To Robert R. Livingston
Monticello Sep. 9. 1801.
You will recieve, probably by this post, from the Secretary of State, the final instructions for your mission to France. we have not thought it necessary to say any thing in them on the great question of the Maritime law of nations, which at present agitates Europe, that is to say, Whether free ships shall make free goods? because we do not mean to take any side in it during the war. but, as I had before communicated to you some loose thoughts on that subject, and have since considered it with somewhat more attention, I have thought it might not be unuseful that you should possess my ideas in a more matured form than that in which they were before given. unforeseen circumstances may perhaps oblige you to hazard an opinion, on some occasion or other, on this subject, and it is better that it should not be at variance with ours. I write this too myself, that it may not be considered as official, but merely my individual opinion, unadvised by those official counsellors, whose opinions I deem my safest guide, & should unquestionably take in form were circumstances to call for a solemn decision of the question.
When Europe assumed the general form in which it is occupied by the nations now composing it, and turned it’s attention to maritime commerce, we find, among it’s earliest practices, that of taking the goods of an enemy from the ship of a friend: and that into this practice every maritime state went, sooner or later, as it appeared on the theatre of the ocean. if therefore we were to consider the practice of nations as the sole & sufficient evidence of the law of nature among nations, we should unquestionably place this principle among those of Natural law. but it’s inconveniences, as they affected Neutral nations peaceably pursuing their commerce, and it’s tendency to embroil with them the powers happening to be at war, and thus to extend the flames of war, induced nations to introduce, by special compacts from time to time, a more convenient rule that ‘free ships should make free goods’ and this latter principle has, by every maritime nation of Europe, been established, to a greater or less degree, in it’s treaties with other nations: insomuch that all of them have, more or less frequently, assented to it as a rule of action in particular cases. indeed, it is now urged, and I think with great appearance of reason, that this is the genuine principle dictated by National morality; & that the first practice arose from accident & the particular convenience of the* states1 which first figured on the water, rather than from well digested reflections on the relations of friend & enemy, on the rights of territorial jurisdiction, & on the dictates of Moral law applied to these. thus, it had never been supposed lawful, in the territory of a friend, to sieze the goods of an enemy. on an element which nature has not subjected to the jurisdiction of any particular nation, but has made common to all, for the purposes to which it is fitted, it would seem that the particular portion of it which happens to be occupied by the vessel of any nation, in the course of it’s voyage, is, for the moment, the exclusive property of that nation, and, with the vessel, is exempt from intrusion by any other, & from it’s jurisdiction, as much as if it were lying in the harbour of it’s sovereign. in no country we believe is the rule otherwise, as to the subjects of property common to all. thus the place occupied by an individual in a highway, a church, a theater, or other public assembly, cannot be intruded on, while it’s occupant holds it for the purposes of it’s institution. the persons on board a vessel traversing the ocean, carry with them the laws of their nation, have among themselves a jurisdiction, a police, not established by their individual will, but by the authority of their nation, of whose territory their vessel still seems to compose a part, so long as it does not enter the exclusive territory of another. no nation ever pretended a right to govern by their laws the ship of another nation navigating the ocean. by what law then can it enter that ship while in peaceable & orderly use of the common element? we recognize no natural precept for submission to such a right; & percieve no distinction between the moveable & immoveable jurisdiction of a friend, which would authorise the entering the one, & not the other, to sieze the property of an enemy.
It may be objected that this proves too much, as it proves you cannot enter the ship of a friend to search for Contraband of war. but this is not proving too much. we believe the practice of seising what is called Contraband of war is an abusive practice, not founded in natural right. war between two nations cannot diminish the rights of the rest of the world remaining at peace. the doctrine that the rights of nations remaining quietly under the exercise of moral & social duties, are to give way to the convenience of those who prefer plundering & murdering one another, is a monstrous doctrine, and ought to yield to the more rational law 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.’ and what is contraband by the law of nature? either every thing which may aid or comfort an enemy, or nothing. either all commerce which would accomodate him is unlawful, or none is. the difference between articles of one or another description, is a difference in degree only. no line between them can be drawn. either all intercourse must cease between neutrals & belligerents, or all be permitted. can the world hesitate to say which shall be the rule? shall two nations, turning tygers, break up in one instant the peaceable relations of the whole world? reason & nature clearly pronounce that the Neutral is to go on in the enjoyment of all it’s rights, that it’s commerce remains free, not subject to the jurisdiction of another, nor consequently it’s vessels to search, or to enquiries whether their contents are the property of an enemy, or are of those which have been called Contraband of war.
Nor does this doctrine contravene that right of preventing vessels from entering a blockaded port. this right stands on other ground. when the fleet of any nation actually beleaguers the port of it’s enemy, no other has a right to enter their line, any more than their line of battle in the open sea, or their lines of circumvallation, or of encampment, or of battle array, on land. the space included within their lines in any of those cases, is either the property of it’s enemy, or it is common property, assumed and possessed for the moment, which cannot be intruded on, even by a Neutral, without committing the very trespass we are now condemning, that of intruding into the lawful possession of a friend.
Although I consider the observance of these principles as of great importance to the interests of peaceable nations, among whom I hope the US. will ever place themselves, yet, in the present state of things, they are not worth a war. nor do I believe war the most certain means of enforcing them. those peaceable coercions, which are in the power of every nation, if undertaken in concert, & in time of peace, are more likely to produce the desired effect.
