Enclosure: Neutral Rights, 4 June 1801
Enclosure
Neutral Rights
The Principles insisted on by the English are that
1. free bottoms do not make free goods.
2. that a port may be blockaded by proclamation without force.
3. that Naval stores are contraband.
4. that belligerent may search neutral vessels, in all cases.
5. that Neutrals have no right to a commerce in war not permitted them in peace.
When two nations chuse to go to war, it should in no wise affect those who remain in the ordinary relations of social & moral intercourse with them & with one another.
Their1 rights then, of commerce & navigation remain unaltered by the war of others.
One single exception might be allowed: to wit. where a special military enterprize would be defeated by the full exercise of the neutral right in that special case, as by his entering a port blockaded, that is to say, beleaguered; or by his departure from a port in the moment that a military enterprize is commencing.
The consequences of neutral rights, with only this limitation are
that a nation may avail itself of an opportunity of enlarging it’s commerce at all times, whether that opportunity occurs while others are at war, or in peace.
that nothing is contraband in war more than in peace.
that of course there can be no right of search.
that free bottoms make free goods, because the bottom cannot be searched.
This last rule results also from another consideration. Where a space is common to all, as the sea, a road, a seat in a theatre, a church &c. that portion of it which any individual or nation happens to occupy at any moment, is for that moment appropriated to the occupier. consequently the space occupied by a carriage in a road, or a ship at sea, is for that moment appropriated to the owner of the carriage or ship, and no other individual or nation has more right to enter the carriage or ship, than if they were at home in the enclosure or harbour of the owner.
In the earlier state of commerce among modern nations, the rights of neutrals were seen and claimed in this light by some powers. but those who, at that moment, happened to find their own interest in the restraint of neutral rights, happened also in that moment to be the strongest, and prevailed in obtaining acquiescence under the principles restrictive of neutral right.
In this state was the Jus gentium of maritime right, a little shaken indeed by the measures of the armed neutrality, (but some of whom afterwards relinquished their own principles) when the altercation arose between Genet & the American government; the former insisted that the latter should go to war against England because she had taken French goods out of American bottoms. the US. answered that according to the practice of European nations, a nation may take an enemy’s goods out of the bottom of a friend. that this was the general rule, to which treaties had formed exceptions in many cases, which cases only2 were by these special compacts taken out of the general rule.
But the nations finding an interest in the abridgment of Neutral rights have since, under colour of their principles, & the acquiescence of other nations, carried their abuses so far, that a state of war between any two nations now, amounts to an entire prostration of the rights of commerce & navigation of the nations remaining at peace. No wonder then if the peaceable nations are arroused by these abuses, and turning their attention to first principles, see the right & the necessity of recurring to the original state of the question, of establishing the true principles which ought to have been at first established, & would have been, but for the accidental history of the times. they feel that war between two nations cannot diminish the rights of the world remaining at peace: & that to this but a single exception can be admitted, to wit, of a beleaguered town or port. the monstrous doctrine that the rights of nations remaining quietly3 under the exercise of moral & social duties, are to give way to the convenience of those who chuse to go into a state of murder & plunder, ought to yield to the more rational rule that the wrongs which two nations endeavor to inflict on each other, must not infringe on the rights or conveniences of those remaining at peace: but the Neutral nations are aiming at only a half-reformation. they admit the right of search when no convoy is present. they admit some things contraband, tho’ they deny naval stores to be such. the same effort which will establish this, will establish the true principles in all their latitude, and nothing short of that ought to be aimed at.
MS (DLC: TJ Papers, 116:19991); entirely in TJ’s hand, including endorsement: “Neutral rights”; with citations to legal authorities added by TJ in margin (see below).
Jus gentium: the law of nations. In 1793, in response to complaints by French envoy Edmond Charles Genet, TJ as secretary of state wrote: “I believe it cannot be doubted but that, by the general law of nations, the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend are lawful prize.” He noted that some countries, including the United States, had begun to replace that doctrine with “another in it’s stead, that free bottoms shall make free goods and enemy bottoms, enemy goods.” Although the newer doctrine had begun to appear in some treaties that governed relations between particular nations, it could not constrain Great Britain from utilizing the “established principle of the Law of nations.” The U.S. government considered Genet’s complaints about British seizures of French goods from American ships to be one of the reasons for requesting his recall (Vol. 26:557–8, 696, 706).
Perpendicularly in the margin alongside his reference to “the Jus gentium of maritime right,” TJ wrote “[Qu] whether prize goods may be sold,” followed by a list of citations from legal authorities, quoted below. The first citation is largely obscured by tape.
“see 2. […] of [Justin.] [3] 33 […]”: the second book of the Institutes, an overview of Roman civil law compiled in the 6th century under the authority of Justinian, the emperor of the Eastern Roman Empire, discussed possession of property (Peter Birks and Grant McLeod, trans., Justinian’s Institutes [London, 1987], 7, 12, 55–67; , Nos. 2191, 2193, 2195).
“2. Wooddeson 443.”: Richard Wooddeson, A Systematical View of the Laws of England, 3 vols. (London, 1792–93); see , No. 1808. On the page given by TJ, vol. 2, p. 443, which concerned captures at sea, Wooddeson cited, among other authorities, Burlamaqui and the portion of the work of Barbeyrac and Grotius noted by TJ (see below).
“Lee. 77. Burlamaqui”: in A Treatise of Captures in War (London, 1759), 77, English lawyer Richard Lee stated “that neutral Nations ought to regard the two Parties at War, as lawful Proprietors of what they can take from each other by force of Arms.” That phrasing repeated language that the Genevan jurist and legal scholar Jean Jacques Burlamaqui used in a passage cited by Wooddeson—part 4, chapter 7, paragraph 12 of Burlamaqui’s Principes du droit politique (Burlamaqui, The Principles of Natural and Politic Law, trans. by Mr. Nugent, 5th ed., 2 vols. [Cambridge, 1807], 2:201–10; , Nos. 1408, 1419).
“Barbeyrac on Grotius L. 3. c. 6. §. 2.”: Jean Barbeyrac translated Hugo Grotius’s De Jure Belli ac Pacis into French and wrote notes to accompany the work (, No. 1405). The part cited by TJ, book 3, chapter 6, part 2, discussed a captor’s right to property seized during war, citing references that reached back to Greece and Rome. Wooddeson cited the same passage. As secretary of state in 1792, TJ used another portion of the same chapter with regard to the protection of neutral territory during war (Hugo Grotius, The Rights of War and Peace, in Three Books … To Which Are Added, All the Large Notes of Mr. J. Barbeyrac [London, 1738], 580–1; Vol. 23:297).
“Bynk. Qu. jur. pub. L. 1. c. 15.”: TJ became acquainted with Cornelius van Bynkershoek’s works, and called them to James Madison’s attention, in 1784. The first book of Bynkershoek’s Quaestionum Juris Publici was a source that TJ quoted in 1792 in a long communication to George Hammond, the British minister to the United States, concerning alleged infractions of the 1783 treaty of peace. TJ’s book catalog listed two other works by Bynkershoek. No reference to Bynkershoek appears on the page of Wooddeson’s book cited by TJ above (, Nos. 1427, 2205; Vol. 6:550; Vol. 7:37; Vol. 23:554, 583, 602).
1. Word reworked from “The.”
2. Word interlined.
3. Word interlined.