XII. Opinion of the Chief Justice
New York 28 Augt. 1790
The Case which I had Yesterday the Honor of recieving from you gave occasion to the following Remarks and Reflections.
Whether the Issue of the Negociations depending between the british and spanish Courts be Peace or War, it certainly is prudent to anticipate and be prepared for the consequences of either Event. In the present State of Things it would doubtless militate against the Interests of the U.S. that the spanish Territories in question should be reduced, and remain under the Government of his B. Majesty; and probably that circumstances would strongly unite with those others which must naturally lead him to regard the Possession of those countries as a desireable object.
If permission to march Troops for that Purpose, thro’ the Territories of the U.S. should be requested, it will be necessary to consider
- 1. Whether the Laws of Nations entitle a belligerent Power to a free Passage for Troops thro’ the Territories of a Neutral Nation? and
- 2. In Case the Right to such Passage be not a perfect one, whether circumstances render a Refusal or a compliance most adviseable on the present occasion?
The Right of Dominion involves that of excluding (under the Restrictions imposed by Humanity) all Foreigners. This Right is very rigidly exercised by some States, particularly the Empire of China. European Nations consider this as a general Right or Rule, and as subject to Exceptions in favor not only of Nations at Peace, but also of Nations at War. The Exceptions which respect the former do not touch the present question. Those which relate to the latter, seem to be comprized within two Classes vizt. cases of urgent necessity, and Cases of Convenience. The present case belongs to the latter. Vattel, who well understood the subject, says in the 7th: chapter of his 3d. Book:
That an innocent Passage is due to all Nations with whom a State is at Peace, and that this comprehends Troops equally with Individuals—That the Sovereign of the country is to judge whether this Passage be innocent—That his Permission must be asked—and that an Entry into his Territories without his consent, is a violation of the Rights of Dominion—That if the neutral Sovereign has good Reasons for refusing a Passage, he is not bound to grant it; but that if his Refusal be evidently unjust (the Passage requested being unquestionably innocent) a nation may do itself Justice, and take by force, what it was unjustly denied; so that such Requests may be refused in all Cases, except in those rare Instances, where it may be most evidently shewn that the Passage required is absolutely without Danger or Inconvenience.
If the Passage in contemplation should appear to be of this Complection, a Refusal would generally be deemed improper, unless the united States should declare and make it an invariable maxim in their Policy, never to permit the Troops of any nation to pass thro’ their country. Such a measure might be wise, in Case the U.S. were in capacity to act accordingly; but that not being as yet the Case, it would perhaps in the present moment be unseasonable.
I say “such a measure might be wise.” Whether it would or not, is a question that involves others, both legal and political of great Magnitude. Nations have perfect Rights. Regard to mutual Convenience may and often does induce Relaxations in the Exercise of them; and those Relaxations, from Time and usage, gradually assume to a certain Degree the Nature of Rights. I think it would appear on a full Investigation of the Subject, that the United States, being a new nation, are not bound to yield the same Relaxations, which in Europe from long Practice and acquiescence amount almost to an implied Cession; and therefore, that they may justly exercise rigorously the Right of denying free Passage to foreign Troops. It is also to be observed, that if they deny this Priviledge to others, it will also be denied to them; but this leads to political consequences and Considerations not necessary now to develope or investigate.
If a Passage should be requested and insisted upon, on the Ground of its being perfectly innocent, and accompanied with such Terms and Precautions, as that a Refusal, altho justifiable, would not appear to be more than barely so; then it will be adviseable to calculate the Probability of their being restrained by such a Refusal.
If the Probability should be, that they would nevertheless proceed; then it would become important to consider whether it would not be better to grant Permission, than by a Refusal to hazard one of two enevitable Inconveniences vizt. that of opposing their Progress by Force of arms, and thereby risque being involved in the War; or of submitting to the Disgrace and Humiliation of permitting them to proceed with Impunity. In my opinion it would in such a Case be most prudent, considering the actual State of our affairs, to consent to the Passage. The answer therefore to be given to Lord Dorchester, in Case he should apply for Permission to march Troops thro’ the Territory of the U.S. from Detroit to the Missisippi, will I think necessarily depend on the nature of the Propositions contained in the application, compared with the before mentioned Principles and Probabilities.
As to the notice proper to be taken of the Measure, if it should be under taken without Leave? There appears to me to be no choice. Such a Measure would then be so manifest a Departure from the Usage of civilized nations, so flagrant and wanton a Violation of the Rights of Sovereignty, and so strong and indecent a mark of Disrespect and Defiance, that their March (if after Prohibition persisted in) should I think be opposed and prevented at every Risque and Hazard.
But these Remarks in my Judgment retain but little Force, when applied to the leading of Troops from Posts in their actual Possession, thro’ Territories under their actual Jurisdiction, altho’ both the Posts and the Territories of right belong to the U.S. If therefore they should march their Troops from such posts, thro’ such Territories, that measure would not appear to me to afford particular cause of complaint. On their arrival by such a Route at the Missisippi, they may in Virtue of the 8th article of the Treaty navigate it up to its source, or down to the ocean.
This subject naturally brings into View a Question both difficult and important vizt. whether as the Possession of the Floridas would afford G. Britain additional means and Facilities of annoying the U.S. the latter would for that Reason be justifiable in endeavouring to prevent it by direct and hostile opposition? The Danger of permitting any nation so to preponderate, as to endanger the Security of others, introduced into the Politics of Europe the Idea of preserving a Ballance of Power. How far the Principles which have thence been inferred, are applicable to the present Case, would merit serious Inquiry, if the U.S. had only to consider what might be right and just on the occasion. But as the State of their affairs strongly recommends Peace, and as there is much Reason to presume that it would be more prudent for them at present to permit Britain to conquer and hold the Floridas, than engage in a War to prevent it, such Inquiries would be premature.—With the most perfect Respect and Esteem I have the Honor to be Sir, Your most obt. & most humble Servant
RC (DLC: Washington Papers).