Notes on the Proclamation of Neutrality and the Law of Nations
Dec. 20. 1793. A doubt being entertained whether the use of the word modern as applied to the law of nations in the president’s proclamation be not inconsistent with ground afterwards taken in a letter to Genet, I will state the matter while it is fresh in my mind, beginning it from an early period.
It cannot be denied that according to the general law of nations the goods of an enemy are lawful prize in the bottom of a friend, and the goods of a friend privileged in the bottom of an enemy; or in other words that the goods follow the owner. The inconvenience of this principle in subjecting neutral vessels to vexatious searches at sea, has for more than a century rendered it usual for nations to substitute a conventional principle1 that the goods shall follow the bottom instead of the natural one before mentioned. France had done it in all her treaties; so I believe had Spain before the American revolution. Britain had not done it. When that war had involved those powers, Russia foreseeing that her commerce would be much harrassed by the British ships engaged Denmark, Sweden, and Portugal to arm, and to declare that the conventional principle should be observed by the powers at war towards neutrals, and that they would make common cause against the party who should violate it; declaring expressly at the same time that that convention should be in force only during the war then existing. Holland acceded to the convention, and Britain instantly attacked her. But the other neutral powers did not think proper to comply with their stipulation of making common cause. France declared at once that she would conform to the conventional principle: this in fact imposed no new obligation on her; for she was already bound by her treaties with all those powers to observe that principle. Spain made the same declaration. Congress gave similar orders to their vessels. But Congress afterwards gave instructions to their ministers abroad not to engage them in any future2 combination of powers for the general enforcement of the conventional principle that goods should3 follow the bottom, as this might at some time or other engage them in a war for other nations, but to introduce the principle separately with every nation by the treaties they were authorized to make with each. It had been already done with France and Holland, and it was afterwards done with Prussia, and made a regular part in every treaty they proposed to others. After the war, Great Britain established it between herself and France. When she engaged in the present4 war with France, it was thought extremely desireable for us to get this principle admitted by her, and, hoping that as she had acceded to it in one instance, she might be induced to admit it as a principle now settled by the common consent of nations, (for every nation belligerent or neutral had stipulated it on one or more occasions) that she might be induced to consider it as now become a conventional law of nations, I proposed to insert the word modern in the proclamation, to open upon her the idea that we should require the acquiescence in that principle as the condition of our remaining in peace. It was thought desireable by the other gentlemen, but having no expectation of any effect from it, they acquiesced in the insertion of the word merely5 to gratify me.—I had another view, which I did not mention to them, because I apprehended it would occasion the loss of the word. By the antient law of nations, e.g. in the time of the Romans, the furnishing a limited6 aid of troops, tho’ stipulated, was deemed a cause of war. In latter times it is admitted not to be a cause of war. This is one of the improvements in the law of nations. I thought we might conclude by parity of reasoning that the guaranteeing a limited portion of territory, in a stipulated case, might not by the modern law of nations be a cause of war. I therefore meant by the introduction of that word to lay the foundation of the execution of our guarantee by way of negociation with Engld. The word was therefore introduced, and a strong letter was written to Mr. Pinckney to observe to Gr. Britain that we were bound by our treaties with the other belligerent powers to observe certain principles during this war, that we were willing to observe the same principles towards her, and indeed that we considered it as essential to7 proceed by the same rule to all, and to propose to her to select those articles concerning our conduct in a case of our neutrality from any one of our treaties which she pleased or that we would take those from her own treaty with France, and make a temporary convention of them for the term of the present war; and he was instructed to press this strongly. I told Genet that we had done this. But instead of giving us time to work our principle into effect by negociation, he immediately took occasion in a letter to threaten that if we did not resent the conduct of the British in taking French property in American bottoms, and protect their goods by effectual measures (meaning by arms) he would8 give directions that the principle of our treaty of goods following the bottom should be disregarded. He was at the same time in the habit of keeping our goods taken in British bottoms; so that they were to take the gaining alternative of each principle, and give us the losing one. It became necessary to oppose this in the answer to his letter, and it was impossible to do it soundly but by placing it on it’s true ground, to wit, that the law of nations established as a general rule that goods should follow the owner, and that the making them follow the vessel was an exception depending on special conventions in those cases only where the convention had been made. That the exception had been established by us in our treaties with France, Holland and Prussia, and that we should endeavor to extend it to England, Spain, and other powers; but that till it was done, we had no right to make war for the enforcement of it. He thus obliged us to abandon in the first moment the ground we were endeavoring to gain that is to say his ground against England and Spain9 and to take the very ground of Engld. and Spain against him.10—This was my private reason for proposing the term modern in the proclamation, that it might reserve us a ground to obtain the very things he wanted. But the world, who knew nothing of these private reasons, were to understand by the expression the modern law of nations, that law with all the improvements and mollifications of it which an advancement of civilization in modern times has introduced. It does not mean strictly11 any thing which is not a part of the law of nations12 in modern times, and therefore could not be inconsistent with the ground taken in the letter to Genet, which was that of the law of nations, and by no means could be equivalent to a declaration by the President of the specific principle that goods should follow the bottom.
