point, which is, that after every effort on the part of our negotiator, the parties were not able to agree in the doctrine that free bottoms should make free goods, nor in the cases in which alone provisions and other articles not generally contraband, should be deemed such. Leaving, therefore, both these points precisely as they found them (except in respect to provisions, the payment for which, when by the law of nations liable to capture as contraband, is secured) to be regulated by the existing law of nations, it is stipulated to renew the negotiation on these points at the epoch assigned for the future adjustment of the West India trade, in order then to endeavor to agree in a conventional rule, which, instead of the law of nations, should thereafter regulate the conduct of the parties in these respects.

[The eleventh article has been passed over in silence as being merely introductory and formal.]

NO. XXVI.

CAMILLUS.

1795.

The British trade to their possessions in the East Indies, as well as to China, is a monopoly vested by the legislature in a company of merchants. No other persons in Great Britain, nor in any of her dominions or colonies, can send a vessel to, or prosecute trade independent of the company, with any part of Asia. The right to trade with their possessions in India is not only refused to all British subjects, the India company excepted, but is one, that Great Britain has never before yielded by treaty to any foreign nation. By the terms of the charter to the India company, among a variety of limitations, they are restrained and confined to a direct trade between Asia and the port of London; they are prohibited from bringing any of the productions of India or China directly to any part of America, as well to the British colonies as to our territories; and moreover they are restrained from carrying any of the productions of Asia, directly

to any part of Europe, or to any port in Great Britain, Scotland, or Ireland, except the single port of London.

The 13th article stipulates, that our vessels shall be admitted in all the sea-ports and harbors of the British territories in the East Indies, and that our citizens may freely carry on a trade between said territories and the United States, in all such articles, of which the importation or exportation shall not be entirely prohibited; provided only, that when Great Britain is at war, we may not export from their territories in India, without the permission of their local government there, military stores, naval stores, or rice. Our vessels shall pay in this trade, the same tonnage duty as is paid by British vessels in our ports; and our cargoes on their importation and exportation shall pay no other or higher charges or duties than shall be payable on the same articles when imported or exported in British bottoms; but it is agreed that this trade shall be direct between the United States and the said territories; that the article shall not be deemed to allow the vessels of the United States to carry on any part of the coasting trade of the British territories in India, nor to allow our citizens to settle or reside within the said territories, or to go into the interior parts thereof, without the permission of the British local government there.

The British trade to their territories in the East Indies is carried on by a corporation, who have a monopoly against the great body of British merchants. Our trade to the same territories will be open to the skill and enterprise of every American citizen. The British trade to these territories is direct, but confined to the port of London; our trade to the same must likewise be direct, but may be carried on from and to all our principal ports.

The article gives us a right in common with the India company to carry to these territories, and to purchase and bring from thence, all articles which may be carried to or purchased and brought from the same, in British vessels: our cargoes paying native duties, and our ships the same alien tonnage as British ships pay in our ports. This trade is equally open to both nations; except when Great Britain is engaged in war, when the

consent of the British local government is required in order to enable us to export naval stores, military stores, and rice; a limitation of small consequence; none of the articles except nitre being likely to form any part of our return cargoes. Though this article is one against which the objection of a want of reciprocity (so often, and so uncandidly urged against other parts of the treaty) has not been preferred, it has not however escaped

censure.

It is said that we are already in the enjoyment of a less restrained commerce with the British territories in India, and that the treaty will alter it for the worse: inasmuch as we thereby incapacitate ourselves to carry on any part of the coasting trade of the British territories in India, and as we relinquish the profitable freights to be made between Bombay and Canton, and likewise those sometimes obtained from the English territories in Bengal to Ostend.

It would seem a sufficient answer to say, that this trade has heretofore existed by the mere indulgence of those who permitted it, that it was liable to variations, that a total exclusion, especially had it been of us in common with other foreign nations, could have afforded no just ground of complaint: that the relaxation which has hitherto given us admission to the British Indian territories, was not a permanent, but a mere temporary and occasional regulation, liable to alteration, and by no means to be demanded as the basis of an intercourse to be adjusted by compact, with a foreign nation, which would no longer leave the power of alteration in either of the parties.

