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ABSTRACT
EARLY AMERICAN CONCEPTIONS OF INTERNATIONAL LAW

AND THEIR
INFLUENCE ON FOREIGN POLICY: 1776-1803

BY

Gregg L. Lint

Much has been written about American foreign policy in
the years covered by this dissertation. Recently historians
have emphasized the interplay between the intellectual,
political, and economic orientations of the founding fathers.
In these works the American sense of uniqueness has been
examined and seen as a chief motivation of American foreign
policy initiatives. Such treatments have, however, invited
over attention to the general direction of the policy at the
expense of the specific means by which it would be made
possible. It is this gap that this dissertation attempts to
fill for it was the law of nations to which the founding
fathers turned to meet their needs.

From 1776 a goal of American statesmen was a world in
which the smallest republic would be as secure in its rights
as the greatest empire. Such an ideal was obviously in the
American self-interest for, born in a hostile world, it
could prosper only if left alone, away from the traditional

political rivalries of Europe. This led the United States to

Gregg L. Lint

adopt neutrality in future European wars, noninvolvement in
the political affairs of Europe, and free trade with all
nations as basic principles of its foreign policy. To
support these objectives, the United States turned to the
only existing system that seemed to offer a hope for their
attainment: the law of nations.

Initially this choice seemed to be well founded. The
Armed Neutrality of 1780 and the liberal commercial treaties
that it negotiated with France, the Netherlands, Sweden, and
Prussia seemed to indicate that "free ships make free goods"
and a limited list of contraband were becoming established
as universally recognized principles of the law of nations.
These developments of a law of nations led the founding
fathers to hope that a world order based on law was within
reach. In reality, however, the American world view had
postulated a foreign policy based on a system of law that
could not exist in the eighteenth century with its unfettered
sovereignty and limited sense of international interdependence.

With the outbreak of the wars of the French Revolution
in 1792 and 1793, the weaknesses of the American policy became
clear. Neither Britain nor France would admit the validity
of the principles so vital to American interests even when

contained in a treaty. The United States found that the law

Gregg L. Lint

that it had relied on was not an effective protection for

its interests. In the end the United States was forced to
come to terms with the realities of a world ruled not by

law but by the balance of power, armies, navies, and financial
resources.

Though the American dream of a world ruled by law was
severely tested by the events of the 1790's its hopes and
ideals remained alive. A tradition had been established
that would surface again and again in American foreign policy
to be used by other men to gain the acceptance of their
conception of the idealism and promise of America.

In the preparation of this dissertation the works of
the contemporary authorities on the law of nations and the
treaties, both of the United States and other nations, that
clearly indicated the principles that the United States
wished to incorporate into the law of nations were extensively
consulted. The diplomatic correspondence of the period, the
papers of the men involved in the events described, and
congressional debates relating to the issues in question

were also examined.

EARLY AMERICAN CONCEPTIONS OF INTERNATIONAL LAW
AND THEIR

INFLUENCE ON FOREIGN POLICY: 1776-1803

BY

5.1.!" ..-,
Gregg L. Lint

A DISSERTATION

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

DOCTOR OF PHILOSOPHY

Department of History

1975

Copyright by
GREGG L. LINT
1975

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PREFACE

Through most of the first two hundred years of its
existence the United States pursued neutrality as the
cardinal principle of its foreign policy. Because neutrality
was essentially a legal position it produced a strong tradi-
tion of recourse to the law in the promotion of American
interests. This dissertation examines the beginnings of
American efforts to remain outside the political affairs of
Europe and thus its wars. It attempts to determine the way
in which the law of nations or international law entered
into American efforts in pursuit of neutrality between 1776
and 1803 and, in the process, became a major theme in
American foreign policy.

I am indebted to a number of people who helped to make
this study possible. I wish to express my deepest gratitude
to Paul Varg, chairman of my guidance committee, who, pre-
sented with a dissertation proposal soon after my arrival at
Michigan State University, gave me constant encouragement
and support in my efforts to carry it through to completion.
The other members of my guidance committee, Professors Warren

I. Cohen, Robert E. Brown, and Paul Sweet have, through their

ii

criticism of the work in progress and their willing expendi—
ture of time, also contributed greatly to the writing of
this dissertation and my historical training in general.
Finally, I owe far more than can ever be acknowledged to my
wife, Susan, who, by her patience, understanding, and stead-
fast confidence that the task would ultimately be completed,

helped me immeasurably.

iii

TABLE OF CONTENTS

CHAPTER Page

I. THE LAW OF NATIONS AND THE UNITED STATES

IN THE EIGHTEENTH CENTURY. . . . . . . . . 1

II. THE LAW OF NATIONS AND THE AMERICAN REVOLU-
TION . . . . . . . . . . . . . . . . . . . 33
III. THE DEVELOPMENT OF A POLICY: 1789-1793 . . . 74
IV. THE FRAMEWORK OF CONFLICT . . . . . . . . . . 105
V. THE LAW OF NATIONS AND A GREAT POWER AT WAR . 111
VI. AN ALLIANCE DESTROYED . . . . . . . . . . . . 153
CONCLUSION . . . . . . . . . . . . . . . . . . . . . 205
BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . 210

iv

CHAPTER ONE

THE LAW OF NATIONS AND THE UNITED STATES
IN THE

EIGHTEENTH CENTURY

The United States came into being in the last quarter
of the eighteenth century. As a young nation it was weak,
its power potential rather than real. Being the product of
revolution it was regarded with suspicion by the nations of
EurOpe who feared that the ideals and expectations realized
in its success might spread and endanger the established
order. The United States thus existed in a hostile environ-
ment, one that might, at any time, bring its distruction.
The American response was, from the beginning, a policy
aimed at non-involvement in the political affairs of Europe
and neutrality supported by a strong reliance on inter-
national law or, in the language of the eighteenth century,
the law of nations.

The policy of the United States as it related to the
law of nations forms the subject of this dissertation but
before the implementation of that policy can be dealt with

the nature of the law during the period being discussed must

be examined and reasons for such a policy proposed. In 1776
the term international law did not exist and instead refer-
ence was made to the law of nations. While this may appear
to be merely a difference in semantics it was, in fact,
quite substantial. The most recent examination of inter—
national law published by the United States Department of
State gives the following definition:
International law is the standard of conduct, at
a given time, for states and other entities subject
thereto. It comprises the rights, privileges, powers,
and immunities of states and entities invoking its
provisions, as well as the correlative fundamental
duties, absence of rights, liabilities, and disabili-
ties. International law is, more or less, in a continu-
al state of change and development. In certain of its
aspects the evolution is gradual; in others it is
avulsive. International law is based largely on custom,
e.g., on practice, and whereas certain customs are
recognized as obligatory, others are in retrogression
and are recognized as nonobligatory depending on the
subject matter and its status at a particular time.1
It is further stated that there are certain well recognized
principles or norms reflected not only in international
practice but also in international treaties and agreements,
in general principles of law recognized by states, in judicial
and arbitral decisions, and in the works of qualified scholars.

Finally, being based on custom thus reflected and recognized,

it is to a considerable extent unwritten and uncodified.2

 

1U. S., Department of State, Digest of International Law,
Vol. I, Prepared under the direction of Margorie M. Whiteman
(Washington, D.C.: Government Printing Office, 1963), p. l.

2

 

Ibido ’ pp. l-Zo

The definition given above has several implications:
first, that international law is a dynamic force, in a
continual process of change and adaptation in response to
differing conditions; second, that the primary sources of
international law are customs and agreements current among
the nations of the world; third, that this definition and
most others contemporary with it assume some degree of
international organization, thus reflecting the experience
of the twentieth century.

In the eighteenth century a definition of the law of
nations was quite different. Usually the implication was
that the law, as applied to the day-to—day operations of
international relations, could undergo change but, at the
same time, there was a static basis for the law, the law of
nature, which was unchanging and which transcended the
transitory demands of a particular situation thus constitut—
ing the ultimate source of the law. In writings on the sub-
ject during the sixteenth and seventeenth centuries, the law
of nations and the law of nature became intertwined to such
a degree that it was often impossible or at least extremely

difficult to see where one began and the other ended.3

 

3This close coincidence of the law of nature and the law
of nations can be seen in the titles of various works dealing
with the law of nations. Baron Samuel Pufendorf, The Law of
Nature and Nations, Translated by Basil Kennet, notes by
M. Barbeyrac, 5th ed. (London, 1749). Emerich de Vattel, The
Law of Nations or the Principles of Natural Law Applied to
the Conduct of the Affairs of Nations and Sovereigns,

 

 

The first author to be examined is Alberico Gentili
who wrote in the first years of the seventeenth century.
Although his work has been overshadowed by that of Grotius,
often called the father of international law, and others, he
does provide a starting point and offers a clear example of
the close coincidence of the law of nature and the law of
nations. To Gentili, the agreement of all nations on a
matter must be regarded as a law of nature, a concept that
was derived from a quotation from Cicero that "the law of
nations is that which is in use among all the nations of men,
which mature reason has established among human beings, and
which is equally observed by all mankind and that such law
is natural law."4 Later Gentili stated that "not only is
civil law an agreement and bond of union among citizens, but
the same is true of the law of nations as regards nations,

5

and the law of nature as regards mankind." Gentili

 

Translated by Charles L. Fenwick, The Classics of Inter-
national Law, ed. by James Brown Scott (Washington, D.C.:
Carnegie Institution of Washington, 1916). Christian Wolff,
The Law of Nations Treated According to the Scientific
Method, Translated by Joseph H. Drake, The Classics of Inter-
national Law, ed. by James Brown Scott (Oxford: Oxford
University Press, 1934). Wolff's book was originally pub-
lished in 1749 as the ninth volume of a work on natural law.

 

 

4Alberico Gentili, Three Books on the Law of War,
Translation of the 1612 Edition by John C. Rolfe, The
Classics of International Law, ed. by James Brown Scott
(Oxford, Clarendon Press, 1933), p. 8. Cicero, Tusculan
Disputations, I, xiii. 30.

5

 

 

 

Ibid., p. 124.

essentially states that the law of nations and the law of
nature are synonymous, a position that later writers modify
and yet do not completely abandon.

Grotius, the second author to be noted, is, in terms of
his influence, much more important. This significance is
derived both from the principles of the law of nations that
he set down and the frequency with which he was quoted by
later authors and statesmen. The law of nature is defined
by Grotius as

. . . a dictate of right reason, which points out that

an act, according as it is or is not in conformity

with rational nature, has in it a quality of moral

baseness or moral necessity; and that in consequence,
such an act is either forbidden or enjoined by the
author of nature, God.6
Taken to its ultimate end and applied to the law of nations,
this definition would indicate the existence of a very static
system. In practice, however, it was not taken to such
lengths but remained the basis by which to judge the law of
nations.

Like many of his contemporaries, Grotius saw man as
having proceeded from a state of nature into a nation state
and thus defined municipal law, in order to differentiate it

from the law of nations, as "that which emanates from the

civil power" which is "a complete association of free men,

 

6Hugo Grotius, The Law of Peace and War, Translated by
Francis W. Kelsey, Classics of International Law, ed. by
James Brown Scott (Oxford, Clarendon Press, 1925), B. I,
C. I, S. I.

 

 

joined together for the enjoyment of rights and for their
common interest."7 Just as men joined together to form a
civil government, nations banded together to form a society
of nations and thus "the law which is broader in scope than
municipal is the law of nations: that is the law which has
received its obligatory force from the will of all nations,
or of many nations."8 Grotius added that "outside the law
of nature, which is frequently called the law of nations,
there is hardly any law common to all nations."9 Grotius's
definition is important because of its departure from what
previous writers, such as Gentili, had said, for while
Grotius was very definite about natural law being the ulti-
mate basis of the law of nations, he was willing to admit
some deviation from it caused by the will of nations and the
qualification, "or of many nations," that he made in his
definition and thus removed some of the static implications
from the concept of the law of nations, a trend that was
continued by later authors.

In the eighteenth century two writers on the law of
nations stand out, Christian Wolff whose work appeared in

1749 and Emerich de Vattel who appeared in 1758. The first

 

71bido' B. I, C. I, So I.

81bid., B. I, c. I, s. XIV.

9Ib:i.d., B. I, C. I, S. XIV.

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brought the relationship of natural law to the law of nations
into a more coherent form and justified departures from the
strict natural law, and the second clarified the interpreta-
tion and came to be the authority most frequently quoted by
American statesmen. Their basic definitions of the law of
nations were almost identical, both saw it as the science of
the law which nations use in their relations with each other
and the obligations arising therefrom.lo
It is perhaps best to examine Wolff's treatment of the
relationship of the law of nature to the law of nations
first, for to some degree it conflicts directly with that of
Vattel. Wolff stated that nations, as well as men, originally
existed in a state of nature with perfect freedom in relation
to each other. In that condition natural law was the only
governing force. Then, as had men previously, nations altered
their circumstances, joining in a community of nations. After
this transformation they remained under the governance of the
law of nature for such law is immutable thus making the law
of nations immutable. Because of the difficulty in applying
the law of nature in the same way to both men and nations,
however, some changes in its form, as applied to nations, was

allowed. From this adaptation two forms of the law of

nations evolved, the necessary law or the law of nature from

 

10WOlff, The Law of Nations, Prolegomena, S. l. Vattel,
The Law of Nations . . ., Introduction, S. 4.

 

 

which no nation may ultimately be freed either by its own
actions or those of another, and the positive law of nations
arising from the special conditions arising from the appli-
cation of natural law of nations.11
It was this positive law or, more specifically, the
segment of it known as the voluntary law that Wolff then
proceeded to explain. He evolved a concept of the "supreme
state." By this he meant the state created by nations as
opposed to the civil state created by men. The "supreme
state" thus had the power to promulgate laws in respect to
matters of concern to its members in pursuit of the purpose
of all nations, the promotion of the common good. However,
while being based on the law of nature, the voluntary law
of nations might depart from it because of the human element
which meant that things illicit in themselves, i.e. contrary
to the law of nature, had to be endured because they could
not be changed by human power.12 ‘
It may be deduced, and Wolff so stated, that the
"supreme state," as did the civil state, had the power to
coerce its individual members if they were unwilling to meet

their obligations thus implying that the individual nations

had surrendered some of their sovereignty to the "supreme

 

11Wolff, The Law of Nations, Prolegomena, S's. 2-6.

 

12Ibid., Prolegomena, S's. 7-11.

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state." Within the "supreme state" all states were equal

regardless of size or, as Vattel said, "a dwarf is as much
a man as a giant is, a small Republic is no less sovereign

than the most powerful Kingdom." Therefore, what was lawful

for one nation was lawful for another.14 Because of this

equality of nations, the "supreme state" became a democracy
governed by a majority with the result that "what has been
approved by the more civilized nations [following the leader-
ship of nature and using right reason] is the law of
nations."15 In summing up his treatment of the voluntary

law of nations Wolff stated that

With Grotius we speak of the voluntary law of
nations, which is derived from the concept of the
supreme state, therefore it is considered to have
been laid down by its fictitious ruler [In order to
justify his comparison of the "supreme state" to the
civil state of men, wo1ff was forced to create some
power corresponding to the civil ruler with the
power to promulgate laws for the various individual
nations in their relations with each other.] and so
to have proceded from the will of nations. The
voluntary law of nations is therefore equivalent to
civil law, consequently it is derived in the same
manner from the necessary law of nations as we have
show26that civil law must be derived from the natural
law.

 

lBIbid., Prolegomena, 8'5. 13, 15.

14Ibid., Prolegomena, S's. 15~18. Vattel, The Law of
Nations . . ., Introduction, S. 18.

15

 

 

 

Wolff, The Law of Nations, Prolegomena, S's. 19-20.

 

16Ibid., Prolegomena, S. 22.

10

Although the voluntary law of nations, having its origin
in the will of nations, was universal, two other subordinate
branches of the positive law of nations were not. First
was the stipulative law of nations or the private law of
nations which referred only to agreements between particular
nations and had little relationship to the necessary law or

voluntary law except in so far as nations were bound to honor

17

their agreements. Second was the customary law of nations

which proceeded from the tacit agreement of nations and, once
again, was particular and not universal.18 Wolff then defined
the positive law of nations as that

. . . which takes its origin from the will of nations,
therefore since it is plainly evident that the volun-
tary, the stipulative, and the customary law of
nations take their origin from the will of nations,
all that law is the positive law of nations. And since
furthermore it is plain that the voluntary law of
nations rests on the presumed consent of nations, the
stipulative upon the express consent, the customary
upon the tacit consent, since moreover in no other way
is it conceived that a certain law can spring from the
will of nations, the positive law of nations is either
voluntary or stipulative or customary.19

Vattel agreed with Wolff's treatment of the necessary
law of nations and the attributes of voluntary, stipulative,

and customary law in their essentials. He did not agree with

 

17Ibid., Prolegomena, S. 23.

18Ibid., Prolegomena, S. 24.

19Ibid., Prolegomena, S. 25.

ll

WOlff, however, on the right, even if implied, of one or
more nations to coerce another into compliance with its
obligations. He stated two general rules governing the
relations between nations. First, each state should contri-
bute as far as possible to the happiness and advancement of
every other nation. Second, all states should be left to
the peaceable enjoyment of the liberty accorded to them by
nature because "the liberty of a nation would not remain
complete if other nations presumed to inspect and control
its conduct; a presumption which would be contrary to the
natural law which declares every nation free and independent
of all other nations."20

The question, of course, arises as to the consequences
and remedy for nations that do not meet their responsibili-
ties. To Vattel obligations may be divided into two
categories--internal in so far as they bind the conscience
and arise from duty, and external when considered in relation
to other men producing a right on their part. With this in
mind he stated that

A nation is therefore free to act as it pleases,

so far as its acts do not affect the perfect rights

of another nation, and so far as the nation is under

merely internal obligations without any perfect external

obligations. If it abuses its liberty it acts wrong-

fully; but other nations can not complain, since they
have no right to dictate to it.

 

20
13-15.

Vattel, The Law of Nations . . ., Introduction, S's.

 

12

This prohibition against interference arises because

. . . nations are free, independent, and equal, and
since each has the right to decide in its conscience
what it must do to fulfill its duties, the effect of
this is to produce, before the world at least, a
perfect equality of rights among nations in the con-
duct of their affairs and in the pursuit of their
policies. The intrinsic justice of their conduct is
another matter which it is not for others to pass upon
finally; so what one may do another may do and they
must be regarded in the society of mankind as having
equal rights.

When differences arise each nation in fact claims
to have justice on its side, and neither of the
interested parties nor other nations may decide the
question. The one who is actually in the wrong sins
against its conscience; but as it may possibly be in
the right, it cannot be accused of violating the laws
of the society of nations.

The final justification of this doctrine is that
The laws of the natural society of nations are

so important to the welfare of every state that if

the habit should prevail of treading them underfoot

no nation could hope to protect its existence or its

domestic peace whatever wise and just temperate

measures it might take.21

Vattel was, in many respects, a more representative
product of and commentator on an international society which
was based on the principle of absolute sovereignty than was
Wolff. This may explain why Vattel was the source most
frequently consulted by American statesmen in the period being

examined and was the only work by a major writer on the law

of nations to be published in an American edition prior to

 

212313.. Introduction, 8'5. 17, 20-22.

 

13

1800.22 Above all it must be remembered that until the
Congress of Vienna, when the concept of the great power came
into being and an attempt was made to regulate Europe and,
by inference, the world, no effort had been made, except in
the visionary works of such men as Sir Thomas More, Emeric
Cruce, and Henri de Saint-Simon, in the direction of estab-
lishing some sort of international order through organization
with its accompanying diminuation of sovereignty.23

Having examined the law of nations in its general form,
it is now appropriate to look at its provisions concerning
neutrality, the subject of greatest interest to the United
States. The principles of the law of nations, regardless of
what author was stating them, found their greatest applica—
tion in the making of war or peace. This was natural because
the purpose of the law of nations, taken in its broadest
sense, was to set down rules of conduct which would permit
nations to conduct relations with each other without recourse
to war. In time of war their chief purpose was to moderate

the effects of the conflict and prevent its expansion.

 

22Vattel, The Law of Nations . . . (New York, 1796).

Another author, Jean Jacques Burlamaqui, The Principles of
Natural and Politic Law, 4th ed. (Boston), was published

in 1792 but the infrequency with which he was quoted by
Americans makes it difficult, for the purposes of this study,
to give him the status of a major authority.

23Sir Thomas More, Utopia (1516). Emeric Cruce,
Nouveau Cynee (1623). Henri Saint-Simon, De la Reorganiza-
tion de la Societe Europeenne (1814).

 

 

 

 

 

 

14

A major portion of any book concerned with questions of war
and peace by necessity had to deal with the position of the
nation that did not wish to become involved in the war. The
major issue, of course, was the status of the neutral trader,
first personified by the Dutch and then by the Americans.

It was the existence of the neutral trader and the tenuous
position that he held that gave rise to the Rule of 1756,
thus beginning a controversy that was to trouble the applica-
tion and interpretation of the law of nations for many years.
Neutral rights constituted a real test for the application

of the law of nations because the neutral, particularly if
engaged in large scale trade, tended to be strong commercially
but weak militarily with little or no recourse to anything
but the law of nations as a safeguard for either its rights
or interests.

What is a neutral? Grotius stated that it was a nation
that acted impartially toward all belligerents. But Grotius,
writing in the seventeenth century, was still concerned with
the question of just and unjust wars and while it was possible
to be absolutely neutral in a just war, in an unjust war the
nation at peace was obligated to do nothing to obstruct the
side upon which justice lay, a far different prOposition

24
than the first. It is doubtful whether the eighteenth

 

24
S. III.

Grotius, The Law of Peace and War, E. III, C. XVII,

 

15

century thinkers, writing as they did in a period marked by
the rise of the modern national state, would have been as
willing as their seventeenth century predecessors to judge
whether a war was just or unjust; nevertheless it did enter
into their conceptual framework. Wolff, for example,
implied in his statement that nations may have a right to
force another nation to meet its obligations under the law
of nations; that there may be such a thing as a just war
because of the unlikelihood that such coercion could take a

form short of war.25

Vattel, in spite of his strictures as
to the inviolability of sovereignty, stated that neutrals
have the right to give aid for a just but not for an unjust
war and, in fact, included a chapter on the just causes of
war.26

While there was general agreement about the basic
attributes of neutrality in the eighteenth century, there
was disagreement about specifics. Wolff used a rather common
argument by neutrals when he stated that the neutral should
do to each belligerent what it is bound to do under the law
of nations or, in other words, it should act as if no war

27

existed. Belligerents commonly opposed this argument with

 

25Wolff, The Law of Nations, Prolegomena, S. 13.

 

26Vattel, The Law of Nations . . ., Introduction, 8. 21;
B. III, C. III, S's. 24-50.

27

 

Wolff, The Law of Nations, S. 683.

 

l6

cme of their own that they had the right to interdict all
trade injurious to themselves and beneficial to their
ememies. Cornelius Van Bynkershoek, writing in 1737, would
rave opposed Wolff's principle, stating that neutrals are
those that belong to neither belligerent party and owe no
and because of treaty obligations because those who have
cflfligations are not merely neutral friends but allies.28
EWnkershoek raised an interesting point, one which the Dutch
faced in 1756 in regard to their treaty obligations to Great
Ekitain as opposed to their desire to be neutral. This, of
course, enters the realm of the sanctity of treaties and the
ability of one side to abrogate an agreement when it finds
it advantageous to do so. In 1756 this was perhaps a moot
point because of the question as to whether British demands
were sincere or whether they were merely a pretext for taking
a strong stand against neutral trade of which the Dutch were
the major practioners, a question that will be examined in
detail later. Vattel continued in the general direction of
the others, stating that "neutral nations are those which
take no part in a war, and remain friends of both parties

Without favoring either side to the prejudice of the other."29

28Cornelius Van Bynkershoek, Two Books on Questions of
Public Law, Translation of the text of 1737 by Frank Tenny,
Efle Classics of International Law, ed. by James Brown Scott
(Oxford: Clarendon Press, 1930), B. I, c. IX, S's. 68-71.

