Thefe having been the only fpecific objections officially made to the treaty with Britain by the government of France, either in Paris or in Philadelphia, are neceffarily fuppofed to be the only objections which have occurred.

They have often been difcuffed on the part of the United States; but that difcuffion will be renewed, because, although the underfigned may be unable to fuggeft any argument not heretofore urged, they cannot refift the hope, that an attentive reconfideration of thofe arguments may give them a fuccefs which has not yet attended them.

The first objection may be fuppofed to confift of two parts; ift, the abandonment of the principle, that neutral bottoms make neutral goods, an objection rather infinuated than expreffed; and, 2dly, the addition to the catalogue of contraband.

ift. On the first part of the objection it is obfervable, that the fatements of the late minifter of exterior relations, and of Mr. Adet, feem to admit, but certainly do not controvert the pofition, that, previous to the formation of the armed neutrality, a belligerent power could rightfully take out of the bottoms of a neutral the goods of its enemy. This pofition is believed to be incontrovertible; fome of the arguments in fupport of it have been already detailed, and it is deemed unneceffary to repeat or to add to them. To this principle of the armed neutrality, with a de-. parture from which the United States feem to be impliedly charged, the note of Mr. De la Croix does not affign any obligation whatever; nor does he appear to confider it as having been engrafted by that confederation on the law of nations. On this point Mr. Adet has not been more explicit; he feems to have been content with vague infinuations, and not to have been willing to commit himfelf by a direct averment, that in confequence of the armed neutrality the law of nations on this fubject is changed. The underfigned are unwilling to combat at length a propofition not pofitively advanced, which they deem fo clearly indefenfible, and will therefore refer to the brief obfervation already made refpecting it.

It may not, however, be improper here to notice, that in February 1778, when the treaty between France and the United States was entered into, the armed neutrality had not been formed; of confequence, the state of things on which that treaty operated, was regulated by the law of nations, as it clearly exifted previous to the formation of the armed neutrality. It is fuppofed to be admitted, that, according to that state of things, neutral bottoms could afford no protection to the goods of an enemy. The ftipulation, then, of the article of that treaty was understood at the time, by the contracting parties, to form an exception to a general rule, which would retain its obligation in all cafes where it was not changed. If, then, the contracting parties had designed

to

to impofe on each other the neceffity of extending this exception to other nations, fo as to convert it into a general rule, they would have expreffed this intention in their contract; not having expreffed it, they must be confidered as intending that this exception fhould form a rule as between themfelves, while the general rule should govern as with other nations who had not confented to change it.

It is alfo worthy of obfervation, that when this treaty was made the United States were at war, and France at peace with Britain. In this state of things, which might have continued, had not war been declared, or hoftilities commenced by England, the bottoms of France would have protected from American cruisers English property, while they would not have protected from British cruifers American property. This was the neceffary refult of that state of things under which the treaty was formed; America had confented to it, and neither could nor would have complained.

It is alfo to be noticed, that before the negotiation with England had commenced, the government of the United States had openly avowed that opinion on this fubject which its best judgment dictated. This opinion, perfectly unconnected with that negotiation, was known by all to form and regulate the basis of its conduct. The letters from Mr. Jefferfon already quoted had ftated to the world the perfect conviction of the United States, that, by the law of nations, a belligerent power, not reftrained by particular treaty, might rightfully take out of the bottoms of a neutral the goods of its enemy, as well as their determination that they could not, and ought not, to oppose the exercife of this right. The right having been clearly and unavoidably admitted, and the determination to acquiefce under its exercise having been avowed openly, Mr. Jay could only folicit its furrender.-Had no treaty been formed, or had that treaty omitted to mention the principle, the right would ftill have exifted, would ftill have been acknowledged, and would ftill have been exercised. The treaty does not, in fact or in expreffion, cede a new privilege; it regulates the exercife of one before exifting and before acknowledged. to exift. The harth means of exercising this right, which are given by the law of nations, are modified and foftened by the treaty; and this is the only effect which the article on this fubjecthas produced; it was the only motive, and it was a fufficient motive, for introducing it.

The fecond branch of this objection feems more to be relied on, and comes forward in a more decifive fhape; it is that the United States have abandoned the limit given to contraband by the law of nations, by their treaties with other nations, and even by thofe of England with the greater part of the maritime

powers.

The

The limit of contraband is supposed to have been extended by inferting in the catalogue naval ftores and timber for ship. building.

To eftimate rightly a charge fo warmly made, it becomes indifpenfable to ascertain whether thofe articles are, independent of treaty, by the law of nations contraband of war on this fingle point seems to reft the verity of the accufation.

It is regretted, that thofe who have averred the negative have not been pleafed to, furnish authorities in fupport of the opinion they advance. Such authorities would have been confidered with candour, and any conviction they might have produced would have been freely acknowledged.. But no fuch authorities are furnifhed, and it is believed that none exist.

America, folicitous to confine as much as poffible by common confent the lift of contraband, but determined, however the might oppofe its enlargement, not to attempt its diminution by force, was under the neceffity of examining the fubject, and of afcertaining the line of partition between the rights of neutrals and of belligerent powers.

