To Edmund Randolph
[Philadelphia] April 27th 1794
I did not receive the draft of your reply to Mr. Hammond on the subject of the instructions of the 8th of June1 till bed time last night, nor could I without a much more considerable delay than seems to comport with your plan pretend to enter into an accurate scrutiny of the paper.
I must therefore confine myself to a very few remarks.
I If my memory serves me right your position that the UStates alone suffer from the operation of the abovementioned instructions is not accurate. I take it, provisions on board of all neutral vessels going to any port of France are liable to the same treatment; except in the single case of their going to a place blockaded or besieged—when the rigor of the law of nations is inforced against us by a confiscation in the first instance whereas in respect to Sweden and Denmark it is mitigated by the circumstance of admonition first & confiscation afterwards.2 But even in this particular the other neutral powers (Sweden & Denmark excepted) were left in the same predicament with us. I do not understand, either, that in fact any ports of France have been deemed blockaded so as to produce confiscation except those actually so. But not having instructions before me I cannot speak with precision:
II You seem to take the position too strictly—that none but such articles as are peculiar to war are deemed contraband. Other articles besides these are usually deemed contraband (as naval stores, which are the general instrument of commerce in time of peace as well as a mean of War).
III You appeal strongly to the conduct of G B for a century past as to the question of provisions being treated as contraband or otherwise interdicted from being carried to any enemy country. I fear examples may be cited upon you which will include the point and more. Is there not a treaty between Holland & England within a Century which goes much further?3 And you may be perhaps pressed by examples from other Countries. I remember a declaration from France to the State General (in the time of Louis XIV as I believe) which imposes much more extensive restrictions.4
III There appears to me too much tartness in various parts of the Reply. Energy without asperity seems best to comport with the dignity of National language. The Force ought to be more in the idea than in the expression or manner. The subject of the paper is the instructions of the 8th of June not those of the 6 of November.5 I suspect from some latter lights which I have received that more of justification for the former can be found in the practice of Nations than I was originally aware of—and the expression of our sensibility & the energy of our resistance ought to be proportioned to the nature of the case.
On the whole, I submit whether it be not adviseable to give no other reply than a general one declaring that the doctrines advanced in support of the instructions of the 8th of June do not appear to us well founded but that being among the objects committed to Mr. Jay’s negotiation a particular reply is foreborne. We are still in the path of negotiation. Let us not plant it with thorns.6
Yrs. with respect & esteem
ADfS, Hamilton Papers, Library of Congress.
1. See the first “Conversation with George Hammond,” April 15–16, 1794. The draft of Randolph’s letter has not been found, but a letter book copy of the final version, dated May 1, 1794, may be found in RG 59, Domestic Letters of the Department of State, Vol. 6, January 2–June 26, 1794, National Archives. The letter is printed in ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 450–54.
2. The British order in council of June 8, 1793, had authorized all British war vessels and privateers to seize vessels attempting to enter blockaded French ports “except the ships of Denmark and Sweden, which shall only be prevented from entering on the first attempt, but on the second shall be sent in for condemnation likewise” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 240). In a letter to Hammond on July 5, 1793, Lord Grenville stated: “With respect to the rule about Ports blockaded, it is conformable to the general law and practice of all Nations, and the exception there mentioned as to Denmark and Sweden has reference to Our existing treaties with those Powers, and cannot therefore give any just ground of umbrage or jealousy to those Powers with whom We have no such treaties” (Mayo, Instructions to British Ministers description begins Bernard Mayo, ed., “Instructions to the British Ministers to the United States,” Annual Report of the American Historical Association for the Year 1936 (Washington, 1941), III. description ends , 41–42).
3. H may be referring to the treaty whose provisions Randolph discussed in the final version of his letter to Hammond. After citing the English-Swedish treaty of 1661 which defined provisions as contraband, Randolph wrote: “… One instance and no more being exhibited, it is presumable that no more can be quoted, unless it be between England and Holland in Feb. 1674, which may be accounted for on different grounds, and was quickly cancelled by the treaty of December 1674” (LC, RG 59, Domestic Letters of the Department of State, Vol. 6, January 2-June 26, 1794, National Archives). For the text of these treaties, see George Chalmers, A Collection of Treaties Between Great Britain and Other Powers (London, 1790), I, 44–60, 172–91.
4. Randolph wrote the following regarding departures from the principle that provisions are not contraband: “But … permit me to hazard a belief that the examples of such a departure, and especially in certain high toned declarations of Holland in the last century, and of Louis the 14th of France will be found in motives, which bear no affinity to, and can neither illustrate nor weaken the principle” (LC, RG 59, Domestic Letters of the Department of State, Vol. 6, January 2–June 26, 1794, National Archives).
5. For the order in council of November 6, 1793, see the introductory note to H to George Washington, March 8, 1794.
6. On April 28, 1794, Randolph wrote to Washington: “I do myself the honor of submitting to your consideration the draught of a letter, intended as an answer to Mr. Hammond’s reply to Mr. Pinckney’s memorial.…
“The inclosed letter from Colo. Hamilton shews, that he has perused the draught; and upon the three first remarks contained in that letter I will either satisfy him, or abandon my own idea.
“The fourth observation speaks of a tartness; which, if it be more than the subject dictates, is more than I wished; and therefore I shall not hesitate to remove any improper asperity.
“But the fifth observation requires me to know your pleasure, whether a general or particular answer shall be given. Before I began to write, I asked Mr. Jay, whether he would prefer, that the subject should be left, as it is, or taken up by me in the way of refutation of Mr. Hammond’s memorial. Mr. Jay will otherwise be obliged to do the same thing himself. And I cannot conceive, that a foreign minister ought to press upon the secretary of state doctrines, of great prejudice to the U. S.; and that the secretary should remain silent, as if he were afraid, or could not answer them.
“However, I beg leave to assure you, that the sending of a general or particular letter is of no importance to any sensation of my own.…” (ALS, RG 59, Miscellaneous Letters, 1790–1799, National Archives.)
Washington’s reply of April 29 stated: “I have read the draught of your letter intended as an answer to the British minister’s reply to Mr. Pinckney’s Memorial, on the Instructions of the 8th. of June 1793. Those of the 6th of Novem: following stand unconnected with the subject.
“It is essential that all the cited cases should be correct; and that the general statement should be placed on uncontrovertible ground; otherwise the argument will recoil with redoubled force.
“Close attention being given to these matters, and the ideas expressed without warmth or asperity, if upon a revision such should be found to have intermingled, I see no objection to the particular answer which is prepared.…” (LC, George Washington Papers, Library of Congress.)