University of Virginia Library

Treaties to which England first, and then Great Britain, was
a party.

By a treaty with Sweden, in 1654, and another in 1656, confirming
and explaining the former, it is stipulated, Art. II—IV,
that it shall be lawful for the subjects of either of the confederates
to trade with the enemies of the other; and, without
impediment, to carry to them, except to places blockaded or
besieged, any goods whatsoever not contraband, of which a
specification is inserted. Provision is also made for the efficacy
of passports in certain cases, and against the abuse of
them for covering enemies' property.[69]

The weight of these examples is not diminished by the name
of Cromwell, under whose authority the treaties were concluded
in behalf of England. In foreign transactions, as well
as at home, his character was distinguished by a vigor not
likely to relinquish or impair rights, in which his country,
as a warlike and maritime power, was interested.

On the other hand, it adds weight to the examples, that they
are treaties of alliance, containing mutual engagements of
friendship and assistance; and, consequently, the less apt to
indulge the parties in an intercourse with the enemies of
each other, beyond the degree required by the law of nations.
This observation is applicable to all the succeeding examples,
where the treaties are of the same kind.

On the restoration of Charles II, a treaty of alliance was concluded
with Sweden in 1661, the 11th Article of which, in pursuance
of those above copied from the treaties of 1654 and
1656, stipulates anew, that neither party shall be impeded in
carrying to the enemies of the other, any merchandize whatever,

with the exceptions only of articles of contraband, and
of ports or places besieged.[70]

In a treaty with Spain, May 13, 1667, the Articles XXI—
XXVI import, that the subjects of each shall trade freely in
all kingdoms, estates, and countries at war with the other, in all
merchandizes not contraband; with no other exception of
places but those besieged or blockaded.[71]

In July, 1667, a treaty was concluded with the United Provinces,
of which Art. III provisionally adopts certain articles
from the treaty of Breda, between the United Provinces and
France, on the subject of maritime commerce; until a fuller
treaty could be perfected between the parties. The articles
adopted, in relation to the trade between the subjects of one
of the parties and the enemies of the other, declare that the
trade shall extend, without impediment, to all articles not
contraband, and to all places not besieged or blockaded.[72]

In February, 1667–8, the same parties, then under a perpetual
defensive alliance by virtue of a treaty of 21st July,
1667, and in a league moreover with Sweden by the triple
league of 1668, resumed the subject of maritime and commercial
affairs, and repeated, in the first article of their treaty,
the precise stipulations adopted provisionally from the treaty
between France and the United Provinces.[73]

A treaty with Denmark, in 1669, stipulates, that they may
trade each with the enemies of the other, in all articles not
contraband, and to all places not blockaded, without any
other exceptions.[74]

On the 11th July, 1670, another treaty of alliance was concluded
with Denmark, the 16th Art. of which declares that
"neither of the parties shall be impeded in furnishing to the
enemies of the other any merchandizes whatever; excepting
only articles of contraband, as described in the treaty, and
ports and places besieged by the other."[75]

It is worthy of notice in this treaty, and the remark is applicable
to others, that the 5th Art. having stipulated a right
mutually to trade in the kingdoms, provinces, marts, towns,
ports, and rivers of each other, it was immediately provided
in the next article, that prohibited ports and colonies should
be excepted. If it had been conceived that such ports or colonies
of enemies were not to be traded with, under the general
right to trade with enemies acknowledged in the 16th Article,
it is manifest that they would have been as carefully excepted
in this, as in the other case, out of the meaning of general
terms equally comprehending them. This treaty proves also,
that as early as 1670, colonies began to fall under attention in
making treaties.

In a maritime treaty of December 1, 1674, with the United
Provinces, stating in the title that it was "to be observed
throughout all and every the countries and ports of the world by
sea and land," it is stipulated again, in Art. I, to be "lawful for
all and every the subjects of the most serene and mighty prince,
the King of Great Britain, with all freedom and safety to sail,
trade, and exercise any manner of traffic in all those kingdoms,
countries, and estates, which are, or any time hereafter shall be
in peace, amity, or neutrality with his said majesty; so that
they shall not be any ways hindered or molested in their navigation
or trade, by the military forces, nor by the ships of war
or any kind of vessels whatsoever, belonging either to the
High and Mighty States General of the United Netherlands,
or to their subjects, upon occasion or pretence of any hostility
or difference which now is, or shall hereafter happen between
the said Lords the States General, and any princes, or people
whatsoever, in peace, amity, or neutrality with his said majesty;"
and so reciprocally.

