have liberty freely and securely to come, with their ships and cargoes, to all such places, ports, and rivers in the territories aforesaid to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any part of said territories respectively; also to hire and occupy houses and warehouses for the purposes of their commerce, and, generally, the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively.

ARTICLE 2. No higher or other duty shall be imposed on the importation into the United States of any articles, the growth, produce, or manufacture of his Britannic Majesty's territories in Europe, and no higher or other duties shall be imposed on the importation into the territories of his Britannic Majesty in Europe of any articles, the growth, produce, or manufacture of the United States, than are or shall be payable on the like articles, being the growth, produce, or manufacture of any other foreign country; nor shall any higher or other duties or charges be imposed in either of the two countries on the expor tation of any articles to the United States, or to his Britannic Majesty's territories in Europe, respectively, than such as are payable on the exportation of the like articles to any foreign country. Nor shall any prohibition be imposed on the exportation or importation of any articles, the growth, produce, or manufacture of the United States, or of his Britannic Majesty's territories in Europe, to or from the said territories of his Britannic Majesty in Europe, or to or from the said United States, which shall not equally extend to all other nations. By enactments of the legislatures of the two countries, the British colonies are brought within the effect of the stipulations in these conventions.

Having thus, as far as possible, established the standard by which the proceedings complained of are to be tried, the undersigned proceeds to examine those proceedings themselves.

On the 20th of May, 1862, the Congress of the United States enacted a law the first three sections of which are as follows:

"SECTION 1. That the Secretary of the Treasury, in addition to the powers conferred upon him by the act of the 13th of July, 1861, be, and he is hereby, authorized to refuse a clearance to any vessel or other vehicle, laden with goods, wares, or merchandise, destined for a foreign or domestic port, whenever he shall have satisfactory reasons to believe that such goods, wares, or merchandise, or any part thereof, whatever may be their ostensible destination, are intended for ports or places in possession or under control of insurgents against the United States; and if any vessel or other vehicle, for which a clearance or permit shall have been refused by the Secretary of the Treasury, or by his order as aforesaid, shall depart or attempt to depart for a foreign or domestic port without being duly cleared or permitted, such vessel or other vehicle, with her tackle, apparel, furniture, and cargo shall be forfeited to the United States. "SEC. 2. That whenever a permit or clearance is granted for either a foreign or domestic port it shall be lawful for the collector, if he deem it necessary under the circumstances of the case, to require a bond to be executed by the master or the owner of the vessel in a penalty equal to the value of the cargo, and with sureties to the satisfaction of said collector that the said cargo shall be delivered at the destination for which it is cleared or permitted, and that no part thereof shall be used in affording aid or comfort to any person or parties in insurrection against the authority of the United States.

"SEC. 3. That the Secretary of the Treasury be, and he is hereby, further empowered to prohibit and prevent the transportation on any vessel, or upon any railroad, turnpike, or other road or means of transportation within the United States, of any goods, wares, or merchandise of whatever character, and whatever may be the ostensible destination of the same, in all cases where there shall be satisfactory reason to believe that such goods, wares, or merchandise

are intended for any place in the possession or under the control of the insurgents against the United States, or that there is imminent danger that such goods, wares, or merchandise will fall into the possession or under the control of such insurgents; and he is further authorized, in all cases when he shall deem it expedient so to do, to require reasonable security to be given that the goods, wares, or merchandise shall not be transported to any place under the insurrectionary control, and shall not in any way be used to give aid or comfort to such insurgents; and he may establish all such general or special regulations as may be necessary or proper to carry into effect the purposes of this act; and if any goods, wares, or merchandise shall be transported in violation of this act, or of any regulation of the Secretary of the Treasury established in pursuance thereof, or if any attempt shall be made so to transport, then all goods, wares, and merchandise so transported or attempted to be transported shall be forfeited to the United States."

