James Madison Papers

Notes on Neutral Trade, ca. 14 September 1805

Notes on Neutral Trade

[ca. 14 September 1805]

(31)

The immediate effect of this new rule1 is to entrap all neutrals which British cruisers may have previously seized in defiance of the rules actually binding on them; and all others which can be seized before a knowledge of the new rule reaches the neutral vessels sailing under the faith of the only rule known to them: besides the vexation delays expence & frustration of mercantile expeditions resulting from the eagerness of cruizers to take the chance of prizes, where such a pretext is furnished for the arrest of neutral commerce & where they are further encouraged by the almost invariable [illegible] of the Courts, of throwing the costs on the claimants, even where compleat restitution is decreed.

May it not be fairly asked whether a proceeding like this can be reconciled with that common justice which every virtuous nation treats others; or with that respect which every enlightened nation pays to the favorable opinion of the world? May it not be asked whether any of the other Courts in G. B. of whose uniformity & impartiality the nation so loudly boasts, would be permitted, or would permit themselves, to tread a crooked path like that which the Admy. Courts pursue; and whether all pretensions of the Admiralty Courts to the same independent justice & to the same general confidence; which are allowed to the other Tribunals, must not necessarily be blasted by such a contrast in its proceedings?

May it not finally be asked, whether the British nation in the pride of its’ strength, and the consciousness of its rights, would as a neutral nation receive, with acqueiseicse [sic], from any belligerent nation on earth, the same treatment which she does not scruple as a belligerent nation to inflict thro’ its admiralty proceedings, on neutral nations? Let British honor answer this question; and let British Statesmen, in their wisdom reflect, that there is one other nation at least, which is equally conscious of its rights, and if less proud of its strength, is not ignorant of the sufficiency of its means for the vindication of its rights.

But what will be ultimate effect of this new principle of admiralty jurisprudence? Clearly & compleatly the subsidiary effect of driving the colonial trade now carried on circuitously thro’ neutral ports, more especially those of the U.S. into the British ware houses; from which, after leaving all the intermediate advantages in her hands, it may find its way under her own commercial regulations, to its destined markets. By reducing the importation of each neutral nation trading directly with colonies to the amt. of its own consumption, all the supplies for other neutrals not trading directly with them, together with such as may ultimately find their way to the belligerent mother Countries, must become a monopoly in her own hands.

It is true that the late rule in the form made public seems to be limited to cases, where the voyage with colonial produce is from a neutral port to the Mother Country of the Colony. But both the reasoning of the Judge, and the sweep of the principle take in every indirect trade which the British regulations do not now or may hereafter allow to be directly carried on. If landing the goods, and paying the2

Ms (DLC). Undated; date assigned based on the assumption that these notes were part of the material JM had accumulated for his writings about the British doctrine forbidding neutral trade with belligerents mentioned in JM to Jefferson, 14 Sept. 1805.

1For the tightening of British policy toward neutrals trading with the colonies of belligerents, see George Joy to JM, 26 July 1805, and n. 3.

2Ms page ends here.