29
103.

 

 

Vattel, The Law of Nations . . ., B. III, C. III, S.

 

...\.‘.\

17

A necessary adjunct to any discussion of the definition
of neutrality is the basis upon which a neutral may trade.
Grotius set down the general principles. He stated that "no
one, in fact has the right to hinder any nation from carrying
on commerce with any other nation at a distance."30 That
principle was operative in time of peace because of the
universal right to trade and because of the inherent freedom
of the seas. All the authorities admit, however, that in
time of war some restrictions could be placed upon the com-
merce of neutrals because of the obligation not to materially
aid either belligerent.31 Grotius established three classes
of goods; those useful only in war, those of no use in war,
and those of use in both war and peace. As to the first
class there was no argument for to supply war materials to
an enemy was to abandon neutrality and join the enemy. The
second also permitted no disagreement for the trade in that
sort of goods harmed no one and certainly did nothing to
undermine the position of some authorities that a neutral
could act as if no war existed. It was in regard to the
third that the greatest controversy arose for conditions

might determine what was permitted and what was not and was

the reason why major conflicts developed over any attempt to

 

30
S. V.
31Ibid., B. II, C. II, S. III. Vattel, The Law of

Nations . . ., B. I, C. XXIII, S‘s. 279-285. Gentili,
Three Books on the Law of War, p. 90.

Grotius, The Law of Peace and War, B. II, C. II,

 

 

‘

Chc§

18

define contraband.32 While supporting the freedom of trade,

Alberico Gentili would seem to indicate a more limited
principle in regard to the neutral right to trade when he
stated that trade should "give way to the Kingdom, man to

nature, money to life" because "the law of trade is just;

but that of maintaining ones safety is more so."33

Samuel Pufendorf, another writer on the law of nations
in the eighteenth century, gave an even more general state-
ment about the rights and position of neutrals which, to
some extent could be said to justify broad action by bellig-
erents against neutral trade. He stated that the question
of liberty of navigation was interesting to him and was
certainly one that had not yet been settled but that

In all the examples brought upon this subject
there is a mixture of Right and Fact. Each nation
usually allows, or forbids, the maritime commerce of
neutral people with its enemy; either according as it
is in its interest to preserve the friendship of
those people, or it finds itself strong enough to
obtain from them what it requires. For example, the
English and Dutch may say without absurdity, that it
is lawful for them to do all the ill they can to the
French, with whom they are at war, and consequently
to employ the method the most prOper to weaken them,
which is to traverse and ruin their trade. They say
it is not reasonable that neutral nations should enrich
themselves at their expense and by enrolling to them-
selves a commerce, which the English and Dutch want
furnish the French with money to continue the war.3a

 

32Grotius, The Law of Peace and War, B. III, C. I, S. V.

33Gentili, Three Books on the Law of War, p. 101.

34Pufendorf, The Law of Nature and Nations, 1749 edition,
fn. 1) B. VIII, C. VI. Note: This footnote was made by

 

19

This is a significant argument because, taken literally,

it is the basis for the Rule of 1756. Pufendorf, in fact,
criticizes the neutral states, saying that a major motivation
of the neutral trader is greed, certainly no basis on which
to build a case for the protection of neutral trade. In many
respects this was a more realistic treatment of the subject
than that given by other writers.

Vattel set down two principles to govern neutrals.
First, a neutral should not give any help when under no
obligation to do so nor furnish voluntarily anything of use
in war; and second, neutrals should remain impartial in all
that did not bear on the war. More specifically he stated
that a neutral could maintain trade equally with the bellig-

35

erents only in non-war material. The basic thrust of all

‘the authors is that trade is possible but not in contraband.
lJnfortunately, to define contraband is to enter an area

IVhere little if any agreement exists for what is contraband

‘

lBarbeyrac and cites a letter from Pufendorf to J. Groning
th0 had asked Pufendorf's advice on a book called Free
Eiavigation which he was planning to write. This fact is
<Iuite important in dealing with the application and interpre-
‘tation of the law of nations by early American statesmen for
(it is referred to several times, most notably by James
1Madison in An Examination into British Doctrine Concerning
‘Egutral Trade (1806), and appears only in editions containing
Barbeyrac's notes.

 

 

35Vattel, The Law of Nations . . ., B. III, C. VII, 8'3.
104, 111-113.

20

to one state is a normal item of trade to another.

Having established the area within which neutrals may
trade or expect to trade, we must next ask what happens when
a belligerent tries to enforce its rights in relation to
neutral trade with its enemy? Gentili and Pufendorf point
out that the belligerent will always, with some justifica-
tion, put his safety above the rights of a neutral to trade.
All the authorities agree that contraband may be seized and
that trade is prohibited with a place either blockaded or
besieged, but they differ on the right to seize either ships
or goods. Grotius quotes the contemporary authority on

naritime law, the Consolato del Mare, to the effect that if

 

a ship and cargo belong to the enemy the case is clear; it

may be seized with no questions asked. If the ship is neutral
and only the carbo is owned by the enemy then only the cargo
may be taken, and if the ship is enemy and the cargo neutral,
then only the ship is good prize. But above all else,

Grotius stands on the principle that property that does not
Ibelong to the enemy cannot be acquired by war.36 This
(principle of the right to capture enemy property is a standard
Inaxim of the law of nations, brought into question only by
the doctrine of "free ships make free goods" which will be

discussed below. Vattel stated that "enemy property remains

3bGrotius, The Law of Peace and War, Citation from
Consolato del Mare taken from B. III, C. I, fn. l; E. III,
C. VI, S. v.

21

so wherever it is found" and that a neutral ship may be
searched on the high seas for enemy goods which can be
seized as long as freight charges are paid by the captor.
Neutral goods may not be taken although it was the responsi-
bility of the neutral to prove his ownership.37 On the
liability of a neutral ship carrying enemy goods, Bynkershoek
stated that "a neutral ship is not liable to confiscation
because it has enemy goods on board, whether or not the
owner of the vessel knew of it, for in either case he knew
he was engaged in legal trade; and herein his case differs
from that of the man who knowingly carries dutiable or

38 Bynkershoek was referring to the

contraband goods."
principle, sometimes followed, that if the owners or captain
of a ship knowingly carried enemy goods, then the ship as
‘fiell as the cargo could be seized. To Bynkershoek, the test
1vas not the cargo but the inherent legality of a particular
Inode of trade.

The question of "free ships make free goods," a topic
<>f particular importance to the United States because of its
:inclusion in the Treaty of Amity and Commerce made with

3France in 1778 as well as in other subsequent treaties, is

a topic that needs extensive investigation. This doctrine

37Vattel, The Law of Nations . . ., B. III, C. V,
S. 74; B. III, C. VII, S's. 114-116.

38Bynkershoek, Two Books onguestions of Public Law,
B. I, C. XIV, S. 106.

22

was an attempt to alleviate the hardships of the neutral in
time of war and inhance his value as a carrier. In short,
regardless of the arguments used for or against it, if such
a treaty provision was observed it could be of tremendous
economic advantage to the party in whose favor it operated.
The doctrine directed that goods of an enemy were free when
found in a neutral ship while those of the neutral were
good prize when found in an enemy ship. Problems arose
because to be effective the practice had to be included in
treaties with both belligerents, for if such was not the
case, one belligerent would be bound by "free ships make
free goods" while the other, resting his case on what was
generally held to be the necessary law of nations, would
and could seize enemy property wherever and whenever it
could be found .

Bynkershoek is the only author to direct his attention
tc>exactly this question although nations, when faced with it,
\Vere quite willing to produce their own arguments for or
éigainst. He stated that the question of whether enemy goods
Sin neutral ships could be seized was somewhat confused
1because of the several treaties in existence between the
States-General of Holland and France, Spain, Sweden, and
Great Britain. He declared that he was not in agreement
with the doctrine because, after consulting reason, he could
not see why enemy goods could not and should not be seized.

on the other side of the coin, on the taking of neutral goods

 

23

in enemy ships, Bynkershoek stated that those treaties which

contain such provisions

. . . are not to be held binding except between the
signatories. Certainly they cannot be defended on
rational grounds, for there is no reason why I should
not be permitted to use for the transmission of goods

the ships of a friend even though that friend be your
enemy.3

Bynkershoek thus denied any basis for the doctrine that
"free ships make free goods" under either the necessary or
the voluntary law of nations. It could not be upheld by
reason so obviously it could not be supported by natural law.
Its only basis was thus in the stipulative law of nations,
making it particular rather than universal, binding only on
those who agreed to it.

Like that of "free ships make free goods," another
principle was to give rise to a multitude of problems, first
633 a reason for the Rule of 1756 and later for American
Exolicy after 1793. This was the extent to which a neutral
Imation could trade with the ports of an enemy, whether in
tflue colonies or the mother country, in time of war. In the
Auiglo-Dutch treaty of 1674 and its explanatory convention of
31675, Article I stated that trade between both countries and
iiny others with whom they might wish to trade, no distrinction
'being made between the mother country and her colonies, would
be open in time of war, the only exception being the contra-

band articles listed in Article III. Because of certain

391bid., B. I, c. XIV, S's. 107-109.

 

 

24

ambiguities it was necessary, one year later, to make this
freedom more definite. The importance of this article and
its accompanying convention is clear when one considers

the prevailing trade practices. In general they were very
exclusive, particularly in regard to colonies, with most
nations rarely permitting such trade to fall into the hands
of foreigners. A familiar example of this type of policy
was the British navigation acts. In time of war, however,
‘when communications and trade with colonies became difficult
particularly in the absence of a large navy, the neutral
trader could provide an escape and the colonial ports were
opened. Article I of the treaty of 1674 would seem to permit
a neutral trader to take advantage of such a relaxation of
trade law, but in Atticle II of that same treaty there was

a stipulation declaring that the freedom stated in Article I
Ivould extend to all goods that might be carried in time of
IPeace, excepting only contraband, thus reflecting the princi-
IPJe that a neutral nation could trade as if no war existed.
IIf this were so, and by 1756 the British were quite willing
'to»use it in their arguments, then it could be construed to
Inean that only trade open in time of peace could be allowed
and since colonial trade was in peacetime generally restricted
it could not be opened in time of war. The problem of the
neutral was clear, for while most of his freedoms were con-
tained in the stipulative law an interpretation, such as the

one used above, based even marginally on the necessary law of

 
 

25

nation could undermine or destroy what he had come to believe
to be his legal rights.40

Arising out of the principles examined above and con-
stituting perhaps the greatest test of the law of nations
during the period being discussed was the Rule of 1756. In
its simplest form it directed that trade not open in time of
peace could not be opened in time of war. In fact, the Rule
of 1756 was a unilateral abrogation by Great Britain of the
Amglo—Dutch treaty of 1674 and its explanatory convention of
1675 which were largely the result of the British desire to
enjoy the benefits of the neutral trader in the Dutch war
then going on. In 1756, therefore, Britain was repudiating
its own efforts.

There were three major reasons for the promulgation of
the Rule of 1756. First was the character of the war then
Ibeing fought. It began as and continued to be a colonial
Ivar, the net result of which was to make the interdiction of
‘trade with the colonial possessions of Britain's enemies a
lprime consideration. A second major element was the inabil-
ity of Great Britain to recognize the limits of its maritime

4oCharles Jenkinson, lst Earl of Liverpool, A Collection

9: Treaties of Peace, Commerce, and Alliance Between Great
Britain and other Powers, From the Year 1619 to 1734, To

'Which is Added A Discourse on the Conduct of the Government

of Great Britain by C. Jenkinson Secretary of State (London:
1781), "Treaty Between Great Britain and the United Provinces,"
December 1, 1674, pp. 50-56, Articles I, pp. 50-51, II, p. 51,
and III, p. 51; "Explanatory Convention," December 30, 1675,
pp. 49-50.

 

26

superiority. Of what use was the mastery of the seas if the
enemy could carry on normal commerce in neutral ships, and
by doing so escape the consequences of that mastery. In
fact, Britain's enemy might well be in a better position
than Great Britain because of the lower insurance rates on
its ships. The result could be that England would be the
loser in either a successful or unsuccessful war because of
the intrusion of the neutral traders into markets that it
had previously controlled. Finally and perhaps most im-
portantly, it was a policy desired by the ministry in power

and demanded by the public.41

A major contemporary argument in favor of the Rule of
1756 can be found in A Discourse on the Conduct of the
Government of Great Britain in Respect to Neutral Nations
written in 1759 by Charles Jenkinson, later Lord Liverpool.
He stated that in the war then raging Great Britain had been
deserted by its allies but was not afraid to stand alone
because of its strong navy. France had attempted to render
that force ineffective by refusing to meet it in open battle,
by’removing various duties, and by opening its previously
<3103ed colonial ports to neutral trade. Liverpool declared
tflnat had Britain been willing to accept the French action
and thus make its navy useless, such a strategy might have

‘v(>rked, but England was not and had begun to seize enemy

 

 

41Richard Pares, Colonial Blockade and Neutral Rights,
SLLZ39-1763 (Oxford: Clarendon Press, 1938), pp. 180-182.

 

~-

 

27

property on neutral ships.42

Liverpool then sought to define the limits of a neutral's
right to protect enemy property. The law of nations seemed
to provide an answer and Liverpool quoted Grotius, Bynkershoek,
Gentili, and the Consolato del Mare to the effect that enemy
property on neutral ships could and should be seized. Why
then were neutrals protesting? Was it to protect freedom of
commerce or, as Liverpool suspected, was it to promote neutral
interests at the expense of those of Great Britain? In his
judgment

The liberty of navigation, in fair construction can

mean no more than the right of carrying to any mart un-

molested the product of one's own country or labour,

and to bring back the emoluments of it: But can it be

lawful, that you should extend this right to my detri-

ment; and when it was meant only for your advantage;3

that you should exert it in the cause of my enemy?

Liverpool then turned to the treaties in effect with
various nations and asked whether the stipulative law of
nations had not been expanded too far beyond the rights given
by the necessary law of nations? He pointed to the following
Provision appearing in some British treaties.

All, which shall be found on board the vessels

belonging to the subjects of those countries shall be
accounted free and clear, although the whole lading

42Charles Jenkinson, A Discourse on the Conduct of the

ESZyernment of Great Britain in Respect to Neutral Nations,
21161 ed. (London: 1759), pp. 5-6.

43Ibid., pp. 12, 14—15, 17-18, 33-35.

28

or any part thereof shall, by just title of property
belong to the enemies of Great Britain.

He then stated that while there might be treaty provisions

that seemed to contradict the British position they did not

create a new rule, only a privilege by treaty, not part of

the law of nations. To further establish his point he de-

clared that under the law of nations there was nothing more

than the simple right to carry goods and that "by this law

it never could be legal to protect the effects of an enemy:

a privilege however like this Great Britain hath consented

to grant in her commercial treaties with France and Holland."45
Liverpool's argument is very important because in real-

ity he was attempting to determine what, in fact, constituted

the law of nations. To what extent were treaties a species

of international legislation, establishing new principles;

and to what extent do treaty provisions which go against the

necessary law of nations bind those who have agreed to them?

The same argument that Jenkinson used against the Dutch in

1759 was used again by the British after 1793 and by the

‘

44Ibid., p. 37. Liverpool in this quotation is referring
tn: a prOVIsion such as the one appearing in Article VIII of
tflme Anglo-Dutch treaty of 1674 which used identical language.
Ii: might also be useful to compare the article referred to
almove with a similar one, Article VIII, in the Anglo-French
tIreaty of 1674. Charles Jenkinson, A Collection of Treaties
: - ., "Treaty Between Great Britain and the United ProVinces,‘
December 1, 1674, Article VIII, pp. 54-55; "Treaty of Conunerce
Between France and England," February 24, 1677, pp. 42-49,
Article VIII, p. 46.

45Charles Jenkinson, A Discourse . . ., pp. 39-41, 43.
363 is here referring to the Anglo-Dutch treaty of 1674 and

tiles Anglo-French treaty of 1677.

29

United States in both its protests to France over that
nation's non-adherence to the treaty provisions establishing
"free ships make free goods" and in its defense of the Jay
Treaty.
It is now necessary to examine the operation of the

Rule of 1756. The initial moves came in 1746 and 1747 when
a distinction began to be made between trading with the

enemy and trading for the enemy. The problem involved the
Dutch treaty of 1674 which stated that trade could go on in
wartime on the same basis as it did in time of peace. The
way around this was to declare an entire trade illegal for
if that were so then there was no need to distinguish between
neutral and enemy property. Thus, if it was stated that
trade with colonies not open to such trade in time of peace
could not be opened in time of war, all neutral trade with
colonial ports became illegal. Great Britain no longer

nmde any discrimination as to the origin of the voyage.
Simple admittance to a colonial port made the voyage illegal;
no other proof was required. The ultimate result of the
decision was that all trade with the French islands that had
<Dr might attain legal standing under French law became

Jillegal and the only trade permitted was that which was

inherently illegal, smuggling.

46Richard Pares, Colonial Blockade and Neutral Rights,
EDEL 180, 182-184, 186-187, 194-195, 201, 224.

30

This, then, was the framework within which the United
States was forced to Operate and in which it tried to apply
the law of nations. Obviously it faced an uphill battle for
even the principles of Bynkershoek assumed a society of
nations composed of highly sovereign states with almost no
means to coerce the recalcitrant nation. For the law of
nations to work effectively stability and a universal ob-
servance of its dictates was needed, but the presence of
the degree of sovereignty existing at the time militated
against such stability and thus made it difficult for such
a system to work on a minimal basis, much less effectively.

Why then did Americans turn to the law of nations?

Several reasons may be offered, each of which will be examined
in depth. First, the tradition of law in the colonies and

later the United States which had been inherited from

Britain can be seen as a major motivation. If the colonies

and later the United States were to be governed by the rule

of law, why not the relations between states in the larger

world society? Americans needed laws; for proof one need

<3nly consider the multiplicity of colonial charters, colonial

aJui state constitutions, and, after independence, the

Aurticles of Confederation and the Constitution. If the Ameri-

c'Einsystem needed laws to work effectively, why not the

‘VC>rld? Would it not work more smoothly under a system of

law than without one? The law of nations could, therefore,

\...

31

be seen figuratively as a constitution for international
society, bringing order and justice to the world just as
the American constitutions had to the United States.

A second reason may have been the close relationship

between the law of nations and natural law. Many of the

American leaders were students of natural law and most, if

not all, were familiar with the writings of Locke or at
least with his basic principles. If one read Locke one also
came into contact with such men as Grotius and Pufendorf,

for such men were not only authorities on the law of nations

but also on the principles of natural law. Locke was cer—

tainly present in most American libraries, often in company

with Grotius and Pufendorf, and book dealers frequently

carried and sold such works.47 The principles of natural

law and the law of nations were abroad in the United States
and it is not difficult to imagine Americans asking why, if
the law of nature could be applied to the American condition
in the Declaration of Independence, it could not be effec-

tively applied to relations among nations?

47Yale College, Library, A Catalogue of the Library of
lfigle College (New London, 17437T’ James Logan, Catalogus
Etibliothecae Loganianae (Philadelphia, 1760). College of
I\‘Iew Jersey, Library, A Catalogue of Books in the Library
(IPrinceton, 1760). Henry Knox, A Catalogue of Books YBoston,
13773). Harvard College, Library, Catalogus Liborum . . .
53eelectus (Boston, 1773). Harvard College, Library, Catalogus
E354bliothecae (Boston, 1790). Yale College, Library,
Siggtalogue of Books (New Haven, 1791).

 

 

 

 

32

Finally, Americans were idealistic, while at the same
time retaining an element of realism. The law of nations
allowed them to meet both needs. It could be used to help
change the world from, in their eyes, the corrupt system
then in use in Europe to one that recognized that all states
had a right to live and trade in peace. It could also serve
as a weapon for a nation with little else with which to
defend its vital interests. This is perhaps best summed up
by the statement of Benjamin Franklin in 1775 upon receiving
a c0py of Vattel from a French representative in the United
States. Franklin said that he was happy to have received
such a book for a young nation had need to consult the law

of nations often.48

8Francis Wharton, ed., The Revolutionary Diplomatic
(3C>Irespondence of the United States (6 Vols.; Washington,
C.: Government Printing Office, 1889), Vol. II,
"13emjamin Franklin to Dumas," December 19, 1775, pp. 64 67.

CHAPTER TWO

THE LAW OF NATIONS AND THE AMERICAN REVOLUTION

In recent years historians have emphasized the interplay
between the intellectual, political, and economic orienta-
tions of the founding fathers. This has been particularly
true of such works as To the Farewell Address by Felix
Gilbert and Foreign Policies of the Founding Fathers by Paul
Varg.l In each of these books the American sense of unique-
ness has been examined and seen as a chief motivation of
American foreign policy initiatives but at the same time this
invites over attention to the general direction of the policy
at the expense of the specific means by which it would be
nmde possible. The American world view postulated a foreign
policy that to a large degree could not exist in the
eighteenth century with its unfettered sovereignty and
A new system

limited sense of international interdependence.

‘based on the universal recognition of the law of nations and

ENDinting toward the efforts of the Congress of Vienna was

\

lFelix Gilbert, To the Farewell Address (Princeton:

PJ?inceton University Press, 1961). Paul Varg, Foreign
.PCDIicies of the Founding Fathers (East Lansing: Michigan

State University Press, 1963) .

33

 

34

zmeeded to regulate relations between states. Without that,
Aunerican hopes for future neutrality or free trade were
doomed to failure. It is this attempt by Americans to pro-
nuote a new system of law in international relations in order
‘tc> provide a firm basis for the attainment of their objec—
tives that forms the substance of this chapter.

On July 4, 1776 the United States not only declared

i.t:s independence, it also set out to incorporate into its
embryonic foreign policy the republican principles so dear
tht: the founding fathers. To a significant degree these men
ITealied on the dictates of the law of nations for this purpose.
TTIuey strongly believed that in the enlightened age in which
tzluey lived law, rather than force, should govern the rela—
trions between nations. They sought to insure that a weak
rLation, far different in its political philosophy from others
then existing, could survive in a hostile world.

Two objectives were paramount in the formulation of an
.American foreign policy. First, in the short term, to ob-
tain foreign aid for its war with England. Second, in the
long term, to avoid being sucked into the maelstrom of
European politics. Between these two goals lay an essential
contradiction, one which would remain with the United States
long after the conclusion of the war.

The attempt of the United States to attain both its

short and long range policy objectives and to reconcile them

35

vmith certain principles of the law of nations will constitute
tune central problem of this chapter. Four basic areas will
(be; examined: first, the negotiation of a treaty with France;
second, American relations with Great Britain; third, the
‘Ammerican response to the Armed Neutrality; and fourth, the
(a1:tempt to negotiate and implement principles favorable to
'tlue United States in commercial treaties with European
Ileations.
It is necessary to take an abstract and legalistic view

of the need for a foreign connection before attempting a
nI1<3re detailed examination. For the United States the Declara-
1::ion of Independence established it as a sovereign state.2
3111 its relations with other states, however, something more
Viaas needed. Foreign aid or even official recognition without
a. treaty was not enough, for such an action could be con-
strued as simply de facto recognition, which could easily be

\Nithdrawn, without an accompanying de jure recognition of

the United States as the legal government of the thirteen

2The policy of the United States Government can be seen

in: Diplomatic Correspondence of the United States from the
§igning of the Definitive Treaty of Peace, 10th September,
1783, to the Adoption of the Constitution, March 4, 1789

(3 Vols.; Washington, D.C.: Blair and Ives, 1837), Vol. I,
"John Adams to the President of Congress," June 22, 1784,

pp. 463-464; "Report of Secretary Jay on the Letter of John
Adams Esquire, dated 22 June 1784," March 4, 1785, pp. 464-
465. A judicial decision on the same point is Justice Chase,
Ware v. Hylton (1796) 3 Dell 199, 224, l L. Ed. 568.