After considering the arguments of Mr. Stuart in the most careful manner, it is not apparent to the undersigned that they invalidate the act of Congress, the substance of which has been recited. By the law of nations every state is sovereign over its own citizens and strangers residing within its limits, its own productions and fabrics, and its own ports and waters, and its high, ays, and, generally, within all its proper territories. It has a right to maintain that sovereignty against sedition and insurrection by civil preventives, and penalties, and armed force, and it has a right to interdict and prohibit, within its own boundaries, exportation of its productions and fabrics, and the supplying of traitors, in arms against itself, with material and munitions, and any other form of aid and comfort. It has a right, within its own territories, to employ all the means necessary to make these prohibitions effective. It does not appear to the undersigned that the United States have surrendered this right by the convention between themselves and Great Britain which has been recited. It is true that, by the first article of the convention of 1815, British merchants have liberty fully and freely to come with their ships and cargoes into the ports, rivers, and places within the territories of the United States, and to be protected in their commerce there, but this right is expressly restricted to the ports, rivers, and places only into which other foreigners are permitted to enter, and in which they are permitted to reside and trade, and they are, moreover, expressly declared, while entering, residing, and trading in such ports, rivers, and places, to be subject to the laws and statutes of the two countries. So, by the third article of the convention of 1815, it is stipulated that prohibitions shall not be imposed on the exportation or importation of any articles the growth, produce, or manufacture of either country; this stipulation, however, is not absolute, but only a stipulation that any such prohibition shall extend equally to all other nations as well as Great Britain. The law of Congress seems to be free from the special objections which are raised by Mr. Stuart. It does not confine its prohibitions or its requirements to British vessels trading between New York and the Bahamas, but applies them to all vessels of all uations, including the United States, wherever trading, whether with the Bahamas or with any other part of the world. The prohibitions and requirements are not uncertain as to the authority which prescribes them or the form of the prescription, but they are declared and promulgated in solemn enactment by the Congress of the United States. The conditions on which the prohibitions and requirements are suspended are not left to capricious suspicions or beliefs, but they are dependent on satisfactory evidence of ascertainable facts. They involve no question of neutral rights, because no neutral has or can have a right more than any citizen of the United States to do an act within their exclusive jurisdiction which is prohibited by the statutes and laws of the country. The act has nothing to do with the blockade of the insurrectionary ports, because it confines its prohibitions and requirements to transactions occurring, and to persons residing or being

1

within the ports actually possessed by the United States, and under their undisputed protection and control.

Having thus vindicated the act of Congress under which the proceedings of which Mr. Stuart has complained are supposed to have occurred, the undersigned will next examine the manner in which the act has been directed by the Secretary of the Treasury to be executed.

On the 14th of April, 1862, before the act of Congress was passed, it had been reported to the President that anthracite coal was being shipped from some of the ports of the United States to southern ports within and to other southern ports without the United States for the purpose of supplying fuel to piratical vessels which were engaged in depredating on the national commerce on the high seas. The Secretary of the Treasury, therefore, by authority of the President, who is charged with the supreme duty of maintaining and executing the laws, issued to the collectors of the customs at New York and other ports the following instruction:

"Clear no vessel with anthracite coal for foreign ports nor for home ports south of Delaware bay till otherwise instructed."

It was thereupon represented to the President that this order was unnecessarily stringent and severe upon general commerce, because it prohibited the exportation of coal to ports situated so far from the haunts and harbors of the pirates that the article would not bear the expense of transportation to such haunts and harbors, and thereupon the Secretary of the Treasury, by the President's authority, on the 18th of May issued a new instruction on the subject to the collectors of the customs, which was of the effect following:

"The instructions of the 14th ultimo, concerning the prohibition of the exportation of coals, are so far modified as to apply only to ports north of Cape St. Roque, on the eastern coast of South America, and west of the fifteenth degree of longitude east. Coal may be cleared to other foreign ports, as before, until further directed."

The subject of supplies of coal and other merchandise having, in the meantime, engaged the attention of Congress, with the result of the passage of the law before mentioned, the Secretary of the Treasury, on the 23d of May last, and as speedily as possible after the approval of the law, issued the following instruction to the collectors of the customs of the United States:

"Until further instructed you will regard as contraband of war the following articles, viz: Cannon, mortars, fire-arms, pistols, bombs, grenades, firelocks, flints, matches, powder, saltpetre, balls, bullets, pikes, swords, sulphur, helmets or boarding caps, sword belts, saddles and bridles, always excepting the quantity of the said articles which may be necessary for the defence of the ship and of those who compose the crew, cartridge bag material, percussion and other caps, clothing adapted for uniforms, rosin, sail cloth of all kinds, hemp and cordage material, ship lumber, tar and pitch, ardent spirits, military persons in the service of the enemy, despatches of the enemy, and articles of like character with those specially enumerated.

"You will also refuse clearances to all vessels which, whatever the ostensible destination, are believed by you, on satisfactory grounds, to be intended for ports or places in possession or under the control of insurgents against the United States, or that there is imminent danger that the goods, wares, or merchandise, of whatsoever description, will fall into the possession or under the control of such insurgents. And in all cases where, in your judgment, there is ground for apprehension that any goods, wares, or merchandise shipped at your port will be used in any way for the aid of the insurgents or the insurrection, you will require substantial security to be given that such goods, wares, or merchandise shall not in any way be used to give aid or comfort to such insurgents. You will be especially careful, upon applications for clearances, to require bonds with sufficient sureties for fulfilling faithfully all the conditions imposed

by law or departmental regulations from shippers of the following articles to the ports opened, or to any other ports from which they may easily be and are probably intended to be reshipped in aid of the existing insurrection, namely: liquors of all kinds, coals, iron, lead, copper, tin, brass, telegraph instruments, wire, porous cups, platinum, sulphuric acid, zinc, and all other telegraph materials, marine engines, screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, fire bars, and every article whatever which is, can, or may become applicable for the manufacture of marine machinery or for the armor of vessels."