Notes on Treaties Relating to Neutral Trade

Treaties, to which Engd. not a party
Treaty of Munster one important source of Conventional & [illegible] Pub Law
 Between Spain & U. P. see partr. art. Jenk. Vol. i. p. 421
Spain & France 1659. Art. X-XVI Id. V 1. p. no2
France & Holland July 21. 1667. art. 26–30. Chalm. v. 1. 154.3
Emper. ChVI & PhilV May 1. 1725. art. VII. Azuni v. 2. p. 129
France & Hans towns Sepr. 28. 1716. Art. VIII. Id. - - 1294
France. & Sweeden 1672
Dumont Tom. 7. p. 1. p. 166 Azuni v. 2. p. 1305
Id. 166 Id. 1306
Denmark. & U. Provs 1701
Naples & Holland 1752. Azuni v. 2. p. 1317
✓ E. & Spain May 13. 1667. art. XXI-XXVI8
✓ Engd. & Holland Deer. 1. 1674. art. I-V Chalm. vol. 1. p. 177.9
  do. do. — 1. 1674. explanatory of 1667/8. & 1674. Id. Vol. 1. p. 18910
G B. & Spain Novr. 28./Decr. 9. 1713. inserting May 13. 1667. Chalm. vol. 2. 10911
✓ G. B. & S. Jany. 14. 1739. renewing 1713 & 1667. Jenk. vol. 2. p. 34012
x G. B. & Russia. Deer. 2. 1734. art. II. Azuni. v. 2. p. 129.13
 Do. to which Engd. a party
Cromwell & Lew XVI. 1655. ar. XV [Vs. all commerce for 4. years.] Jenk. v. 1. p. 8314
✓ Cromwell & Sweeden 1654 Art XI Jenk. Vol. 1. p. 70. Chal v. 1 p. 2515
✓  Id. wh Id. 1656. art. Ill Id. v. 1. p. 9816
All[i]ance x/✓ Engd. with Sweeden Ocr 21.1661. Art. XI See Collection &. p. 17. Chalm. v. 1. p. 25
Art. IV v. 1. p. 3217
with Denmark also Ally. 1670. art XVI18 do p:— Id. v. 1. p. 85.19
Engd. & Holland: ✓1668. art. I. II. Jenk. V 1. p. 190 & Chal. v. 1. p 16320
Engd. & Holland. July 21 ✓ 1667. art. Ill21 Chalmers v. 1. p. 153.22
Engd. & France ✓1677 art. I. II-IV Id. V 1. p. 209.23
✓ Engd. & UP. 1689. pr. all commerce with F. J. v. 1. p. 29224
 
✓ Engd. Sweeden & U.
 Hollan.
1700. art. XII. to consult on for prohibg. comerce with enemies of one of allies Jenk. v. 1. p. 31525
✓ Engd. Denmark & U. P. 1701. art. VI. referg. to Convention betwn. Eng. & Hoi. with Denm. in 1690 Id.v. 1. p. 33326
✓ G. B. & France 1713 art. XVII-XXI. explicit. Jenk. v. 2. p. 50. Chal. v. 1. p. 39027
✓ G. B with Holland 1674. art. I-V. Chalmers vol. 1. p. 17728
✓ G. B & Spain 1713. art. XXI-XXVI. renewing that of 1667. Jenk. v. 2. p. 101-229
✓ Idem & Idem. Deer. 3. 1715. art VII confirming the Above at Utrecht. Chal. v. 2. p. 17430
✓ G. B & Sweeden Jany 21. 1720. art. XVIIL Jenk. v. 2. p. 263.31
✓ G. B. & Spain June 13. 1721. renewing that of. 1713. Id.v. 2. p. 265.32
✓ G. B. F. & Spain Novr. 9. 1729. Art 1. renewing all treaties Id. v. 2. p. 307. Chal. v. 2. 20033
✓ G. B. Empr. & Holland Mar. 16. 173⟨1⟩;) renewg. all Treats Id. v. 2. p. 319 Id. v. 1. p. 31234
G. B. F. & U. P. (Aixlachapell) 1748. Art III renewing that of Westphal & Utrech[t] & others. Jenk. 2. p. 37. Chalm.v. .p.42835
acceded to by Austria. Spain. Sardinia, Modena & Genoa
G. B. & Spain 1750. Art. IX renewing those of 1713 & 1748. Id.v. 2. p. 41236
G B. F & Spain (Portl. acceding) *176337 Art. 1. renewing Treaties of 1648. 1713. 1748. Jenk. vol. 3. p. 180.
G. B. & Russia (during war 1766. Art. X. pointed) to continue 20 years Id.V. 3. p. 22838
G. B. & F. †178839 art. II renewing 1648. 1713 1748. 1763 et al. Id.v. 3. p. 337
G. B. & Sp. 1783 art. II do. do. &c. Id. V. 3. p. 37740
G. B. & F. 1786. art XX-XXIV. inserting those of Utrecht &c. Chalmr. v. 1. p. 531-2.41
 
