The Defence No. XXXI1
[New York, December 12, 1795]
I resume the subject of the two last papers for the sake of a few supplementary observations.2
The objections to the Treaty for not adhering to the rule “that free ships make free goods and enemy ships enemy goods” as being the relinquishment of an advantage which the modern law of Nations gives to Neutrals have been fully examined and I flatter myself completely refuted.3
I shall however add one or two reflections by way of further illustration. A preestablished rule of the law of Nations can only be changed by their Common Consent. This consent may either be express, by treaties declarations &c. adopting and promising the observance of a different rule or it may be implied by a course of practice or usage. The consent in either case must embrace the great community of civilized nations. If to be inferred from Treaties, it must be shewn that they are uniform and universall. It can at least never be inferred, while the treaties of different nations follow different rules, or the treaties between the same nation and others vary from each other. So also as to usage; it must be uniform and universal, & let it be added it must be continued. A usage adopted by some nations and resisted by others or adopted by all temporarily and then discontinued is insufficient to abolish an old or substitute a new rule of the law of Nations. It has been demonstrated, that no consent of either description has been given to the rule which is contended for in opposition to the Treaty.
The armed neutrality4 so much quoted is intirely deficient in the requisite characters. Its name imports that it was an armed combination of particular powers. It grew up in the midst of a War and is understood to have been particularly levelled against one of the belligerent parties. It was resisted by that power. There were other powers which did not accede to it. It is a recent transaction and has never acquired the confirmation of continued usage. What is more it has been virtually abandonned by some of the parties to it, and among these by the principal promoter of it, the politic and enterprising Catharine.5 Tis therefore a perversion of all just ideas to ascribe to such a combination the effect of altering a rule of the law of the Nations.
In most important questions it is remarkable that the opposers of the Truth are as much at variance with each other as they are with the Truth they oppose. This was strikingly exemplified when the present constitution of the UStates was under deliberation. The opposition to it was composed of the most incongruous materials. The same thing is observable in relation to the Treaty. And one instance of the contrariety applies to the rule cited above.
While some of the adversaries of the Treaty complain of the admission of a contrary principle by that instrument as the abandonment of a rule of the present law of Nations; others, conceding that there is no such rule yet established, censure that admission as a check to its complete and formal establishment, and as a retrograde step from this desireable point.
The objection in this form is more plausible than in the other but it is not less destitute of substance. If there has been any retrograde step, it was taken by the Government prior to the Treaty. Authentic documents which have been communicated by the Executive to Congress contain the evidence of this fact.
Early in the year 1793 some British cruisers having stopped vessels of the U States and taken out of them articles which were the property of French Citizens, Mr. Genet, the then Minister of France in a letter of the 9 of July of that year made a lively representation upon the subject to our Governt;6 insisting in a subsequent letter of the 25 of that month7 in which he recurs to the same point that the principles of neutrality establish that friendly vessels make friendly goods, and, in effect, that the violation of this rule by GBritain was a violation of our neutral rights which we were bound to resent.
The reply of our Government is seen in a letter from our Secretary of State to that Minister of the 24 of July.8 It is in these terms. “I believe (says Mr. Jefferson) 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. Upon this principle, I presume, the British armed vessels have taken the property of French Citizens found in our vessels in the cases abovementioned, and, I confess, I should be at a loss on what principle to reclaim them. It is true that sundry nations desirous of avoiding the inconveniences of having their vessels stopped at sea, ransacked, carried into port and detained, under pretence of having enemy goods on board have in many instances introduced, by their special treaties, another principle between them, that enemy bottoms shall make enemy goods and friendly bottoms friendly goods; a principle much less embarrassing to Congress9 and equal to all parties in point of gain and loss; but this is altogether the effect of particular Treaty, controuling in special cases the general principles of the law of Nations and therefore taking effect between such nations only as have so agreed to controul it.”
