CHAPTER II

THE WARS OF THE FRENCH REVOLUTION

THE POSITION OF JEFFERSON AND RANDOLPH

Shortly after the outbreak of war in Europe in February, 1793, the American Government was called upon to state its views on neutral trading rights. In reply to a letter from Minister Pinckney in Great Britain, expressing apprehension that some of the belligerent powers might stop American vessels going with grain to the ports of their enemies, Secretary of State Jefferson on May 7 stated that such a stoppage on the way to an unblockaded port would be so unequivocal an infringement of neutral rights that he could not conceive that it would be attempted.1

To equalize our situation with respect to the belligerents he desired an arrangement with Great Britain by which our treaties with France and Holland should form the line of conduct for all, during the war, in the cases for which they provided. Where they were silent, the general principles of the law of nations must give the rule; that is, the principles of that law as they had been liberalized "by the refinement of manners and morals" and evidenced by the declarations, stipulations, and practice of every civilized nation.

He further stated that in our treaty with Prussia we had gone ahead of other nations in doing away with restraints on the commerce of peaceful nations, by declaring that nothing should be contraband. When every country had ample means of procuring arms within and without itself, regulations of contraband answered no other end than to draw other nations into the war. However, he concluded, " as nations have not given sanction to this improvement, we claim it, at present, with Prussia alone."

In a letter of July 24, 1793, to the French Minister, Jefferson clarified the American position on the question whether the flag should cover the cargo." He said he believed it could not be doubted that by the general law of nations, the goods of a friend found in the vessel of an enemy were free, and the goods of an enemy found in the vessel of a friend were lawful prize. It was true that some nations, desirous of avoiding the inconveniences of having their ves

1Document 24, p. 162.

2 Document 25, p. 163.

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sels stopped at sea, ransacked, carried into port, and detained under pretense of having enemy goods on board, had introduced another principle between them, namely, that enemy bottoms should make enemy goods and friendly bottoms, friendly goods. This principle was altogether the effect of a particular treaty controlling in special cases the general principle of the law of nations and therefore taking effect between such nations only as had so agreed to control it. The United States had adopted this modification in treaties with France, the Netherlands, and Prussia, and in these cases "our vessels cover the goods of their enemies, and we lose our goods when in the vessels of their enemies." We had no treaties with England, Spain, Portugal, and Austria, covering this point, and therefore had no opposition to offer to their acting according to the law of nations, that enemy goods were lawful prize though found in a neutral ship. Jefferson stated that while the principle that the flag should cover the cargo was only partially established, we were losers by it, "for when it works in our favor, it is to save the goods of our friends, when it works against us, it is to lose our own." When we had established the rule with all nations we should neither gain nor lose but should be less exposed to vexatious searches at sea. He stated that we were endeavoring to advance to that condition but, as it depended on the will of other nations as well as that of the United States, we could obtain it only when they were ready to concur.

Jefferson, on August 16, 1793, in a note to the Minister in France,1 again considered the question whether the flag covered the cargo, stating that "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."

In a note of September 7, 1793,2 Secretary Jefferson expressed to Minister Pinckney in Great Britain his opinion concerning the British order in council of June 8, 1793. The first article of the order, he understood, permitted all vessels laden wholly or in part with corn, flour, or meal, bound to any port in France, to be stopped and sent into any British port, to be purchased by that Government or to be released only on the condition of security given by the master that he would proceed to dispose of his cargo in the ports of some country at peace with Great Britain. Jefferson considered this article "so manifestly contrary to the law of nations," that nothing seemed necessary but to observe that it was. Reason and usage had established that when two nations went to war, those who chose to live in peace retained "their natural right to pursue

1

Document 26, p. 165.

2

Document 27, p. 166.

their agriculture, manufactures, and other ordinary vocations, to carry the produce of their industry, for exchange, to all nations, belligerent or neutral, as usual, to go and come freely without injury or molestation." Neutral nations had submitted to a restriction on their natural right. They must not furnish implements of war to the belligerents or send anything to a blockaded place. What these implements of war were, he continued, was well understood, so it sufficed merely to say that corn, flour, and meal were not of that class. Furthermore, Jefferson thought it was not sufficient for a nation to say that it would purchase our produce, as we had a right to answer that it suited us better to sell to their enemies as well as to their friends. American ships did not go to France to return empty; they went to exchange the surplus of American produce for goods of other kinds which were wanted and which France could furnish on terms better to our liking than Great Britain or her friends. Finally, he said, we had a right to judge for ourselves what market best suited us, and they had none to forbid to us the enjoyment of the necessaries and comforts which we might obtain from any other independent country.