☞.In the Treaty of Amiens—omitted—but proposed by on [sic] the part of G. B. in the negociations at Lisle (&ca) and opposed for sundry reasons alien to the point, same as to Treaty of Amiens
☞.Lord Malmesbury, in urging a renewal of article as to Treaties of 1713- 48. 63. & 83. observes that those Treaties were become the law of nations, and that if they were not renewed, confusion would ensue. They were certainly become the law of Nations as much on the subject of neutral (commerce?) as any other. See negociation of Ld. M. published by the Brit: Govt.42
✓ Treaty with Dantzic Ocr. 11/23. 1706. Art. XIV Chal. v. 1. p. 10843
✓ Russia *1734 Azuni v. 2. p. 129-3044
Russia July 20. 1766. Art. X. Chalm. v. 1. p. 7.45
Holland July 21. 1667. Art III. adopting that with France. Chalm. v. 1. 153.46
do. Breda Feby. 9/19. 1673/4. art VII. renewing the above of 1667. Id.V. 1. 175.47
G. B. & Denmark July 4. 1780. Explany. of 1670. Collect: p. 97.48
☞ G. B. & Do: 1669. Art. 16 *49 Dumont. torn. 7. part 1 p. 126. Azuni v 2. pa. 130

Curious to see the progress of G. B. from the first encroacht. founded on the idea of a naturalized ship, limited to a Colony, and a direct trade therewith; not being extended even to Coastg. trade or to case of Colonl. goods intermediatly landed at another Colony—thence extended to trade with Colonies on the general principle of its being an internal trade—then, after sleeping thro’ the war of 1778, awaking with renewed strength, see orders of 1793—then again awed by at [sic] its own temerity & the shock given to neutral nations retreating under the orders of 94. & 9850—then again advancing under the constructions given in practice to those orders. Sr. W. S.51 certainly displays great talents & much erudition; but the Englishman, if not the courtier is too often visible thro’ the robes of the Judge:


G. B. denies to belligerents the right of a neutral trade to their Colonies whilst she exercise of the right of opening her own Colonies to neutral trade. She denies to neutral[s] the right to trade with beligant colonies on the pretext of distressing whilst the authorizing a trade supplies their wants herself by her own subjects & from her own ports


Reasons vs expoundg. the phrase “as before the war &c” are required by the British Doctrine

1. Such doctrine not previously know[n] not therefore referred to

2. consistent with other passages in same authors & treaties.

3. as they treat distinctly of contrabd. blockades—enemy/ property incon⟨ceiva⟩;ble that they should pass over this so lightly & equivocally

4. the other exposition more obvious

1For the “particular Article concerning Navigation and Commerce” of the 1648 Treaty of Munster between Spain and the United Provinces of the Netherlands which allowed Dutch citizens to trade with Spain’s enemies, barring contraband, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 1:42–44.

2Articles 10–16 of the 1659 Treaty of the Pyrenees between France and Spain stipulated that France was free to trade with any enemy of Spain, Portugal excepted, and described articles that would be considered contraband (ibid., 111, 113).

3The Articles of Navigation and Commerce appended to the 31 July 1667 Treaty of Breda between Charles II of England and the United Provinces of the Netherlands incorporated articles 26–42 from a treaty between France and the Dutch Republic which stipulated that France was free to trade with the enemies of the Dutch Republic with the exception of those articles described as contraband (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:151–59).

4JM referred to Domenico Azuni’s Sistema universale dei principi del diritto marittimo dell’Europa (2 vols.; Florence, 1795–96). The 28 Sept. 1716 treaty of Paris between France and the Hanse towns, and the 1 May 1725 treaty of Vienna between Charles VI and Philip V prohibited only the transportation of contraband to the enemy (Domenico Azuni, The Maritime Law of Europe, trans. William Johnson [2 vols.; New York, 1806]; [Shaw and Shoemaker 9877], 2:131). For Azuni, see PJM-RS 1:135 n. 1.