36

:Eormer British colonies in North America. A treaty, since
jxt was by definition an agreement between sovereign states,
“nould carry with it, at the very least, a clear implication
<31? de jure recognition. For the nation making such a treaty
vvj;th the United States the paramount issue of the American
Revolution would be settled. The United States would be
:rrecognized as independent and sovereign with Great Britain
11¢: longer having a vestige of legal authority over its former
<=<olonies.3
The need for an alliance was seen months before the

IDeclaration of Independence or the treaty plan of 1776 were
f3<3rmu1ated. The major questions concerned the form of the
“tureaty and the effect that its negotiation would have on the
lJlmited States. In May, 1775 John Adams, an early partisan
c>f independence, told Congress that the time had come to

Inake an active effort in the direction of foreign alliances

3It is true that the United States began to receive
clandestine aid quite early in the Revolution through the
instrument of the notorious Hortelez Company. Certainly the
French role was not unknown to the British but being unoffi-
cial it offered France a means to harass Great Britain with-
out involving itself in open conflict. On the governmental
and diplomatic levels France assiduously tried to avoid any-
thing that would compromise its neutrality until it was ready
to enter the war. Thus the United States was forced to do
everything to provoke a war between the two states for until
conditions were right there could be no treaty because that,
in itself, was a provocative act. Wharton, ed., The Revolu-
tionary Diplomatic Correspondence, Vol. II, "Benjamin
Franklin and Silas Deane to the Committee of Secret Corre-
spondence," March 12, 1777, pp. 312-313; "William Carmichael
to William Bingham," June 25, July 6, 1777, pp. 346-349.

 

g..-

.14

.-..

ll‘

 

 

 

o.

37

axni that France was the obvious choice for such an initia-
t:.‘i've.4 By June, 1776, Richard Henry Lee believed that
iruflependence was a necessity as the only means by which an
ailJliance could be obtained.5 The recognition of the need
:fczr a foreign connection thus became established and it was
11:) coincidence that at the same time that a committee was
riexmed to write a declaration of independence another was
formed to draft a treaty plan.6
The perception of American long range interests and

E><olicy objectives had a decisive effect on the substance of

4John Adams, Diary and Autobiogiaphy of John Adams,

\7131. 3: Diary, 1782-1804, Autobiography, Part One, to October,
1.776, ed. by L. H. Butterfield (Cambridge: Belknap Press of
“tihe Harvard University Press, 1962), pp. 315, 327—329. Note:
P; question exists in respect to this statement and others
nuade throughout the period as what Was meant by the term
zilliance. Felix Gilbert in To the Farewell Address (PP.
(45-48) states that the founding fathers saw no difference be-
‘tween different types of alliances. Such an interpretation
is questionable for while the general term alliance was used
to describe all types of treaty connections, in practice a
sharp distinction was made between a commercial treaty, which
was not entangling and a treaty promising direct aid in time
of war which was. Thus Americans, with their strong desire
to provide for future neutrality, non-involvement in European
affairs, and prosperity through increased trade, in speaking
of an alliance were referring to a commercial treaty which
they believed would provide the other part with enough com-
mercial benefits to cancel out the need for a military treaty.

5Edmund C. Burnett, ed., Letters of Members of the
Continental Congress, Vol. I, August 27, 1774 to July 4, 1776
(Washington, D.C.: Carnegie Institution, 1921), "Richard
Henry Lee to Landon Carter," June 2, 1776, pp. 468-469.

 

6The committee to prepare a treaty plan was composed of
John Adams, John Dickinson, Benjamin Franklin, Benjamin
Harrison, and Robert Morris.

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38

‘theetreaty plan. To a degree the plan reflected a recurring
Exroblem in American foreign policy, the universalization of
11:5 desires, the perception of others as having the same
needs and acting for the same reasons as the United States.
It: was clear to many Americans that the future wellsbeing of
'tlie nation depended on the encouragement and expansion of
:it:s commerce and the establishment of a basis upon which its
Iieeutral rights in time of war could be protected. The
Siizatements of John Adams that the United States neither
VVéanted nor needed anything more than commercial treaties
rGaflected that belief. He was adament about his distaste
15<3r any political or military connection that "might embarass
I153 in after times and involve us in future European wars"
311d thus compromise the true policy of the United States,
"19erfect neutrality." He was heartened by the inability of
(:ertain members of Congress to compromise his plan by the
inclusion of an entangling alliance, exclusive privileges,

or the guaranty of possessions.7

7John Adams, Diary and Autobiography of John Adams,
‘Vol. 2, Diary 1771-1781, ed. by L. H. Butterfield (Cambridge:
Belknap Press of the Harvard University Press, 1961), "Diary,"
March 1, 1776, p. 236. Burnett, ed., Letters of Members of
the Continental Congress, Vol. I, "John Adams to Zebediah
Adams," June 21, 1776, p. 501; "John Adams to John Winthrop,"
June 23, 1776, p. 502. John Adams, Diaryiand Autobiography
of John Adams, Vol. 3, pp. 337-338. John Adams, The Works
of John Adams, Vol. X, ed. by Charles Francis Adams Boston:
Little, Brown and Co., 1856), "John Adams to John M. Jackson,"
December 30, 1817, pp. 269-270.

 

 

 

39

To a large degree the statements of Adams reflected the

‘pxnablem of universalization. There was limited recognition,

at: least in 1776, of the French interest in improving its
position in Europe vis a vis Great Britain or obtaining a
Injglitary alliance with the United States for the protection
(of? its colonies in future wars. The concept that what was
.innportant for the United States was also important to other
<2c>untries is quite evident in Adams' statement that:

A treaty of commerce, which would operate as a
repeal of the British Acts of Navigation as far as
respected us and admit France into equal participa-
tion of the benefits of our commerce . . . would be
ample compensation to France for acknowledging our
independence, and for furnishing us for our money or
upon credit for a time with such supplies of neces-

saries as we should want even if this conduct should
involve her in a war.

The treaty plan of 1776 emphasized provisions clearly

reeflecting long term American interests.9 It was a proposal

fkar the establishment of a smooth functioning commercial
<:onnection between the United States and another nation. It

sought to promote a general freedom of trade except in

8Burnett, ed., Letters of Members of the Continental

Cbngress, Vol. I, "John Adams to Zebediah Adams," June 21,
1776, p. 501; "John Adams to John Winthrop," June 23, 1776,

p. 502. John Adams, Diary and Autobiogrgphy of John Adams,
Vol. 3, pp. 337-338.

9U. 8., Continental Congress, Journals of the Continental
Congress, Vol. V, 1776, June 5 to October 8 (Washington,
D.C.: Government Printing Office, 1906), "Plan of Treaties,"
July 18, 1776, pp. 576-589, Articles XXVI, p. 585; and
XXVII, pp. 585-586.

 

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40

(nontraband or to places blockaded or besieged in war time;
tflne acceptance of the doctrine that "free ships make free
gnoods": and a definition of contraband favorable to the
Chuited States. In many respects the treaty plan is similar
'tLJ the Anglo-Dutch treaty of 1674 both in language and the
eatrtempt to establish neutral trade in time of war.10
Those articles dealing with freedom of trade are both
j.nteresting and significant. Article XXVI of the treaty
E>lan and Article I of the Anglo-Dutch treaty state the
JE>Iinciple of freedom of trade in essentially the same words,
t:.hey differ, however, in emphasis. The American plan refers
‘t:o freedom of trade in terms of its unobstructed operation
éluring time of war. The treaty of 1674 speaks of a freedom
eestablished during peace that may not be hindered by the
<>utbreak of war. While both treaties provide a basis with
\nhich to confront the Rule of 1756 the American version would
seem to be more adequate because of the implication that war
cannot affect trade, even that which might be opened in time

of war because of the war.

 

loCharles Jenkinson, A Collection of Treaties . . .,
"Treaty Between Great Britain and the United Provinces,Tr
December 1, 1674, pp. 50-56, Articles I, pp. 50-51, II, p.
51, III, p. 51, IV, pp. 51-52, and VIII, pp. 54-55. Note:
An added impetus is given to a comparison of the two docu-
ments because it was the provisions of the Anglo-Dutch treaty
of 1674 which served to provoke the Rule of 1756. The United
States, in its treaty plan, was following a policy that would
ultimately bring it into direct conflict with that rule.

 

Ix

41

The treatment of the principle that "free ships make
iiree goods" is also significant. In the Anglo-Dutch treaty
()f 1674 it appears in Article VIII, separate from the general
fareedom of commerce, and the implication is that the princi-
pflle is simply part of the stipulative law of nations. In the
treaty plan, however, the doctrine appears in Article XXVI,
t:rue same article containing that dealing with unobstructed
‘txrade in wartime except in contraband or to ports blockaded
(act besieged. The attempt to inseparably link the two princi-
E>Zles is important because the right to freedom of trade was
allosolute, an accepted principle of the law of nations, while
tllnat of "free ships make free goods" was not. If, however,
t;11e prohibition of the seizure of enemy goods on neutral
slaips could be made an integral part of the more accepted
Exrinciple then it might also be seen as part of the necessary

:rather than only the stipulative law of nations.
The definition of contraband is also important for it
is almost axiomatic that the nation that contemplates neu-
trality should wish to have as limited an enumeration of
contraband goods as possible. The language in the treaty plan
and that of the Anglo-Dutch treaty was almost identical,
containing, with allowances for the deletion of archaic
expressions, duplicate lists of what was and was not contra-
band. In some respects the very similarity in language raises

a question about American intentions because the definition

 

‘I.

‘v

 

 

 

 

42

given was not as liberal as one might have expected, ignoring
as it did the much more limited provisions contained in the

11 Neither did it

Anglo-Russian treaties of 1734 and 1766.
even approximate later American efforts which attempted to
remove the designation of contraband altogether. This omis-
sion may be attributed to a lack of knowledge or access to
the above treaties, a need to ground the American position
on solid precedent or usage, or a desire to avoid anything
that might be seen as radical by states which probably
tended to see the United States as a threat to the established
order.

The Treaty of Amity and Commerce with France, signed in

1778, was little different in either text or tone from the

treaty plan.12 The principles in regard to neutral trade in

 

11U. 8., Continental Congress, Journals of the Conti-
nental Congress, Vol. XXI, 1781, July 23 to December 31
(Washington, D.C.: Government Printing Office, 1912),
"Article 12 of the Treaty of Commerce between Great Britain
and Russia, December 2, 1734 in the handwriting of Edward
Randolph," August 14, 1781, p. 863. This article was used as
a basis to define contraband in an "Ordinance Ascertaining
what Captures on Water Shall be Legal," finally adopted on
December 4, 1781. George Frederich de Martens, Recueil de
Traites, Tome I, 1761-1770 (1817), "Traite de Commerce entre
la Grand-Bretagne et la Russe," June 20, 1766, pp. 390-401.
See Article XI, pp. 395-396. This article served as the
basis for the definition of contraband adopted by the League
of Armed Neutrality in 1780.

12U. S., Department of State, Treaties and Other Inter-
national Acts of the United States of America, Vol. II,
1776:1818, ed. by David Hunter Miller (Washington, D. C.:
Government Printing Office, 1931), "Treaty of Amity and
Commerce [France]," February 6, 1778, pp. 3-29, Articles XI,
pp. 10-11, XII, p. 11, XVI, pp. 14-15, XXV, pp. 20-21, XXVI,
pp. 21-23, and XXXI, p. 26.

 

 

 

'1

 

43

wartime were adopted in full. The only problems concerned
Articles XI and XII dealing with the limitation of duties
on trade to and from the West Indies and Article XXXI which
called for the negotiation of a consular convention. The
former was settled by suppressing the two articles and the
latter by actually negotiating a convention which, however,
never really satisfied either party.

While the Treaty of Amity and Commerce was clearly in
line with the treaty plan, the Treaty of Alliance was not.
An agreement promising direct military aid by the United
States to another country had formed part of neither the
treaty plan nor the intentions of most of those engaged in
its formulation. For them the promise of commercial ad-
vantage in trade with the United States was ample reward for
aid in the Revolution and, at the same time, would not en-
tangle the United States in the affairs of Europe. The
alliance and particularly its guaranty was thus the child of
necessity rather than American desire.13 The treaty pro-
vided three things. First, France would give direct aid to
the United States in its war with England if a rupture
occurred between France and Britain, an event made almost

certain by the very existence of the treaty. Second, neither

 

13Burnett, ed., Letters of Members of the Continental
Con ress, Vol. VII, January 1, 1783 to December 31, 1784
(Washington, D. C.: Carnegie Institution, 1934), "John
Witherspoon to ," March, 1793, PP. 111-117.

 

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44

nation would make a separate peace. Finally, there would be
a mutual and perpetual guaranty of possessions in the
western hemisphere.

The first two provisions were, in their effects, prim-
arily limited to the war but the third had implications
that would be felt far beyond the final determination of the
peace. This was because Articles XI and XII set no other
condition as a casus foederis than that war should break out.14
There was no determination as to whether the alliance was
offensive or defensive. While the war continued such a pro-
vision meant little but upon its conclusion its implications
became serious because of the questions they raised about
the viability of American neutrality in any future war in
which France participated. At least by inference it tied
the destiny of the United States to the course of French
foreign policy.

The Treaty of Alliance was a blow to the principles that
John Adams had favored but more importantly it was seen by
some Americans as a very real threat to the American char-
acter and the gains that the United States had made and was

making in the name of true Republicanism.15 This led, at

 

l4Miller, Treaties and Other International Acts, Vol. II,

"Treaty of Alliance [France]," February 6, 1778, pp. 35-41,
Articles XI, pp. 39-40, and XII, p. 40.

15Burnett, ed., Letters of Members of the Continental
Congress, Vol. III, January 1, 1778 to December 31, 1778
(Washington, D. C.: Carnegie Institution, 1926), "Andrew

 

45

least in part, to a great reluctance on the part of the
United States to incur further obligations, such as those
contained in the French treaty, as can be seen in the
instructions sent to John Adams on the negotiation of a
treaty with the Netherlands. Any alliance that was formed
was to be limited to the current war and to provide that
neither party would sign a separate peace. In no case was
there to be any implication that it was offensive or con-
tained any guaranty of possessions.l6

The treaty plan of 1776, the Treaty of Amity and Com-
merce with France of 1778, and the later Armed Neutrality
exhibited principles that the United States strongly and
sincerely supported but that did not prevent it from depart-
ing from them when necessity required. The original

instructions sent to the American agents in Europe concerning

the treaty plan and its implementation stated that if the

 

Adams to Oliver Wolcott," July 22, 1778, p. 347; "Samuel
Adams to Peter Thacher," August 11, 1778, pp. 307-308.
Burnett, ed., Letters of Members of the Continental Congress
Vol. IV, January 1, 1779 to December 31, 1779 (Washington,

D. C.: Carnegie Institution, 1928), "William Whipple to
Josiah Bartlett," July 27, 1779, pp. 345-346. Wharton, ed.,
Revolutionary Diplomatic Correspondence, Vol. II, "John Adams
to Samuel Adams," July 28, 1778, pp. 667-668; "John Adams

to James Warren," August 4, 1778, pp. 675-677; "John Adams

to Roger Sherman," December 6, 1778, p. 852.

16U. 8., Continental Congress, Journals of the Conti-
nental Congress, Vol. XXI, 1781, July 23 to December 31
(Washington, D. C.: Government Printing Office, 1912),
"Instructions to John Adams," August 8, 1781, pp. 876-880.

 

 

 

 

46

French would not agree that "free ships make free goods" the
American negotiators, rather than not obtaining a treaty,
were to adopt the ancient principle that "the goods and
effects of enemies on board the ships and vessels of either

"17 This

party, shall be liable to seizure and confiscation.
willingness to compromise a principle that was in America's
long range interest was even more evident in a letter from
the Committee on Foreign Affairs which ordered its agents in
Paris to press the French Government to either prohibit the
carrying of British goods by French ships or to allow
Americans the right to "search into and make distinction be-
tween the bottom and the enemy's property conveyed in that
bottom."18
The above statements show that while the United States

was a proponent of "free ships make free goods" in principle,
it was not always willing to insist on it in fact, a tendency
that continued until the advent of the Armed Neutrality. In
1778 the United States based its policy toward neutral ships

on the strict law of nations and agreed with it that the

doctrine of "free ships make free goods" was part of the

 

17U. 8., Continental Congress, Journals of the Conti-
nental Congress, Vol. V, "Instructions to the Agents in
Europe on the Plan of Treaties," September 24, 1776, pp.
813-817.

18Wharton, ed., Revolutionary Diplomatic Corresppndence,
Vol. II, "Harrison et al., Committee of Foreign Affairs to
the Commissioners at Paris," October 18, 1777, pp. 412-413.

 

47

stipulative rather than the necessary law of nations. This
was clear in a proclamation governing privateers issued in
May, 1778 which called for the observance of neutral rights
but did not prohibit the seizure of enemy prOperty on neutral
ships.19 As late as June, 1780, after the initial declara-
tion of the Armed Neutrality but before instructions as to
the American response could reach Europe, Benjamin Franklin
stated that the law in America was settled, that enemy
property in the ship of a nation with whom the United States
had no treaty could be seized under the provisions of the
"old law of nations."20
With the accession of Congress to the principles of the
Armed Neutrality this policy changed and, in new instructions
to American ships, observance of the provisions of the Armed
Neutrality was ordered, excepting only contraband which would
continue to be defined under the terms of the French treaty

21

of 1778. That exception was modified by the adoption of a

 

19Ibid., "Benjamin Franklin to M. Grand," October 17,
1778, pp. 784-785. U. 8., Continental Congress, Journals of
the Continental Congress, Vol. XI, 1778, May 2 to September 1
(Washington, D.C.: Government Printing Office, 1908),
"Proclamation to Privateers," May 9, 1778, p. 486.

20Wharton, ed., Revolutionary Diplomatic Correspondence,
Vol. III, "Benjamin Franklin to Count Vergennes," June 18,
1780, PP. 801-803.

21Wharton, ed., Revolutionary Diplomatic Correspondence,
Vol. IV, "Committee of Foreign Affairs to the Agents in
Europe," October 5, 1780, pp. 80-81. U. 8., Continental
Congress, Journals of the Continental Congiess, Vol. XVIII,
1780, September 7 to December 29 (Washington, D.C.:

 

48

new ordinance concerning the legality of captures at sea
which incorporated the provisions of the Anglo-Russian
treaty of 1734.22 To a significant degree it was the Armed
Neutrality rather than the treaty plan of 1776 or the French
treaty of 1778 that caused the United States to move from
the narrow confined of stipulative law to a broader appli-
cation of the principles that were so obviously in its long
range interest.

Catherine, in proposing the Armed Neutrality, was
primarily interested in advancing Russia's position within
the European alliance system rather than neutral rights.23
In so far as the American conception of the Armed Neutrality

was concerned, however, Catherine's motives were largely

irrelevant. Americans saw it as strongly supportive both

 

Government Printing Office, 1910), "Report of the Admiralty
Board," Dated October 21, 1780 November 3, 1780, p. 1008;
agreed to by Congress on November 27, 1780, pp. 1097-1098.

22U. 8., Continental Congress, Journals of the Conti-
nental Congress, Vol. XXI, "Ordinance Ascertaining what
Captures on Water shall be Legal," December 4, 1781, pp.
1153-1158. For the evolution of this ordinance see August
14, 1781, pp. 861-868; September 14, 1781, pp. 961-965.

23The best treatment of Catherine's motives appears in
Isabel De Madariaga, Britain, Russia, and the Armed Neutral-
i£y_(New Haven: Yale University Press, 1962). For an exami-
nation of the problems resulting from the American misconcep-
tion as to the real reasons for the declaration see David M.
Griffiths, "American Commercial Diplomacy in Russia,"
William and Mary Quarterly, 3d Ser., XXVII (1970), pp. 379-
410; which deals with the illfated Dana mission. For an
earlier study of the American attitude toward the League see
William S. Carpenter, "The United States and the League of
Neutrals of 1780," American Journal of International Law, XV
(1921): Pp. 511-522.

 

 

 

 

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49

of its interests and principles, an effort to modernize and
liberalize the maritime law of nations, an event opposed by
Britain. It was, however, "all that America would wish for
on the subject" because in the end it would be the United
States, destined to become the world's greatest carrier and
to enjoy perpetual neutrality, that would benefit the most
from such an alteration in the established order.24

For the United States the Armed Neutrality was no mere
machination of traditional European politics but signaled a
real advance for the law, the establishment of new and more
liberal principles, and a setback for the maritime power of
England against which it was leading the fight. As a result
Americans embraced it then and continued to do so thereafter.
Thomas Jefferson, for instance, stated, in 1787, that the
pronouncements of the Armed Neutrality on "free ships make
free goods" and contraband "may be considered now as the
law of nations." John Jay, in 1794, was instructed to

regulate blockades in accordance with the Armed Neutrality

 

24Wharton, ed., Revolutionapy Diplomatic Correspondence,

Vol. III, "John Adams to the President of Congress," April
26, 1780, pp. 632-633; "Benjamin Franklin to Robert Morris,"
June 3, 1780, p. 761. Burnett, ed., Letters of Members of
the Continental Copgress, Vol. VIII, WSamuel Huntington to
Reverend James Cogswell," July 22, 1780, p. 285. James
Madison, The Papers of James Madison, Vol. 2, 20 March 1780
to 23 February 1781, ed. by William T. Hutchinson and William
R. E. Rashal (Chicago: University of Chicago Press, 1962),
"James Madison to Edmund Pendleton," November 7, 1780, pp.
165-168.

 

50

and much of the debate over the subsequent treaty concerned
the accomplishments of the League.2

The Armed Neutrality was an attempt to finally incor-
porate the doctrine that "free ships make free goods" and
a very limited definition of contraband into the law of
nations, not because such principles could be supported by
the law of nature but because they were supported by a large
number of nations. It was an attempt to legislate the law
of nations and must be seen as a major departure from con-
temporary thought about the origins of the law of nations.

The League of Armed Neutrality sought to establish five
principles. First, that neutral ships did have the right to
trade freely from one port to another and on the coasts of
the nations at war. Second, that free ships did make free
goods. Third, that contraband would in the future be defined
according to Articles X and XI of the Anglo-Russian treaty of
1766. Fourth, that to be legal a blockade had to constitute
a positive danger to any ships trying to enter the port.
Finally, that the four principles listed above "ought to

serve as a rule in all proceedings, wherever there is a

 

25Thomas Jefferson, The ngers of Thomas Jefferson,
Vol. 12, August 7, 1787 to March 31, 1788, ed. by Julian P.
Boyd (Princeton: Princeton University Press, 1965), "Thomas
Jefferson to Burrill Carnes," September 22, 1787, pp. 164-165.
U. 8., American State Pspers, Vol. I, Foreign Relations
(Washington, D. C.: Gales and Seaton, 1832), "Instructions
to Mr. Jay," May 6, 1794, pp. 472-474.

 

 

 

51

question concerning the legality of prizes," an important
statement because of the implication that the provisions set
down should be considered part of the law of nations.26

For Benjamin Franklin and to an even greater extent for
John Adams the Armed Neutrality was an awakening of the
European mind to the ideals and principles that had spurred
Americans to revolt.27 The spectacle of European nations
apparently coming to the aid of the American cause could not
fail to bring a sense of euphoria to men who had labored for
so long in search of wider European support. As a result,
with an enthusiasm tempered by a very real appreciation of
American interests, they were willing to carry the liberal-
ization of the law of nations even farther than Catherine had
seemed to contemplate.

