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These having been the only specific objections officially made to the treaty with Britain by the government of France, either in Paris or in Philadelphia, are necessarily supposed to be the only objections which have occurred.
They have often been discussed on the part of the United States; but that discussion will be renewed, because, although the underfigned may be unable to suggest any argument not heretofore urged, they cannot resist the hope, that an attentive reconsideration of those arguments may give them a success which has not yet attended them.'
The first objection may be supposed to consist of two parts; ist, the abandonment of the principle, that neutral bottoms make neutral goods, an objection rather insinuated than expressed; and, 2dly, the addition to the catalogue of contraband.
ist. On the first part of the objection it is observable, that the ftatements of the late minister of exterior relations, and of Mr. Adet, seem to admit, but certainly do not controvert the position, 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 position is believed to be incontrovertible; foine of the arguments in support of it have been already detailed, and it is deemed unnecessary to repeat or to add to them. To this principle of the armed neutrality, with a de- , parture from which the United States seem to be impliedly charged, the note of Mr. De la Croix does not assign any obligation what 'ever; nor does he appear to consider it as having been engrafted by that confederation on the law of nations. On this point Mr. Adet has not been more explicit; he seems to have been content with vague insinuations, and not to have been willing to commit himself by a direct averment, that in consequence of the armed neutrality the law of nations on this subject is changed. The undersigned are unwilling to combat at length a proposition not positively advanced, which they deem so clearly indefensible, and will therefore refer to the brief observation already made respecting 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 neusrality had not been formed; of consequence, 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 supposed to be admitted, that, according to that state of things, neutral bottoms could afford no protection to the goods of an enemy. The stipu. lation, 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 cases where it was not changed. If, then, the contracting parties had designed
to impose on each other the neceslity of extending this exception to other nations, so as to convert it into a general rule, they would have expressed this intention in their contract; not having expressed it, they must be considered as intending that this exception should form a rule as between themselves, while the gene. ral rule thould govern as with other nations who had not con- , fented to change it. .
It is also worthy of observation, 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 hostilities commenced by England, the bottoms of France would have protected from American cruisers English property, while they would not have protected from Britih cruisers American property. This was the necessary result of that state of things under which the treaty was formed; America had consented to it, and neither could nor would have complained.
It is also to be noticed, that before the negotiation with Eng. land had commenced, the government of the United States had openly avowed that opinion on this subject which it's best judgment dictated. . This opinion, perfe&tly unconnected with that negotiation, was known by all to form and regulate the basis of its conduct. The letters from Mr. Jefferson already quoted had ftated to the world the perfect conviction of the United Siates, that, by the law of nations, a belligerent power, not restrained 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 exercise of this right. The right having been clearly and unavoidably admitted, and the determination to acquiesce under its exercise having been avowed openly, Mr. Jay could cnly solicit its surrender.-Had no treaty been formed, or had that treaty omitted to mention the principle, the right would still have existed, would still have been acknowledged, and would still have been exercised. The treaty does not, in fact or in expression, cede a new privilege ; it regylates the exercise of one before existing and before acknowledged to exist. The harsh means of exercising this right, which are given by the law of nations, are modified and softened by the treaty; and this is the only effect which the article on this subject has produced; it was the only motive, and it was a sufficient motive, for introducing it.
The second branch of this objection seems more to be relied on, and comes forward in a more decisive shape; 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 those of England with the greater part of the maritime powers.
The limit of contraband is supposed to have been extended by inserting in the catalogue naval stores and timber for thip. building.
To estimate rightly a charge so warmly made, it becomes in. dispensable to ascertain whether those articles are, independent of treaty, by the law of nations contraband of war; on this single point seems to rest the verity of the accusation.