5JM cited Jean Dumont’s Corps universel diplomatique du droit des gens. For Dumont, see Peter S. Du Ponceau to JM, 8 July 1805, n. 12. JM’s references note that the Franco-Swedish treaty of 1672 (which the New York edition of Azuni [see n. 4 above] mistakenly reported as a 1662 treaty) allowed neutrals all trade with enemies except for contraband (Azuni, Maritime Law, 2:132). For the error, see where Azuni cites Dumont, Corps universel diplomatique du droit de gens, vol. 8, pt. 1, p. 32, and not vol. 7, pt. 1, p. 166, which JM cites.

6Article 12 of the 15 June 1701 Copenhagen treaty between Denmark and the United Provinces of the Netherlands allowed inhabitants of the Netherlands to trade with the enemies of Denmark, with the exclusion of contraband. Article 13 listed the items that constituted contraband (Clive Parry, ed., The Consolidated Treaty Series [231 vols.; Dobbs Ferry, N.Y., 1969–81], 23:377, 383, 391).

7The Treaty of Commerce and Navigation between Naples and the United Provinces of the Netherlands, like those mentioned in nn. 4–5, above, allowed neutrals all trade with belligerents except contraband (Azuni, Maritime Law, 2:132). Azuni cited as a source the journal Mercure historique et politique, where the date of the treaty is given as 27 Aug. 1753 (Mercure historique et politique [September 1753]: 277).

8Articles 21 through 26 of the 23 May 1667 Treaty of Madrid between Great Britain and Spain allowed citizens of each to trade with the enemies of the other, including foodstuffs, excepting contraband, which was described, and also allowed the merchandise of citizens of either country carried in belligerent vessels to be confiscated along with the rest of the ship and cargo (Chalmers, Collection of Treaties between Great Britain and Other Powers, 2:5, 17–19).

9Articles 1 through 5 of the 1 Dec. 1674 Marine Treaty between Great Britain and the United Provinces of the Netherlands allowed citizens of each country to trade with the enemies of the other, listed contraband and acceptable trade items, and described the papers each was required to show to officials of the other as well as the technique to be used to examine them (ibid., 1:177–80).

10The 30 Dec. 1675 Explanatory Declaration of the February 1668 and December 1674 treaties between Great Britain and the United Provinces of the Netherlands stated that citizens of the two countries could trade not only between neutral ports and those of an enemy but between one enemy port and another (ibid., 189–91).

11The 9 Dec. 1713 Treaty of Navigation and Commerce between Great Britain and Spain included the words of the 1667 Treaty of Madrid (see n. 8 above) (ibid., 2:108–9). In his notes JM linked the treaties described in nn. 8–10, and here, with a brace.

12The 14 Jan. 1739 Pardo Convention between Great Britain and Spain agreed to the appointment of ministers of the two countries who were to meet within six weeks to regulate the differences between them relating to trade and navigation and territorial limits, such regulation to be done “according to the treaties of the years 1667, 1670, 1713, 1715, 1721, 1728, and 1729” (Jenkinson, Collection of All the Treaties between Great Britain and Other Powers [1968 reprint], 2:339–43).

13Article 2 of the 2 Dec. 1734 Treaty of Navigation and Commerce between Great Britain and Russia stated: “The subjects of either party may trade with all the states which may be at enmity with one of the parties, provided they carry no warlike stores to the enemy” (Azuni, Maritime Law, 2:131 and n. 108).

14Article 15 of the 3 Nov. 1655 Treaty of Peace between Great Britain under Oliver Cromwell and France under Louis XIV stated that for “four years to come… ships of either nation may carry commodities of any kind to the enemies of the other” and excepted besieged places and military stores (Jenkinson, Collection of All the Treaties between Great Britain and Other Powers [1968 reprint], 1:81, 83).

15Article 11 of the 11 Apr. 1654 Treaty of Peace between Great Britain and Sweden signed at Upsala stated: “By the previous articles is not to be understood that either nation may not trade with the enemies of the other, so the goods they carry be not deemed contraband” which would be defined within the ensuing four months (ibid., 69–70). Chalmers’s version of the article is more detailed (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:20, 25–26).

16Article 3 of the 15 July 1656 Treaty of Alliance between Great Britain and Sweden stated that either party might trade with the enemies of the other except to besieged places or when carrying the contraband listed in article 2 (Jenkinson, Collection of All the Treaties between Great Britain and Other Powers [1968 reprint], 1:98).