As guides in fuch a search, she could only take the most approved writers on the law of nations: These are believed to clafs timber for fhip-building, and naval ftores for the equipment of veffels, among articles admitted to be contraband of war. Vattel (B. 7, Sect. 112) defines contraband goods to be "commodities particularly used in war: fuch are arms, military and naval ftores, timber, horfes, and even provifions in certain junctures, where there are hopes of reducing the enemy by famine." The treaty between France and Denmark, concluded in 1742, places tar, rofin, fails, hemp, cordage, mafts, and timber for fhip-building, on the catalogue for contraband: and Valin, in his Commentary on the Marine Ordinances of France (vol. ii. p. 264), fays, that of right thefe articles are now contraband, and have been fo from the commencement of the prefent century." In conformity with thefe opinions has been that of America; and if the law of nations was understood by the most approved jurists, fhe has not erred.

But the modern public law of nations, and modern treaties, are faid to have established a different rule. If the modern public law of nations has changed the principle, fuch change is yet unknown to the United States-it is much to be wifhed, that more full and fatisfactory information had been given in fupport of an opinion, a difference on which is alleged to have produced confequences fo extremely calamitous.

It is averred, that the armed neutrality has conftituted this modern public law. It is fuppofed that this cannot be averred, because France will never admit the right of a confederacy, whatever may be its power, to impofe the law on those who are

not

not parties to it. It is fuppofed alfo, that this cannot be averred for another reafon. The members of the armed neutrality had not themselves agreed upon the articles which fhould be deemed contraband. Ruffia, the power originating that celebrated, though fhort-lived compact, published in 1780 the principles on which he would maintain the commerce of her fubjects: one of thefe was, that the articles of contraband fhould be regulated by the roth and 11th articles of her treaty of commerce with Great Britain.

Afterwards, Denmark entered into a convention with Ruffia for maintaining generally the principles agreed upon; but on the fubject of contraband in particular, Denmark adopted as the rule by which to be governed, her treaty of commerce with Great Britain, concluded the 10th of July 1670; in the third article of which, contraband goods are defcribed to be "any provifions of war, as foldiers, arms, machines, cannon, fhips, or other things of neceffary ufe in war." But, by a convention concluded at London on the 4th of July 1780, between Great Britain and Denmark, to explain the treaty of commerce of 1670 between the two powers," timber for fhip-building, tar, rofin, copper in fheets, fails, hemp, and cordage, and generally whatever ferves directly for the equipment of a veffel, unwrought iron and fir-planks excepted," are declared to be contraband.

Denmark having, in her convention with Ruffia, adopted her treaty with England, made in 1670, as declaratory of those articles which he would confider as contraband, and having, by her explanatory agreement with England, fubftituted a particular enumeration of articles for a general defcription of them, not as an amendment but as an explanation of the treaty of 1670, has taken a different rule, in the very compact referred to, as eftablishing a modern public law of nations, from that taken by Ruffia. The rule of Denmark claffes among contraband precifely the fame articles which are enumerated as fuch in the treaty between the United States and Britain, and which are only found in that enumeration, because it is believed that the law of nations has unquestionably fo placed them. Sweden and Holland too, in acceding to the armed neutrality, adopt their own treaties as the rule by which they will be refpectively guidedThere was then even among the parties to this agreement no fixed law of contraband. Had the potentates of Europe defigned to establish permanently and generally the principles of the armed neutrality, the war which originated that convention would not have terminated without fome general agreement concerning it: the efforts of Sweden to obtain a congrefs for examining and terminating the different concerns both of the powers VOL. VII. I i

at

at war and of the neutral ftates could not have proved entirely

abortive.

No argument then can be drawn from the armed neutrality in fupport of the pofition, that the modern public law of nations relating to contraband has been abandoned by the United States. No modern public law having been formed, the rule remains unchanged; and at the prefent moment, as well as when the treaty with France was formed, is believed to ordain as contraband the articles enumerated as fuch in the treaty with Britain.

But it is alleged, that in this treaty the United States have abandoned the limits given to contraband by their treaties with all other nations, and even by thofe of England, with a greater part of the maritime powers.

It is true, that the United States, defirous of liberating commerce, have invariably feized every opportunity which prefented itself to diminish or remove the fhackles impofed on that of neutrals. In pursuance of this policy, they have on no occafion hefitated to reduce the lift of contraband, as between themselves and any nation confenting to fuch reduction. Their pre-exifting treaties have been with nations as willing as themselves to change the old rule; and confequently a ftipulation to that effect, being defired by both parties, has been made without difficulty. Each contracting party is deemed to have an equivalent for the ceffion made, in the fimilar ceffion it receives from the party with whom it contracts. Neither requires of the other, as an additional confideration, that it fhall propagate by the fword the principles which form the bafis of their private agreements, and force unwilling nations to adopt them; nor that it fhould decline to regulate by treaty its interefts with any other nation which fhould refufe to accede to them: as little could either fuppofe that its particular contract contained any thing obligatory on others, or was capable of enlarging or diminishing their rights.

The treaties of the United States then with other nations can only establish the limits of contraband, as between the contracting parties, and must leave that fubject with nations not parties to the contract, to the law which would have governed, had fuch particular ftipulation never been made. According to the exifting ftate of things, when the negotiations between the United States and Great Britain were opened, naval ftores and timber for fhip-building were, as between America and Britain, contraband of war: they would have retained this character, had the treaty never been made; they would have retained it, had the treaty contained no provifion on the fubject. The United States were truly defirous of excluding them from the lift, but Britain was unwilling to do fo. Had the United States poffeffed the means of coercion, their established policy, founded on the bafis

of