Adams and Franklin opened an attack on the existence of
any restrictions on the free passage of neutral commerce.
John Adams believed that:

. . . as human reason advances, and men come to be

more sensible of the benefits of peace, and less

enthusiastic for the savage glories of war, all

neutral nations will be allowed, by universal con-
sent, to carry what goods they please in their own

 

26Wharton, ed., Revolutionary Diplomatic Correspondence,
Vol. III, "John Adams to the President of Congress," April

10, 1780, pp. 606-608.
Ibid., "John Adams to Digges," May 13, 1780, pp.

 

27

676-677; "John Adams to the President of Congress," May 20,
1780, pp. 693-696.

52

ships, provided they are not bound to places actually
invested by an enemy.

The implications of this statement for the law of nations
were enormous for if adopted his proposal would mean an end
to the distinction between contraband and other goods or
between the mother country and its colonies. It would bring
complete freedom of trade for neutrals based not on treaty
rights but on the law of nations. Benjamin Franklin pro-
posed to remove even the distinction between neutral and
enemy merchant ships. He stated that:

. . . it is likely to become henceforth the law of

nations, that free ships make free goods. England

does not like this confederacy. I wish they would

extend it still further, and ordain that unarmed

trading ships, as well as fishermen and farmers;

should be respected as working for the common good

of mankind, and never interrupted in their opera-

tions, even by national enemies; but let only those

fight with one another whose trade it is and who are

armed and paid for that purpose.
Both proposals were ultimately incorporated into American
treaty making efforts.

With the establishment of the League of Armed Neutrality
the United States was confronted with an event that supported
both its ideals and self-interest. Why then did the United

States never formally, in a treaty or convention, become a

party to it? The most obvious answer is the incongruity of

 

28Ibid., "John Adams to the President of Congress,"

April 14, 1780, pp. 612-614.

29Ibid., "Benjamin Franklin to Robert Morris," June 3,

1780, p. 761.

53

a belligerent becoming part of a confederation designed to
support the rights of neutrals but even at the end of the
war, when the United States did have the opportunity to
formally accede to the principles, it did not do so. The
ultimate answer would seem to be the eclipse of American
short term interests by long range objectives. Congress
did, in October, 1780, impower its representatives abroad
to support the principles and even accede to them. John
Adams did so in March, 1781 when, after referring to the
occasion which the American Revolution had provided for
the reformation of the maritime law of nations, he stated
his wish that "it may not be thought improper that the
United States should become parties to it, entitled to its

benefits, and subjected to its duties."30

John Adams' hope
was never realized for a variety of reasons but most
importantly because to accept the "duties" implied a willing-
ness to take strong action to enforce its dictates, a desire
which, in fact, did not exist.

By May, 1783'Congress was having second thoughts on the
subject. It decided that the signing of the preliminary

peace treaty had effectively removed the need for continued

efforts at the negotiation of treaties to gain support for

 

3oWharton, ed., Revolutionary Diplomatic Correspondence,

Vol. IV, "John Adams: Memorial to the States General," March
8, 1781, pp. 274-275. U. 8., Continental Congress, Journals
of the Continental Congress, Vol. XVIII, "Report of the
Committee Concerning the Armed Neutrality," October 5, 1780,
pp. 905-906.

 

54

the war. The result was that while the United States approved
of the Armed Neutrality in principle it was not willing to
enter into any agreement which would tend to involve it too
much in the political affairs of Europe.31 In June, 1783
Congress stated that while it was willing to have a provision
recognizing the rights of neutrals inserted into the defini-
tive peace treaty, it certainly was not willing to accept
any obligation to support them by armed force.32 By October,
1783, the final determination was made, no further measures
were to be taken to align the United States with the Armed
Neutrality.33
The Armed Neutrality and the American reaction to it
was a turning point in American foreign policy and signaled

the beginning of one which was far more representative of

American long term objectives than that which had been

 

31U. 8., Continental Congress, Journals of the Conti-
nental Copgress, Vol. XXIV, 1783, January 1 to August 29
iWashington, D. C.: Government Printing Office, 1922),
"Proceedings of Congress as to the Russian Mission," May 21,
1783, pp. 348-354; May 22, 1783, pp. 354-357.

3Zipig.. "Report on American Participation in a European
Neutral Confederation," June 12, 1783, pp. 392-394.

33U. 8., Continental Congress, Journals of the Conti-
nental Congress, Vol. XXV, 1783, September 1 to December 31
(Washington, D. C.: Government Printing Office, 1922),
"Instructions for Negotiating Treaties of Amity and Commerce,"
October 29, 1783, pp. 753-757. Wharton, ed., Revolutionary
Diplomatic Correspondence, Vol. VI, "Report of the Secretary
for Foreign Affairs on M. Dumas' Letter of March 20, 1783,"
June 3, 1783, pp. 473-474.

 

 

 

 

 

55

followed prior to 1783. There had always been a conflict
between the short range interest of involving European
nations in the war with England in order to gain aid and the
long range objective of limiting American involvement in
European politics as much as possible. By 1780, with the
establishment of official and ongoing aid from France, the
compulsion to implement the short range policy was consider-
ably less. By 1783, it had almost completely disappeared,
making the long range objective of noninvolvement in and
isolation from the political affairs of Europe much more
attractive and even necessary. This did not mean the abandon-
ment of American ideals which led the United States to see
the Armed Neutrality as a great advance for mankind and the
law of nations but it did create a desire to limit initia-
tives, giving rise to a policy that ultimately became a
tradition.

For the United States the central figure on the world
stage was Great Britain. Its actions and policies would, to
a large extent, determine the viability of American foreign
policy. Initially American efforts were directed at ending
the war and successfully negotiating a peace treaty. The
form that such a treaty would take was of great importance.

In theory and to some extent in practice the United
States needed nothing more than the Declaration of Independ-

ence combined with the French treaty to establish its

56

sovereignty, in fact, something more was needed. To many
Europeans, Americans, regardless of how praiseworthy their
cause, were rebels at war with their legal government. Even
the Netherlands, which had a strong financial interest in
the success of the American effort, was unwilling to sign a
treaty with the United States until October 8, 1782, less
than two months before the signing of the preliminary peace
treaty. It was for this reason that much effort and rhetoric
went into attempts by the American peace commissioners to
insure that nothing would take place which would in any way
undermine or call into question the absolute sovereignty of
the United States. To allow such action would have been to
withdraw the United States from effective participation in
the community of nations.34
The treaty of peace established the absolute independ-
ence and sovereignty of the United States but also created
several recurring problems for American policy. In Article I
Britain acknowledged the United States "to be free, sovereign

and independent states," and relinquished all legal claims to

 

34Burnett, ed., Letters of Members of the Continental
Con ress, Vol. VI, March 1, 1781 to December 31, 1782
(Washington, D.C.: Carnegie Institution, 1933), "Arthur Lee
to James Warren," July 27, 1782, pp. 389-390. Wharton, ed.,
Revolutionary Diplomatic Correspondence, Vol. IV, "John
Adams to the President of Congress,‘T July 11, 1781, pp. 560-
561; "John Adams to Count Vergennes," July 19, 1781, pp.
591-594.

'7.
.

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57

their government or territory.35 A major effect of this
article was the transference to the United States of all
rights and privileges negotiated by England concerning the
territory formerly under its rule. This was particularly
important to the United States in its relations with Spain
and the controversy over boundaries and particularly the
right to free navigation of the Mississippi.36

The wording of the above provision also raised a ques-
tion as to the exact nature of the United States. Was it
one nation or thirteen individual nations each of whom was
independent under the law of nations? The latter argument
was used in later years by Great Britain and gained sub-
stance, at least in reference to commercial agreements, by
the statement of a member of Congress that he could see no
reason why the states should not be able to enter into

. . 37
commerCIal treaties and send ambassadors.

 

36James Madison, The Pspers of James Madison, Vol. 2,

"Draft of a letter to John Jay Explaining his Instructions,"
October 17, 1780, pp. 132-133. James Madison, The Papers of
James Madison, Vol. 4, 1 January 1782 to 31 July 1782, ed.
by William T. Hutchinson and William M. E. Rashal (Chicago:
University of Chicago Press, 1965), "Report on Instructions
on Peace Negotiations," January 7, 1782, pp. 4-17. James
Madison, The Espers of James Madison, Vol. 8, 10 March 1784
to 28 March 1786, ed. by Robert A. Rutland and William M. E.
Rashal (Chicago: University of Chicago Press, 1973), "James
Madison to Thomas Jefferson," August 20, 1784, pp. 102-110.

37Burnett, ed., Letters of Members of the Continental
Congress, Vol. II, July 5, 1776 to December 31, 1777
(Washington, D.C.: Carnegie Institution, 1923), "Thomas
Burke: Notes on the Articles of Confederation," November 15,
1777, pp. 552-556.

 

 

 

 

58

Beyond the mere existence of a treaty was the problem
of interpretation and observance. The law of nations pro-
vided that a treaty had to be observed even if it operated
to the disadvantage of the state or states making it because
it was up to the parties involved, at the time of the nego-
tiation, to insure that the agreement operated in their
interest. In the same vein, interpretation was limited to
the framework agreed upon at the time of the negotiation,
not from exigencies arising from later events or by a party
other than the sovereign state that had originally made the
treaty.38

Many of the problems that plagued the interpretation
and observance of the treaty of peace resulted from linger-
ing hostility on both sides and a desire to establish an
economic or political advantage but, in the case of the
United States, many arose from forces or attitudes that were
curiously American. Before the definitive treaty was signed
much was said by Americans about the need for familiarity
with the law of nations and the obligation to observe its

39

dictates. Putting such a desire into practice was, however,

 

38Vattel, The Law of Nations . . ., B. II, C. XII,

8'5. 158, 159, 164; B. II, C. XIII, S. 201; B. II, C. XVII,
S's. 263-268. Wolff, The Law of Nations, B. IV, 5'3. 407,
408, 430, 432.

39James Madison, The Papers of James Madison, Vol. I,
16 March 1751 to 16 December 1779, ed. by William T. Hutchin-
son and William M. E. Rashal (Chicago: University of Chicago
Press, 1962), "William Bradford to James Madison," October

 

59

a different matter. For Britain non-observance of the peace

treaty had little real consequence but for the United States,

however, such a policy threatened to undermine its moral

position vis a vis Great Britain and other states with whom
40

it had treaties. A major problem was the determination of

who would interpret the treaty, the central government or

 

20, 1774, pp. 125-127. Alexander Hamilton, The Papsrs of
Alexander Hamilton, Vol. I, 1768-1778, ed. by Harold C.
Syrett (New York: Columbia University Press, 1961), "The
Farmer Refuted," February 23, 1775, pp. 86-87. Wharton, ed.,
Revolutionary Diplomatic Correspondence, Vol. II, "Benjamin
Franklin to M. Dumas," December 19, 1775, pp. 64-67. Burnett
ed., Letters of Members of the Continental Congress, Vol. II,
"Daniel Roberdeau to Thomas Wharton, Jr.," November 10, 1777,
p. 547. Burnett, ed., Letters of Members of the Continental
Congress, Vol. III, "John Witherspoon: Speech on the Conven-
tion Wlth General Burgoyne," January 2, 1778, pp. 5-9.
Burnett, ed., Letters of Members of the Continental Congress,
Vol. VI, "The President of Congress to the Several States,"
November 31, 1781, p. 271. U. 8., Continental Congress,
Journals of the Continental Congress, Vol. XXI, "Report of
the Committee on Infractian of the Law of Nations by States,"
November 23, 1781, pp. 1136-1137. U. 8., Continental Con-
gress, Journals of the Continental Congress, Vol. XXV,
"Committee Report," January 23, 1783, pp. 858-859.

40Diplomatic Corresppndence, 1783-1789, Vol. I, "Duke
of Dorset to the American Commissioners," March 26, 1785,
pp. 574-575. Diplomatic Correspondence, 1783-1789, Vol. II,
"Report of Secretary Jay on Mr. Adams' Letter of 4th March,
1786," October 13, 1786, pp. 591-648. U. 8., Continental
Congress, Journals of the Continental Congsess, Vol. XXXII,
1787, January 17 to July 20 (Washington, D. C.: Government
Printing Office, 1936), "Report of the Secretary for Foreign
Affairs on a Letter Regarding Treaty Obligations to be sent
to the States," April 13, 1787, pp. 177-184. Burnett, ed.,
Letters of Members of the Continental Congress, Vol. VIII,
January 1, 1785 to July 25, 1789 (Washington, D. C.: Carnegie
Institution, 1936), "Nathan Dane: Address Before the Massa-
chusetts House of Representatives," November 9, 1786, pp.
500-505.

 

60

the states. The issue was particularly acute over Articles
V and VI of the peace treaty, the first recommending, the
second making a positive declaration.41 The problem and

its implications were brought into sharp focus by John Adams
who stated that if the United States wished to promote faith-
ful execution of the treaty by Great Britain it had to set

a good example because:

If we establish the principle that we have the
right to depart from the treaty in one article because
they have departed from it in another, they will cer-
tainly avail themselves of the same principle, and
probably extend it as much farther as their sense of
justice is less, and their opinion of their own power,
however ill founded, is greater.

The inability to negotiate a commercial treaty with
Great Britain was in many respects the central problem in
American foreign policy and the greatest obstacle to the
incorporation of American principles into the law of nations

between the ratification of the peace treaty and the signing

 

41Alexander Hamilton, The Papers of Alexander Hamilton,

Vol. III, 1782-1786, ed. by Harold C. Syrett (New York:
Columbia University Press, 1962), "A Letter from Phocian to
the Considerate Citizens of New York," January, 1784, pp.
483-497. Miller, ed., Treaties and Other International Acts
. . ., Vol. II, "Definitive Treaty of Peace," pp. 151-157.
See Articles V, pp. 154-155 and VI, p. 155.

42Diplomatic Correspondence, 1783 to 1789, Vol. I,
"John Adams to John Jay," April 24, 1785, pp. 483-485.

61

of the Jay Treaty.43 The United States did manage to nego-
tiate treaties with other nations but to rely on principles
of the law of nations, however laudable or deeply implanted
in treaties, without the acceptance or at least acquiesence
of Great Britain was to depend on a very slender reed. Two
treaties were attempted, one in 1785 and the other in 1786
but both failed, if indeed they had any chance at all, be-
cause there was simply no reason for Britain to tie itself
to an agreement that it did not need. It had the major
portion of the American trade without making any exertion
one way or the other, a condition that irritated many Ameri-

cans. This stemmed largely from the inability of the

 

43The United States was aware that Britain was the
major threat to neutral rights and that after the war the
two nations would constitute major markets for each other's
goods. There was, therefore, a desire to either include in
the peace treaty some provision establishing neutral rights
or to negotiate, at the same time, a commercial treaty.
Neither came about. John Adams believed that, in 1783, the
United States threw away its only real chance to establish
a workable relationship with Britain. He laid most of the
blame on Congress which he thought had made its greatest
mistake in yielding to French pressure to revoke Adams'
instruction to negotiate a commercial treaty. John Adams,
The Works of John Adams, Vol. III, ed. by Charles Francis
Adams (Boston: Charles C. Little and James Brown, 1851),
"Diary," February 24, 1780, p. 265. Wharton, ed., Revolution-
ary Diplomatic Correspondence, Vol. III, "John Adams to Count
Vergennes," July 17, 1780, pp. 861-862. Wharton, ed.,
Revolutionary Diplomatic Correspondence, Vol. IV, "Observa—
tions on Mr. John Adams' Letter of July 17, 1780 by Count
Vergennes," July 25, 1780, pp. 3-6. John Adams, James Warren
et al., Warren-Adams Letters, Vol. II, 1778-1814 (Boston:
Massachusetts Historical Society, 1925), "John Adams to James
Warren," March 20, 1783, pp. 190-194.

 

62

American government to regulate its own commerce in order

to establish a basis for a quid pro quo with Britain in

 

relation to trade.44 John Adams came to see the situation
as one in which Britain had opened commercial hostilities
which would not cease until Congress was in a position to
take strong action.45
Between January 23, 1783 and May 17, 1786 the United
States negotiated treaties, favorable to its principles,
with the Netherlands, Sweden, and Prussia while attempting
to establish agreements with several others, including
Portugal, Denmark, and Great Britain. Success in negotia-
tion is, for the purposes of this paper, less important than

the utility of the treaties or drafts of treaties as show-

cases for the principles that the United States sought to

 

44Wharton, ed., Revolutionary Diplomatic Correspondence,

Vol. VI, "John Jay to Charles Thomson, Secretary of Congress,"
September 12, 1783, pp. 694-695. U. S. Continental Congress,
Journals of the Continental Congpess, Vol. XXX, 1786,

January 2 to July 31 (Washington, D. C.: Government Printing
Office, 1934), "Report to Congress," February 28, 1786, pp.
87-88. Diplomatic Correspondence, 1783-1789, Vol. I, John
Adams to John Jay," May 3, 1785, pp. 487-489; "John Adams to
John Jay," May 8, 1785, pp. 491-494; "Thomas Jefferson to
John Jay," August, 1785, pp. 687-697. Diplomatic Correspond-
ence, 1783-1789, Vol. II, "John Adams to John Jay," June 10,
1785, pp. 376-378; "John Adams to John Jay," June 26, 1785,
pp. 385-387; "John Adams to John Jay," October 17, 1785, pp.
480-483; "John Adams to John Jay," August 6, 1985, pp. 421-
423. Alexander Hamilton, "Federalist No. 11." Note: This
is but a small selection from a large number of communica-
tions in a similar vein passing between American representa-
tives in Europe and the Government and individuals at home.

45Diplomatic Correspondence, 1783-1789, Vol. II, "John
Adams to John Jay," August 6, 1785, pp. 421-423.

 

63

establish as part of the law of nations. It is significant
because treaties reflect, at the very least, the stipulative
law of nations and are a good indication of those principles
that a nation, under optimum conditions, would like to see
as part of the necessary law of nations. This is particularly
true in the American case where the distinction as to the
content and origin of the necessary and stipulative law of
nations was becoming blurred.

The most important part of any treaty, as far as the
United States was concerned, was that portion recognizing
the doctrine that "free ships make free goods." In essence
it constituted a Magna Carta for the neutral trader. Without
it the trading activities of the neutral state were neces-
sarily limited to those things of its own produce which one
or another belligerent might need. The principle that "free
ships make free goods" was a basic part of American treaty
policy from the beginning. Only in the abortive attempt to
negotiate a treaty with Britain in 1786, an attempt which in
its form constituted little more than the bare essentials
needed to regulate trade, did the United States abandon the
doctrine.46

The United States consistently tried to link inseparably
the inherent right of unobstructed trade to the principle

that "free ships make free goods." In its initial efforts

 

46ipig,, "From the Commissioners to the Marquis of
Carmarthen," April 4, 1786, pp. 602-604.

64

if followed almost verbatim the language of the treaty plan
of 1776 as can be seen in the treaties or drafts of treaties
with France, the Netherlands, and Sweden between 1776 and
1783. Only in the final draft of the treaty with Sweden was
the doctrine that "free ships make free goods" separate from
the principle of unobstructed trade. The close coincidence
of American and Prussian interests can be seen in the first
draft of a treaty of amity and commerce submitted by Baron
Thulemier, the Prussian negotiator, which adopted language
very similar to that contained in the above treaties.47
In December, 1783 the United States took action to bring

its treaty provisions into closer conformity with the provi-

sions of the Armed Neutrality and to make them more

 

47U. 5., Continental Congress, Journals of the Conti-
nental Congress, Vol. V, "Plan of Treaties," July 18, 1776,
ArtiCles XXVI, p. 585 and XXVII, pp. 585-586. Miller, ed.,
Treaties and Other International Acts . . ., Vol. II,
“Treaty of Amity and Commerce [France],'T February 6, 1778,
Articles XVI, pp. 14-15, and XXV, pp. 16-17; "Treaty of
Amity and Commerce [Netherlands]," October 8, 1782, pp. 59-88,
ARticles X, p. 68 and XII, pp. 70-71; "Treaty of Amity and
Commerce [Sweden]," April 3, 1783, pp. 123-149, Articles VII,
pp. 128-129 and XIV, pp. 141-142. U. 8., Continental Con-
gress, Journals of the Continental Congress, Vol. XIII, 1779,
January 1 to April 22 (Washington, D. C.: Government Print-
ing Office, 1909), "Plan of a Treaty of Commerce [Nether-
lands]," February 22, 1779, pp. 219-235, Articles XIX, p.
228 and XXVIII, p. 231. U. 3., Continental Congress,
Journals of the Continental Congress, Vol. XXIII, 1782,
August 12 to December 31 (Washington, D. C.: Government
Printing Office, 1914), "Plan of a Treaty of Amity and Com-
merce [Sweden]," September 28, 1782, pp. 610-621, Articles
IX, p. 616 and XV, pp. 618-619. Diplomatic Correspondence,
1783-1789, Vol. I, "Project of a Treaty of Amity and Commerce
(Prussia, Submitted by Baron Thulemier]," April 10, 1784,
pp. 443-453, Articles IX, pp. 446-447 and XVI, p. 449.

 

 

 

 

65

precise.48 The United States previously had used two
articles, the first to declare its support for unobstructed
trade and "free ships make free goods," and the second its
necessary if grudging acceptance of the counter doctrine
that "enemy ships make enemy goods." Now those provisions
were incorporated into one article as can be seen in all

the treaties that it was thereafter to negotiate or attempt
to negotiate with Prussia, Denmark, Portugal, and Great
Britain.49 The only significant departure in those treaties

from the policy outlined above appeared in the final version

of the treaty with Prussia and was the result of the

 

48Thomas Jefferson, The Papers of Thomas Jefferson,

Vol. VI, 21 May 1781 to 1 March 1784, ed. by Julian P. Boyd
(Princeton: Princeton University Press, 1952), "Report on
Letters from the American Ministers in Europe, Provisions to
be called for in Treaties," December 20, 1783, pp. 393-400,
Provision 6, p. 395.

49Thomas Jefferson, The Papers of Thomas Jefferson,
V01. VII, 2 March 1784 to 25 February 1785, ed. by Julian P.
Boyd (Princeton: Princeton University Press, 1953), "Draught
of a Treaty of Amity and Commerce [Denmark]," September 15,
1784, pp. 479-488, Article XII, pp. 482-483. Diplomatic
Correspondence, 1783-1789, Vol. I, "Counter Project of a
Treaty of Amity and Commerce [Prussia]." October 8, 1784,
pp. 520-529, Article XII, p. 523; "Draft of a Treaty of Amity
and Commerce," October 11, 1785, pp. 666-673, Article V, p.
667. Diplomatic Correspondence, 1783-1789, Vol. II, "Draft
of a Treaty of Amity and Commerce [Great Britain]," July 29,
1785, pp. 407-417, Article XII, p. 411. Thomas Jefferson,
The Papers of Thomas Jefferson, Vol. IX, 1 November 1785 to
22 June 1786, ed. by Julian P. Boyd (Princeton: Princeton
University Press, 1954), "Draught of a Treaty of Amity and
Commerce [Portugal]," March-April, 1786, pp. 412-421,
Article XIII, p. 415. Miller, ed., Treaties and Other Inter-
national Acts . . ., Vol. II, "A Treaty of Amity and Commerce
TPrussia],' September 10, 1785, pp. 162-183, Article XII, pp.
170-171.

 

 

66

Prussian unwillingness to accept the principle that neutral
property on enemy ships was liable to seizure, a position
that the United States was quite willing to accept. The
result was that Article XII of the Prussian treaty contained
no mention of the principle that "enemy ships make enemy
goods."50
The definition of contraband was also an important
issue for the United States and the development of the
American position, as shown in its treaties, is interesting.
In its early efforts the United States followed traditional
51

definitions of contraband and non-contraband goods. That

policy began to change with the ratification of the treaty

 

50Thomas Jefferson, The Papers of Thomas Jefferson,
Vol. VII, "De Thulemier to the American Commissioners,"
January 24, 1785, p. 626. Diplomatic Correspondence, 1783-
1789, Vol. I, "Answer of the Commissioners to the Observa-
tions on the Provisional Treaty with Prussia Submitted by
Baron De Thulemeier," March 17, 1785, pp. 554-560.