17Article 11 of the 21 Oct. 1661 treaty between Great Britain and Sweden stated that each would be allowed to trade with enemies of the other, but that commerce in contraband, which the article listed, was forbidden. Also forbidden was trade with besieged places and giving any assistance to enemy endeavors. Article 4 allowed the citizens of each signatory full and free permission to travel and trade within the territories of the other, again barring contraband (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:44, 52–53, 48).

18For article 16 of the 11 July 1670 Copenhagen Treaty of Alliance and Commerce between England and Denmark which allowed each participant to trade with the enemies of the other, excepting contraband and trade with blockaded ports, see ibid., 78, 85.

19In the left margin here JM has inserted: “? Eng. ¸ & France 1697 art. V—same phrase in respect to neutral subjects—as of enemies-free trade restored as before the war—Jenk. V. 1. p. 300. See also Discourse, p. XI quoting Chartr. of Ed. III prohibg trade with Enemy So also Queen Eliz.” Article 5 of the 20 Sept. 1697 Treaty of Ryswick between Great Britain and France allowed the “free use of navigation and commerce between the subjects of both the said kings, as was formerly in the time of peace” and allowed open trade between the two countries (Jenkinson, Collection of All the Treaties between Great Britain and Other Powers [1968 reprint], 1:299–300). For the prohibition by Edward III of trade with the enemy and its continuation by Elizabeth I, see Charles Jenkinson, A Collection of Treaties of Peace, Commerce, and Alliance, between Great-Britain and Other Powers, from the Year 1619 to 1734: To Which is Added, A Discourse on the Conduct of the Government of Great-Britain, in Respect to Neutral Nations (London, 1781), 111–12.

20For articles 1 and 2 of the 17 Feb. 1668 Treaty of Commerce between England and the United Provinces of the Netherlands which allowed British subjects to trade to any country at peace with England, even if that country should be at war with the United Provinces, and which extended that freedom to all non-contraband goods, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 1:190.

21Article 3 of the 31 July 1667 Articles of Navigation and Commerce between England and the United Provinces of the Netherlands acknowledged that the negotiators had been unable to reach agreement regarding the trade issue and incorporated into the contract articles 26–42 of the 21 July 1667 Treaty of Breda (see n. 3 above) (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:151, 153–59).

22In the right margin here, JM wrote: “Hold. 1673/4; art VII. Chal v. 1. p. 175.” Article 7 of the 19 Feb. 1674 Treaty of Westminster between England and the United Provinces of the Netherlands stated that the 1667 Treaty of Breda (see n. 3 above) and all treaties confirmed by it were to “be renewed, and remain in their full force and vigour” wherever they did not contradict the Westminster treaty (ibid., 172, 175).

23Articles 1, 2, and 4 of the 31 July 1677 Treaty of Breda between England and France agreed on peace between the two countries, the cessation of all hostilities between them, and allowed that navigation and commerce should be as free as “before the late war” (Jenkinson, Collection of All the Treaties between Great Britain and Other Powers [1968 reprint], 1:186).

24For the 22 Aug. 1689 convention between England and the United Provinces of the Netherlands in which, both countries being at war with France, they agreed to prevent all commerce, belligerent and neutral, with France, see ibid., 292–95.

25Article 12 of the 23 Jan. 1700 Treaty of Alliance between Great Britain, Sweden, and the Estates General of the Netherlands bound the participants to “consult together, for prohibiting commerce with the enemies of such confederate or confederates,” see ibid., 313, 315.

26Article 6 of the 20 Jan. 1701 Odensee Treaty of Alliance between Great Britain, Denmark, and the United Provinces of the Netherlands stated that although the king of Denmark insisted on liberty of commerce for his subjects, in order to avoid fraudulent use by foreigners of Danish passports, the section of the convention made between the three signatories in 1690 regulating trade with France would come into effect and remain so until it could be examined and changed for the better prevention of fraud (ibid., 331, 333).

