods of his enemy. If the belligerent permits the neutral to attempt without hazard to himself, thus to serve and aid his enemy, yet he does not relinquish the right of defeating that attempt whenever it shall be in his power to defeat it. Thus it is admitted that an armed vessel may stop and search at sea a neutral bottom, and may take out goods, which are contraband of war, without giving cause of offence, or being supposed in any degree to infringe neutral rights. But this practice could not be permitted within the rivers, harbours or other places of a neutral, where its sovereignty was complete. It follows then that the full right of affording protection to all property whatever, whithin

its own territory, which is inherent in every government, is not transferred to a vessel navigating the high seas. The right of a belligerent over the goods of his enemy within his reach, is as complete, as his right over contraband of war; and it seems a position not easily to be refuted, that a situation that will not protect the one, will not protect the other. A neutral bottom then does not of right, in cases where no compact exists, protect from his enemy the goods of a belligerent power.

To this reasoning the practice of nations has conform> ed, and the common understanding of mankind seems to have assented. Vattel, B. 3. Sect. 115, says positively, "that effects belonging to an enemy, found on board a neutral ship are seizable by the rights of war.”

Vattel is believed to be supported by the most approved writers on the same subject. It is deemed unnecessary to multiply citations to this point; because France herself is supposed to have decided it. In her maritime or donnance of the year 1744, which is considered as having been in force in 1778, enemy goods in neutral bottoms, generally, are declared liable to seizure and confiscation. From the operation of this rule are excepted the vessels of Denmark and the United Provinces, to whom special treaties secured the exception. In the ordonnance too of the 26th July, 1778, the first article of which is considered as forbidding the cruizers of France to stop and bring into port neutral vessels, having on board the goods of an enemy, a power is reserved to revoke the privilege granted to neutrals by that article, if the enemy should not grant the same privilege within six months from the publication of that regulation. This clearly indicates a conviction, that the exemption from the capture of the goods of an enemy, which should be found on board the vessel of a neutrał power, not having stipulated such an exemption by treaty, was a privilege granted by the ordonnance, and that the mere revocation of the ordonnance would abolish the privilege, and restore the ancient rule. It will not be contended that France has continued in a long course of practice and of legislation opposed to her own opinion of the law

nations. It must then be considered as the opinion of France, that under that law neutral bottoms afford no protection to the goods of an enemy. This principle, thus admitted to have been established, is supposed by some to have been changed by the armed neutrality. A new law of nations, it is contended, was introduced, by that confederation. But who were the parties to that federation, and what was its object? The northern maritime powers of Europe united to protect by force, in their own bottoms, during the then existing war, the goods of either and of all the belligerent powers. The compact in its own nature was confined with respect to its objects and its duration. It did not purport to change nor could it change permanently and universally the rights of nations not becoming parties to it.

indeed hold forth the promise of future more permanent and more general engagements for the same object, but such engagements were never formed. How then can this temporary and partial convention be considered as altering, radically and generally, principles which have been universally adopted, and in the modification of which all have an interest? Would France herself admit that a combination, such as that which constituted the armed neutrality, may rightfully change the law of nations, and establish a new code of universal obligation? It is believed that no nation on earth would more perseveringly oppose such an invasion of its sovereignty.

There seems then to be no solid ground for maintaining, that the general law of nations has been at all varied by the armed neutrality.

It remains to enquire whether the treaties, between France and the United States, pledge either nation to assert and establish the principle, that free bottoms make free goods.

The treaty of amity and commerce, concluded the 6th February 1778, stipulates reciprocally for the right of trading with and protecting the goods of the enemy of either party in the vessels of the other, and in turn surrenders its own goods found in the vessels of an enemy, but it contains no clause imposing on either party

the duty of extending the principle, or of supporting its application to other nations. The stipulations of that treaty are negative as well as affirmative. They specify as well the disabilities intended to be created and the duties to be imposed, as the privileges designed to be granted. Had it been intended that either nation should have been bound to maintain this principle in its intercourse with others, or should have been in any degree incapaciated from prosecuting freely that intercourse, without the previous admission of the principle, a stipulation to that effect would have been made. No such stipulation having been made, the parties cannot be presumed to have intended it. Indeed it would have been madness in the United States, under their actual circumstances, to have formed such an agreement. There being no express stipulation to this effect, it cannot be supposed to have been implied. Nations forming a solemn compact which ought to regulate their conduct towards each other which is to be resorted to as the standard for adjusting their differences, do not leave to implication such delicate and important points. Indeed if a great principle not mentioned is permitted to be implied, theobject of a written agreement, which is itself to evidence all the obligation it creates, is totally defeated. But who is to make the implication, and to what extent is implication to be allowed? It is very easy to perceive, that the doctrine of implying in contracts stipulations never formed, would destroy all certainty of construction, and open a boundless field of controversy to the contacting parties.

It results from the very nature of a contract which affects the rights of the parties, but not. of others, and from the admission of a general rule of action,. binding independent of compact, which may be changed by consent, but is only changed so far as that consent is actually given, that a treaty between any two nations, must leave to all others those rights which the law of nations acknowledges; and must leave each of the contracting parties subject to the operation of such rights. For