51U. 8., Continental Congress, Journals of the Conti-
nental Congress, Vol. V, "Plan of Treaties," July 18, 1776,
Article XXVII, pp. 585-586. Miller, ed., Treaties and Other
Internationgl Acts, Vol. II, "Treaty of Amity and Commerce
TFranceJ," February 6, 1778, Article XXVI, pp. 21-23; "Treaty
of Amity and Commerce [Sweden]," April 3, 1783, Articles
VIII, p. 129, IX, pp. 129-130, and X, pp. 130-131. U. 8.,
Continental Congress, Journals of the Continental Congress,
Vol. XIII, "Plan of a Treaty of Commerce [Netherlands],“i
February 22, 1779, Article XXIX, p. 232. U. S. Continental
Congress, Journals of the Continental Congress, Vol. XXIII,
"Plan of a Treaty of Amity and Commerce [Sweden]," September
28, 1782, Article XVI, pp. 619-620. See also Diplomatic
Correspondence, 1783-1789, Vol. I, "Project of a Treaty of
Amity and Commerce [Prussia, Submitted by Baron Thulemeier],"
April 10, 1784, Articles XI, p. 447 and XII, pp. 447-448.

 

 

 

67

with the Netherlands in January, 1783. In that treaty,
while there was an enumeration of contraband goods, there
was no listing of those that were not contraband.52
The policy became much clearer with the adoption of a
treaty plan in December, 1783, obviously in response to the
Armed Neutrality. Subsequently the United States removed
any real definition, declaring that it wished to prevent
further controversy over the subject and would, in effect,
leave it up to the belligerent to, within reason seize any
article that it considered contraband as long as compensa-
tion was paid to the owner of the merchandise. This princi-

ple was incorporated in all subsequent American treaties or

proposals for treaties.53 The justification for such a

 

52Miller, ed., Treaties and Other International Acts
. . ., "Treaty of Amity and Commerce [Netherlands]," October

8, 1782, Article XXIV, pp. 79-80.

53Thomas Jefferson, The Papers of Thomas Jefferson,
Vol. VI, "Report on Letters from the American Ministers in
Europe, Provisions to be called for in Treaties," December 20,
1783, Provision 5, pp. 394-395. Thomas Jefferson, The Papers
of Thomas Jefferson, Vol. VII, "Draught of a Treaty of Amity
and Commerce [Denmark]," September 15, 1784, Article XIII,
p. 483. Diplomatic Correspondence, 1783-1789, Vol. I,
"Counter Project of a Treaty of Amity and Commerce [Prussia],"
October 8, 1784, Article XIII, pp. 523-524. Diplomatic Corre-
spondence, 1783-1789, Vol. II, "Draft of a Treaty of Amity
and Commerce [Great Britain]," July 29, 1785, Article XIII,
pp. 411-412. Thomas Jefferson, The Papers of Thomas Jefferson,
Vol. IX, "Draught of a Treaty of Amity and Commerce [PortugalT,"
March-April, 1786, Article XIII, pp. 415-416. Miller, ed.,
Treaties and Other International Acts . . ., Vol. II,
A Treaty of Amity and Commerce TPrussia1," September 10, 1785,
Article XIII, pp. 171-172.

 

 

 

 

68

principle was well stated when the American commissioners,
in regard to a proposed treaty with Portugal, observed that
the Armed Neutrality had brought great changes in the law of
nations concerning the number of goods to be defined as
contraband. That had been the first step:

The second step is that now proposed to be taken,
to wit, to strike off the residue of this catalogue,
and thus take from the officers of belligerent ships
the temptation of confiscating articles which induces
them to stop all neutral vessels at sea . . . The last
war produced innumerable instances of this; and it is
believed every war does. Nor does the restraining
this power over the articles called contraband produce
a single good effect. In the infancy of the arts, when
the practice of seizing such articles was introduced,
it might be one of the means of distressing an enemy
to intercept supplies of the implements of war passing
to them by sea. But the arts are now too diffused to
leave nations at all dependent on importation by sea
. . . The residue of that catalogue therefore are
remains of a practice which continues after the causes
producing it have ceased to exist; and it is become an
abuse.

This explanation was not accepted by the Portugese for, being
unable to adopt "free ships make free goods," they were
obviously unable to accept such a departure from previous

practice as that contemplated above.55 Nevertheless, the

 

54Thomas Jefferson, The Papers of Thomas Jefferson,
Vol. IX, "Observations by the American Commissioners,1r
March-April, 1786, pp. 426-431.

55Ibid., "Observations by the Portugese Minister,"
March-April, 1786, pp. 424-426; "Additional Observations by
the Portugese Minister," March-April, 1786, pp. 432-433.

 

69

actions of the United States and this explanation of their
reasoning are indications of the American desire to break
with the past, to mold the law of nations and their rela-
tions with other states into a framework that would more
adequately reflect American needs and ideals.

Perhaps even more indicative of the American attitude
were several other provisions that were intended to be
incorporated into its treaties. The first of these was
proposed during the negotiation of the peace treaty when
Benjamin Franklin proposed to neutralize the "sugar islands"
and outlaw privateering. The first was an attempt to remove
a problem for neutral trade that existed in every war,
particularly those between Britain and France. The second
was intended to remove an encouragement for war that such a
practice entailed and the distruction of morals that resulted

56 The first had

from what was essentially legalized piracy.
little chance of adoption, particularly in light of the
economic interests possessed by all states having colonies

in the West Indies. The second, dealing with privateers, was
proposed in treaties with Denmark, Great Britain, and

Portugal and was finally adopted in the treaty with Prussia.57

 

56Wharton, ed., Revolutionary Diplomatic Corregpondence,
Vol. VI, "Benjamin Franklin to Richard Oswald," January 14,
1783, pp. 210-211.

57Thomas Jefferson, The Papers of Thomas Jefferson,
Vol. VII, "Draught of a Treaty of Amity and Commerce
[Denmark]," September 15, 1784, Article XXIII, p. 486.
Diplomatic Corregpondence, 1783 to 1789, Vol. II, "Draft of

 

 

70

There was ample reason for the inclusion of such an article
because:

The practice of robbing merchants on the high seas,
a remnant of the ancient piracy, though it may be
accidently beneficial to particular persons, is far
from being profitable to all engaged in it . . . Then
there is the national loss of all the labor of so many
men, during the time they have been employed robbing,
who, besides, spend what they get in riot, drunkeness,
debauchery, lose their habit of industry, are rarely
fit for any sober business after a peace, and serve
only to increase the number of highwaymen and house-
breakers. Even the undertakers who have been fortunate
are, by sudden wealth, led into expensive living, the
habit of which continues when the means of supporting
it cease, and finally ruins them. A just punishment
for their having wantonly and unfeelingly ruined many
honest, innocent traders and their families, whose
substance was employed in serving the common interest
of mankind.

The United States thus saw a means by which it could remove
a threat to the morals of mankind, an action that it saw as
self-denying because of the greater value of foreign ships
that it could seize in time of war and the addition to its
strength, in view of its small navy, that a large corps of

privateers would provide.59

 

a Treaty of Amity and Commerce [Great Britain]," July 29,
1785, Article XXIII, p. 415. Thomas Jefferson, The Papers of
Thomas Jefferson, Vol. IX, "Draught of a Treaty of Amity

and Commerce [Portugal]," March-April, 1786, Article XXIII,
p. 419. Miller, ed., Treaties and Other International Acts

. . ., Vol. II, "A Treaty of Amity and Commerce [Prussia],Ir
September 10, 1785, Article XXIII, pp. 178-179.

58Diplomatic Correspondence, 1783 to 1789, Vol. 1,
"Reasons in Support of the New Proposed Articles in the
Treaties of Commerce," November 10, 1784, pp. 532-534.

sgiéiég, "From the Commissioners to Baron De Thulemeier,"
November 10. 1784. pp. 531-532.

 

71

The United States also tried two other new and innova-
tive proposals. The first was included in the Prussian
treaty which was successfully negotiated and those with
Denmark, Portugal, and Great Britain which were not. It at-
tempted to set definite limits on the depredations of
belligerents on non-military personnel and activities. It
reflected the desire on the part of Americans, as shown in
the quotation from Benjamin Franklin discussed earlier, to
allow trade to continue in the midst of hostilities, to
provide for the welfare of mankind against the hazards of
war.60 The second dealt with prisoners and, like the first,
was proposed to Denmark, Great Britain, and Portugal and
ultimately adopted in the treaty with Prussia. It sought
to improve the lot of prisoners of war, to prevent their
removal to tropical penal colonies as had been the previous
practice. It was also an attempt to negate the need to
negotiate, during the hostilities under possibly adverse
conditions, cartels or conventions for the welfare of

. 61
prisoners.

 

60Thomas Jefferson, The Papers of Thomas Jefferson,

Vol. VII, "Instructions to the Commissioners for Negotiating
Treaties of Amity and Commerce," May 7, 1784, pp. 266-269.
The provisions dealing with civilians appear in the same
articles as do those outlawing privateers therefore see foot-
note 57 for the relevant citations.

61Thomas Jefferson, The Papers of Thomas Jefferson,
Vol. VII, "Draught of a Treaty of Amity and Commerce
[Denmark]," September 15, 1784, Article XXIV, pp. 486-487.
Diplomatic Correspondence, 1783 to 1789, Vol. II, "Draft

 

 

 

72

The ratification of the Prussian treaty marked the last
gasp of American treaty making and in fact of American
diplomacy prior to the adOption of the Constitution. It be-
came increasingly clear that the weakness of the United
States and questions about the ability of its government to
function made agreements or even substantive diplomatic
exchanges difficult if not impossible. The United States
was fortunate that, prior to the adoption of the Constitution,
no major conflict broke out in Europe. Both latent and
extant hostility toward the United States on the part of many
Europeans, the obligations of the French alliance, and the
inability to negotiate a treaty with Britain would have made
it very difficult for the United States to remain neutral
without great exertion and steadfastness as was true even
after 1789.

The possibility of future problems should not, however,
detract from the general success of American policy during
the period being discussed. The United States was able to
negotiate four treaties incorporating principles and ideals

in which Americans sincerely believed and which would, if

 

of a Treaty of Amity and Commerce [Great Britain]," July 29,
1785, Article XXIV, pp. 415-416. Thomas Jefferson, The
Papers of Thomas Jefferson, Vol. IX, "Draught of a Treaty

of Amity and Commerce [Portugal]," March-April, 1786,
Article XXIV, pp. 419-420. Miller, ed., Treaties and Other
International Acts, Vol. II, "A Treaty of Amity and Commerce
TFrussiaJ,’l September 10, 1785, Article XXIV, pp. 179-181.

 

 

73

widely adopted and observed, provide a climate in which the
objectives of neutrality and expansion of trade could be
met. A tone was also set for American policy, one that was
reflected in the statement of the American negotiators in
respect to the inclusion of their principles in the treaty
with Prussia when they asked:

Why should not this law of nations go on improv-
ing: Ages have intervened between its several steps;
but as knowledge of late increases rapidly, why should
not these steps be quickened . . .?62

Americans were the children of an enlightened age, the people
that would lead the world into a new age where relations

between states would be governed by law and reason, not

force.

 

62Diplomatic Correspondence, 1783 to 1789, Vol. I,
"Reasons in Support of the New Proposed Articles in the
Treaties of Commerce," March 10, 1784, pp. 532-534.

CHAPTER THREE

THE DEVELOPMENT OF A POLICY: 1789-1793

Chapter Two examined the close relationship that existed
between American foreign policy and the law of nations be-
tween 1776 and 1789. That situation arose because of the
coincidence of ideals and self-interest made possible by the
international environment that existed in those years. It
should not be assumed, however, that the presence of such a
condition before 1789 is a reliable guide to American policy
after that time. In fact, it would not be until the adminis-
trations of Jefferson and Madison that policy would return
to a semblance of that it had been before the advent of the
government under the Constitution.

There were several reasons for the close alignment of
ideals and self-interest before 1789. First, the American
government, as managed by Congress, was weak. Actual control
of policy, both its direction and operation, was allowed to
flow into the hands of the diplomats abroad and came, there-
fore, to reflect the ideals held by those men. One of the
principle goals of the American representatives in Europe was
the improvement of the law of nations, particularly by the

inclusion of liberal principles in treaties. The fact that

74

75

such principles also served to promote American national
interest gave added force and legitimacy to their efforts.

A second element contributing to both the tenor and
success of the policy was the atmosphere within which the
Americans operated. The American Revolution and the damage
that it did to the power of Great Britain encouraged European
nations to take action to further weaken it or at least
neutralize its ability to hamper them, particularly in
matters of trade, during future wars. Thus the United States,
weak as it was, found itself able to negotiate treaties that
otherwise would have been impossible.

Finally, and proceeding from the situation described
above, the United States never faced a real test of its
principles as set down in treaties or, as it hoped, estab-
lished as part of the law of nations. As a belligerent dur-
ing the Revolution the United States was not confronted with
the problems faced by a neutral in time of war. While most
Americans saw neutrality as the natural policy of the United
States and sincerely believed in the principles that it had
sought to establish, at no time before 1790 did a decision
as to the effort needed to support such a policy have to be
made. For that reason, as indeed for the two previously
mentioned, there developed not only a close connection between
ideals and self-interest but also a general consensus as to

the principles and sc0pe of American foreign policy.

76

With the establishment of the new government in 1789
an implicit change occurred with an explicit one to come in
1793. This took place because the new government was in a
far stronger position than that of the Articles to control
directly its foreign policy, to give it direction from the
top. Even more important was the outbreak of the Anglo-
French war in 1793 which forced the United States to make a
decision. It put to the test the principles that it had
sought to establish and destroyed the consensus, except on
the need to remain neutral, that had previously existed.

As foreign policy began to be implemented by the new
government conflicts arose, not particularly over the policy
but over the speed with which its objectives could be attained.
This was at the heart of the Federalist-Republican split, at
least at its upper levels. The problem was first manifested
in differences over trade policy, so important if the United
States was to be prosperous and strong, and ultimately over
the speed with which the United States could exert itself as
a truly sovereign state.

In 1790, as it had been before and would continue to be,
the United States found itself trading largely with Britain.
In the abstract such a condition was undesirable but attempts
to change the focus of American trade were hampered by sever-
al obstacles. First, England could provide manufactured

goods, in exchange for raw materials, of a better quality

77

and at a lower price than other nations. Second, English
merchants could and did provide credit to support the trade
while other nations could offer only a trade in kind which
could not meet American needs for specie. Third, monopolis-
tic practices then current in international trade made it
difficult, except in time of war and then in the face of the
Rule of 1756, to expand trade. The points listed above
might have served to quiet debate over the trade problem
had it not been for the affront to nationalism seen by many
Americans in the British trade.

To the Federalists, the correct policy was clear. To
be fully sovereign, a force in the world, America had to
become prosperous. Such a process would take several years
and was dependent on a strong economy. If the United States
took drastic action and either cut off or greatly reduced
the trade with England, the chances for stability would be
greatly diminished. The national budget, which was highly
dependent on customs revenues, would be endangered as would
Hamilton's funding plan if no adequate substitute could be
found and the Federalists doubted whether one was available.
The United States would be weakened, the long range objec-
tive endangered.

The Republicans were also sure as to the best course of
action. They were humiliated by the spectacle of what they
considered to be economic dependence on their former colonial

master. They had heard statements that the Constitution

78

would allow the United States to discriminate against Britain

in order to gain a quid pro quo and assert American inde-

 

pendence and sovereignty. Indeed, it was this issue that
was most instrumental in provoking Republican opposition to
Federalist policies toward France in the 1790's. It was not
a long term objective to them, but rather one of asserting
national sovereignty early and thus promoting true inde-
pendence.

Both sides understood the issues and were aware of the
problems posed by the situation. Jefferson told Vergennes
in 1785 that the United States, if it could follow its
national prejudices, would abandon Britain and favor France
but the realities of the situation did not permit it.1
Adams and Jay continually excoriated the monopolistic prac-
tices followed by Britain and France, largely, Adams believed,
to drive American ships and competition from the seas.
American success in opening the doors to more trade only
showed the need for greater efforts.2 It was thus not a dif-

ference in goals but a conflict over the means to a common

end that prompted division. Alexander Hamilton, not one to

 

lDiplomatic Corregpondence, 1783-1789, Vol. I, "Thomas
Jefferson to John Jay," August, 1785? pp. 687-697.

2Diplomatic Correspgndence, 1783-1789, Vol. II, "John
Jay to Thomas Jefferson," April 24, 1788, pp. 140-141; "John
Adams to John Jay," August 8, 1785, pp. 423-428; "John Adams
to John Jay," August 29, 1785, pp. 464-467.

79

make idle comments, told George Beckwith in 1789 that he was
surprised at Madison's hostility toward Britain but that, in
the end, they wanted the same thing.3
The bulwark of American foreign policy in the event of
war was to be neutrality. In debates over trade policy,
both sides justified their positions on the ground that
their program would protect or preserve American neutrality.
When Washington stated, in his Farewell Address, that
The great rule of conduct for us, in regard to
foreign nations is in extending our commercial rela-
tions to have with them as little political connection
as possible. So far as we have already formed engage-
ments let them be fulfilled, with perfect good faith,
Here let us stOp,
he was not making a mere partisan effort to gain support for
the Federalist party; he was speaking for almost all Americans
regardless of party.4
The thrust of past policy, as has been noted in Chapter
Two, was in that direction. The provisions incorporated in
all of its treaties, except the alliance with France, aimed

at the establishment or protection of neutral rights in time

of war. In 1787, during one of Europe's recurrent war scares,

 

3Alexander Hamilton, The Papers of Alexander Hamilton,
Vol. V, June, 1788 to November, 1789, ed. by Harold C. Syrett
(N. Y.: Columbia University Press, 1962), "Conversation
with George Beckwith," October, 1789, pp. 482-490.

 

4George Washington, The Writings of George Washington,
Vol. 35, March 30, 1796 to July 31, 1797, ed. by John C.
Fitzpatrick (Washington, D. C.: Government Printing Office,
1940), "Farewell Address," September 19, 1796, pp. 448-450.

 

80

John Adams and Thomas Jefferson stated their hope that neither
side would do anything to compromise American neutrality
because such a condition was in their interest if the west
Indian Islands were to be fed. If war broke out it was hoped
that Britain would acquiese in favor of neutral rights as it
had during the Revolution but it was feared that such would
not be the case particularly if it was successful in the
early stages of the war.5 At the same time Jefferson was
stating that certainly in 1787, seven years after the League
of Armed Neutrality's adoption of the principle of "free
ships make free goods,. it must be considered part of the law

6

of nations. Unfortunately, when war came in 1793, it was

to be their fears rather than hopes that were realized.

 

5Thomas Jefferson, The Papers of Thomas Jefferson, Vol.

XII, 7 August 1787 to 31 March 1788, ed. by Julian P. Boyd
(Princeton, N.J.: Princeton University Press, 1965),

"Thomas Jefferson to Burill Carnes," September 22, 1787, pp.
164-165. Diplomatic Correspondencel 1783-1789, Vol. II,
"Thomas Jefferson to John Adams," September 28, 1787, pp.
93-94; "Thomas Jefferson to John Jay," October 8, 1787, pp.
95-97; "John Adams to John Jay," October 9, 1787, pp. 809-811.
Similar sentiments may be found in Alexander Hamilton,
"Federalist No. 11"; and Burnett, ed., Letters of Members of
the Continental Congress, Vol. 8, January 1, 1785 to July 25,
1789, "James Madison to Horation Gates," December 11, 1787,
p. 688.

6Thomas Jefferson, The Papers of Thomas Jefferson,
Vol. XII, "Thomas Jefferson to Burwill Carnes," September
22, 1787, pp. 164-165.

 

81

The first test of American policy came in 1790 with the
Nootka Sound incident that threatened to pull the United
States into war over a British request for innocent passage
across American territory to Spanish Louisiana. Opinions on
the question were delivered by Alexander Hamilton and Thomas
Jefferson in their capacities as members of Washington's
cabinet. The statements of the two men contained elements of
their later positions on the more serious question of the
French alliance and, indeed, provide an excellent example of
the general agreement that could exist on one level of a
question while conflict raged on another. Both men pointed
to American weakness and advised against any action that would
bring war. Hamilton advocated acceptance of the British
request. Jefferson, on the other hand, opposed any response
thus placing Britain both morally and legally in the wrong if
it crossed anyway and providing a means to gain concessions
in reparation.

The two men agreed on the need for the United States to
avoid war but the tone of the opinions was very different.
Both accepted, at least in principle, the right of the United
States to refuse the British request. However, while
Jefferson saw the right as incontestable and absolute,
Hamilton saw it as much less so, stating that

. . . the present situation of the United States is too

little favorable to encountering hazards, to authorize

attempts to establish rules, however eligible in them-

selves, which are repugnant to the received maxims or
usages of nations.

82

He then went on to prove, conclusively in his own mind, that
not only was the right not absolute but that, according to
the law of nations as set down by Grotius, Vattel, and others,
the United States, as a neutral, had the obligation to grant
the British request.

Had Hamilton stayed with his first statement and rested
his case on American weakness he would have been on solid
ground and would have agreed essentially with Jefferson who
never, in reality, pushed what he believed to be an absolute
right of refusal. By moving into the realm of the law of
nations, however, his position was less sure, for the
authorities, particularly Grotius, were speaking of the right
of passage within the context of the obligation of the neutral
to be impartial to both sides or the responsibilities arising
from a just war. Thus the neutral could be obligated to give
passage to the forces of the correct side in a just war or,
in cases where the justness of the cause was doubtful, not
to refuse passage to one side if it had been granted to the
other. Hamilton was adhering to a strict interpretation of
the law such as would later be used to defend the apparent
abandonment of the doctrine that "free ships make free goods"
by the United States in the Jay Treaty and by the British to
defend almost all of their policies. It was, however, a
position that tended to be overly narrow and dwell on princi-

ples of the law of nations as expounded by the authorities

83

without much reference to the context within which they
appeared.

What Hamilton ignored, or at least failed to emphasize,
was that, in the words of Vattel, each nation must look to
its own interest first. It was this idea of sovereignty, the
absence of any entity with the power to force a nation to do
that which conflicted with its interests or principles, that
necessarily hung over any decision to accept or reject the
dictates of the law of nations as set down by the authori-
ties. This is indeed what Jefferson was saying when he
stated that on questions of the law, appeal must be made to
feelings and reason, "to the morality of every honest man"
for ultimately it was not the authorities but man and his
reason that determined what was right. Jefferson was dealing
with natural law as it affected man but that same law, when
applied to nations, became the law of nations and determined
the extent to which its principles would be accepted or
rejected in a particular case.

Hamilton, far more than Jefferson, saw an opporthnity to
establish guidelines for future American policy. It is true
that Jefferson warned of the danger of a British conquest of
Louisiana and even proposed war, if necessary, to stop it
but in the main he confined his comments to the issue at hand.
Hamilton, on the other hand, went beyond the Nootka Sound

controversy and attacked, albeit indirectly, the alliance with

84

France. He stated that
. . . gratitude is a duty or sentiment which between
nations can rarely have any solid foundation.
Gratitude is only due to a kindness or service, the
predominant object of which is the interest or bene-
fit of the party to whom it is performed.
It is not to be doubted that the part which the
courts of France and Spain took in our quarrel with
Great Britain is to be attributed not to any attach-
ment to our independence or liberty but to a desire
of diminishing the power of Great Britain by sever-
ing the British Empire.
Hamilton was correct in his evaluation of the motives of
Spain and France but it did not necessarily follow,
particularly in the case of France, that his position would
be accepted by others.

