The course thus far pursued in the discussion of the 18th article2 has inverted the order of it as it stands in the Treaty. It is composed of three clauses the two last of which have been first examined. I thought it adviseable in the outset to dispose of an objection which has been the principal source of clamour.

The first clause, or that which remains to be examined, enumerates the articles which it is agreed shall be deemed contraband of war. These are “all arms and implements serving for the purpose of war such as cannon, muskets, mortars, petards, bombs, grenadoers, carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gun powder, match, salt petre, ball, pike, swords head pieces, cuirasses, halberts, lances, javelins, horse furniture, ho[l]sters, belts and generally all other implements of War; as also timber for ship building, tar or rosin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of Vessels, unwrought iron & fir planks only excepted.” All which articles are declared to be just objects of confiscation, when attempted to be carried to an enemy of either party.

It is well understood that War abridges the liberty of Trade of neutral nations; and that it is not lawful for them to supply either of two belligerent parties with any article deemed contraband of war nor may they supply any article whatever to a place besieged blockaded or invested. The former case includes a special catalogue of articles which have an immediate reference to war. The latter extends to all kinds of goods and merchandizes. The penalty in both cases is confiscation.

These positions have not been disputed. The only question which has been or can be raised must respect the enumeration of the articles which are to be considered as contraband.

In comparing the enumeration in the present Treaty with that of our former Treaties we find the differences to be these. Our former treaties include “horses”3 and one of them “soldiers”4 which our present does not; but our present includes “timber for ship building tar or resin copper in sheets sails hemp and cordage and generally whatever may serve directly to the equipment of vessels unwrought iron and fir planks only excepted” which are not to be found in our former treaties.

It is alleged that the including of these articles is an extension of the list of contraband beyond the limit of the modern law of nations; in support of which allegation it is affirmed that they have been excluded by the uniform tenor of the Treaties which have been formed for more than a Century past.

Though this position will not upon careful examination appear correct; yet it is so far founded as to claim an acknowlegement, that the article under consideration has in this instance pursued the rigor of the law of nations. ’Twas to this I alluded, when I observed that it contained one unpleasant ingredient.5

Though it be true, that far the greater proportion of modern Treaties exclude naval stores or articles for Ship building; yet this is not universally the fact.

By the third article of the Treaty of alliance and commerce between GB & Denmark in 16706 the parties agree “not to furnish the enemies of each other with any provisions of War, as soldiers arms engines guns ships or other necessaries for the use of War nor to suffer the same to be furnished by their subjects.” An explanation of this article was made by a Convention dated the 4 of July 17807 which after enumerating as contraband the usual catalogue of military implements adds in the precise terms of our article “as also timber for shipbuilding, tar rosin, copper in sheets sails hemp and cordage and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted.”

In a series of Treaties between GBritain and Portugal down to the year 17038 I do not discover that there has ever been a regulation of the articles, which are to be treated as contraband between those powers.

An⟨d⟩ between Sweden and Great Britain the 11th article of a Treaty entered into in 1661 (and still in force unaltered, though a subsequent Commercial Treaty was made between those powers as late as 1766)9 subjects to confiscation generally all articles called contraband, and especially money provisions &c. The specification not being complete, naval stores are left upon the open ground of the law of nations, but money and provisions are superadded. This latitude would leave little doubt as to the intention to include naval stores.*

It appears from these specimens, that there is not a perfect uniformity in the Conventions between Nations, and that no purely positive law of nations can be deduced from that source.

If we call to our aid the principles of reason and natural justice which are the great foundations of the law of nations, we shall not discover in this instance data as certain as could be wished for a satisfactory conclusion, and the soundest determination which we can adopt will be that beyond a certain point, the question is in a great degree arbitrary, and must depend materially upon conventional regulation between nation and nation. Hence it is that there is so great diversity in the stipulations of different Treaties, on this point, indicating that there is no absolute rule. Hence also it is that several nations at different times being at war have thought themselves authorised to regulate by public declaration the articles which they would consider and treat as contraband.

The opinions of Writers will be found to support the article as it stands in the particular, which is now the subject of discussion.

Vatel we have before seen (B III C VII § 112) expressly ranks naval stores and timber under the denomination of contraband goods.20

Heinecius (de navibus &c Chap I § X. XI & XIV)21 accords in the same proposition to the extent of whatsoever appertains to the eqipment of Vessels.*

Bynkershoeck22 is less explicit. After laying it down as the general rule that naval stores or the materials of Ships are not contraband, he proceeds thus: “Yet it sometimes happens that the materials of ships may be prohibitted, if an enemy is in great want of them and without them cannot conveniently carry on the War” † and he afterwards cites with approbation several edicts or proclamations which the States General in different Wars with different nations have published, declaring those articles contraband—thus referring it to the belligerent party to judge of and pronounce the cases when they may rightfully be deemed so. And the same idea seems to have been adopted by Grotius‡ and some other writers on public law. I have not met with one whose opinion excludes naval stores from the list of contraband.