These are the treasury regulations under which the proceedings of the collector at New York, which are complained of by Mr. Stuart, are supposed to have taken place. It is not apparent to the undersigned that these regulations in any way transcend the authority conferred upon the Secretary of the Treasury and upon the collectors of the United States by the before-recited act of Congress. Nor is it apparent that they are more obnoxious than that act itself is to the objections which have been raised by Mr. Stuart. They do not expressly, nor by any implication, discriminate against Great Britain, her colonies or dependencies, and in favor of any other nation, or even in favor of the United States. They do not discriminate between British ports, British merchants, British vessels, or British merchandise, and the ports, merchants, and vessels of the United States, or those of any other nation. The instructions leave nothing to the caprice of the collector as a subordinate officer, but they are explicit commercial regulations, prescribed by the highest authority. The conditions on which prohibitions are to attach are to be ascertained upon satisfactory evidence, and for the collector's exercise of power in applying them he is responsible to the head of the department to which he belongs. The regulations have no connexion whatever with the blockade, but they affect only persons, vessels, merchandise, ports, waters, and highways, exclusively within the United States and within the territories which are in the absolute and unquestioned possession of the United States, and subject in fact as well as in law to their authority.

Fully admitting the principle for which Mr. Stuart so earnestly conterds, that all proceedings and even regulations and laws of the United States, which affect foreign commerce, must not discriminate to the prejudice of Great Britain, the undersigned finds no adequate grounds for supposing that the principle is violated in these regulations. The instructions issued on the 14th of April and the 18th of May, prohibiting the exportation of coals to ports within geographical limits, which leave freedom of export to the other one-half of the world, may seem to furnish ground for exception. But the prohibition applies to all American and all foreign merchant vessels and cargoes as well as to those of Great Britain, and to all the States which are situated within the assigned limits, as well as to British dependencies situated therein. It is understood to be an accepted maxim that no law reaches in effect beyond the point where the reason of the law fails, especially if the law so extended should be productive of injuries without object and without compensation or benefit. There is not the least reason to suppose that the insurgents of the United States could in any way derive benefit from the exportation of anthracite coal to Archangel, or to Shanghai, or to Japan. Nor is it manifest that the British nation, its merchants and vessels, do not, in common with other nations, their merchants and vessels, derive benefits and advantages from the export permitted to all ports of whatever nation beyond the limits assigned by the Secretary of the Treasury. Nevertheless the President, desirous to remove all possible grounds for misconstruction, has directed that those instructions shall be rescinded, so that the case will stand altogether upon the act of Congress and the general instructions of the treasury, which have been recited.

In regard to the special proceedings of the collector of the customs at New York, which are complained of, the information presented to the undersigned is

vague and uncertain. There is no satisfactory evidence in the papers under consideration that he has in any case made a clearance or exacted a bond which involved any infringement of the law of Congress and the regulations of the treasury. This government will cheerfully examine upon its merits any case of infringement which may be presented to it, and will promptly render the redress which shall be due, if the complaint shall be sustained; and it will further instruct all its collectors that, in performing their duties, they will be governed by not merely the letter but the spirit of the regulations of the treasury, and of the act of Congress, so as to make no injurious or invidious discrimination to the prejudice of Great Britain.

The undersigned avails himself of this opportunity to renew to Mr. Stuart the assurance of his high consideration.

Hon. WILLIAM STUART, &c., &c., &c.

WILLIAM H. SEWARD.

Mr. Stuart to Mr. Seward.

WASHINGTON, October 12, 1862.

The undersigned, her Britannic Majesty's chargé d'affaires, has the honor to transmit to the Secretary of State of the United States the accompanying copy of a despatch which he has received from her Majesty's principal secretary of state for foreign affairs, bearing reference to the note which the Secretary of State addressed to the undersigned, under date of the 18th of August last, in reply to representations on the subject of restrictions imposed on the trade in British vessels from the ports of the United States to the Bahamas.

The undersigned avails himself of this opportunity to renew to the Hon. William H. Seward the assurance of his high consideration.

W. STUART.

Earl Russell to Mr. Stuart.

No. 130.]

FOREIGN OFFICE, September 22, 1862. SIR: I have had under my consideration' and have consulted the proper law advisers of the crown respecting your despatch No. 172, of the 20th ultimo, in which you enclose a copy of a note you had received from Mr. Seward in reply to the representations you had addressed to him on the subject of the restrictions imposed on the trade in British vessels from the ports of the United States to the Bahamas.

I have now to state to you that the gravity of the circumstances in this case is, in the opinion of her Majesty's government, rather increased than diminished by the grounds on which the proceedings of the New York custom-house are explained and sought to be justified in the letter from Mr. Collector Barney to Mr. Chase, of which a copy is enclosed in Mr. Seward's note, and which proceedings are, as it appears, approved and sanctioned by the government of the United States.

It is admitted in this letter that the prohibitions and restrictions in question are directed exclusively against the commerce of one particular British posses sion, namely, Nassau. It is therefore clear that, unless they can be justified by the law of nations, they violate the terms of the subsisting commercial trea ties between the United States and this country, and furnish ground for international complaint.