III. The American Commissioners’ Memorandum
in Support of Article 23 of the Draft
Prussian-American Treaty of Amity and Commerce
[10 November 1784]1
By the original Law of Nations war and extirpation was the punishment of injury—humanizing by degrees, it admitted slavery instead of death. A farther step was, the exchange of prisoners instead of slavery. Another, to respect more the property of private persons under conquest, and be content with acquired dominion. Why should not this Law of Nations go on improving? Ages have intervened between its several steps; but as knowledge of late encreases rapidly, why should not those steps be quickened? Why should it not be agreed to as the future law of Nations that in any war hereafter the following discriptions of men should be undisturbed, have the protection of both sides, & be permitted to follow their employments in surety, viz.
- 1. Cultivators of the earth, because they labour for the subsistance of mankind.
- 2. Fishermen, for the same reason.
- 3. Merchants & Traders in unarmed ships; who accomodate different Nations by communicating & exchanging the necessaries & conveniencies of life.
- 4. Artists & Mechanics inhabiting & working in open towns.
It is hardly necessary to add that the Hospitals of Enemies should be unmolested, they ought to be assisted.
It is for the interest of humanity in general, that the occasions of war, & the inducements to it should be diminished.
If rapine is abolished, one of the encouragements to war is taken away, & peace therefore more likely to continue & be lasting.
The practice of robbing merchants on the high seas, a remnant of the antient piracy, tho’ it may be accidentally beneficial to particular persons, is far from being profitable to all engaged in it or to the nation that authorizes it. In the beginning of a war some rich ships, not upon their guard, are surprized & taken. This encourages the first adventurers to fit out more armed vessels, and many others to do the same—but the Enemy at the same time, become more careful, arm their merchant ships better & render them not so easy to be taken— they go also more under the protection of convoys— Thus while the privateers, to take them are multiplied; the vessels subject to be taken & the chances of profit are diminished, so that many cruises are make wherein the expences overgo the gains;—as it is the case in other lotteries, tho’ particulars have got prizes the mass of Adventurers are losers, the whole expence of fitting out all the privateers during a war, being much greater than the whole amount of goods taken. Then there is the national loss of all the labour of so many men during the time they have been employed in robbing; who besides spend what they get in riot, drunkenness, and debauchery, lose their habits of industry, are rarely fit for any sober business after a peace, and serve only to encrease the number of Higwaymen & House-breakers. Even the Undertakers who have been fortunate, are by sudden wealth led into expensive living, the habit of which continues when the means of supporting it cease, and finally ruins them. A just punishment for their having wantonly & unfeelingly ruined many honest innocent Traders and their families, whose substance was employed in serving the common interests of Mankind.
MS in David Humphreys’ hand (PCC, No. 116, f. 103–107).
1. The editors of the Papers of Thomas Jefferson attribute the authorship of this memorandum to Jefferson (Jefferson, Papers description begins The Papers of Thomas Jefferson, ed. Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, Princeton, 1950–. description ends , 7:492–493). However, the ideas expressed in the document, as well as in Art. 23 of the draft treaty, are those long held by Benjamin Franklin and approved of by JA. For the history of Franklin’s proposals to exempt the “Cultivators of the earth,” fishermen, and others from the rigors of war, and even to ban the issuance of letters of marque, see the fourth of the commissioners’ 7 May instructions, and note 4, above.