MS (DLC); entirely in TJ’s hand. PrC (DLC). Entry in SJPL: “Note. on use of word Modern in the proclamn.”
TJ was prompted to set down these notes by the appearance in this day’s Dunlap and Claypoole’s American Daily Advertiser of a letter from “A Farmer” to Edmond Charles Genet that took sharp exception to the indictment of the French minister’s diplomatic conduct in the Secretary of State’s 16 Aug. 1793 letter to Gouverneur Morris, which had been printed in the same newspaper three days before. The writer particularly criticized TJ’s explanation to Morris, first expressed in a letter to Genet of 24 July 1793, of the Washington administration’s response to the French minister’s charge that during the current European war the United States had abandoned the principle that free ships made free goods, under which French property carried by a neutral vessel was not lawful prize. Questioning the relationship between TJ’s statement to Morris and the phrase in the President’s proclamation of Neutrality of 22 Apr. 1793 warning American citizens not to provide the belligerents with articles “deemed contraband by the modern usage of nations,” the author wrote: “I am particularly diverted with his 5th point of difference, and want extremely, in addition to the learning displayed to prove that free bottoms, do not, now make free goods, to know why the word modern was printed in Italics, or printed at all, in the proclamation, what occasioned an alteration of the sentiments, that hint was intended to convey? Or, that notable discovery that a retainer of part of the Law of Nations, was a disclaimer of the remainder?” For the wording of the Proclamation of Neutrality, see the broadside illustrated in Volume 25 of this series; on its issuance, see Cabinet Opinion on Washington’s Questions on Neutrality and the Alliance with France, [19 Apr. 1793], and note.
The 9 July 1780 convention among Russia, Denmark, and Norway establishing the League of Armed Neutrality, documents pertaining to the adherence of Sweden, Portugal, and Holland to the League, and the statements supporting the League’s principles by France and Spain are in James B. Scott, ed., The Armed Neutralities of 1780 and 1800 (New York, 1918), 299–304, 318–23, 325–8, 329–30, 420–3. On 5 Oct. 1780 congress ordered the Board of Admiralty to prepare instructions directing all armed vessels commissioned by the United States to conform to the principles respecting neutral ships set forth in the convention, but on 12 June 1783 it instructed the American peace commissioners in Paris, “in case they should comprise in the definitive treaty any stipulations amounting to a recognition of the rights of neutral nations, to avoid accompanying them by any engagements which shall oblige the contracting parties to support those stipulations by arms” (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xviii, 905, xxiv, 394). For expressions of the principle that free ships made free goods in American commercial treaties with France, the Netherlands, and Prussia, see Miller, Treaties, ii, 21, 70, 170–1. Great Britain established the same principle in its 1786 treaty of commerce with France (Clive Parry, ed., The Consolidated Treaty Series, 231 vols. [Dobbs Ferry, N.Y., 1969–81], l, 83).
1. TJ here canceled “that free bottom.”
2. Word interlined.
3. Word interlined.
4. Word interlined in place of “late.”
5. Word interlined.
6. Word interlined in place of “fixed.”
7. TJ here canceled “do the same.”
8. TJ here canceled “declare.”
9. Preceding ten words interlined.
10. Preceding two words interlined.
11. Word interlined.
12. TJ here canceled “even.”