27Articles 17–21 of the 11 Apr. 1713 Treaty of Utrecht between Great Britain and France stated that free ships make free goods, always excepting contraband which was described, and that subjects of either country were free to trade with and between ports of the enemies of the other. Article 20 listed as well all the merchandise that was not to be considered contraband, and article 21 listed the papers the ships had to carry to allow such free trade (ibid., 2:40, 50–52).

28Articles 1–5 of the 1 Dec. 1674 Treaty of London between England and the United Provinces of the Netherlands allowed the subjects of each country to trade with the enemies of the other, listed contraband that was excepted, permitted non-contraband goods, also listed, and described the papers each vessel should carry and the methods to be used to inspect the ships (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:177–80).

29For the 9 Dec. 1713 Utrecht Treaty of Navigation and Commerce between Great Britain and Spain that included the wording of the 1667 Treaty of Madrid, see Jenkinson, Collection of All the Treaties between Great Britain and Other Powers (1968 reprint), 2:88–107.For articles 21–26, which allowed free trade between the subjects of either country and the enemies of the other, except for contraband and non-contraband items, see ibid., 101–2.

30Article 7 of the 3 Dec. 1715 Madrid Treaty of Commerce between Great Britain and Spain stated that the 9 Dec. 1713 Utrecht Treaty of Commerce between the two countries would remain in effect except for articles contrary to the 1715 treaty which would be of no force (Chalmers, Collection of Treaties between Great Britain and Other Powers, 2:172–75). For the 9 Dec. 1713 treaty, see n. 29 above.

31Article 18 of the 21 Jan. 1720 Treaty of Alliance and Assistance between Great Britain and Sweden stated that even after one of the signatories had fulfilled its obligation to send auxiliary troops to the other, if that country had not otherwise entered the war, its subjects were free to trade with the enemy of the other, excluding contraband (Jenkinson, Collection of All the Treaties between Great Britain and Other Powers [1968 reprint], 2:251, 263).

32The 13 June 1721 Treaty of Madrid between Great Britain and Spain renewed the conditions of the 13 July and 9 Dec. 1713 treaties of Utrecht with certain exceptions (ibid., 264–68).

33Article 1 of the 9 Nov. 1729 Treaty of Peace, Union, Friendship, and Mutual Defense between France, Great Britain, and Spain, signed at Seville, renewed and confirmed all former treaties of friendship and peace among them (ibid., 306–7).

34Article 1 of the 16 Mar. 1731 Vienna Treaty of Peace and Alliance between Great Britain, the Holy Roman Empire, and the United Provinces of the Netherlands stated that all the former treaties between the three countries should have their full force and effect (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:310–11, 312–13).

35Article 3 of the 18 Oct. 1748 Treaty of Aix-la-Chapelle between Great Britain, France, and the United Provinces of the Netherlands renewed the Treaty of Westphalia and ten other treaties (Jenkinson, Collection of All the Treaties between Great Britain and Other Powers [1968 reprint], 2:370, 374).

36Article 9 of the 5 Oct. 1750 Madrid Treaty between Great Britain and Spain confirmed the Treaty of Aix-la-Chapelle (see n. 35 above) as well as all the other treaties mentioned in the Madrid Treaty (ibid., 410, 412).

37JM placed an asterisk before the date and wrote in the left margin: “*This subsequent to captures of 1756.” Article 2 of the 10 Feb. 1763 Paris Treaty of Peace and Friendship between Great Britain, France, and Spain renewed the treaty of Westphalia of 1648, the quadruple alliance of 1718, and the Aix-la-Chapelle treaty of 1748 (see nn. 35–36 above). Article 1 pledged “universal and perpetual peace” between the contracting parties (ibid., 3:177, 179–80).

38Article 10 of the 20 June 1766 St. Petersburg treaty between Great Britain and Russia, which was to be in effect for twenty years, allowed the subjects of both countries to trade with the non-blockaded ports of the enemies of the other, excepting military stores, and required “men of war and privateers” to “behave as favourably as the reason of the war” would permit (ibid., 224, 228–29, 234).