But in respect to the first objection, the article amounts to this, that the rights which it does grant, shall not by implication be construed to give a right to carry on any part of the British coasting trade in India.

If we have before shared in this trade by permission, nothing in the article will preclude us from enjoying the same in future. If we did not participate in it, nothing in the article impairs either the authority of the British local government to permit our participation or our capacity to profit by such permission. This

objection, therefore, falls to the ground, since the coasting trade remains as it was before the treaty was formed.*

[Further, according to my information]-It is not the trade between the East Indies and China, as has been erroneously sup posed by some persons, but the exportation of rice and other articles, which are exchanged between the British territories in the hither and further Indies, that is denominated the coasting trade of the British territories in India. The importance of this trade is not well understood; nor am I able to say whether we have heretofore been allowed to carry it on. If we have, the little that we have heard of it, leads to an opinion that it is not an object of much consequence. Let it, however, be granted that hereafter we shall not be allowed to engage in it. Shall we have more reason to complain of this exclusion, than we have that we are refused a share in the coasting trade of the European dominions of Great Britain? or that we are excluded from the coasting trade between their islands in the West Indies? Or than the British themselves have, that by our prohibiting tonnage duty (being fifty cents per ton on entry of a foreign vessel, when our own coasting vessels pay only six cents per ton, for a year's license) they are excluded from sharing in our coasting trade; a branch of business that already employs a large proportion of our whole navigation, and is daily increasing.

In respect to the second and third objections, it may be remarked, that so far as the trade has been heretofore enjoyed, it has been in consequence of an exception from, and relaxation in, the system by which the European commerce has been regulated; that having depended on the mere occasional permission of the local government, we may safely infer (though it may have been supposed incompatible with the discretionary powers, vested in that government, to confer by treaty a positive right to carry on the trade in question) that so long, and as often as the interest

* [The terms used clearly denote this and nothing more; they are-" It is also understood that the permission granted by this article is not to extend to a’lmo.” This does not negative any pre-existing indulgence, but merely provides that the main grant shall not convert the revocable indulgence, if any there was in this particular, into an irrevocable right by treaty.]

that has heretofore induced the grant of this permission shall continue or exist, the permission will be continued or renewed. The stipulation, restraining the trade, may, if the parties see fit, be dispensed with, and the trade may be enlarged, or made free. It being a contract only between them and us, the parties are free to remodify it; and without a formal alteration, if those in whose favor the restraint is made consent to remove it, the other party is released from the obligation to observe it.*

Again-Surat, which is in the neighborhood of Bombay, is the emporium of Guzerat, and of the northern portion of the Malabar coast; the cottons shipped from Bombay to Canton, are frequently first sent from Surat to Bombay. Surat belongs to the native powers to which we have free access. If the transportation of cotton and some few other commodities from the coast of Malabar to Canton is an important branch of our commerce, what will prevent our prosecuting it from Surat or any other free port in the hither Indies?

That it may be undertaken from the ports of the native powers is rendered probable by the circumstance, that these freights are supplied principally or alone by the native or black merchants, whose residence would naturally be in the ports under native jurisdiction more frequently than in those under the jurisdiction of any of the foreign powers.

But is it not true (and will not candor admit it) that the trade to the Asiatic dominions of the European powers has usually been confined to the nation to whom such territories belong? In our treaty with Holland, have we not even stipulated to respect

* [This has been affected to be questioned on account of what is called the peremptoriness of the expressions (to wit), “It is expressly agreed that the vessels of the United States shall not carry, &c." But there is no real room for the questionIn a contract between two parties, whether individuals or nations, where a restraint is imposed upon one for the benefit of another, it is always an implied condition of the restraint that it shall continue, unless dispensed with by the party for whose benefit it is imposed.--Thus the British government in India may remove the restraint, by continuing the indulgence in this respect heretofore granted.--And it seems to me clear that the law which the United States are to pass, for enforcing the prohibition, may, with good faith, be qualified with this provision, "unless by permission of the British government in India."]