University of Virginia Library

ART. 8.

This article is framed with more accuracy than the 17th on
the same subject in the Treaty of 1794, and is improved by the
additional paragraph at the close of it. But as such general
stipulations have not been found of much avail in practice,
and as it continued to be the wish of the President to avoid,
especially at the present juncture, unnecessary confirmations
of the principle that a neutral flag does not protect enemies
property, an omission of the Article is much preferred,
unless it be so varied as to be free from the objection. This
may be easily done, by substituting a general stipulation,
"that in all cases where vessels shall be captured or detained
for any lawful cause, they shall be brought to the nearest
or most convenient port; and such part only of the Articles
on board as are confiscable by the law of nations shall be made
prize; and the vessel, unless by that law subject also to confiscation,
shall be at liberty to proceed &c."

There ought to be the less hesitation on the British side
in making this change, as the Article in its present form
departs from that of 1794; and there is the more reason on our
side for requiring the change, as the addition of "for other
lawful cause" after specifying the two cases of the enemy's
property and contraband of War, is probably valued by
Great Britain as supporting her doctrine, and impairing ours,

with respect to Colonial trade. The only case other than
those specified, to which the right of capture is applicable,
is that of blockades, which might have been as easily specified,
as provided for by such a residuary phrase; and the pretext
for appropriating this phrase to the case of the Colonial trade
would be strengthened by the specific provision, in a subsequent
article for the case of blockades.

It cannot be alleged that the specifications of the two cases,
of enemy's property and contraband of war, are necessary to
prevent uncertainty and controversy; the United States having
sufficiently manifested their acquiescence in these causes
of capture. If there be a source of uncertainty and controversy,
it is in the expressions "other lawful cause" and "otherwise
confiscable" and this source could not be increased by
the change here proposed.