1

Secretary of State Randolph took the same position as Jefferson regarding the British order in council of June 8, 1793. In a long note of May 1, 1794, to the British Minister he answered the latter's argument that Great Britain could lawfully stop and detain American vessels loaded with corn, meal, or flour, bound to a French port. Although admitting that those commodities could be treated as contraband in case of a blockade, siege, or investment, he considered that in other circumstances they did not possess a fitness for war, which he considered the original criterion of contraband. After stating that treaties often reenact a preexisting law, he mentioned that Cromwell who "was not apt to stop short of his rights, or to discard any possibility, by which he might accomplish his designs," had not included provisions in the contraband list in his treaty with the United Provinces. Furthermore, provisions were not considered contraband in the British treaty of 1667 with France, of 1668 with Holland, of 1713 with Spain, of 1766 with Russia, and of 1786 with France. Randolph quoted the important sections of Martens on neutral commerce and stated that the latter's deductions were that: (1) the neutral rights extended to every sort of merchandise, and even to arms or military stores, with certain restrictions which did not affect grain; (2) the places of an enemy with which commerce was interdicted were those only which were possessed by the adversary power or effectively blockaded; (3) treaties of commerce had sometimes

1 Document 28, p. 170.

classed provisions among contraband and sometimes among lawful merchandise; and (4) a commerce in goods which did not serve directly or solely for war was to be presumed lawful when nothing had been regulated concerning it. Vattel was then quoted to the effect that "Commodities particularly used in war, and the importation of which to an enemy is prohibited, are called contraband goods; such are arms, military and naval stores, timber, horses, and even provisions in certain junctures; when there are hopes of reducing the enemy by famine." As to this statement of Vattel, Randolph felt that the usage of nations and the opinions of other respectable writers would well controvert it. Furthermore, he could see no possibility of a defeat of France by famine. Randolph concluded his long note by observing that payment for intercepted cargoes of corn, meal, and flour was not adequate compensation to the United States for the interference with trade in its agricultural products.

JAY'S TREATY

A few days later, May 6, Secretary Randolph instructed John Jay in regard to principles of neutral commerce which the United States desired to include in a commercial treaty with Great Britain.1 Four of these principles were: (1) provisions should never be treated as contraband except in the strongest possible case, as the blockade of a port; (2) if possible, contraband should be abolished; (3) free ships should make free goods; (4) a blockade should be defined “if contraband must continue in some degree, as it is defined in the armed neutrality."

Toward the end of the instruction, Randolph stated that the principles of the armed neutrality would abundantly cover our neutral rights. If "the situation of things with respect to Great Britain should dictate the necessity of taking the precaution of foreign cooperation upon this head," and if an entire view of American political relations should permit the step, Jay was to sound the Ministers of Russia, Denmark, and Sweden at the Court of London upon the probability of an alliance with their nations to support those principles.

While negotiating the treaty with Great Britain, Jay requested Judges Scott and Nicholl for a statement of the general principles of proceeding in prize cases in British Courts of Admiralty. Their reply of September 10, 17942 included a statement that the law of nations had established that the goods of an enemy on board the ship of a friend might be taken and that goods of a friend on board the ship of an enemy ought to be restored unless contraband. This

1 Document 29, p. 183.

2 Document 30, p. 190.

letter of the British judges is of interest because the principles it contained have been followed by the American courts.1

The treaty of November 19, 1794, with Great Britain 2 included. provisions regarding neutral commerce which vary greatly from those Jay was instructed to press for. The contraband list in article 18 included arms, munitions of war, and naval stores. Whenever provisions and other articles not generally contraband should become so "according to the existing Laws of Nations" they were not to be confiscated but the owners were to be indemnified. Enemy goods were not protected under a neutral flag, according to article 17. The American propositions were not wholly neglected in the treaty. It was provided in article 12 that two years after the date of the signature of the articles of peace the parties would renew their discussions and endeavor to agree "whether in any and what cases Neutral Vessels shall protect Enemy's property; and in what cases provisions and other articles not generally Contraband may become such." But in the meantime, their conduct toward each other in these respects was to be regulated by the articles inserted on those subjects. Furthermore, article 7 provided for a commission to determine the validity of claims under the British orders in council.

France soon protested that this treaty violated the treaty of 1778. In a note of July 6, 1795, Secretary Randolph explained to the French Minister that the provisions making naval stores contraband in the Jay treaty were not in violation of the provisions in that with France by which naval stores were not to be considered contraband. He stated that "it never could be denied, under the law of nations, and independently of a treaty, that materials for the building and repairing of vessels are contraband." Jay's treaty did not grant a right to Great Britain but merely recognized one which even without that recognition she would have possessed and exercised. The recognition might have been omitted or inserted without changing the nature of the subject although it was more natural in commercial treaties to particularize the articles of contraband. Randolph said it was "anxiously desired" to diminish the list as much as possible but the United States could offer Great Britain no equivalent powerful enough to induce her to renounce her rights under the law of nations. He explained that the treaty of 1778 was entered into with a perfect knowledge on both sides (1) that they were striking out from the class of contraband some articles which the law of na