ART. 9.
This article is an improvement of that on the same subject
in the Treaty of 1794; inasmuch as it excepts from the list
of contraband, tar and pitch, when not bound to a port of
naval equipment, and when so bound, substitutes preemption
for forfeiture. It has an advantage also, in the clause renouncing
the principle of the British order of Augt 1803
against vessels returning from the places, to which they had
carried contraband of War.
On the other hand, it would not have been unreasonable to
expect that the British Government would, in a Treaty with
the United States, have insisted on no stipulation less favorable,
than her stipulation on the same subject, with Russia,
especially as the Naval stores exported from the United
States, are equally the growth and produce of the Country.
Consistency again, as well as reason evidently required,
that the exception in favor of tar and pitch should have been
extended to every species of naval stores, equally applicable
to other uses than those of War, and destined to places other
than those of naval equipment.
Lastly it is observable, that even turpentine and rosin
are not included with Tar and pitch in the favorable exceptions,
tho' of a character so kindred as to leave no pretext
for the distinction.
Neither has the British Government the slightest ground
for regarding as a concession, the stipulated immunity of
a vessel, which, on her outward voyage, had carried contraband
to a hostile port. The principle asserted by her order
on that subject is an innovation against the clearest right
of neutrals as recognized and enforced even by British Courts.
The very language of the Article implies that this is a
pretence for the innovation.
These considerations urge a remodification of the Article,
and they are strengthened by the great dislike of the President
to formal regulations at this particular moment, of
principles combated by some, and unfavorable to all neutral
nations. So ineligible indeed, in his view, is any step tending
in the least to retard the progress of these principles, that
naval stores are to be left on a stipulated list of contraband,
in the event only of an inflexible refusal of the British Government
to omit them; nor are they to be retained in any event,
without an addition or explanation that will except turpentine
and Rosin, as well as tar and pitch, there being no plausible
motive for the distinction; and the quantity and value of the
two former exported from the United States, being found, on
enquiry, to make them of equal importance with the two
latter. It can scarcely be supposed that the British Government
will insist on this unwarrantable distinction. It is not
indeed improbable, that it has been a mere inadvertence.
Such an inference is favored by the circumstance of your speaking,
in your comment on this article, of Tar and Turpentine,
as being the two exceptions. Whatever the true state of
the case may be, it is thought better to omit a list of
contraband altogether, than not to include in the exception
from it Turpentine and Rosin, as well as tar and
pitch.