Art. II. "Nor shall this freedom of navigation and commerce
be infringed by occasion or cause of any war, in any
kind of merchandizes, but shall extend to all commodities
which may be carried in time of peace, those only excepted

which follow in the next article, and are comprehended under
the name of contraband."

Art. III enumerates the articles of contraband.

Art. IV contains a negative list, which, with all other articles
not expressly included in the list of contraband, may be freely
transported and carried to places under the obedience of enemies[76]
except only towns or places besieged, environed, or invested.[77]

This recital has been made the more minute, because it is
necessary, in order to understand the whole force of the explanatory
declaration between the parties bearing the same
date; a document so peculiarly important in the present discussion,
that its contents will be recited with equal exactness.

This document, after stating "that some difficulty had
arisen concerning the interpretation of certain articles, as
well in the treaty marine concluded this first day of December,
1674, as in that which was concluded the 17th February,
1667—8, between his majesty of Great Britain on the one part,
and the States General, &c., on the other part," proceeds to
state "that Sir William Temple, &c., on one part with eight
commissioners on the other, have declared, and do by these
presents declare, that the true meaning and intention of the
said articles is, and ought to be, that ships and vessels belonging
to the subjects of either of the parties, can and might, from

the time that the said articles were concluded, not only pass,
traffic and trade, from a neutral port or place, to a place in
enmity with the other party, or from a place in enmity to a
neutral place, but also from a port or place in enmity to a port
or place in enmity with the other party, whether the said places
belong to one and the same prince or State, or to several princes
or States, with whom the other party is in war. And we
declare that this is the true and genuine sense and meaning
of the said articles; pursuant whereunto we understand that
the said articles are to be observed and executed on all occasions,
on the part of his said majesty, and the said States General,
and their respective subjects; yet so that this declaration
shall not be alleged by either party for matters which happened
before the conclusion of the late peace in the month of February,
1673–4.[78]

Prior to the peace, neither of them could claim the rights
of neutrality against the other.

This declaratory stipulation has been said to be peculiarly
important. It is so for several reasons:

1st.

• Because it determines the right of the neutral party,
  so far as may depend on the belligerent party, to trade not only
  between its own ports and those of the enemies of the belligerent
  party, without any exception of colonies, but between any
  other neutral port and enemies' ports, without exception of
  colonial ports of the enemy; and moreover, not only between
  the ports colonial as well as others, of one enemy and another
  enemy, but between the different ports of the same enemy;
  and consequently between one port and another of the principal
  country; between these and the ports of its colonies; between
  the ports of one colony and another; and even to carry
  on the coasting trade of any particular colony.

2d.

• Because it fixes the meaning not only of the articles in
  the two specified treaties; but has the same effect on all other
  stipulations by Great Britain, expressed in the same or equivalent
  

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  terms; one or other of which are used in most, if not all
  her treaties on this subject.

3d.

• Because it made a part of the treaties explained, that
  free ships should make free goods; and consequently, the coasting
  and colonial trade, when combined with that neutral advantage,
  was the less likely to be acknowledged, if not considered
  as clearly belonging to the neutral party.

4th.

• Because the explanatory article was the result of the[79]
  solicitation of England herself, and she actually claimed and
  enjoyed the benefit of the article, she being at the time in
  peace, and the Dutch in war with France.[80]

In the treaty with France, February 24, 1677, Articles I, II,
and III, import that each party may trade freely with the enemies
of the other, with the same merchandize as in time of
peace, contraband goods only excepted, and that all merchandizes
not contraband "are free to be carried from any port in
neutrality, to the port of an enemy, and from one port of an
enemy to another; towns besieged, blocked up or invested,
only excepted."[81]

In 1689, England entered into the convention with Holland,
prohibiting all neutral commerce with France, then the enemy
of both.[82] In consequence of the counter treaty of Sweden
and Denmark, for defending their neutral rights against this
violent measure, satisfaction was made, according to Vattel,
for the ships taken from them; without the slightest evidence,
as far as can be traced, that any attempt was made by either
of the belligerent parties, to introduce the distinction between
such part of the trade interrupted, as might not have been
allowed before the war, and as was therefore unlawful, and

such part as having been allowed before the war, might not
lawfully be subject to capture.