The opinions I have here given are those which have generally been sanctioned by our government. in our treaties with France, the United Netherlands Sweden & Prussia the principle of free bottoms free goods was uniformly maintained. in the instructions of 1784. given by Congress to their ministers appointed to treat with the nations of Europe generally, the same principle, and the doing away Contraband of war, were enjoined, and were acceded to in the treaty signed with Portugal. in the late treaty with England indeed, that power perseveringly refused the principle of free bottoms free goods; and it was avoided, in the late treaty with Prussia, at the instance of our then administration, lest it should seem to take side in a question then threatening decision by the sword. At the commencement of the war between France & England, the representative of the French republic then residing in the US. complaining that the British armed ships captured French property in American bottoms, insisted that the principle of ‘free bottoms free goods’ was of the acknoleged law of nations, that the violation of that principle by the British was a wrong committed on us, and such an one as we ought to repel by joining in the war against that country. we denied his position, and appealed to the universal practice of Europe in proof that the principles of ‘free bottoms free goods’ was not acknoleged as of the Natural law of Nations, but only of it’s Conventional law. and I believe we may safely affirm that not a single instance can be produced where any nation of Europe, acting professedly under the Law of nations alone, unrestrained by treaty, has, either by it’s Executive or Judiciary organs, decided on the principle of ‘free bottoms free goods.’ judging of the Law of nations by what has been practised among nations, we were authorised to say that the contrary principle was their rule, and this but an exception to it, introduced by special treaties in special cases only: that having no treaty with England substituting this instead of the ordinary rule, we had neither the right nor the disposition to go to war for it’s establishment. But tho’ we would not then, nor will we now, engage in war to establish this principle, we are nevertheless sincerely friendly to it. we think that the nations of Europe have originally set out in error; that experience has proved the error oppressive to the rights & interests of the peaceable part of mankind; that every nation but one has acknoleged this by consenting to the change, & that one has consented in particular cases; that nations have a right to correct an erroneous principle, & to establish that which is right as their rule of action; and if they should adopt measures for effecting this in a peaceable way, we shall wish them success, and not stand in their way to it. but should it become at any time expedient for us to co-operate in the establishment of this principle, the opinion of the Executive, on the advice of it’s constitutional counsellors, must then be given; & that of the Legislature, an independant & essential organ in the operation, must also be expressed; in forming which they will be governed, every man by his own judgment, & may very possibly judge differently from the Executive. with the same honest views, the most honest men often form different conclusions. as far however as we can judge, the principle of ‘free bottoms free goods’ is that which would carry the wishes of our nation.
Wishing you smooth seas & prosperous gales, with the enjoyment of good health, I tender you the assurance of my constant friendship & high consideration & respect.
RC (NNMus); at foot of first page: “Robert R. Livingston. M.P. of the US. to France”; endorsed by Livingston. PrC (DLC); in ink in TJ’s hand at foot of first page: “Rob. R. Livingston.” Enclosed in TJ to Madison, 11 Sep.
When Madison wrote to Livingston on 4 Sep. he asked him to depart for France right away, even though the convention between France and the United States was apparently still unratified. Madison’s final instructions to Livingston were dated 28 Sep., by which time news of the ratification had arrived in the United States (Madison, Papers, Sec. of State Ser. description begins J. C. A. Stagg, ed., The Papers of James Madison, Secretary of State Series, Charlottesville, 1986–, 8 vols. description ends , 2:82–3, 142–7; TJ to Gallatin, 5 Sep.).
Some loose thoughts on that subject: for TJ’s observations on the law of nations and neutral rights, see his letter to Livingston of 4 June 1801, the memorandum he enclosed with that letter, and Livingston’s reply of the same day.
Sanctioned by our government: in treaties of amity and commerce between the United States and other nations, the principle that free ships made free goods was incorporated in Article 25 (Article 23 as ratified) of the 1778 treaty with France, Article 11 of the 1782 treaty with the Netherlands, Article 7 of the 1783 treaty with Sweden, and Article 12 of the 1785 treaty with Prussia (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:21, 70, 128–9, 170–1).
The Instructions to the Commissioners for Negotiating Treaties of Amity and Commerce were adopted by congress on 7 May 1784 and subsequently transmitted to Benjamin Franklin, John Adams, and TJ, who were the commissioners for the negotiations (Vol. 7:267–8, 271n). Beginning in Paris in 1784 and concluding in London in 1786, TJ and Adams negotiated a treaty with diplomats from portugal. The Americans’ proposed treaty was based on a model by TJ that declared that “free vessels” made “free goods.” It contained an article stating that in case of war between one of the contracting nations and another country, “to prevent all the difficulties and misunderstandings that usually arise respecting the merchandize heretofore called Contraband such as arms, ammunition and military stores of every kind, no such articles carried in the vessels or by the subjects or citizens of one of the parties to the enemies of the other shall be deemed contraband so as to induce confiscation or condemnation and a loss of property to individuals.” Luís Pinto de Sousa Coutinho, who at the time was Portugal’s minister to Great Britain, insisted on replacing that article with one that defined weapons and military equipment as contraband of war and made them subject to confiscation. TJ and Adams signed the treaty, but the Portuguese government never approved it (Vol. 7:419–20, 482–3, 490, 492n, 551; Vol. 9:410–12, 415–16, 423n, 425, 430–1, 432, 448; Vol. 10:61, 106, 179, 241–2; Vol. 11:35, 65–6, 78, 513n; Vol. 12:146).
Late treaty with England: the Jay Treaty. Late treaty with Prussia: a treaty with Prussia, signed in 1799 and ratified the following year, conceded that the principle that “free ships make free goods,” embodied in the 1785 treaty between the two nations, “has not been sufficiently respected during the two last Wars, and especially in that which still continues.” Prussia and the United States pledged “to concert with the great maritime Powers of Europe” upon the restoration of peace and to institute “such arrangements, and such permanent principles as may serve to consolidate the liberty and the safety of the neutral Navigation and Commerce in future Wars” (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America, Washington, D.C., 1931–48, 8 vols. description ends , 2:441–2).
1. In margin TJ wrote: “*Venice & Genoa.”