Nothing can be a more explicit or unequivocal abandonment of the rule that free ships make free goods and vice versa than is contained in this communication. But this is not all. In the letter from Mr. Jefferson to our Minister in France of the 26 of Augt. 1793 instructing him to urge the recall of Mr. Genet,10 the subject is resumed—the position asserted in answer to Mr Genet insisted upon anew and enforced by additional considerations. Among other suggestions, we find these. “We suppose it to have been long an established principle of the law of Nations, that the goods of a friend are free in an enemy’s vessel and an enemy’s goods lawful prize in the vessel of a friend. The inconvenience of this principle has induced several nations latterly to stipulate against it by Treaty and to substitute another in its stead, that free bottoms shall make free goods and enemy bottoms enemy goods. We have introduced it into our Treaties with France Holland and Prussia11 and French goods found by the two latter nations in American bottoms are not made prize of.12 It is our wish to establish it with other nations. But this requires their consent also, is a work of time, and in the mean while they have a right to act on the general principle without giving to us or to France cause of complaint. Nor do I see that France can lose by it on the whole. For though she loses her goods, when found in our vessels, by the nations with whom we have no treaties, yet she gains our goods, when found in the vessels of the same and all other nations; and we believe the latter mass to be greater than the former.”
Thus then stood the business antecedent to the Treaty. Great Britain adhering to the principle of the general and long established law of Nations captures French property in our vessels and leaves free our property in French vessels. We acquiesce in the practice without even a remonstrance or murmur. The French Minister complains of it as contrary to the principles of neutrality. We reply that in our opinion it is not contrary to those principles, that it is fully warranted by the general law of nations, that treaties which establish a different rule are merely exceptions to that law binding only on the contracting parties, that having no Treaty of the sort with Great Britain we should be at a loss on what ground to dispute the legitimacy of her practice. We do not simply forbear to oppose it. We do not offer to France as an excuse for our forbearance that it is inconvenient to us at the moment to assert a questionable right at the hazard of War. But we tell her peremptorily that in our opinion no such right exists & that the conduct of Great Britain in the particular case is justified by the law of Nations. Neither do we wrap the motive of our forbearance in silence nor content ourselves with revealing it confidentially to France alone. But we publish it without reserve to the world, and thus in the presence of Great Britain and of every other Nation make a formal renunciation of the pretension that “free ships shall make free goods and enemy ships enemy goods.” No counter declaration is heared from either house of Congress.
It was impossible to give a more full sanction to the opposite principle than was given by this conduct and these public and positive declarations of our Government. It was impossible more completely to abandon the favourite ground. It is puerile to attempt to discriminate between the force of this species of renumeration and that of an admission of its propriety by Treaty. The conduct of a Government avowed and explained as to motives by authentic public declarations may assert or renounce a pretension as effectually as its compacts. Every nation with whom we had no contrary stipulation could say to us as well before as since the Treaty with G B—“Your Government has explicitly admitted that free ships do not make free goods and you have no right to complain of our not observing that rule towards you.” Candour therefore would oblige us to say that the Treaty has left this point where it found it, that it has only not obtained from Great Britain a concession in favour of an innovation upon the law of nations which it is desireable to establish but which cannot be claimed as matter of right. Though therefore it may not have the merit of strengthening, it has not the demerit of weakening the ground.
The difference in our position in this respect before & since the Treaty amounts to this that before the Treaty the Government had abandonned the ground, through one organ, Mr. Jefferson; by the Treaty it continued the abandonment, through another organ, Mr. Jay. If we consider the organ as the voluntary cause in each case, (the presumption of which is equally fair in both cases), and if there be any blame it falls more heavily on Mr. Jefferson than on Mr. Jay; for the former sounded and made the retreat and the latter only did not advance from the disadvantageous post to which he had retreated. In other words Mr. Jay did only not recover the ground which Mr. Jefferson had lost. And we know that in general ’tis a far more difficult task to regain than to keep.13
But in truth no blame can justly be imputed in either case. The law of Nations was against the rule which it is desired to introduce. The U States could not have insisted upon it as matter of right—and in point of policy it would have been in them madness to go to war to support an innovation upon the preestablished law. It was not honorable to claim a right and suffer it to be infracted without resistance. It is not for young and weak nations to attempt to enforce novelties or pretensions of equivocal validity. It is still less proper for them to contend at the hazard of their peace against the clear right of others. The object was truly not of moment enough to risk much upon it. To use a French proverb—“The play was not worth the candle.” In every view therefore it was wise to desert the pretension.