Grotius in discussing this question divides goods into three classes I  those which are of use only in war as arms &c  2  those which serve only for pleasure  3  those useful for peaceable as well as warlike purposes “as money provisions ships and naval stores” concerning which he argues in substance that the first class are clearly contraband, that the second class are clearly not contraband and that the third class may or may not be so according to the state & circumstances of the war; alleging that if necessary to our defence they may be intercepted but upon condition of restitution unless there be just cause to the contrary; which just cause is explained by the example of sending them to a besieged or blockaded place.

The reasoning about this third class has a very inconvenient latitude. It subjects the Trade of neutral nations too extensively to the discretion of belligerent powers and yet there is a serious embarrassment about drawing the true line; one which will duely conciliate the safety of the belligerent with that of the neutral party.

What definition of contraband, consulting reason alone, shall we adopt? Shall we say that none but articles peculiar to war ought to receive this denomination? But is even powder exclusively applicable to War? Are nitre and surphur its chief ingredients peculiar to War? Are they not all useful for other purposes; some of them, in medicine & other important arts? Shall we say that none but articles prepared or organised for war as their primary object ought to have that character? But what substantial difference can reason know between the supply to our enemy of powder, and that of sulphur and salt petre, the easily convertible materials of this mischievous compound?

How would either of these definitions or any other comport with what those of our treaties, which are thought unexceptionable in this particular, have regulated or with what is common in the Treaties between other nations? Under which of them shall we bring horses and their furniture?

If we say that in wars by land these are instruments little less important, than men and for that reason ought to be comprehended it may be asked in return what can be more necessary in Wars by sea than the materials of Ships, and why should they not for the like reason be equally comprehended?

In wars between maritime nations, who transfer its calamities from the land to the Ocean and wage their most furious conflicts on that element, whose dominions cannot be attacked or defended without a superiority in naval strength, who moreover possess distant territories, the protection & commercial advantages of which depend upon the existence & support of navies, it is difficult to maintain that it is against reason or against those principles which regulate the description of contraband, to consider as such the materials which appertain to the construction and equipment of Ships.

It is not a sufficient objection that these articles are useful for other purposes & especially for those of maritime commerce. Horses are of primary utility in Agriculture; and it has been seen that there are other articles indisputably on the list of contraband which are intirely within the principle of that objection.

Rutherford, a sensible modern Writer,* after truly observing “that the notion of contraband goods is of some latitude, so that it is not easy precisely to determine what are and what are not of this sort—that all warlike stores are certainly contraband but that still the question returns what are to be reckoned warlike stores”—after noticing the division of articles by Grotius and the difficulties with regard to the third class—draws this conclusion that “Where a war is carried on by sea as well as by land not only ships of war which are already built but the materials for building or repairing of Ships will come under the notion of warlike stores.” This is a precise idea and it must be confessed, on principle, not an irrational one.

If we resort to the opinions which have been entertained & evidenced in our country they will be found to have given great extent to the idea of contraband. Congress by an act of May 8th 177725 establishing the form of Commissions for Commanders of Privateers authorise them “to attack subdue and take all ships and other vessels whatsoever carrying soldiers arms gunpowder ammunition provisions or any other contraband goods to any of the British armies or ships of War employed against the U States.” And in their act of the 27 of November 1780 acceding in part to the rule of the armed neutrality26 they declare that contraband shall be thereafter confined to the articles contained under this character in our Treaty with France, indicating, by this, their opinion that the list of those articles is abriged by that Treaty. If the first mentioned act was well founded (and there are strong reasons for it) it establishes that even provisions may be contraband, if going directly to invading fleets & armies; which affords an instance of their being so,27 in addition to the cases of places besieged blockaded or invested. And as to naval stores I do not fear to be mistaken when I assert a belief that the common opinion of those persons in this country whose contemplation had embraced the subject included them in the catalogue of contraband.

Nevertheless from the number of modern Treaties which exclude from that list naval stores, and moreover from the manifest interest of Nations truly considered to narrow the rights of war in favour of those of peace, this clause of the treaty, which takes a different route, is to be regretted as pursuing the Rigor of the law of Nations. Still however it cannot be objected to as a departure from that law; and agreeing with the course observed by Great Britain antecedent to the Treaty, it does not place our trade in these articles upon a worse footing than it was independently of the Treaty.