We are now arrived at the treaties of Utrecht, an epoch so
important in the history of Europe, and so essentially influencing
the conventional law of nations, on the subject of
neutral commerce.

The treaty of navigation and commerce, March 31, 1713, between
Great Britain and France, Article XVII, imports, that
all the subjects of each party shall sail with their ships with all
manner of liberty and security, no distinction being made who
are the proprietors of the merchandizes laden, thereon, from
any port, to the places of those who now are, or shall hereafter
be, at enmity with the queen of Great Britain and the Christian
king, and "to trade with the same liberty and security from
the places, ports and havens of those who are enemies of both
or of either party, without any opposition or disturbance whatsoever,
not only directly from the places of the enemy aforementioned
to neutral places, but also from one place belonging
to an enemy, to another place belonging to an enemy, whether
they be under the jurisdiction of the same prince or under
several."

Art. XVIII. "This liberty of navigation and commerce,
shall extend to all kind of merchandizes, excepting those only
which follow in the next article, and which are specified by the
name of contraband."

Art. XIX gives a list of contraband, which is limited to
warlike instruments.

Art. XX specifies others, many of which are in other
treaties on the list of contraband, declaring that these with
all other goods, not in the list of contraband in the preceding
article, "may be carried and transported in the freest manner
by the subjects of both confederates, even to places belonging
to an enemy, such towns or places being only excepted
as are at that time, beseiged, blocked up round about, or
invested."[83]

Could the principle maintained against Great Britain be
more clearly laid down, or more strongly fortified by her
sanction?

To give to this example the complete effect which it ought
to have, several remarks are proper.

In the first place, on comparing the description given of the
free trade, which might be carried on between the neutral
party and an enemy of the other party, with the description
of the free trade allowed between the parties themselves,
by the 1st article of the treaty, it appears that in order to
except the colonial trade in the latter case, the freedom stipulated
in Article I, is expressly limited to Europe. The terms
are, "that there shall be a reciprocal and entirely perfect
liberty of navigation and commerce between the subjects
on each part, through all and every the kingdoms, States,
dominions of their royal majesties in Europe," In the stipulation
relating to the neutral commerce of either with the
enemy of the other (who, if a maritime enemy, could not
fail to possess colonies out of Europe), the terms are, "that
all merchandizes, not contraband, may be carried in the
freest manner to places belonging to an enemy, such towns
or places only being excepted, as are at that time besieged,
or blockaded, &c.," without any limitation to Europe, or
exception of colonies any where. It is obvious, that the
terms here used comprehend all colonies, as much as the terms
in the first article would have done, if colonies had not been
excepted by limiting the freedom, of trade to places "in
Europe;" and consequently that if any distinction between
the colonial and other places of an enemy, had been contemplated
in the neutral trade of either party with him, as it
was contemplated between the colonies and European possessions
of the parties in their commerce to be carried on between
themselves, the distinction would have been expressed in the
latter case, as it was in the former; and not being so expressed,
the trade in the latter case was to be as free to the colonies
as it would have been in the former, if the colonies

had not been excepted by the limitation of the trade to
Europe.[84]

Secondly. But the treaty not content with this necessary
construction, in favor of a neutral commerce with the colonies
of an enemy, proceeds, in conformity to the example in the
declaratory convention between England and Holland in
1674, explicitly to declare the freedom of the neutral party,
to trade not only from any port, to the places of an enemy,
and from the places of an enemy to neutral places, but also
from one place to another place belonging to an enemy, whether
the places be under the same or different sovereigns. Here
both the coasting trade and the colonial trade, which, in
relation to the parent country, is in the nature of a coasting
trade, are both placed on the same footing with every other
branch of commerce between neutral and belligerent parties,
although it must have been well known, that both those
branches are generally shut to foreigners in time of peace,
and if opened at all, would be opened in time of war, and for
the most part, on account of the war.