So also, in the midst of a War, like that in which Great Britain was engaged, it were preposterous to have expected that she would have acceded to a new rule, which under the circumstances of her great maritime superiority would have operated so much more conveniently to her enemy than to herself. And it would have been no less absurd to have made her accession to that rule the sine qua non of an arrangement, otherwise expedient. Here again the play would not have been worth the candle.14
The importance of the rule has artfully been very much magnified to depreciate proportionably the treaty for not establishing it. It is to be remembered that if something is gained by it something is also given up. It depends on incalculable circumstances whether in a particular war most will be lost or gained. Yet the rule is upon the whole a convenient one to neutral powers. But it cannot reasonably be pretended that it is of so great value as that the U States ought to adopt it as a maxim never to make a Treaty of Commerce in which it was not recognised. They might by this maxim forego the advantages of regulating their commercial intercourse in time of peace with several foreign Powers with whom they have extensive relations of Trade by fixed and useful conventional rules and still remain subject in time of war to the inconveniences of not having established with those powers the principle to which they make that sacrifice.
Though therefore it be a merit to a certain extent in a Treaty to contain this principle it is not a positive fault or blemish that it does not contain it. The want of it is not a good cause of objection to a Treaty otherwise eligible.
Let me add too in the spirit of Mr. Jefferson’s letter—that however it may be our wish to establish the rule with other nations than those with whom we have already done it—this requires their consent also, of course their conviction that it is their interest to consent and that considering the obstacles which lie in the way the attainment of the object must be “a work of time.” It presupposes in some of the principal maritime powers a great change of Ideas, which are not to be looked for very suddenly. It was not therefore to have been expected of our Envoy, that he was to have accomplished the point at so premature and so unfavourable a conjuncture.
The assertion, that he has abandonned it, is made in too unqualified a manner. For while he admits the operation for the present of the general rule of the law of Nations, he has by the 12th article engaged G Britain in a stipulation that the parties will at the expiration of two years after the existing war “renew their discussions and endeavour to agree whether in any & what cases neutral vessels shall protect enemy’s property.” It is true it will be in the option of Great Britain then to agree or not, but it is no less true that the principle is retained with consent of G B in a negotiable state. So far perhaps some ground has been retrieved.
I confess, however, that I entertain much doubt as to the probability of a speedy general establishment of the rule that friendly ships shall make friendly goods & enemy ships enemy goods. It is a rule against which it is to be feared the preponderant maritime power, to whatever nation this character may belong, will be apt to struggle with perseverance and effect; since it would tend to contract materially the means of that power to annoy and distress her enemies, whose inferiority on the sea would naturally cause their commerce during war to be carried on in neutral bottoms. This consideration will account for the resistance of Great Britain to the principle and for the endeavours of some other powers to promote it. And it deserves notice that her last Treaty with France was severely assailed by some of the Chiefs of the opposition for containing a stipulation in favour of that principle.15 The motive for consenting to it in this instance probably was that the stipulation was likely to be rendered in a great degree nugatory by the relative situation of the two nations which in almost any war in which one of the two was engaged on one side would probably render the other a party on the opposite side.
If these conjectures be right it is a reflection which lessens much the value of stipulations in favour of the rule, that so long as one or more of the principal maritime powers disavow it, there will be a strong temptation to depart from a scrupulous observance of such stipulations; as we, on the part of France, have experienced in the present War.
In the course of the arguments against the 17th article for virtually admitting the right of search in time of War—the objectors have had the temerity to cite the opinion of Vatel16 as in opposition to that right, and a mutilated quotation has given an appearance of truth to the assertion. It has been heretofore shewn by passages extracted from his work that his opinion so far from denying explicitly supports the right to search.17 But it may be useful to examine the part of it, which has been tortured into a contrary inference.
After affirming the right to search (B 3 C 7 § 114) he proceeds thus, “But to avoid inconveniences violence and every other irregularity, the manner of the search is settled in the Treaties of Navigation and Commerce. According to the present Custom credit is to be given to certificates and bills of lading produced by the Master of the Ship.” Hence it is alleged the right to search is turned into the right of inspecting the Ships papers which being intitled to credit are to preclude further scrutiny.
But what immediately follows destroys this conclusion; the words “unless any fraud appear in them or there be very good reason for suspecting their validity” are subjoined to the clause just quoted. This admits clearly that the Ships papers are not to be conclusive, but that upon just cause of suspicion the papers may be disregarded and the right of search may be exercised.
Who is to be the Judge of the credit due to the paper & of the just cause of suspicion? Manifestly The Officer of the belligerent party who visits the neutral vessel. Then what does the whole amount to? Merely this—That Ships papers are intitled to a certain degree of respect and credit, how much is left to the discretion of the officer of the belligerent party, who if he be not satisfied of the fairness and validity of the papers may proceed to their verification by a more strict and particular search, and then if he still sees or supposes he sees just cause of suspicion he may carry the vessel into a port of his own Country for judicial investigation. In doing this he acts at his peril and for an abuse of his discretion exposes himself to damages and other punishment.