To Hamilton the danger was immediate and would remain
as long as the treaty existed. If war broke out in Europe
over the Nootka Sound incident France, as Spain's ally, would
probably be drawn into the conflict and raise the possibility
that the provisions contained in the Treaty of Alliance would
be invoked. Hamilton can thus be seen as giving warning
against risking war because of the alliance and, in addition,
his desire to agree to a British request can be seen as an
attempt to compromise the American position in relation to

the alliance before any demand was made.7 Such an interpre-

tation of Hamilton's action would seem to be supported by his

 

7Alexander Hamilton, The Papers of Alexander Hamilton,
Vol. VI, December, 1789 to August, 1790, ed. by Harold C.
Syrett (N. Y.: Columbia University Press, 1962), "George
Washington to Alexander Hamilton," August 27, 1790, pp.

 

85

statements in conversations with George Beckwith, for only
a month after his opinion on the Nootka Sound incident he

declared:

. . . we are in my opinion perfectly at liberty to
follow up our own interest, and certain matters have
occurred since the peace which leave us altogether free
with respect to France even if she should go to war as
a principle. . . .8

 

572-573. Thomas Jefferson, The Writings of Thomas Jefferson,
Vol. III, ed. by Andrew A. Lipscomb and Albert E. Bergh
(Washington, D. C.: Thomas Jefferson Memorial Association,
1903), "George Washington to Thomas Jefferson," August 27,
1790, pp. 78-79; "Opinion on the Question stated in the
President's Note of April 27, 1790, "August 28, 1790, pp. 79-
81. Note: Jefferson had already touched upon that point in
an earlier opinion, see Thomas Jefferson, The Writingg of
Thomas Jefferson, Vol. V, 1788-1792, ed. by Paul Leicester
Ford (N. Y.: G. P. Putnam's Sons, 1885), "Opinion on War
Between Britain and Spain," July 12, 1790, pp. 199-203.
Alexander Hamilton, The Papers ofiAlexander Hamilton, Vol.
VII, September, 1970 to January, 1791, ed. by Harold C. Syrett
(N. Y.: Columbia University Press, 1963), "Alexander Hamilton
to George Washington," September 15, 1790, pp. 36-57. Grotius,
The Law of War and Peace, B. III, C. XVII, S. III. See also
Wolff, The Law of Nations, 3'3. 683, 684, and 695; and Vattel,
The Law of Nations . . ., Introduction, S. 14. Thomas
Jefferson, The Writingslgf Thomas Jefferson, Vol. III, ed.

by Lipscomb and Bergh, "Opinion on the Question Whether the
United States have a right to renounce their treaties with
France, or hold them suspended till the government of that
country shall be established," April 28, 1793, pp. 226-243.
Note: The attitude taken in this opinion and which, to at
least some degree, may be inferred from the opinion in the
Nootka Sound case is quite similar to the statement by John
Witherspoon that "a person of integrity will pass as sound a
judgment on subjects of this kind, by consulting his own
heart, as by turning over books and systems." Burnett, ed.,
Letters of Members of the Continental Congress, Vol. III,
1tSpeech on the Convention with General Burgoyne," January 2,
1778, pp. 5-9.

 

 

 

8Alexander Hamilton, The Papers of Alexapder Hamiltgp,
Vol. VII, "Conversation with George Beckwith," October 15-20,
1790, pp. 111-115. In other conversations Hamilton took much

 

86

The Nootka Sound controversy soon became no more than
a historical footnote, for events in Europe were impelling
it toward war. The French Revolution threatened to under-
mine the monarchal system then existing and by 1793 the
situation had deteriorated into war. The United States could
not remain unaffected; it had to make critical decisions
about future policy.

The treatment of France in the midst of its revolution,
with the outcome still uncertain, was a continuing problem.
For Hamilton, in his role of Secretary of the Treasury, it
was one of debt payment. Should the United States pay the
new government, continue payments to the King, or suspend

payments until the situation cleared.9 In November, 1792,

 

the same line. He was attempting to win some concessions
from Britain by using the possible American withdrawal from
the French Alliance as bait. Alexander Hamilton, The Papers
of Alexander Hamilton, Vol. V, "Conversation with George
Beckwith," October, 1789, pp. 482-490. Alexander Hamilton,
The Papers of Alexandar Hamilton, Vol. VII, "Conversation
with George Beckwith," September 26-30, 1790, pp. 73-74.
Alexander Hamilton, The Papers of Alexander Hamilton, Vol.
VIII, February, 1791 to July, 1791, ed. by Harold C. Syrett
(N. Y.: Columbia University Press, 1965), "Conversation
with George Beckwith," February 16, 1791, pp. 41-45.

9Alexander Hamilton, The Papers of_§1exander Hamilton,
‘Vol. XIII, November, 1792 to February, 1793, ed. by Harold
C. Syrett (N. Y.: Columbia University Press, 1967), "William
Short to Gouverneur Morris," October 26, 1792, pp. 365-366;
"William Short to Gouverneur Morris," October 27, 1792, pp.
365-367; "Gouverneur Morris to William Short," November 14,
1792, pp. 368-371; "Alexander Hamilton to George Washington,"
NOvember 19, 1792, pp. 169-173; "William Short to Alexander
.Hamilton," November 29, 1792, pp. 248—257; "Gouverneur
Inorris to Alexander Hamilton," December 23, 1792, pp. 358-359.

 

 

87

Hamilton told Jefferson that the former government had been
recognized because it contained a King and questioned whether
the United States could safely recognize it or pay money if
the new one did not.10
Thomas Jefferson disagreed sharply with Hamilton. He
believed that France was important to the United States
because it seemed to be following the American example and
was a means to prevent the United States from falling back

11 He argued

on its past association with Great Britain.
that the United States had recognized the former government
of France not because it had contained a King but because it
was established by the authority of the nation and any new
government so established also had to be recognized.12 He
took exactly that position in instructions to Thomas Pinckney
in December, 1792 when he observed:

We certainly cannot deny to other nations that the

principle whereon our government is founded, that
every nation has a right to govern itself internally

 

10Thomas Jefferson, The Writings of Thomas Jefferson,
'Vol. I, ed. by Andrew A. Lipscomb and Albert E. Bergh
(Washington, D. C.: Thomas Jefferson Memorial Association,
1904), "Anas," November, 1792, pp. 323-324.

11Thomas Jefferson, The Writings of Thomas Jefferson,
‘Vo1. VIII, ed. by Andrew A. Lipscomb and Albert E. Bergh
(Washington, D. C.: Thomas Jefferson Memorial Association,
.1903), "Thomas Jefferson to Colonel Mason," February 4, 1791,
pp. 12 3-125 .

12Thomas Jefferson, The Writings of Thomas Jefferson,
\hol. I, ed. by Lipscomb and Bergh, "Anas," November, 1792,
pp. 323-324.

88

under what forms it pleases; and to change these forms

at its own will; and externally to transact business

with other nations through whatever organs it chooses,

whether that be a King, Convention, Assembly, Commit-

tee, President, or whatever it be. The only thing
essential is, the will of the nation.13

By late April, 1793 the United States had proclaimed
its neutrality in the war that had begun in Europe. Consider-
ing its history, its condition at the time, and the statements
of its leaders, neutrality was the only position that it could
safely or logically take. It soon became clear, however,
that it was easier to make a policy statement than to maintain
it against the forces unleashed by the European conflicts.

The Proclamation of Neutrality, issued on April 22, 1793,
clearly stated the American policy. The United States "would
with sincerity and good faith adopt and pursue a conduct
friendly and impartial toward the belligerent powers." At
the same time Americans were admonished to do nothing in
violation of American neutrality. To those who did so by
carrying on hostile actions against any of the belligerents
or by tranSporting to them "those articles which are deemed
contraband by the modern usage of nations" it promised

punishment as provided for by the law of nations.14

 

13Thomas Jefferson, The Writings of Thomas Jefferson,
Vol. IX, ed. by Andrew A. LipscomBiand Albert E. Bergh
(Washington, D. C.: Thomas Jefferson Memorial Association,
1904), "Thomas Jefferson to Thomas Pinckney," December 12,
1792, pp. 6-8.

14U. 8., American State Papers, Vol. I, "Proclamation of
Neutrality," April 22, 1793, p. 140.

 

 

89

The Proclamation indicated the intended orientation of
American policy but also raised questions as to its effec-
tiveness and ultimate execution. The major one was the
alliance with France. To be neutral and at the same time
allied to one of the parties at war was contradictory at
best. The authorities generally agreed that a neutral could
act and trade as if no war existed except that both bellig-
erents were to be treated equally and trade was prohibited

15 The existence of an

in contraband or to beseiged places.
alliance, however, made the supposed neutral incapable of
treating the two sides equally for its relations with the
state to which it was allied were to a greater or lesser
degree determined by the terms of the agreement. The bellig-
erent not allied always faced the possibility that the course
of events would change the apparently dormant alliance into
an active one. For that reason Bynkershoek stated that a
state, to be neutral, could owe nothing to a belligerent on
the basis of treaty obligations because such a condition

would make it not merely a neutral friend but an ally.16

 

lsGentili, De Jure Belli Libri Tres, Vol. II, p. 90.
Grotius, The Law of Peace and War, B. II, C. II, S's. III,
V; B. III, C. XVII, S. I. Vattel, The Law of Nations . . .,
B. I, C. VIII, S's. 88-90; B. I, C. XXIII, S's. 279-285;

B. II, C. II, S. 23; E. III, C. V, S. 75; B. III, C. VII,
S's. 111-113.

16Bynkershoek, Two Books on Questions of Public Law,
Vol. II, B. I, C. IX, S's. 68-71.

 

 

 

90

In an attempt to clear up the ambiguity that existed
George Washington, on April 18, asked thirteen questions of
the members of his cabinet. The first, concerning the
issuance of a neutrality proclamation, became moot with the
appearance of such a declaration only four days later. The
remaining twelve, however, gave rise to a debate that soon
became both public and partisan.

The questions may be consolidated into two major ones.
First, were the treaties with France still in effect and, if
so, how did the guaranty affect the United States? Second,
how should the United States receive the new French minister,
Genet? Because the answer to the first question essentially
determined the response to the second, it is that one which
will be dealt with in detail.17

The two major positions were presented by Alexander
Hamilton and Thomas Jefferson. Hamilton responded on April
19 to the fourth question that asked whether the treaties
with France remained in effect or could be renounced or sus-
pended. Hamilton believed that the treaties were no longer

binding but that in any case should be renounced or suspended

because they had become dangerous. Using an impressive array

 

17Alexander Hamilton, The Papers of Alexander Hamilton,
Vol. XIV, February to June, 1793, ed. by Harold C. Syrett
(N. Y.: Columbia University Press, 1969), "George Washington
to Alexander Hamilton, Thomas Jefferson, Henry Knox, and
Edmund Randolph," April 18, 1793, pp. 326-327.

 

 

91

of authorities, he sought to prove that France was fighting
a wholly offensive war in violation of the law of nations
thus undermining the system of international order and making
it an outlaw among nations. The existence of an offensive
war in which France was the aggressor was enough, in
Hamilton's mind, to render the provisions of the alliance
null and void for he, like most other Americans, had always
argued that the alliance was a defensive one. At the same
time, although to a lesser degree than in a later opinion,
he sought to prove that the treaty had been a personal one
with Louis XVI and had ended with his death unless recognized
by both the United States and the new French government.18
Hamilton's opinion followed quite closely the line then
being set down by Britain and its allies in the war with
France. Contained in the agreements signed by Britain with
Russia, Spain, Austria, and Prussia was a statement that they
were engaged in a "war being generally interesting to every

"19

civilized state. The implication was that France had

 

18Ibid., "Alexander Hamilton to George Washington,"
April, 1793, pp. 398-408.

19Charles De Martens, ed., Recueil Des Principaux Traites,
Vol. V, 1791 to 1795 (1826), "Convention entre Grande
Bretagne et la Russe," March 25, 1793, pp. 432-437, Articles
III and IV, pp. 434-437; "Convention entre l'Espagne et la
Grande Bretagne," May 25, 1793, pp. 472-479, Articles IV and
‘V, p. 477; "Convention entre la Grande Bretagne et la Prusse,"
July 14, 1793, pp. 483-485, Articles III and IV, p. 485;
"Convention entre S. M. l'empereur d'allemagne et 8. M.
Brittannique," August 30, 1793, pp. 486-491, Articles II and
III, pp. 488-489.

 

92

ceased to be a civilized state and was thus not subject to
the general dictates of the law of nations. States were,
therefore, under no obligation to act toward France in
accordance with the laws of nations. If a state did act
toward France as it did toward other nations, particularly
if it had a treaty of alliance, it might be considered an
outlaw, an ally of France in an unjust war. Indeed, that
was what the European nations were doing. They were falling
back on the doctrine of the just and unjust war which,
although it had been current in the early years of the
eighteenth century and before, was far less valid in the

age of national wars inaugurated by the French Revolution.
Nevertheless, such a position appeared to have some strength,
for, in 1793, few thought that France could be victorious,
believing instead that it would be Britain and her allies
that would dictate the peace and deal with those who had
hindered their efforts.

Both Thomas Jefferson and James Madison disagreed
sharply with Hamilton. In an opinion delivered on April 28,
1793, Jefferson found Hamilton's argument to be "ingenious"
lout of little worth and in a letter to Madison asked if he
would

. . . suppose it possible that it should have been

seriously prOposed to declare our treaties with
France void on the authority of an ill understood

93

scrap of Vattel 2 5197 and that it should be necessary
to discuss it.20

Jefferson's opposition to Hamilton's position, joined by
that of Madison, stemmed from outrage that a formal and, to
some extent moral, commitment was to be so lightly disposed
of and, more importantly, the fact that it struck at the
cornerstone of Republican policy: the need to discriminate
against Britain in favor of France in matters of trade in
order to gain a qpidgpro_guo. If Hamilton's arguments were
accepted and the French treaties were dissolved then any
hope for discrimination disappeared with them. The Republi-
cans could not accept the Federalist view that the only
effect of favoring trade with France would be the disruption
of commerce and damage to the economy. They believed that
true independence demanded a commerce that was dependent on
no single nation for its existence and argued that the
treaties with France demanded a discrimination between France

and other countries.21

 

20James Madison, James Madison Papers, Presidential

Papers Microfilm, Series 1, Reel 5 (Washington, D. C.:
Library of Congress, 1964), "Thomas Jefferson to James
Madison," April 28, 1793.

21Ibid., "James Madison to Thomas Jefferson," May 8,
1793. James Madison, Letters and Other Writings of James
Madison, Vol. I, 1769-1793 (Philadelphia: J. B. Lippencott
and Co., 1867), "James Madison to Thomas Jefferson,"June 30,
1789, pp. 479-485. That Jefferson was an ardent proponent of
this position can be seen in two reports to Congress; U. S.
American State Papers, Vol. I, "Report of the Secretary of
State to Congress," January 18, 1791, p. 111; "Report of
the Secretary of State on the Privileges and Restrictions

 

 

94

Jefferson did a point-by-point analysis of Hamilton's
position and, using the same authorities, tried to destroy
it. He believed that Louis XVI, in the negotiation of the
treaties of alliance and amity and commerce, had never been
more or less than the agent of the French nation. The
agreements, therefore, were not

. . . treaties between the United States and Louis

Capet, but between the two nations of America and

France, though both of them have changed their form

of government, the treaties are not annulled by those

changes.

Jefferson then attacked Hamilton‘s use of a statement
by Vattel that

. . . if these changes are such as to render the

alliance useless, dangerous, or unsatisfactory to

him he is at liberty to disclaim it; for he can say

with good reason that he would not have entered into

an alliance with that nation if it had been under its

present form of government.

To Jefferson, such a statement flew in the face of reason
and morality and thus could not be accepted regardless of
who said it. Jefferson recognized two reasons for non-
performance of obligations: impossibility and self-destruc-
tion. He turned to the second and stated that its determin-
ation lay in the minds of those concerned but the law of
nature would not permit the annulment of obligations merely

because they were dangerous, useless, or disagreeable as

Vattel seemed to state. The danger had to be both great and

 

on the Commerce of the United States in Foreign Countries,"
December 16, 1793, pp. 300-304.

95

immediate to become a sound basis for annulling obligations.
Jefferson did not believe that danger sufficient to
justify the abrogation of the treaties was present. It
might be true that France was a despotism but it had been
one when the treaties were signed. Certainly the United
States, a republic, did not fear destruction because France
was still despotic? Finally, to argue that the treaties
should be ended because they contained an element of peril

was to prOpose that there be no treaties for even the most

 

innocent contained some degree of uncertainty.

Jefferson then turned to the major problem, the guaranty.
He noted that France had not yet asked the United States to
enter the war nor was it certain that it would or that such
action was in its interest. In any case, the United States
had no obligation to go to war until requested. If a request
was made Jefferson questioned whether the United States
could be ogligated to enter the war without negotiating with
its possible enemies, before it was prepared, or against
superior forces in a lost cause. In the end he did not
think that the danger of war because of the guaranty was
certain enough to justify annullment.

Jefferson believed that the time had not arrived for
a decision on the treaties with France. The only article
that the United States could have any basis for rejecting

was that of guaranty; the status of the remainder of the

96

treaties was up to France. If the United States rejected
the guaranty, however, some form of compensation would prob-
ably be required and if not made might lead to war. He
proposed, therefore, that the United States carry on normal
relations with France (i.e. receive the new minister)
because present compliance could not remove a future right
of non-compliance if that was in its interest.22
On May 2, 1793 Hamilton, in company with Henry Knox,
replied, ostensibly to Washington's third question dealing
‘with.the type of reception to be given the new French
:minister but in reality to the opinion of Jefferson.
Ikunilton returned to his position that the French treaties
*were personal ones with Louis XVI and ended with his death.

Again he used a variety of authorities to support his case

but in the end placed the most emphasis on the debt owed to

 

22Thomas Jefferson, The Writings of Thomas Jefferson,
\th. III, ed. by Lipscomb and Bergh, "Opinion on the Question
whether the United States have a right to renounce their
'treaties with France or hold them suspended till the govern-
Jnent of that country shall be established," April 28, 1793,
EN?- 226-243. Vattel, The Law of Nations . . ., B. II, C.
LXII, S. 197. Note: James Madison agreed with Jefferson as
ix) the weakness of Hamilton's case, declaring that "if a
change of government is an absolution from public engagements,
why not from those of a domestic as well as of a foreign
ruiture; and what then becomes of public debts." In essence
Madison was saying that to accept Hamilton's position was to
declare that a change in government must destroy the whole
social fabric of the nation. James Madison, James Madison
In: ers, Presidential Papers Microfilm, Series 1, Reel 5,
"James Madison to Thomas Jefferson, May 8, 1793.

 

97

Louis XVI for the aid given during the Revolution, a sharp
departure from the attitude taken during the Nootka Sound
controversy. Hamilton stated that for the United States
To throw their weight into the scale of the new
government would it is to be feared be considered by
Mankind as not consistent with a decent regard to the
relations which subsisted between them and Louis XVI--
as not consistent with a due sense of the services
they received from that unfortunate prince--as not
consistent with national delicacy and decorum.
Hamilton believed that if the United States were truly to
folloW'its duty it would aid the forces of the deposed
Imonarch but, because of the inability of the United States
to do that, it could do no less than to abstain from rela-
tions with.those who had overthrown him.
For the United States the treaties were either binding
(If they were not. The first possibility was dangerous
because it would be the equivalent of making a new treaty in
time of war and would run counter to neutrality, the true
Exilicy of the United States. The second, therefore, was
'the only viable policy and Hamilton gave four reasons in
support of it- First, France had annulled obligations with
cather'states and thus the United States could follow the
same policy toward her. Second, if Britain took the French
‘West.Indies to hold them for a future French King, could the
Ihiited States with propriety attempt to take them away?
'Phird, should or could the United States confront all of

JEurope to uphold the sanctity of the treaties? Finally, and

44.3

.4Ai

 

n

«‘1

A‘Q
-

(I)

'-

l1!

98

most important, should the United States tie itself to a
revolution that might fail?23

An examination of the authorities on the law of nations
indicates that Jefferson's position was stronger than
Hamilton's. Fearing the consequences of the French alliance
Iknnilton offered absurd and unnecessary arguments. Such an
evaluation is not intended to inhance the importance of
Jefferson's argument at the expense of Hamilton's, for both
‘were significant. It should be remembered that it was
Hamilton, rather than Jefferson, who exerted the most pro-
longed influence in washington's administration and his
arguments, questionable though they might be, provide an
excellent example of the lengths to which the law of nations
could be used to justify a policy on which significant con—
sensus already existed.

A major portion of Hamilton's argument was based on the
premise that the treaty with France was personal rather than
real. A personal treaty was one signed for the purposes of
the signatories as persons, for personal reasons, rather than
lJl‘the name of the nation, for the national interest, as was
'the case in real treaties. The authorities tended to take a
limited view on the designation of a treaty as personal.

‘Vattel, in his only example of a personal treaty, states that

 

23Alexander Hamilton, The Papers of Alexander Hamilton,
Vkil. XIV, "Alexander Hamilton and Henry Knox to George
Washington," May 2, 1793, pp. 367-396.

99

"of such a character is an alliance made for the defense of

n24

a king and his family. That was also the implication of

the other authorities consulted--Pufendorf, Grotius, and

25

Wolff. At the same time a negative means of determination

was generally recognized in that those portions of a treaty
odious to the nation might be considered personal.26
Certainly to none of the authorities was the mere mention
of the name of a signatory in a treaty enough to make it
personal for names, in the words of Grotius, were "for the
most.part inserted in a compact, not in order that the com-
pact may become personal, but to show with whom it was

27

Inade." In the end, regardless of other criteria, it was

the intent of the signatories that mattered. The whole
tquestion was perhaps best summed up by Wolff:
Not from the person of the contracting parties,

but from the intention with which they enter into
a treaty, whether adequately expressed in words or

 

24
S. 195.

25Pufendorf, On the Law of Nature and Nations, B. VIII,
(2. IX, S. 9. Grotius, On the Law of Peace and War, B. II,
<2. XVI, S. XVII. Wolff, The Law of Nations, 5. 422.

26Pufendorf, On the Law of Nature and Nations, B. VIII,
(3. IX, S. 7. Grotius, On the Law of Peace and War, B. II,
(2. XVI, S. XVI. Wolff, The Law of Nations, S. 420.

27Pufendorf, On the Law of Nature and Nations, B. VIII,
C. JIX, S. 6. Grotius, On the Law of Peace and War, B. II,
C. )CVI, S. XVI. Wolff, The Law of Nations, S. 420.

Vattel, The Law of Nations . . ., B. II, C. XII,

 

 

 

 

 

 

100

to be gathered from the subject matter of the agree-

ment, is it to be determined whether a treaty is

personal or real.28

Hamilton saw the treaties with France as personal,
ending with the death of Louis XVI. In this contention, if
in fact the treaties were personal, he was supported by the

authorities.29

If the treaties provided that they were to
extend to his successors, however, an obligation would con-
tinue to exist to support them even if they had been driven
from.the kingdom. Certainly an obligation would have existed
toward Louis XVI if, instead of being executed, he had
.merely been driven from France and had then led a fight
against those who had seized power.30 As Vattel put it, "it

‘would.be absurd to hold that the alliance terminates at the

moment they have need of it, and by the very event that it

 

28WOlff, The Law of Nations, Note to S. 415.

 

29Pufendorf, On the Law of Nature and Nations, B. VIII,
(3. IX, S. 6. Grotius, On the Law of Peace and War, B. II,
(2. XVI, S. XVI. Wolff, The Law of Nations, Sis. 413-414.
‘Vattel, The Law of Nations . . ., B. II, C. XII, 5'3. 194-
196.