Thirdly. It is well known, that this particular treaty underwent
great opposition and discussion, both without and
within the British Parliament; and that it was for some time,
under a legislative negative. Yet it does not appear, either
from the public debates, or from the discussions of the press,
as far as there has been an opportunity of consulting them,
that the difficulty arose in the least from this part of the
treaty. The contest seems to have turned wholly on other
parts, and principally on the regulations of the immediate
commerce between the two nations. This part of the treaty
may be considered, therefore, as having received the complete
sanction of Great Britain. Had it indeed been otherwise,
the repeated sanctions given to it on subsequent occasions,
would preclude her from making the least use of any repugnance
shewn to it on this.

On the 28th November, 1713, a treaty of peace and another
of commerce and navigation, were concluded at Utrecht
with Spain, renewing and inserting the treaty of May 13th,
1667, the 21st and 26th Articles of which have been seen to
coincide with the rules of neutral commerce, established by
the treaty at Utrecht, between Great Britain and France.[85]

Genoa and Venice were comprehended in the treaty of
Utrecht, between Great Britain and Spain.[86]

The above treaty of 1713, was confirmed by Article XII, of
a treaty of December 3, 1715, between Great Britain and
Spain.[87]

From the above date to the treaty of 1748, at Aix la Chapelle,
the following treaties between England and other
powers took place; in each of which, the principles established
by her treaties at Utrecht, are reiterated.

With Sweden, January 21, 1720, Article XVIII.[88]

With Spain, June 13, 1721, Article II.—Confirming the
treaty of 1667 and 1713.[89]

With France and Spain, November, 9, 1729, Article, I.—
Renewing all treaties of peace, of friendship, and of commerce,
and consequently those of Utrecht.[90]

With the Emperor of Germany and the United Netherlands,
March 16, 1731, Article I.—Renewing all former treaties of
peace, friendship, and alliance.[91]

With Russia, December 2, 1734.—Stipulating in Article II,
a free trade between either party and the enemy of the other,
in all articles except munitions of war; and consequently
articles permitted after, though not permitted before, the
war.[92]

With Spain, (a convention,) January 14, 1739, Article I.—
Reiterating among former treaties, those of 1667 and 1713,
above cited.[93]

The treaty of Aix la Ohapelle concluded in 1748, forms
another memorable epoch in the political system of Europe.
The immediate parties to it were Great Britain, France, and
the United Provinces.

The 3d[94] Art. of this treaty renews and confirms, among
others, the treaties of Utrecht.[95]
This treaty was acceded to by Spain, Austria, Sardinia,
Genoa, and Modena.

In 1763,[96] in the treaty between Great Britain, France, and
Spain, to which Portugal acceded, the 1st Art. expressly renews
and confirms, among other treaties, the treaties of peace
and commerce at Utrecht.[97]

The treaty with Russia in 1766, Art. X, stipulates a free
trade between either party, being neutral, and an enemy of
the other, with the sole exception of military stores, and
places actually blockaded.[98]

In a convention with Denmark, July 4, 1780, explanatory
of a list of contraband settled in a former treaty, it is expressly
determined that merchandize not contraband, may be transported
to places in possession of enemies, without any other
exception than those beseiged or blockaded.[99]

The treaty of peace in 1783 with France, by Art. II, renews
and confirms, among others, the treaties of Westphalia in
1648, of Utrecht in 1713, of Aix la Chapelle in 1748, and of
Paris, 1763; in all of which the neutral right, now denied by
Great Britain, was formally sanctioned by her stipulations.[100]

In her treaty of the same date, with Spain, the same confirmation
is repeated.[101]

In the treaty of commerce again with France in 1786,
deliberately undertaken in pursuance of Art. XVIII, of the
treaty of 1783, the articles above recited from the treaty of
Utrecht are inserted word for word; and thus received, anew
the most deliberate and formal sanction.—Chalm., vol. 1, p.
350.

It may be here again remarked, that although this treaty
underwent the most violent opposition in Great Britain, it
does not appear that the opposition was at all directed against
the articles on the subject of neutral commerce.