The period of the negotiation was more unpropitious to a change for the better. In the midst of any maritime war a belligerent nation enjoying a naval superiority was likely to have been tenacious of a right which she supposed herself to possess to intercept naval supplies to her enemy. But in a war in which it was more than ordinarily possible that the independent existence of a Nation might depend on the retaining that naval superiority, it was to have been foreseen that she would not consent to relinquish such a right. The alternative was to insert the article as it stands or to omit it wholly.

Had it been omitted the condition of naval stores would have been the same as with it. But our Merchants would then have continued to be exposed to uncertain risks, which is always a great inconvenience. It is desireable in similar cases to have a fixed rule. Merchants can then accommodate their speculations to the rule; and causes of national contention are avoided. It is in this view to be regretted that the cases when provisions may be treated as contraband could not have been agreed upon; but as this was impracticable, the next best thing has been done, by establishing the certainty of compensation in all such cases. This gives one important species of security, obviates one source of contention. And if really there may be other cases than the admitted ones, in which provisions can fairly be deemed contraband, (as the one designated by the act of Congress of May 1777)28 the securing of compensation was truly a point gained by the article.

But while I confess that the including of naval stores among contraband articles is an ineligible feature of the Treaty, I ought to declare that its consequences to the interests of the U States, as it regards the Trade in those articles in time of War, do not appear to me important. War between other nations, when we are at peace, will always increase the demand for our bottoms so as to require much additional building of Vessels and probably to produce a more beneficial species of employment of the naval stores our country affords, than that of their exportation for sale.

The adversaries of the Treaty are eagle-eyed to spy out instances in which it omits any favourable minutiae which are found in our other Treaties but they forget to ballance the account by particulars which distinguish it favourably from those Treaties. Of this nature is the omission of horses from the list of contraband, and still more the salutary regulations with regard to vessels & their cargoes going to places besieged blockaded or invested. I do not discover that these useful provisions, or their equivalents, are in either of our Treaties with France Holland or Sweden.

It has been said in reference to this article that “whenever the law of Nations has been a topic for consideration, the result of the Treaty accommodates Great Britain in relation to one or both of the republics at War with her as well as in the abandonment of the rights and interests of the U States.” And the following examples are given to each of which will be annexed a reply.29

I   “American Vessels bound to Great Britain are protected by sea papers against French and Dutch searches: but when bound to France or Holland are left exposed to British searchers without regard to Ships papers.” The truth of this proposition depends on another, which is, that the sea papers are to be absolutely conclusive; but reasons have been given for doubting this construction, which it has been remarked does not obtain in practice. And it is certainly a violent one, in as much as it puts it in the power of the neutral to defeat the rights of the belligerent party in points of great consequence to its safety.

II   “American provisions in American vessels bound to the enemies of Great Britain are left by the treaty to the seizure and use of Great Britain; but provisions whether American or not in American vessels cannot be touched by the enemies of Great Britain.” The construction of the Treaty upon which this difference is supposed has been demonstrated to be erroneous. The difference therefore does not exist.

III   “British property in American vessels is not subject to French or Dutch confiscation. French or Dutch property in American Vessels is subject to British confiscation.” This was the case before the Treaty, which makes no alteration in the matter. Moreover it is counterballanced by this circumstance—that American property in British vessels is subject to confiscation by France or Holland, but American property in French or Dutch vessels is not subject to confiscation by Great Britain.

IV   “Articles of Ship building bound to the enemies of Great Britain for the equipment of vessels of Trade only are contraband—bound to Great Britain for the equipment of vessels of War are not contraband.” This also was the case before the Treaty, which consequently has not in this particular more than in the former produced any benefit to one party to the prejudice of the other. I forbear to dwell upon the article of horses as falling under a contrary discrimination; nor shall I insist on the additional circumstance that all American goods not generally contraband, if going to a place besieged blockaded or invested by French or Dutch forces are liable to confiscation by France or Holland; if going to a place besieged blockaded or invested by British forces are not liable to confiscation by Great Britain.

Differences of these several kinds are the accidental results of the varying views of different contracting powers; and from slender grounds of blame or praise of the respective contracts made with them.

The form of the criticism last stated leaves little doubt that it was designed to insinuate an intention in this article to favour the Monarchy of G Britain at the expence of the Republics of France & Holland. The candour of it may be judged of by the two facts, first that it makes no alteration in this view in the antecedent state of things, and 2dly That the relative situation of Holland as the enemy of Great Britain30 is subsequent to the adjustment of the article.