30Pufendorf, On the Law of Nature and Nations, B. VIII,
(3. IX, S. 9. Grotius, On the Law of Peace and War, B. II,
(2. XVI, S's. XVI-XVII. Wolff, The Law of Nations, 8'5. 414,
1422. Nete: In S. 417 WOlff states that a treaty made with
time King's successors cannot be considered personal even if
:its original purpose was personal. Vattel, The Law of
Nations . . ., B. II, C. XII, S's. 195-196.

 

 

 

 

 

 

 

 

101

and by the very event that it was intended to provide
against."31
The Treaty of Alliance, as stated in its first sentence,
was between "the most Christian King and the United States
of America." If taken literally and without reference to
the remainder of the agreement there would be some basis
for considering it personal. If the remainder of the treaty
is considered, however, such a position is less tenable.
The term "the most Christian Majesty" appears throughout the
treaty but more as a formula than anything else. All treaties
signed by France at the time that the alliance was negotiated
contained the same term and certainly not all such treaties
‘were personal. Instead the clear implication was that the
King acted as the agent of the French nation for the obliga-
tions that were accepted by the United States concerned
things happening to France, not the King. Nowhere is there
any guaranty of the King's person, his family, or his con-
'tinuance on the throne. The United States guaranteed "from
the present time and forever . . . the present possessions
<of the Crown of France in America as well as those which it
:may acquire by the future treaty of peace." Such a provision
«iisqualifies it from being perceived as personal for the

guaranty obviously was to continue regardless of who was

 

31
S. 196.

Vattel, The Law of Nations . . ., B. II, C. XII,

rm
5‘

:1)

.u
UI

102

ruling France for no one could state with certainty that
either Louis XVI or the Bourbons would rule "forever."32
Hamilton's opinion does not fare much better when one
turns to his other justification for annulling the Treaty
of Alliance. Hamilton rested his case largely on the
snassage previously quoted from Vattel which set down a
lgiberal basis for the annullment of treaties.33 The major
:isssue raised by that citation was whether or not the United
£31:ates would have allied itself with France in 1778 if it
riéad been a republic as it was in 1793. The answer is clearly
)feas. More importantly, Hamilton's emphasis on this one
jE>Eassage was the equivalent, as Jefferson said, of rejecting
tzlje remainder of Vattel's book and, indeed, those of the

<:>t:her authorities on the law of nations. Elsewhere Vattel

ESPt:ated that nations were bound to observe treaties for to
Kiri.olate one is to do injury. Only if a treaty would bring
the downfall of the nation was there justification for void-

ing it. A change in government was not a basis for such

 

 

\
32Miller, Treaties and Other International Acts, Vol.
: I, "Treaty of Alliance [France] ,"February 6, 1778, pp. 35-
IL.

33Vattel, The Law of Nations . . ., B. II, C. XII,
S - 197.

34Thomas Jefferson, The Writingsiof Thomas Jefferson,
‘V7<:>l. III, ed. by Lipscomb and Bergh, "Opinion on the Ques-
:i.on whether the United States have a right to renounce
tllfileir treaties with France or hold them suspended till the
§3<2>vernment of that country shall be established," April 28,

1'7 93, pp. 226-243.

103

action for the state and the nation remained the same regard-
less of internal change, thus a treaty made with a state
lasted as long as the nation. Finally, Vattel made what
was perhaps the most persuasive argument against Hamilton's
position when he stated:
The fact . . . that a treaty works injuriously
does not render it invalid. It is the part of one
who enters into an agreement to weigh carefully the
matter at issue before he binds himself; he may do
with his property as he pleases; he may forego his
rights and give up his advantages as he thinks proper;
the person in whose favor the contract is made is not
bound to inform himself of the other's motives and
estimate their just worth. If a treaty could be re-
voked because it is found to work injuriously there
would be no stability in the contracts of nations.
In the end the decision of early May, 1793, stemmed not
:ffzrom debates over the law of nations, although important
.1.eaga1 questions were involved, but from a combination of
realism and necessity. Both Hamilton and Jefferson recognized
the danger to the United States from the treaties with France,
the incongruity of neutrality when allied to one of the
1Ziteszlligerent powers. Neither man wished the United States to
SI<:>.'to war because of the guaranty. The result of the debate
514?). which rhetoric, as it had at the time of the Nootka Sound
i~1'chident, largely obscured basic agreement was, to use a
n1<=><dern term, a "bipartisan policy," a compromise between the

t1"‘713 positions. It was decided to refuse to honor the guaranty,

iJrl. line with both men's positions but more particularly

35Vattel, The Law of Nations . . ., B. II, C. XII, 5'5.
158, 160, 163—164, and 185.

104

Hamilton's, but not to make a public and unalterable break
with France, a policy that supported the viewpoint of
Jefferson.
In "Pacificus I," Alexander Hamilton stated clearly
the tone and direction of American policy when he declared:
The Proclamation is virtually a manifestation
of the sense of the Government that the U. States
are; under the circumstances, not bound to execute
the clause of guarantee.36
fieamilton was very blunt but he did state the major objective

()cE'the decision of May, 1793, which was to legitimize the

Proclamation of Neutrality.

36Alexander Hamilton, The Papers of Alexander Hamilton,
V(2’1. XV, June, 1793 to January, 1794, ed. by Harold C.
Eilefirett (N. Y.: Columbia University Press, 1969), "Pacificus
1. " June 29, 1793, pp. 33-43.

CHAPTER FOUR

THE FRAMEWORK OF CONFLICT

The decision of May reflected the consensus that
existed at the upper levels of the American government about
the fundamental policy to be followed by the United States.

That did not mean, however, that there was no apprehension

about its implementation. Thomas Jefferson, for example,

did not wish to see the United States drift into a "mere

English neutrality."l To this end James Madison took up the

cudgel as "Helvedius" in reply to Hamilton's "Pacificus."
Hamilton defended the Proclamation of Neutrality and the

decision of May with essentially the same arguments that he

had used in the internal debate with Jefferson. Madison, on

the other hand, while he favored neutrality did not believe
that the President had the power to declare neutrality or

that it should have been proclaimed so precipitously.

x

1James Madison, James Madison Papers, Presidential
Papers Microfilm, Series 1, Reel 5, "Thomas Jefferson to

O.éunes Madison," May 12, 1793.

2Alexander Hamilton, The Papers of Alexander Hamilton,
‘U'<pl. xv, "Pacificus I," June 29, 1793, pp. 33-43; "Pacificus
II," July 3, 1793, pp. 55-63; "Pacificus III," July 6, 1793,
I§>]p. 65-69; "Pacificus IV," July 10, 1793, pp. 82-86;
' Pacificus v," July 13—17, 1793, pp. 90-95; "Pacificus VI,"

105

106

He was attempting to combat the influence of Hamilton and

the Federalists who he believed might, through ill considered
action, bring about an informal alliance with Britain which
would be as much, if not more, to America's disadvantage
than the treaties with France.

It is never easy to maintain an impartial neutrality of
t:he type envisioned by the Proclamation and such was no less
the case in the war that began in 1793. To a greater or
J.£esser degree, depending on the viewpoint of the observer,
t:lne fears of Jefferson, Madison, and other Republicans that

Almerican neutrality would become an "English neutrality" were

.Ireaalized. Largely this arose from the nature of the con-

ifZLicts between the United States and the two belligerents.
The policies of both Britain and France were opposed by

‘tllae United States on the solid ground that the two nations

were acting against its interests. This did not mean, how-

EB‘Urer, that the quality of the opposition or the possibilities

C>:f? ultimate settlement were the same in each case. Regardless

\

Ju 1y 17, 1793, pp. 100-106; "Pacificus VII," July 27, 1793,
F’I;>l. 130-135. James Madison, Letters and Other Writings of
J\a.1nes Madison, Vol. I, 1769-1793 (Philadelphia: J. B.
I.-‘~'i—;ppencott and Co., 1867), "Helvedius I," August 24, 1793,
E?I;> . 611-621; "Helvedius II," August, 1793, pp. 621-630;
Helvedius III," September, 1793, pp. 630-640; "Helvedius IV,"
September 14, 1793, pp. 640-645; "Helvedius v," September,
1 77193, pp. 646-654. Note: Madison's replies to Hamilton, as
Vvii—‘th.most of his writings during this period, did not display
t5b1<e grasp of the law of nations that he later had.

107

of the rhetoric used, the question ultimately hinged on the

existence of a treaty with France and the absence of one

with England. It was indeed this situation that precluded

any real understanding with France and made it possible with

Britain.

The question was largely one of the law of nations and

tzhe way in which it operated in regard to France and Great

Britain. In the case of the former the law operated in two

vwzays. First, the obligation that France had to observe the

E>Jrovisions, the stipulative law of nations as agreed to by
tllfle United States and France, that were contained in the
'ETJreaty of Amity and Commerce was established. Second, the

JLaaw set down the rules that would govern those things not

‘tzcauched on in the existing treaty. Thus, in June, 1793,

‘h711en Genet denied that the law of nations could have any
IF>JLace in the relations between states with a treaty connec-
tZaZiLon, his arguments had substance as long as the matters
FIT€Eeferred to were part of the stipulative law as agreed to

3h><:>th in content and interpretation in a treaty still exist-

jLJfiLg.3 If he referred, however, to the observance of treaty

‘:>l:>1igations in a broad sense or to matters not covered in a
'tlicreaty, then his statement was a repudiation of the law of

r1«Eltions as a concept and force in the relations between

ESitiates.

\

3American State Papers, Vol. I, "Genet to Thomas

Jeffersonfi June 15, 1793, pp. 157-158.

108

There can be no question but that the existence of the
Treaty of Amity and Commerce limited the scope available for

the operation of the general law of nations in relations

between the United States and France. Very clearly set down

in the treaty were provisions establishing "free ships make

free goods," defining contraband, and regulating the activi-

tzies of French privateers. It was the language present in

tzhe treaty that would govern relations because, according to
‘\Jattel, what the parties put down must be considered to be

‘vvhat they meant.4 Gouverneur Morris told Deforgues, the

jIPrench foreign minister, that the question did not turn on
‘tzhe law of nations but on the existence of a treaty. This

‘vvas echoed by James Monroe who, in September, 1794, told the
IDirectory that "Britain may dispute the law of nations,
.klowever clear its doctrine, even with respect to contraband;

Lt>ut.with France it is in both respects regulated by treaty.

IFVrance thus came to have two policies. The first was directed

at protesting alleged American violations of the existing

itireaty and the second at returning the measure of its conduct

to the dictates of the general law of nations.

 

4Vattel, The Law of Nations . . ., B. II, C. XVII,

553's. 267-268.

5Amerigan State Papers, Vol.
I:>eforgues," October 19, 1793, pp. 313-314.

6Ibid., "James Monroe to the Committee of Public Safety,‘
September 3, 1794, pp. 676-678.

I, "Gouverneur Morris to

109

While with France the presence of a treaty operated to
that nation's disadvantage and to the advantage of the
United States, the opposite was true with Britain. In that

case the absence of a treaty was opposed to the American

interest and in favor of Britain's. Because the general law

<>f nations was far less definite and thus open to much
ggreater liberties of interpretation than stipulative law,
tzhe fact that there was no formal agreement offered Britain
la: wide latitude within which it could at least marginally
:j ustify its actions whatever they might be. For the United
States this was a very dangerous situation for there was
;]_ittle that it could do to combat by force the abuses of the
ZESritish navy. It was clear that almost any agreement that
Vhrould limit the scope of British activity and place it more
(:tr less within a formal framework would be of considerable
benefit to the United States.
This was particularly true in the area of trade which

‘nfas a major determinant of American policy and its attitude
1::oward the two major belligerent powers. American trade with
JEBritain was almost four times as great as it was with France.7
~3§Ls long as there was no formal agreement, that trade was
8 ubject to the vagaries of British policy that, considering
IESritish attitudes and strength of the British navy, would

'Ei.1ways pose a major threat to the American economy and,

7

 

Ibid., "Report of the Secretary of State on the
7E>Iivileges and Restrictions on the Commerce of the United
EStates in Foreign Countries," December 16, 1793, pp. 300-304.

110

indeed, the continued existence of the United States as an
independent nation. Jefferson recommended in 1793, as was
done for a short period in 1794, levying an embargo in order
to set "another precious example to the world by showing
that nations may be brought to do justice by appeals to
their interests as by appeals to their arms."8 That,
.however, would have to wait because the 1790's were a time
tx> preserve and promote economic stability and trade, to
axroid at almost any cost action that would compromise neutral-
itzy and open the United States to the hazards of war.

For the United States the war in Europe raised problems
of? incredible complexity. The differing status of the two
beelligerents forced it, using the Proclamation of Neutrality
arid the supportive decision of May, 1793 as a base, to
ciewelop two lines of conduct--one for Britain, the other for

France. It is this duality of policies that shall now be

examined.

 

8U. 8., Public Statutes at Large, Vol. I, "An Act to
Authorize the President of the United States to lay, regulate
and revoke embargoes," June 4, 1794, 3rd Congress, lst
Session, Chapter XLI, Statute I, p. 3723. Thomas Jefferson,
The WritingsIgf Thomas Jefferson, Vol. IX, ed. by Lipscomb
and Bergh. "Thomas Jefferson to James Madison," March, 1793,
pp. 33-35.

 

 

CHAPTER FIVE

THE LAW OF NATIONS AND A GREAT POWER AT WAR

England struck on three fronts. First, it emphatically

chenied that "free ships make free goods" could ever govern
lhaglo-American commercial relations or that the doctrine
had been, was, or would ever be part of the law of nations.
Second, as the world's major commercial and naval power,

Bruitain sought to establish that it alone could determine
the Rule of 1756

what was or was not contraband. Finally,

was reestablished as an integral part of British policy
toward neutrals in time of war. These policies should have

ruald few surprises for the United States for Gouverneur

Morris had stated the situation quite well in 1790 when he

said:
. . . those who, pursuing the true interests of Great
Britain, wish to be on the best terms with America,
are outnumbered by those whose sour prejudices and hot
resentments render them adverse to every intercourse,
except that which may immediately subserve a selfish

policy.1

 

American State Papers, Vol. I, "Gouverneur Morris to
George Washington," September 18, 1790, p. 126.

111

112

The first indication of the policy toward "free ships
make free goods," significant for its direct reference to
the United States, came in September, 1791. George Hammond,
the new British minister, was instructed to agree to nego-
tiate a commercial treaty if such was the desire of the
American government. He was admonished, however, to accept
.no provision, however worded, that would give the slightest
implication that Britain recognized the doctrine of "free
skiips make free goods" because "it would be more dangerous
tc> concede this privilege to the ships of the United States,
than to those of any other foreign country."2
That policy was stated even more forcibly in March,
17”93. Grenville told Hammond that "free ships make free
goods" had never been recognized by England. Hammond was to
'“very strongly enforce the principle . . . that free ships
do not make free goods" because

The affirmation of this proposition would in its
consequences prove extremely detrimental to the inter-
ests of this country, as affording to the French those
means of subsistence, and of carrying on the war,
which, from the nature of their present situation, and

of the forces employed against them, they must other-
wise be unable to procure.

 

2American Historical Association, Instructions to the
British Ministers to the United States, 1791-1812, ed. by
Bernard Mayo (Washington, D.C.: Government Printing Office,
1941), "Particular Instructionstx>Hammond," [July 4, 1791],
pp. 8-13.

3Ibid., "George Grenville to George Hammond," March 12,
1793. PP. 36-40.

 

113

The British policy toward "free ships make free goods"
and the steadfastness with which it was maintained obviously
operated against the interests of the United States as a
leading neutral trader. Nevertheless, though under great
pressure from the French, it did not react against the policy
as strongly as might have been expected. Indeed, so far as
Great Britain was concerned, the United States abandoned
tflie doctrine on July 24, 1793, when Jefferson told Genet
ttLat he was at a loss to know how he could reclaim French

prwoperty seized from American ships by Britain on the basis
of" "free ships make free goods" because it was not a "general
JJi‘N of nations."4 Jefferson later said that the decision
hamfl resulted from French pressure and was "against our wishes,
and against our aim." In fact, he had wanted to delay any
decision as long as possible in order to gain concessions
from Britain.5
The new policy was clearly controversial. Though it was

supported by such men as Alexander Hamilton, it was attacked

 

4American State Papers, Vol. I, "Thomas Jefferson to
Genet," July 24, 1793, pp. 166-167.

5Thomas Jefferson, The Writings of Thomas Jefferson,
Vol. XV, ed. by Andrew A. Lipscomb and Albert E. Bergh
(Washington, D.C.: Thomas Jefferson Memorial Association,
1904), "Thomas Jefferson to Edward Everett," February 24,

1823, pp. 410-415.

114

by others.6 James Madison saw it as unfair to France in
light of its inclusion in the Treaty of Amity and Commerce.7
Robert Livingston criticized Jefferson for going back on his
principles and the United States for ignoring its interests
and abandoning its ally.8

The new policy which apparently signalled a departure
from that previously followed by the United States needs to
kxe examined very closely. A principle becomes part of the
geaneral law of nations, according to the authorities, through
itzs adoption by all civilized nations. What is not mentioned
bCltLWhat is nevertheless true, is that a principle, to be
adopted, must work more or less to the advantage of all
nautions or at least to that of the most powerful ones.
Regardless of its inclusion in treaties or the activities of
tflie League of Armed Neutrality, it was thus absurd to speak
of "free ships make free goods" as a universal law of nations

without at least a tacit acceptance of it by the world's

 

6Alexander Hamilton, The Papers of Alexander Hamilton,
Vol. XV, ed. by Harold C. Syrett (N. Y.: Columbia University
Press, 1969), "No Jacobin," August 8. 1793, pp. 203-207.

7James Madison, James Madison Papers, Presidential
Papers Microfilm, Series 1, Reel 5, James Madison to
Thomas Jefferson," June 29, 1793.

 

8James Monroe, James Monroe Papers, Presidential Papers
Microfilm (Washington, D. C.: Library of Congress, 1960),
Series 1, Reel 1, "Robert Livingston to James Monroe,"
January 1, 1794; "Robert Livingston to James Monroe," March
13, 1794.

 

115

leading maritime power, a nation that, according to Vattel,
"principally by her commerce . . . holds in her hand the
balance of power in Europe."9
It was upon this point that Britain was resting its
case. It was not true that Britain had never recognized
the principle of "free ships make free goods." It had
several times, notably in the treaty of 1674 with the
bhetherlands and later ones with France, but such isolated
iristances created no precedents. Britain adhered to the
pzrinciple that "treaties are not declaratory of the law of
Inactions but are restrictions and modifications of that law
byr special agreement between the contracting parties."10
Triis statement, though in this case referring to contraband,
wais no less applicable to "free ships make free goods" be-
cnause it was a clear statement of the limitations of stipu-
lative law as set down by the authorities.
The British policy, which might be termed a "strict
interpretation" of the law, had substance because it was
supported by the authorities and, ironically, it served as

a crutch for the United States in conflicts with France.

This was particularly true in the case of the doctrine of

 

9Vattel, The Law of Nations . . ., B. I, C. VIII, S. 85.

10Instructions to the British Ministers . . ., "George
Grenville to George Hammond," January, 1794, pp. 46-47.

116

"free ships make free goods." As long as Britain could main-
tain at least a marginally creditable position based on a
"strict interpretation" which, because of the absence of an
Anglo-American commercial treaty, could be accepted by the
United States as the only legal basis for relations the
French initiatives could be combatted without totally aban-
choning past policy. The United States, in response to French
gxrotests, could thus state its dislike for British policy
t<3ward the doctrine but, at the same time, its inability to
dcbtanything about it in the face of the law of nations.
Irmdeed, as has already been noted, this was the American
position when it apparently abandoned the doctrine in rela-
‘thon to Britain in the summer of 1793.

To the extent that the criticism of the new American
Exalicy toward "free ships make free goods" referred to
Jefferson in terms of his previously stated position and con-
cepts of the law of nations or to the principles of American

foreign policy as established in the past and divorced from
the circumstances in which the nation found itself in 1793

and 1794, they had some basis. That is not to say, however,
that they provided a valid policy alternative. The weight

of the authorities lay against "free ships make free goods"
and it was unlikely that the United States could force Britain
to adopt a principle, against her will, that operated in

opposition to her interests. In the end, the American action

117

on "free ships make free goods" was a departure from, or at
least a modification of, American ideals in favor of reality
and self-interest and, as in most such cases, the greater the

divergence the greater the domestic conflict over foreign

policy.
The seizure of provisions as contraband was in many

.respects more serious for the United States than British
opposition to "free ships make free goods" for it struck

directly at one of the pillars of the economy, the export of

agjricultural commodities. To have accepted the policy with

eqltmnimity would have been, at one and the same time, to
agree to a tactic that undermined the economy and set a

prmecedent that not only conflicted with all previous American

tJmeaties but with almost all other contemporary treaties.

13: might be argued that the same held true for British policy

toward "free ships make free goods," but in reality such

would not be the case. Regardless of its inclusion in vari-

ous treaties, even in those signed by Britain or the actions

of the Armed Neutrality, the doctrine remained essentially

part of the stipulative law. In the words that were used,

however, the definition of contraband had become almost a

formula as is apparent in an examination of treaties in both

the seventeenth and eighteenth centuries. In addition, the

British policy toward "free ships make free goods" in the

eyes of the United States could be justified on the basis of

118

the law of nations and, more importantly, did not as directly
threaten the American economy as did the position on pro-
visions as contraband.

Britain's policy on contraband was no less "hardline"
than that toward "free ships make free goods." The British
determined to leave no avenue open for French gain from
American neutrality. This was clear from their agreements
with Russia, Spain, Prussia, and Austria signed in 1793. In
each, provisions called for the signatories to cease trade
in "military or naval stores, or corn, grain, salt meat, or
other provisions" and, by implication, to use their forces

11 This policy was

against neutrals carrying on such trade.
incorporated into an Order in Council issued on June 8, 1793,
that ordered the navy to seize all vessels going to French
ports laden with corn, flour, or meal. The only mitigating

element was that, instead of being condemned outright, they

were to be purchased by the government.12 This policy was

 

lMartens, Recueil Des Principaux Traites, Vol. V,
"Convention entre Grande Bretagne et la Russe," March 25,
1793, pp. 432-437, Articles III and IV, pp. 434-437; "Conven-
tion entre l'Espagne et la Grande Bretagne," May 25, 1793,
pp. 472-479, Articles IV and V, p. 477; "Convention entre la
Grande Bretagne et la Prusse," July 14, 1793, pp. 483-485,
Articles III and IV, p. 485; "Convention entre S. M.
l'empereur d'allemagne et S.M. Brittannaque," August 20, 1793,
pp. 486-491, Articles II and III, pp. 488-489.

le. 8., American State Papers, Vol. III, Foreign Rela-
tions (Washington, D. C.: Gales and Seaton, 1832), "Addi-
tional Instructions to the Commanders of His Majesty's
Ships of War," June 8, 1793, p. 264.

 

 

 

119

considered by Grenville to be valid because
. . . by the law of nations as set down by the most
modern writers, particularly by Vattel, it is express-
ly stated that all provisions are to be considered as
articles of contraband, and as such liable to confis—
cation, in the case where the depriving of an enemy of
these supplies is one of the means intended to be
employed for reducing him to reasonable terms of
peace.13
This position was reaffirmed in January, 1794, when Grenville
stated that the policy of Britain was "more favorable to the
commerce of America than the principles of the law of
nations."14
The British effort to justify its policy on the basis of
the law of nations, which had little effect on American
opposition, needs to be examined closely. Probably because
of his use by Americans, Vattel was the authority most fre-
quently cited. After taking essentially the same position
as Grotius on what was or was not contraband, Vattel stated
that even provisions could be considered contraband "when

there are hopes of reducing the enemy by famine."15

 

13Instructions to the British Ministers . . ., "George
Grenville to George Hammond,TI July 5, 1793, pp. 40-42.
American State Papers, Vol. 1, "George Hammond to Thomas
Jefferson," September 12, 1793, p. 240.