The treaty of 1786 was explained and altered in several particulars,
by a convention bearing date August 31, 1787; without
any appearance of dissatisfaction, on either side, with the
articles on neutral commerce.

In the negotiations at Lisle, in 1797, it was proposed on
the part of Great Britain, by her ambassador, Lord Malmesbury,
to insert, as heretofore usual in the articles of peace, a
confirmation of the treaties of Utrecht, Aix la Chapelle, &c.,
which was opposed by the French negotiators, for reasons
foreign to the articles of those treaties in question.

On this occasion, Lord Malmesbury, in urging the proposed
insertion, observed, "that those treaties had become the law
of nations, and that if they were omitted[102] it might produce confusion."
This fact is attested by the negotiations, as published
by the British Government.[103]

If the treaties had become, or were founded in, the law
of nations, such an omission, although it might be made a
pretext for cavil between the parties, could certainly have no
effect on the law of nations; and if the treaties expressed the

law of nations on any subject at all, on what subject, it might
be asked, have they been more explicit than on that of the
maritime rights of neutrals?

This series of treaties, to which Great Britain is an immediate
party, lengthy and strong as it is, has not exhausted the
examples by which she stands self-condemned. One, in particular,
remains for consideration; which, if it stood alone,
ought forever to silence her pretensions. It is the treaty
with Russia on the 5–17 of June, 1801.

A very important part of the treaty is the preamble:

"The mutual desire of his majesty the King of the United
"Kingdoms, &c., and his majesty the Emperor of all the
"Russias, being not only to come to an understanding be"tween
themselves with respect to the differences which
"have lately interrupted the good understanding and friendly
"relations which subsist between the two States; but also
"to prevent, by frank and precise explanations upon the
"navigation of their respective subjects, the renewal of
"similar altercations and troubles which might be the con"sequence
of them; and the common object of the solicitude
"of their said majesties being to settle, as soon as can be done,
"an equitable arrangement of those differences, and an in"variable
determination of their principles upon the rights of
"neutrality, in their application to their respective monarchies,
"in order to unite more closely the ties of friendship and
"good intercourse, &c., have named for their plenipotentiaries,
"&c., who have agreed," &c.

With this declaratory preamble in view, attend to the following
sections in Article III:

"His Britannic majesty and his Imperial majesty of all the
"Russias having resolved to place under a sufficient safeguard
"the freedom of commerce and navigation of their subjects, in
"case one of them shall be at war while the other shall be
"neuter, have agreed;

"1st.

• That the ships of the neutral power may navigate
  freely to the ports and upon the coasts of the nations at war.

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258





"2d.

• That the effects embarked on board neutral skips shall
  be free, with the exception of contraband of war and of enemy's
  property; and it is agreed not to comprize under the denomination
  of the latter, the merchandize of the produce, growth, or
  manufactures of the countries at war which should have been
  acquired by the subjects of the neutral power, and should be
  transported on their account; which merchandize cannot be excepted
  in any case from the freedom granted to the flag of the
  said power," &c., &c.

These extracts will receive additional weight from the following
considerations:

First.

• This treaty, made with Russia, the power that took
  the lead in asserting the principles of the armed neutrality, was,
  with exceptions not affecting the point in question, acceded to
  by Sweden and Denmark, the two other European powers most
  deeply interested in, and attached to, those principles. It is a
  treaty, therefore, of Great Britain, as to this particular point, as
  well as to most of the others, with Russia, Sweden, and Denmark.

Secondly.

• The treaty had for its great object, as appears by
  its adoption of so many of the definitions of the armed neutrality,
  to fix the law of nations on the several points therein, which
  had been so much contested; the three northern powers yielding
  the point of free ships, free goods; and Great Britain yielding
  to all of them, those relating to the coasting, as well as every
  other branch of neutral trade; to blockades, and to the mode
  of search; and yielding to Russia, moreover, the point relating
  to the limitation of contraband. With respect to the case of
  convoys, a case not comprehended in the armed neutrality of
  1780, but of much subsequent litigation, and inserted in that
  of 1800; a modification, satisfactory to the northern Powers,
  was yielded by Great Britain; with a joint agreement that the
  subjects on both sides should be prohibited from carrying
  contraband or prohibited goods, according to an article in the
  armed neutrality of both dates.