39JM placed a dagger before the date and wrote in the left margin: “†see p. 364. British declaration & p. 366 Fr. do. holding out idea of alterations witht. [illegible] the point in question. See p. 400 & 402. for British & Spanish like declarations.” The 3 Sept. 1783 Versailles declarations by the British, French, and Spanish kings dealt with fishing rights and trade with India and permitted the commercial parts of the treaty to be changed as circumstances altered without changing the other parts of the treaty (ibid., 363–66, 375, 377–78, 400–402).

40See n. 39 above.

41For articles 20–24 of the 26 Sept. 1786 Treaty of Navigation and Commerce between Great Britain and France which basically repeated the descriptions in the 1713 Treaty of Utrecht, see Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:517, 530–33, and n. 27 above.

42In the failed negotiations between Great Britain and representatives of the French Directory in Lisle, France, in 1797, James Harris, Lord Malmesbury, offered a projet that would renew and confirm eleven treaties signed between 1678 and 1783; he also noted in his arguments that the treaties had become the law of nations, and “infinite confusion would result from their not being renewed” (Papers Relative to the Late Negociation at Lisle, Laid before Both Houses of Parliament, by His Majesty’s Command [London, 1797], 15, 16, 25, 61–62).

43Article 14 of the 23 Oct. 1706 Treaty of Commerce between Danzig and Great Britain stated that ships of Danzig carrying proper papers showing that they were carrying neither contraband nor enemy cargo should not be stopped by British vessels. JM wrote in the right margin here: “For reason’s [sic] of G. B. see Jenkinson’s Disc. Brown v. 2. P: [left blank]. Ward. Robinsons Rep.” (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:100, 108).

44JM placed an asterisk before 1734 and added a note in the left margin: “*The trade between the parties limited to Europe, & ports permitted & so as to exclude Colonies—bellig not trade—with Enemies also, if meant to be excluded.” For the 2 Dec. 1734 Treaty of Navigation and Commerce between Great Britain and Russia, see n. 13 above.

45Article 10 of the 1766 Treaty of Commerce and Navigation between Great Britain and Russia allowed subjects of both countries to trade with the enemies of the other, except to blockaded ports or with military stores, and ordered military vessels and privateers to act as favorably as the conditions of war would permit when searching trading vessels (Chalmers, Collection of Treaties between Great Britain and Other Powers, 1:2, 7).

46For article 3 of the 31 July 1667 Articles of Navigation and Commerce between England and the United Provinces of the Netherlands, which incorporated articles 26–42 of the treaty between France and the United Provinces, see nn. 3 and 21 above.

47For the 19 Feb. 1674 Treaty of Westminster that renewed the Treaty of Breda, see n. 22 above.

48The 4 July 1780 explanatory article of the treaty of 1670 between Denmark and Great Britain specifically listed the military supplies that were to be considered contraband and were not to be provided to the enemies of either signatory (Lewis Hertslet et al., comps., A Complete Collection of the Treaties and Conventions, and Reciprocal Regulations, at Present Subsisting between Great Britain and Foreign Powers, and of the Laws, Decrees, and Orders in Council, Concerning the Same;… [31 vols.; London, 1827–1925], 1:203).

49JM placed an asterisk here and added in the right margin: “*Trade to Enemy in all things not contraband, to all places not besieged.” For article 16 of the 29 Nov. 1669 treaty between Great Britain and Denmark, which allowed the subjects of each party to trade with the enemies of the other in all goods but contraband, see A Complete Collection of All the Marine Treaties Subsisting between Great-Britain and France, Spain, Portugal, Austria, Russia, Denmark, Sweden, Savoy, Holland, Morocco, Algiers, Tripoli, Tunis, &c…. (London, 1779), 156, 158.

50For the orders in council of 8 June and 6 Nov. 1793, see ASP, Foreign Relations, 1:240, 430. For those of 8 Jan. 1794 and 25 Jan. 1798, see ibid., 3:264–65. For the 18 Aug. 1794 instruction rescinding part of the order of 8 June 1793, see [James H. Causten], A Sketch of the Claims of Sundry American Citizens on the Government of the United States, for Indemnity,… (Washington, 1836), 30.

51Sir William Scott, Lord Stowell.

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