It is regretted, that those who have averred ihe negative have not been pleased to, furnish authorities in support of the opinion they advance. Such authorities would have been considered with candour, and any conviction they might have produced would have been freely acknowledged. But no such authorities are furnished, and it is believed that none exist. -- America, solicitous to confine as much as possible by common
confent the list of contraband, but' determined, however the might oppose its enlargement, not to attempt its diminution by force, was under the necessity of examining the subject, and of afcertaining the line of partition between the rights of neutrals and of belligerent powers. · As guides in such a search, she could only take the most ap. proved writers on the law of nations. These are believed 10 class timber for ship-building, and naval stores for the equipmentof vessels, among articles admitted to be contraband of war. Vattel (B. 7, Sect. 112) defines contraband goods to be “commodities particularly used in war : such are arins, military and naval stores, timber, horses, and even provisions in certain junctures, where there are hopes of reducing the enemy by fainine." The treaty between France and Denmark, concluded in 1742, places tar, rosin, sails, hemp, cordage, masts, and timber for ship-building, on the catalogue for contraband : and Valin, in his Commentary on the Marine Ordinances of France (vol.ii. p. 264), says, that. si of right these årticles are now contraband, and have been so from the commencement of the present century." In conformity with these opinions has been that of America, and if the law of nations was understood by the most approved jurists, she has not erred.
But the modern public law of nations, and modern treaties, are said to have established a different rule. If the modern public law of nations has changed the principle, such change is yet unknown to the United States—it is much to be wished, that more full and 'satisfactory information had been given in support of an opinion, a difference on which is alleged to have produced consequences so extremely calamitous.
It is averred, that the armed neutrality has constituted this modern public law. It is supposed that this cannot be averred, because France will never admit the right of a confederacy, whatever may be its power, to impoie the law on those who are
not parties to it. It is supposed also, that this cannot be averred for another reason. The members of the armed neutrality had not themselves agreed upon the articles which should be deemed contraband. Russia, the power originating that celebrated, though short-lived compact, published in 1780 the principles on which she would maintain the commerce of her subjects : one of these was, that the articles of contraband should be regulated by the roth and uth articles of her treaty of commerce with Great Britain.
Afterwards, Denmark entered into a convention with Russia for maintaining generally the principles agreed upon; but on the subject 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 described to be “any provisions of war, as soldiers, arms, machines, cannon, Thips, or other things of necessary use 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 ship-building, tar, rolin, copper in sheets, fails, hemp, and cordage, and generally whatever serves directly for the equipment of a veffel, unwrought iron and fir-planks excepted," are declared to be contraband.
Denmark having, in her convention with Russia, adopted her treaty with England, made in 1670, as declaratory of those articles which she would consider as contraband, and having, by her explanatory agreement with England, substituted a particular enumeration of articles for a general description 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 establithing a modern public law of nations, from that taken by Russia. The rule of Denmark classes among contraband precisely the same articles which are enumerated as such 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 so placed them. Sweden and Holland too, in acceding to the armed neutrality, adopt their own treaties as the rule by which they will be respectively guided There was then even among the parties to this agreement no fixed law of contraband. · Had the potcntates of Europe designed to establish permanently and generally the principles of the armed neutrality, the war which originated that convention would not have terminated without some general agreement concerning it: the efforts of Sweden to obtain a congress for examining and terminating the different concerns both of the powers VOL. VII.
at war and of the neutral states could not have proyed entirely abortive.
No argument then can be drawn from the armed neutrality in support of the position, 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 present moment, as well as when the treaty with France was formed, is believed to ordain as contraband the articles enumerated as such in the treaty with Britain.
But it is alleged, that in this treaty the United States have abandoned the liinits given to contraband by their treaties with all other nations, and even by those of England, with a greater part of the maritime powers.
It is true, that the United States, deGrous of liberating commerce, have invariably feized every opportunity which presented itself to diminish or remove the shackles imposed on that of neutrals. In pursuance of this policy, they have on no occasion heSitated to reduce the list of contraband, as between themselves and any nation consenting to such reduction. Their pre-existing treaties have been with nations as willing as themselves to change the old rule; and consequently a ftipulation to that effect, being desired by both parties, has been made without difficulty. Each contracting party is deemed to have an equivalent for the ceflion made, in the similar ceslion it receives from the party with whom it contracts. Neither requires of the other, as an additional consideration, that it shall propagate by the sword the principles which form the basis of their private agreements, and force unwilling nations to adopt them; nor that it should decline to regu. late by treaty its interests with any other nation which should refuse to accede to them : as little could either suppose 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 subject with nations not parties to the contract, to the law which would have governed, had such particular ftipulation never been made. According to the existing State of things, when the negotiations between the United States and Great Britain were opened, naval stores and timber for -ship-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 provision on the subject. The United States were truly desirous of excluding them from the list, but Britain was unwilling to do so. Had the United States possessed the means of coercion, their established policy, founded on the basis