Thirdly.

• The treaty is expressly declared to be an invariable
  determination [fixation], of their principles upon the rights of
  

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  neutrality, in their application to their respective monarchies.

It cannot be pretended that this stipulated application of the
rights of neutrality to the contracting parties, limits the declaratory
effect, which is equally applicable to all neutral nations.
Principles and rights must be the same in all cases, and in relation
to all nations; and it would not be less absurd than it
would be dishonorable, to profess one set of principles or rights
in the law of nations towards one nation, and another set
towards another nation.

If there be any parts of the treaty, to which this declaratory
character is regarded as not applicable, it cannot be pretended
that they are the parts relating to the rights of neutrals to trade
freely to the ports and on the coasts of nations at war; because,
as already observed, the main object of the treaty was to settle
the questions involved in the armed neutrality; of which this
was a primary one, and is here placed by the structure of the article
under the same precise stipulation, with the liability to confiscation,
of enemy's property in neutral ships; a point above all
others which Great Britain must have wished to consecrate
as the law of nations, by declaratory acts for that purpose.

It cannot be pretended that the neutral rights here declared,
do not extend to the colonial as well as coasting trade of belligerent
nations, because the colonial trade is not only included
in a "free trade to the ports and on the coasts" of such nations,
but because it is expressly declared that the effects belonging
to neutrals, and transported on their account from countries
at war, cannot be excepted from the freedom of the neutral flag
in any case, and consequently not in the case of colonies, more
than any other portion of such countries. It is not improper to
remark that this declaratory stipulation is not only included in
the same article, which recognised the principle that enemy's
property is excepted from the freedom of the neutral flag, but
is associated with that recognition in the same section of the
article, and even in the same sentence.[104]

If it were possible to controvert the construction here given
to the treaty, a reference might be made to a very able speech
delivered by Lord Grenville in the British House of Lords in
November 1801, in which this very construction is fully demonstrated.
The demonstration is rendered the more striking by
the embarrassed and feeble opposition made to it by the ingenuity

of the very able speakers who entered the list against
him.[105]

Such is the accumulated and irresistible testimony borne by
Great Britain, in her own treaties, against the doctrine asserted
by her.

It will be in order now to resume the notice of treaties to
which she was not a party, but which authorize some inferences
and observations contributing still further, if possible,
to invalidate her novel pretensions.

The review heretofore taken of this class of treaties was limited

to such as preceded the armed neutrality. Those now to
be added, are principally the treaties and conventions entered
into in the years 1780 and 1800.

The treaties of 1780 declare the right of neutrals in the case
under discussion, in the following terms: "that all vessels shall
be permitted to navigate from port to port, and on the coasts
of the belligerent powers." Those of 1800 are in terms too
little varied to require recital.

It has never been questioned, that these definitions of the
neutral right were as applicable to colonies as to any other of
the territories belonging to a belligerent nation. All the British
writers have so understood the text, and in that sense, have
employed their pens against it.

It need scarcely be remarked that the treaties in question
were framed with a view, not of making a new law of nations,
but of declaring and asserting the law as it actually stood.
The preamble to the convention of 1800, for the re-establishment
of an armed neutrality between Russia and Sweden, explains
the object in the terms following: "In order that the
freedom of navigation and the security of merchandize of the
neutral powers may be established, and the principles of the law
of nations be fully ascertained, &c."

The preamble to the convention of 1780, states the principles
avowed by the parties to be the principles derived from the
primitive rights of nations."

The treaty of 1780 was originally concluded between Russia
and Denmark. But it was acceded to by Sweden, Prussia, the
United Provinces, Austria, Portugal and Naples; and in effect,
by France and Spain. The principles of the treaty had the

sanction also of the United States of America in their cruising
ordinances. Thus it is seen, that with the exception of Great
Britain alone, all the powers of Europe, materially interested
in the maritime law of nations, have given a recent and repeated
sanction to the right of neutrals to trade freely with
every part of the countries at war. And although several of
those nations have, on some of the points contained in these
treaties, as on the points of contraband and enemy's property
under neutral flags, entered since into adverse stipulations;
not one of them has by treaty or otherwise relinquished the
particular right under consideration,[106] whilst Great Britain, as
we have seen in her treaty with Russia, has herself, expressly
acceded to the right.