This is the true and evident sense of Vatel and it agrees with the doctrine which advocated in these papers, and I will add with the Treaty under examination.
The 17 article admits that the vessels of each party for just cause of suspicion of having on board enemy’s property or of carrying to the enemy contraband articles may be captured or detained and carried to the nearest or most convenient port of the belligerent party to the end that enemy’s property and contraband articles on board may become lawful prize. But so far from countenancing any proceeding without just cause of suspicion or from exonerating the Officer of the belligerent party from a responsibility for such proceeding it leaves the law of nations, in this particular in full force18 and contemplating that such Officer shall be liable for damages when he proceeds without just cause of suspicion, provides that all proper measures shall be taken to prevent delay in deciding the cases of Ships or cargoes brought in for adjudication, or in the payment or recovery of any indemnification adjudged or agreed to be paid to the Masters or Owners of such Ships. Besides which, the 19th article19 stipulates “in order that more abundant care may be taken for the security of the respective subjects and citizens of the contracting parties and to prevent their suffering injuries by the men of War and privateers of either party that the Commanders of Ships of War and Privateers shall forbear doing any damage to those of the other party or committing any outrage against them, and that if they act to the contrary they shall be punished and shall also be bound in their persons and estates to make satisfaction and reparation for all damages and the interest thereof of whatever nature the said damages may be.” And further, after establishing that the Commanders of privateers shall before they are commissioned give security to satisfy all damages and injuries, it adds that in all cases of aggressions their commissions shall be revoked and annulled.
These provisions not only conform to, & corroborate the injunctions of the laws of Nations, but they refute the assertion that the Treaty is altogether deficient in precaution for guarding neutral rights—since those above mentioned are among the most efficacious. It is not presumeable that any stipulations have been or can be made which will take away all discretion from the marine Officers of the belligerent parties for this would be a total surrender of the rights of belligerent to neutral nations; and so long as any discretion is left its right or wrong exercise will depend on the personal character of each officer, and abuses can only be restrained by the penalties that await them. Those stipulations of treaties then which reinforce the laws of nations as to the infliction of penalties are the most effectual of the precautions which treaties can adopt for the security of neutral rights; and in this particular the Treaty with Great Britain is to the full as provident as our other Treaties. In one particular it is, I believe, more so; for it expressly stipulates a revocation of the commissions of Commanders of privateers for the aggressions they may commit.
Is not the passage last cited from Vatel a true commentary on those stipulations for regulating and mitigating the right of search which are found in our own and other Treaties? Do they not all intend to reserve to the belligerent party the right of judging of the validity & fidelity of the papers to be exhibited and of extending the search or not according to the circumstances of just suspicion which do or do not appear? And if this be their true construction, as it certainly is their construction in practice, which our own experience testifies—to what after all do they amount—more than without them the laws of nations, as universally recognized, of themselves pronounce? What real security do they afford more than the Treaty with Great Britain affords?
It is much to be suspected that there20 will always be found advantages essentially criminal operating or not according to the strength or weakness of the neutral party, which if strong will find abundant foundation in the acknowleged laws of Nations on which to rest the protection of its rights.
It is said to be just matter of surprise that these precautions should have no place in a Treaty with Great Britain, whose conduct on the seas so particularly suggested & enforced every guard to our rights that could be reasonably insisted on. Observations of this kind assume constantly the supposition that we had it in our power to fashion every provision of the Treaty exactly to our own palate and that the ideas of the other contracting party were to have no influence even upon the minor features of the contract. But this supposition is absurd; and a Treaty may still be intitled to our approbation which adjusts acceptably the great points of interest though in some of its details it fall[s] short of our desires. Nor can any informed man sincerely deny that it was to have been expected that an adjustment of the particulars in question would fall short of our ideas. It may be answered that we were then at liberty not to make the Treaty; so we were—but does it follow that it would have been wise to split on such points? On a just estimate, their intrinsic value is very moderate.21
ADf, Hamilton Papers, Library of Congress; The [New York] Herald; A Gazette for the Country, December 12, 1795.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
2. In “the last two papers” (“The Defence Nos. XXIX and XXX,” December 5, 9, 1795), Rufus King discussed Article 17 of the Jay Treaty. For the text of Article 17, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 59.
