that the belligerent, having also an unquestionable right to ascertain the neutrality of vessels, and belligerent rights being paramount to neutral rights, where the two happen to be in collision,-hence the attempt of the neutral to deprive the belligerent of his right, by putting himself under convoy, forms of itself a ground of capture and confiscation. To this I answer, First, that the belligerent rights, where they come into collision with those of neutrals, are not to be deemed in all cases paramount; and that nothing can establish such a general rule but force, which is not law or justice. Secondly, that no presumption necessarily arises against the neutral, from the mere circumstance of his being found under enemy's convoy; but that this point will depend upon the peculiar circumstance of each case. Thirdly, that where the belligerent and neutral rights conflict, all other circumstances being equal, the plea of necessity ought to decide the question in favour of the neutral. In the case supposed, the belligerent is seeking the mere exercise of a right, but the neutral is occupied in his self preservation. These vessels did not seek convoy for any purpose, but they were forced into it; they had no motive to seek convoy as a protection against Danish cruisers. They had, indeed, other inducements to put themselves under convoy; the decrees of his majesty the emperor of France being then in force, that system, working against the English orders in council, produced such a state of things, with regard to the commerce of America, that scarcely one of its ships could move on the face of the ocean, without being exposed, under this unfortunate co-operation of hostile systems, to capture and confiscation. But, had this happened in the cases before us, yet it would not have formed a just ground of capture and confiscation; for, the merits or demerits of the Berlin and Milan decrees out of the question, those decrees have not been adopted by Denmark; indeed, at the time the vessels were taken, his majesty had not assumed any course, with respect to the American commerce, from which evil was to be apprehended; hence, I beg leave to repeat, that the vessels in question cannot be presumed to have sought protection under British convoy, for the purpose of avoiding his cruisers. But if the contrary had been proved, if it stood confessed, that they had sought convoy against Danish cruisers; in that case, they would have been liable to capture, certain

ly, but it is equally certain, that they would not have been liable to condemnation. I must again totally deny, that the rule laid down in the article of the royal instructions above cited, is supported by any principle to be found in the law,-and I can confidently ask your excellency to show me any authorities in its favour. If the writers be silent on the subject, then their silence is to be construed favourably for the neutral. But the law says, that neutral goods found under the enemy's forts, within his territory, or even on board his vessels at sea, which is to be as immediately and totally under his protection as is possible, that these are not liable to confiscation, but shall be restored to the neutral owners. The doctrine laid down by Grotius, in the "De Jure Belli ac Pacis," on this point, has never been refuted, but has, on the contrary, been adopted by subsequent writers. England herself has never gone to the extent of condemning vessels upon the mere ground of their having been taken under enemies' convoy; but she has captured them in that situation, and acquitted them."

--

These vessels were condemned by the Danes, on the pretence, either that the property was English, the papers false, or that pretended certificates of origin were shown as given by the French consuls in America, when the French government had caused official notice to be given to the Danish government, on the 22d of September, 1810, that the French consuls were forbidden from furnishing these certificates. But upon proof being presented, that the French consuls in America did actually give these certificates, till the 13th of November, the Danish government immediately released all vessels furnished with them of a prior date.* As to the con

* Official statement of June 23, 1811.

Pending of do. in High Court, 8, and not one finally condemned. Captures in Danish islands, in 1810, 68

Condemnations,

Pending,

22

Convoy

voy cases, the Danish government considered, that this circumstance deprived them of their original character of neutrality. "He who causes himself to be protected, by that act ranges himself on the side of the protector, and thus puts himself in opposition to the enemy of the protector, and evidently renounces the advantages attached to the character of friend to him, against whom he seeks protection. If Denmark should abandon this principle, the navigators of all nations would find their account in carrying on the commerce of Great Britain under the protection of English ships of war, without running any risk. We every day see that this is done, the Danish government not being able to place in the way of it sufficient obstacles." To this arbitrary, and obviously most unjust doctrine, the American government could never accede. But Denmark still continued to enforce it; and not only the vessels already condemned were not released, but all captures of American vessels, under English convoy, were held to be legal. Great difficulties having arisen in the examination of the cases as to jurisdiction, the French government proposed, that the prizes taken by privateers with French commissions, should be transferred to Paris. But the Danish government did not consent to this. None of the vessels condemned in 1809 or 1810 were released. No further interruption being given to American commerce in the Baltic, and no hope remaining that the condemned cases would be revised, Mr. Erving left Copenhagen, in April, 1812, for Paris, leaving Mr. Forbes as an agent for the American claims. On the whole, this business terminated more favourably than could have been expected. The Danish government conducted with more justice than most of the other European states against whom this country has claims, the condemnations being few in proportion to the captures. We cannot doubt, that some illegal trade was carried on un

der the American flag at that time. Indeed, we are officially informed of that fact, in a memorial of American ship masters to the President, in 1809, who had been taken, and carried into Christiansand. That portion of American property, left by Mr. Erving in sequestration, on which acts of condemnation had been passed, has not been settled to this day; and no change in the amount, or of the claim for indemnity, has taken place since Mr. Erving left Copenhagen, in 1812.*

* An account of these claims will be found in the Boston Monthly Magazine, for January, 1826.

SEUM

JITANNICUS

CHAPTER XV.

RELATIONS WITH PORTUGAL.

Trade in Mediterranean, exposed to Barbary cruisers, first led to diplomatic intercourse-Vessels taken by Algerines as early as '85Before revolution protected by British passes-Number of captives in '93-Humphreys sent to Lisbon in '91-Freire to this countryLegation suspended in 1801-Smith in '97-No commercial or other treaty with Portugal.

THE state of our commerce in the Mediterranean, first led to a diplomatic intercourse with Portugal. The circumstances of alliances, boundaries and original claims have conferred a peculiar character and uncommon importance upon all the relations, both of the confederation and the present government, with France, Spain and England. And though Portugal fell within the limits of the European trade, allowed by the mother country, we are not aware that the commerce of that nation, or its situation, or any other consideration, presented motives to a correspondence which were not common to nearly all the European states. But the war, in which Portugal was engaged with Algiers in the early part of President Washington's administration, suggested the expediency of sending a minister to that court.