The importance of treaties in deciding the law of nations, or
that portion of it, which is founded in the consent of nations,
will justify the extent which has been given to this review of
them; and the conclusion which this review justifies is, that the
tenor of treaties, throughout the whole period deserving attention,
confirms the neutral right contended for; that for more
than one and a half centuries, Great Britain has, without any
other interruptions than those produced by her wars with particular
nations, been at all times bound by her treaties with the
principal maritime nations of the world, to respect this right;
and what is truly remarkable, that throughout the long period
of time, and the voluminous collection of treaties, through
which the research has been carried, a single treaty only

(putting aside the explanatory article between Great Britain
and Russia, noted above) has occurred, which forms an
exception to the general mass.

The exception will be found in an article of a Danish treaty
of June, 1691,[107] with England and Holland. In that article
(the 3d) though somewhat obscure, either from inaccuracy in
the original text, or in the printed copy, it seems that Denmark
relinquished her neutral right of commerce between
the ports of France, then at war with the other parties. But
this exception, instead of availing in any respect the belligerent
claim in question, corroborates the testimony furnished
by treaties against it; as will appear from the following
observations:

1st.

• In other parts of the treaty, there are stipulations favorable
  to Denmark, which may have been regarded as some compensation
  for the restriction imposed on herself.

2d.

• Admitting, however, the restriction to have been made
  without any compensating advantages; the sacrifice might
  fairly be ascribed to the dreadful oppressions on the Danish
  commerce, practised by England and Holland, and to the
  desire of Denmark, as a weaker power, to effect some mitigation
  of her sufferings. These sufferings cannot be better explained,
  than by an extract from the preamble to a treaty
  concluded in 1693, between Denmark and Sweden, for the
  purpose of putting in force a preconcerted plan of reprisals.
  "Although their majesties, the kings of Sweden and Denmark
  had hoped, that after they had concluded their treaty of
  March, 1691, for maintaining their navigation and commerce,
  the many unjust piracies exercised on their subjects, would
  at length have ceased; they have nevertheless been grieved
  to find that, notwithstanding the reclamations and remonstrances
  which they have from time to time made to the parties
  engaged in the war, in order that an end might be put to them,
  they have rather increased and augmented, even to a point
  

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  that it is in a manner impossible to express, the pretexts, the
  artifices, the inventions, the violences, the chicaneries, the
  processes which have been practised, not only against the
  vessels and goods of the subjects of their majesties, but also
  against their public convoys, to the prejudice of the customs
  and tolls of their majesties, to the considerable diminution of
  their duties and imports, and to the irreparable injury of their
  kingdoms and provinces, the subjects of which have suffered
  and lost infinitely, in their persons, their crews, their vessels,
  goods and merchandizes. Hence it is that their majesties
  have been obliged, &c."

  Distresses, such as are here painted, might sufficiently account
  for concessions on the part of a sufferer, without supposing
  them to flow from a deliberate or voluntary acquiescence
  in the principle on which they were founded.

3.

• But admitting the stipulation to have been both gratuitous
  and deliberate, and to form a fair exception to the general rule
  of treaties, still being but a single exception to stipulations as
  numerous and as uniform as have been brought into view, the
  exception must be considered as having all the effect in confirming
  the general rule, which can be ascribed, in any case,
  to a confirmation of that sort.

4.

• The exception is limited to a trade between one French
  port and another. It implies, therefore, and recognizes a freedom
  of trade between foreign and French ports, as well colonial
  as others.

To this ample sanction, drawn from the conventional monuments
of Europe, it will be allowable to add the testimony of
the only nation at once civilized and independent, in the American
hemisphere. The United States have, or have had, treaties
with France, Holland, Sweden, Russia, Spain, and Great
Britain.[108] In all of these, except the treaty with Great Britain,

they have positively maintained the principle that neutrals
may trade freely between neutral and belligerent ports,
and between one belligerent port and another, whether under
the same or different jurisdictions; and the treaty with Great
Britain contained not even an implication against the principle.
It merely omitted a stipulation on the subject, as it
did on many others, contained in other treaties.[109]