5. On March 25, 1793, soon after the outbreak of war between France and Great Britain, Catherine II of Russia signed an agreement with George III that both sovereigns would undertake “… to shut all their ports against French ships, not to permit the exportation in any case from their said ports for France, of any military or naval stores, or corn, grain, salt, meat or other provisions; and to take all other measures in their power for injuring the commerce of France, and for bringing her, by such means, to just conditions of peace” and “… to unite all their efforts to prevent other Powers, not implicated in this war, from giving, on this occasion of common concern to every civilized State, any protection whatever, directly or indirectly, in consequence to their neutrality, to the commerce or property of the French on the sea, or in the ports of France” (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, 243).
6. Edmond Charles Genet’s letter to Thomas Jefferson 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, 164.
7. This 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, 165.
8. For Jefferson’s letter to Genet, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 61. 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, 166–67.
9. In the newspaper this word is “commerce.”
10. The date which H gives is incorrect, for he is referring to Jefferson to Gouverneur Morris, August 16, 1793 (ALS, Thomas Jefferson Papers, Library of Congress; 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, 167–72).
11. In the margin opposite this sentence H wrote and crossed out “Sweden.”
12. See Article 23 (originally 25) of the Treaty of Amity and Commerce with France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 20–21); Articles 11 and 22 of the Treaty of Amity and Commerce with the Netherlands, October 8, 1782 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 68–70, 78); Articles 12 and 19 of the Treaty of Amity and Commerce with Prussia, September 10, 1785 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 170, 175).
13. In the newspaper this sentence ends as follows: “… ’tis a far more difficult task to regain than to keep an advantageous position.”
14. In the margin opposite this paragraph H wrote and crossed out: “Note these war provisions will probably be superseded by the expiration of the Treaty before another war.”
15. The Treaty of Navigation and Commerce between his Britannic Majesty and the Most Christian King, signed at Versailles, September 26, 1786. Article XX of this treaty reads: “It shall be lawful for all the subjects of the King of Great Britain, and of the most Christian King, to sail with their ships, with perfect security and liberty, no distinction being made who are the proprietors of the merchandizes laden thereon, from any port whatever, to the countries which are now or shall be hereafter at war with the King of Great Britain, or the most Christian King. It shall likewise be lawful for the aforesaid subjects to sail and traffic with their ships and merchandizes, with the same liberty and security, from the countries, ports, and places of those who are enemies of both, or of either party, without any opposition or disturbance whatsoever, and to pass directly not only from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same or of several Princes. And as it has been stipulated concerning ships and goods, that every thing shall be deemed to be free which shall be found on board the ships belonging to the subjects of the respective kingdoms, although the whole lading, or part thereof, should belong to the enemies of their Majesties, contraband goods being always excepted, on the stopping of which, such proceedings shall be had as are conformable to the spirit of the following articles; it is likewise agreed, that the same liberty be extended to persons who are on board a free ship, to the end that, although they be enemies to both or to either party, they may not be taken out of such free ship, unless they are soldiers actually in the service of the enemies, and on their voyage for the purpose of being employed in a military capacity in their fleets or armies” (Chalmers, Collection of Treaties description begins George Chalmers, A Collection of Treaties Between Great Britain and Other Powers (London: Printed for John Stockdale, Piccadilly, 1790). description ends , I, 530–31). The treaty was debated in the House of Commons from February 12 to 21, 1787, and in the House of Lords from March 1 to 6, 1787 (Parliamentary History of England [London, 1816], XXVI, 381–514, 534–94).
16. This is a reference to “Cato No. 9” (The [New York] Argus, or Greenleaf’s New Daily Advertiser, August 22, 1795), which is in fact a discussion of Article 18 of the Jay Treaty. “Cato” attributes the following words to Vattel, Law of Nations: “That it is now received, that full faith and credit should be given to certificates and sea letters, &c. that the master of the ship presents, unless a fraud appears, or there be good reason of suspicion.” H’s version of Vattel is the correct one.
For the authorship of the “Cato” articles, see the introductory note to “The Defence No. I,” July 22, 1795. For the text of Article 18 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 63.
18. See, for instance, Articles 12 (originally 14) and 13 (originally 15) of the Treaty of Amity and Commerce with France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 12–14), and Articles 10 and 11 of the Treaty of Amity and Commerce with the Netherlands, October 8, 1882 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 68–70).
19. For Article 19 of the Jay Treaty, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 67.
20. In MS, “they.”