14Instructions to the Biitish Ministers . . ., "George
Grenville to George Hammond," January, 1794, pp. 46-47.

15Vattel, The Law of Nations . . ., B. III, C. VII,
S. 112. Grotius, The Law of Peace and War, E. III, C. I,
S. V.

 

 

 

120

Because of the stipulation providing payment for seized pro-
visions, frequent reference was made to the fact that
British policy was more favorable to American trade than
Vattel or the law of nations required. Once it is accepted
that provisions are contraband, such a statement was true,
for Vattel, in speaking of the seizure of contraband stated
that
All contraband goods, therefore, on being seized,

are confiscated, that the fear of loss by repressing

the avidity of gain, may induce the merchants of

neutral countries to forebear supplying the enemy

with contraband goods.16
The British emphasis on the mildness of their approach,
however, underlined a basic weakness in their case, for if
the denomination of provisions as contraband was as firmly
established as they maintained, why then was it necessary to
pay for the goods rather than seize them outright?

The United States took a strong stand in this controversy
from the beginning. Jefferson first stated his opposition
in March, 1793, and in September, in instructions to the
American minister in London, he stated categorically that the
law of nations established that neutral trade should go on
as if no war existed and that there could be no question that
provisions were not contraband. Britain could not determine

with whom the United States could trade, for that would usurp

an element of sovereignty and severely compromise American

 

16
S. 113.

Vattel, The Law of Nations . . ., E. III, C. VII,

121

neutrality for the United States was obligated to trade with
both parties in the war. Pinckney stated the case to
Grenville as strongly as Jefferson had stated it in his in-
structions.17 in January, 1794, Pinckney replied to the
British order of January 8, 1794, and stated that the United
States

. . . did not admit the right of the belligerent

powers to interfere further in the commerce between

neutral nations and their adversaries, than to pre-

vent their carrying to them articles, which, b

common usage, were established as contraband.
That provisions were not contraband was clear in the state-
ment of Edmund Randolph to Hammond when he said that articles
of war were intrinsically contraband and if corn, flour, and
meal supported armies it also supported men at peace. If

food was contraband then everything was contraband.19

 

17Thomas Jefferson, The Writings of Thomas Jefferson,
Vol. IX, ed. by Lipscomb and Bergh,iThomas Jefferson to James
Madison," March, 1793, pp. 33-35. American State Papers,
Vol. 1, "Thomas Jefferson to Thomas PinckneyTISeptember 7,
1793, pp. 239-240; "Thomas Pinckney to Thomas Jefferson,"
N.D. [Late 1793 or very early 1794.], p. 449.

18Americangtate Papers, Vol. I, "Thomas Pinckney to
Edmund Randolph," January 9, 1794, p. 430.

19Ibid., "Edmund Randolph to George Hammond,” May 1,
1794, pp. 450-454. Note: In this note Randolph listed a
series of treaties signed by Britain in which provisions were
not contraband. In only one case, that of Sweden in 1667,
did they appear as contraband. The treaties were those with
the United Provinces, 1645; France, 1667; Holland, 1668;
Utrecht, 1713; Russia, 1766; Denmark, 1782; Russia, 1782;
and France, 1786. Considering the British attitude that
treaties could establish only stipulative law and provide no
precedents, it is unlikely that Randolph's statement had much
effect.

 

 

 

122

The American position was clear and despite the state-
ments of Vattel and various ambiguities in the law, it found
general support in both the law of nations as set down by
the authorities and in the law as established by general
usage in treaties. Moreover, the question raised issues of
such magnitude for the United States that, simply on the
basis of self-interest, it had to follow a far different
course than it had in the case of "free ships make free goods."

While the policies described above could be at least
minimally supported by the law of nations, the Rule of 1756
could not be. On November 6, 1793, the British navy was
ordered to bring in all ships carrying produce of the French
colonies or supplies for the use of those colonies.20 On
January 8, 1794, that order was modified and strengthened and
an official blockade of the French West Indies was pro-
claimed.21 Grenville explained the policy to Hammond as
clearly as it had ever been before. The policy was of
"evident and indisputable justice" for while neutral trade
should be affected as little as possible by the actions of
belligerents, nevertheless, the neutral

. . . ought not . . . desire or claim from the war
new rights or pretensions to the prejudice of either

 

20American State Papers, Vol. III, "Additional Instruc-

tions to all our ships at war . . .," November 6, 1793, p.
264.

 

21Ibid., "Instructions to the commanders of our ships

of war . . .," January 8, 1794, p. 264.

123

belligerent party. For this reason, when France, who

monopolized in time of peace the exclusive commerce

and supply of her Indian islands, attempted in time

of war to open those branches of trade to neutral

nations in order to elude the naval superiority of

Great Britain; the government of this country had

always resisted that measure and has considered the

neutral vessels attempting to engage in this com-

merce as not entitled to carry it on.

The Rule of 1756 met as strong American opposition as
did the orders on provisions and for much the same reason.
It was a policy that owed its existence to the British
determination to control the seas and thus make the most
effective use of its navy, while justifying its actions on
self-interest and questionable inferences from the authori-
ties. The principle that neutral trade should go on in time
of war as it did in time of peace could be taken to mean
that new avenues of trade could not be opened in time of war.
It could be inferred from statements, such as those by Vattel
and Pufendorf, that the neutral could not be allowed to
enrich himself by the existence of a war--that a neutral could
not take over any trade previously carried exclusively by a
belligerent.23 In reality, Britain was attempting the

unilateral establishment of a new law of nations by repudi-

ating its own policy as to the origins of the law and

 

22Instructions to the British Ministers . . ., "George
Grenville to George Hammond," January 10, 1794, pp. 47-49.

23Vattel, The Law of Nations . . ., B. III, C. VII, 8.
113. Pufendorf, The Law of Nature and Nations, 5th ed.,
fn. 1, B. VIII, C. VI.

124

attempting to do itself what it would not permit others to
do. An indication of this is that by 1807 Great Britain
was referring to the Rule of 1756 as an "ancient" part of
the law of nations even though it had originated only fifty
years earlier and had been accepted by no one but itself.
In 1807 that assertion was rejected by the United States
just as it would have been in 1793 and 1794.24
The protests of the United States were of little avail.
It stated that the Rule of 1756 was not part of "the just
principles of the law of nations" and was thus illegal.25
Alexander Hamilton, in a departure from his general attitude
toward British policies, warned George Hammond that even in
Britain there would be strong opposition to such an obviously
illegal practice.26 Ultimately it became an issue in the
negotiations by Jay but the question was not settled, for

Britain had made it clear that it would give no quarter to

neutral rights and unfortunately it had the power to enforce

 

24American State Papers, Vol. III, "David Erskine to

James Madison," February 23, 1808, pp. 209-210; "James
Madison to David Erskine," March 25, 1808, pp. 210-213.

25American State Papers, Vol. I, "Thomas Pinckney to
Edmund Randolph," January 9, 1794, p. 430.

26Ibid., "George Washington to the Secretary of State,"
December 1, 1793, pp. 161-162. Alexander Hamilton, The
Papers of Alexander Hamilton, Vol. XVI, February, 1794 to
July, 1794, ed. by Harold C. Syrett (N. Y.: Columbia Uni-
versity Press, 1972), "Conversation with George Hammond,"
April 15-16, 1794, pp. 281-286.

 

 

 

125

its dictates while the United States lacked the power to
oppose them. Ultimately this situation was to lead to the
Jay Treaty.

The Jay Treaty was an epochal event. It came at the
end of a period of growing Anglo-American conflict that
very likely would have resulted in war but the unwillingness
of the United States to go to war and the importance of the
trade between the two countries made such an outcome
unacceptable. The United States turned, therefore, to direct
negotiation, the result being the Jay Treaty.

From its ratification and, to a large degree, from the
moment it was signed, the treaty became the formal deter-
minant of American policy toward Britain. It also provided
a strong indication of the principles that the United States
had adopted or at least acquiesced in, regardless of claims
that the treaty had been forced upon it by the superior
power of Great Britain.

In terms of this study, the Jay Treaty must be judged
as to the degree to which it served American interests and
upheld its principles. More specifically, to what extent
did the treaty conform to Jay's instructions, to American
needs as a neutral power, and to self-interest? To this end,
those portions of the treaty dealing with neutral rights
will be examined to determine if Jay's statement that, "as

to the principles contested for, you will find them contained

126

in the conclusion of the twelfth article, from which it will
appear that we still adhere to them," meant that the United
States really was true to its principles or had largely
turned its back on them and adopted the basic points of the
British policies.27
Jay's instructions gave "free ships make free goods,"
a lower priority than that given to an agreement on contra-

band.28

Certainly this was in part the result of Jefferson's
statement to Genet in the summer of 1793, which obviously
weakened the American bargaining position, and the unwilling-
ness of Britain to agree to any establishment of the doctrine.
In his initial proposals to include such an article Jay
attempted to use the same provision that had appeared in the

29

treaty with France, but failed. He later said that he did

 

27American State Papers, Vol. I, "John Jay to Edmund
Randolph," November 17, 1974, pp. 503-504.

28Ibid., "Instructions to Mr. Jay," May 6, 1794, pp.
472-474.

29Samuel Flagg Bemis, Jay's Treaiy, 2nd Ed. (New Haven:
Yale University Press, 1962), Comparison of Jay's Draft of
September 30, 1794, with the Treaty Signed by Jay and Gren-
ville on November 19, 1794," pp. 391-433; Article 15, pp.
417-418. Article 15 was almost the exact equivalent of
Article XXIII of the treaty with France; Article 16 of Arti-
cle XXIV; Article 17 of Article XXVI; and Article 18 of
Articles XXVI, XXVII, XII, and XIII. See Miller, Treaties
and Other InternationalActs . . ., Vol. 2, "Treaty of Amity
and Commerce [France]," February 6, 1778, pp. 3-29.

 

 

127

not find such an event extraordinary for it was unlikely
that any country which found itself at war would "admit
principles which would impeach the propriety of her conduct
in seizing provisions bound to France, and enemy's property
on board of neutral vessels."30 The treaty, therefore, did
not establish the principle that "free ships make free goods"
but instead contained, in Article XVII, the contrary doctrine
that enemy goods could be seized wherever they were found.
Only in Article XII, where it was agreed to open negotiations
within two years after the end of the war to determine
"whether in any and what cases neutral vessels shall protect
enemy's property," was any hope given that this issue might
be adjusted to the American advantage.31
Regardless of the realities of the situation or the
justification given by Jay, the debate over the non-inclusion
of the doctrine in the treaty was very bitter. Indeed, far
more time was spent on it than on Article XXVIII, dealing
with the far more important question of contraband, an indi-

cation of the degree to which "free ships make free goods"

was seen to be in the American interest. The opponents of

 

30American State Papers, Vol. I, "John Jay to Edmund
Randolph," November 17, 1794, pp. 503-504.

31Miller, Treaties and Other International Acts . . .,
Vol. 2, "A Treaty of Amity, Commerce and Navigation [Great
Britain]," November 19, 1794, pp. 245-267; Article XII,
pp. 254-255; Article XVII, p. 258.

 

 

128

the treaty took the position that if the United States could
not get a provision stating that "free ships make free goods,"

32 James Madison

it should have accepted no treaty at all.
stated that by adopting the English position,
. . . the progress towards a complete and formal
establishment of the principle in the laws of
nations so favorable to the general interest and
security of commerce, received all the check the
United States could give it.
In spite of the fact that the principle had been adopted by
several of the nations of EurOpe, including Great Britain
in its treaty with France of 1786, the United States had
taken a contrary position when it
. . . of all nations ought to be the last to unite
in a retrograde effort on this subject, as being more
than any other interested in extending and establish-
ing the commercial rights of neutral nations.
The United States had, in fact, become un-neutral for it had
adopted the policy of one belligerent to the detriment of
the other.33
In April, 1796, Madison continued along the same line.

While admitting that the United States had, in 1793, conceded

 

32U. 8., Congress, House of Representatives, Annals of

Congress, 4th Congress, lst Session, December 7, 1795 to
June 1, 1796 (Washington: Gales and Seaton, 1849), "Speech
of William B. Giles of Virginia," April 18, 1796, pp. 1025-
1053.

33James Madison, James Madison Papers, Presidential
Papers Microfilm, Series 1, Reel 5, "James Madison to A. J.
Dallas," August 23, 1795.

 

 

129

that the law of nations did not include "free ships make free
goods," he denied that a formal concession to that effect
should have been made. By doing so he believed that the
United States had repudiated its entire past policy without
receiving any reciprocal concession from Britain on, for
example, contraband.34
Others in the debate followed Madison's lead and like
him ultimately touched on the basic issue: from whence came
the law of nations? They argued that by accepting Article
XVII, the United States was allowing Britain to determine
the substance of the law of nations and thus what American
policy would be. If the United States and most of the
nations of Europe had, in the past, adopted "free ships make
free goods," did that not make it part of the law of nations?
Or could the mere statement of one nation that it was not,
even though it, too, had accepted it in various treaties,
determine the law? The opponents of the treaty saw such a
proposition as plainly ridiculous and believed that American
acquiescence signalled an abdication of the role of the United
States as champion of neutral rights and the advancement of

the law of nations for the good of mankind.35

 

34Annals of Congress, 4th Congress, lst Session,

"Speech of James Madison of Virginia," April 15, 1796, pp.

976-987.
BSLEEQ-I "Speech by John Swanwick of Pennsylvania,"

April 15, 1796, pp. 990-1003; "Speech by William B. Giles,"
April 18, 1796, pp. 1025-1053; "Speech by Albert Gallatin of

130

Those in favor of the treaty based their arguments on
the law of nations, as set down by the authorities, and its
non-recognition of "free ships make free goods." Essential-
ly it was a restatement of the arguments of Bynkershoek
(noted in Chapter One) that natural law provided that enemy
property could be seized wherever found and that any modifi-
cation of that rule was a perversion of the law. British
acceptance of the principle in its treaty with France was
meaningless for it was known, even in 1786, that war would
come with France and the doctrine thus would never operate
to its disadvantage. Indeed, it was pointed out that France,
itself, had never formally accepted the League of Armed
Neutrality and its past practice was contrary to the princi-
ple. To some the doctrine held a positive danger for, if
universally adopted, it might produce efforts by maritime
nations to incite war in order to obtain the carrying trade
and thus work to America's disadvantage. In the end, the
proponents of the treaty emphasized that the United States
could not force Britain or even have any good basis for

demanding that it depart from the law of nations, strictly

 

Pennsylvania," April 26, 1796, pp. 1183-1202. U. 8.,
Congress, House of Representatives, Annals of Congiess, 5th
Congress, lst Session, May 15, 1797 to March 3, 1799
(Washington, D. C.: Gales and Seaton, 1851), "Speech by
John Nicholas of Virginia," May 22, 1797, pp. 71-78; "Speech
by Albert Gallatin of Pennsylvania," May 25, 1797, pp. 143-
151; "Speech by Edward Livingston of New York," May 24, 1797,
pp. 115-135.

 

131

interpreted, and adopt a principle so opposed to its inter-
ests.36

Article XVIII, dealing with contraband, is difficult to
see as anything but a defeat for American policy and inter-
ests. The American position on contraband had been clearly
established in its treaties and, unlike "free ships make free
goods," had not been departed from at any time during the war
between Britain and France. Article XVIII, however, was such
a radical reversal of that policy that even the treaty's
most vocal supporter, Alexander Hamilton, was forced to
admit that it was not totally satisfactory.37

Jay's instructions had been far more explicit on the

subject of contraband than on any other. He had been

 

36Annals of Congress, 4th Congress, lst Session, "Speech

by Samuel Lyman of Massachusetts," April 15, 1796, pp. 987-
990; "Speech by Joshua Coit of Connecticut," April 22, 1796,
pp. 1140-1153; "Speech by Ezekiel Gilbert of New York," April
27, 1796, pp. 1203-1214; "Speech by Uriah Tracy of Connecti-
cut," April 27, 1796, pp. 1214-1217. Annals of Congregg, 5th
Congress, lst Session, "Speech by William Smith of South
Carolina," May 22, 1797, pp. 78-88; "Speech by Samuel Sewall
of Massachusetts," May 26, 1797, pp. 159-168; "Speech by
Robert Goodhue Harper of South Carolina," May 29, 1797, pp.
170-191. Alexander Hamilton, The WOrks of Alexander Hamilton,
Vol. VI, ed. by Henry Cabot Lodge (New York: G. P. Putnam's
Sons, 1904), "Camillus XXIX," pp. 76088; "Camillus XXX," pp.
88-99; "Camillus XXXI," pp. 100-114. Note: Though each
section of "Camillus" was a strong exposition of Hamilton's
thoughts some, such as XXIX and XXX, were written by Rufus
King although certainly in close consultation with Hamilton.

37Alexander Hamilton, The Works of Alexander Hamilton,
Vol. VI, "Camillus XXXII," pp. 114-126.

 

 

 

132

instructed to obtain

. . . proper security for neutral commerce . . . by
declaring provisions never to be contraband, except
in the strongest cases, as of blockade of a port;

or, if attainable by abolishing contraband altogether;
and by defining a blockade, if contraband must con-
tinue in some degree, as it is defined in the Armed
Neutrality.

If it could be achieved, such a provision, similar to the
one contained in the treaty with Prussia, was of vital
importance to the United States and Jay's instructions put
it on just such a basis when they explained:

You will perceive that one of the principles, upon
which compensation is demanded for the injuries under
the instructions of the 8th of June, 1793, is that
provisions, except in the instance of a siege, blockade,
or investment, are not to be ranked among contraband.

To a country remote as the United States are from
Europe and its troubles it will be of infinite advan-
tage to obtain the establishment of this doctrine.38

 

38American State Papers, Vol. I, "Instructions to Mr.

Jay," May 6, 1794, pp. 472-474. Note: It should be pointed
out, as noted in Jay's instructions, that an alternative
existed to the full recognition of those rights that the
United States considered essential to its neutrality in a
treaty with Britain. It was the establishment of a system
reminiscent of the League of Armed Neutrality. Alexander
Hamilton was strongly opposed to such a policy because it
would have involved the United States too far in the affairs
of Europe and was an unnecessary initiative, one that would
certainly have offended Britain, for, in the event of war,
the opportunity for such a combination would certainly arise
anyway. Indeed, it was unlikely that any such group of
maritime states could have affected any real change in
Britain's policy and probably, in the words of John Adams,
would have constituted a "rope of sand" so far as American
interests were concerned. Instructions to the British Min-
isters . t_;' "George Grenville to George Hammond,“ May 10,
1794, pp. 54-57. Alexander Hamilton, The Papers of Alexander
Hamilton, Vol. XVI, "Conversation with George Hammond,ii July
1-10, 1794, pp. 548-549; "Alexander Hamilton to Edmund
Randolph," July 8, 1794, p. 578. John Adams, The Works of
John Adams, Vol. IX, ed. by Charles Francis Adams (Boston:

 

 

 

133

The first section of Article XVIII dealt with the
general determination of what was to be considered contra-
band. It stated that

In order to regulate what is in the future to be
esteemed contraband of war, it is agreed that under
said denomination shall be comprized all arms and
implements serving for the purposes of war by land

or sea.

The opening words were far different from previous American
treaties or what had been intended by Jay's instructions,

for they widened the list of possible contraband to include
almost anything that Britain wished to declare as such. In
addition, to designate naval stores as contraband encompassed
a whole new category of goods for the United States. In its
other treaties such items had always been specifically
excluded or included only those things "prepared for war" at
sea.

The listing of contraband articles that followed was
ambiguous, intended to allow the widest possible latitude to
the captor. It began with the very indefinite words "such

as."

The implication was that items then listed, instead of
being definitive, were merely a series of examples. In the
treaty with France, as indeed in Jay's proposal of September
30, 1794, which used the same text, the listing of contraband

began with the words "and under this name of contraband or

prohibited goods shall be comprehended. . . ." There was

 

Little, Brown and Co., 1854), "John Adams to John Marshall,
Secretary of State," October 3, 1800, pp. 86-87.

134

little doubt that what followed was an inclusive list, a
conclusion supported by the fact that another list appeared
and contained goods "which . . . shall not be reckoned among
contraband." In the treaty with the Netherlands, in refer-
ence to contraband goods, it was stated that "under this
demonination of contraband and merchandises prohibited,
shall be comprehended only warlike stores and arms."39
What the United States was doing in agreeing to the terms
used in the Jay Treaty was to retreat from clarity into
ambiguity and, in the process, to recognize a far wider list
of contraband than before.

The second section of the article departed not only
from previous American treaties but also from very strong
policy statements made by the American government both before
and during the time that the treaty was being negotiated.

No treaty or policy had ever designated provisions as contra-

band or even implied that they were such. Certainly Jay's

 

39Miller, Treaties and Other International Acts . . .,
"Treaty of Amity and Commerce [France],'i February 6, 1778,
Article XXVI, pp. 21-23; "Treaty of Amity and Commerce
[Netherlands]," October 8, 1782, Article XXIV, pp. 79-80;
"Treaty of Amity, Commerce, and Navigation [Great Britain],"
November 19, 1794, Article XVIII, pp. 258-259. Bemis, Ja '5
Treat , "Comparison of Jay's Treaty Draft of September 30,
1794 . . .," Article XVI, pp. 418-421. Note: Other than
the treaty with Prussia which abandoned the term "contraband"
altogether, the treaty with the Netherlands was the most
explicit in its removal of naval stores from the list of pro-
hibited goods. It stated that "even all sorts and equipment
of vessels of war, or for the manufacture of one or another
of such machines of war by land or sea, shall not be judged
contraband. . . ."

135

instructions made it clear that the United States had never
recognized provisions as contraband nor would they in the
future. Nevertheless, the article stated that
. . . whereas the difficulty of agreeing on the pre-
cise cases in which alone provisions and other articles
not generally contraband may be regarded as such,
renders it expedient to provide against the inconven-
iences and misunderstandings which might then arise:
It is further agreed that whenever such articles so
becoming contraband according to the existing law of
nations, shall for that reason be seized, the same
shall not be confiscated, but the owners thereof shall
be speedily and completely indemnified.
However one looks at or analyzes this provision, it is clear
that the United States had significantly altered its policy.
It had accepted the British position, albeit under certain
circumstances, that provisions could be classed as contra-
band under the law of nations, an interpretation of the law
that the United States had rejected decisively on previous
. 40
occaSlons.
The provision finally adopted was more favorable to
American interests than an earlier proposal by Grenville that
would have required an explicit acceptance of Vattel's rule

that provisions were contraband if the absence of them would

reduce the enemy to an early peace but, in comparison with

 

4OAmerican State Papers, Vol. I, "Instructions to
Mr. Jay," May 6, 1794, pp. 472-474. Miller, Treaties and
Other International Acts . . ., Vol. 2, "Treaty of Amity,
Commerce, and Navigation [Great Britain]," Article XVIII,
pp. 258-259.

 

 

136

other American treaties, it was a sharp departure. The
treaty with France, for example, described as not contraband
"in general all provisions which serve for the nourishment
of mankind and the sustenance of life." The treaty with the
Netherlands said that nothing not expressly mentioned as
such was contraband while that with Sweden followed the
same line as the treaty with France. The Prussian treaty
did not recognize any category of goods as contraband but
did, like the Jay Treaty, permit the stopping of ships and
the seizure of goods, payment being made, but only such
goods as had "heretofore been called contraband, such as
arms, ammunition, and military stores."41
The third section of Article XVIII provided for the
warning of American ships attempting to enter a blockaded
port. To some degree it was a victory for the United States
for it obviated some of the abuses engendered by the British
practice of establishing a blockade by simply notifying the

minister resident in London that one existed and then seiz-

ing any ships attempting to enter the port. It did not,

 

415m§rican State Papers, Vol. I, "George Grenville to
John Jay,"September 7, 1794, pp. 493-494. Miller, Treaties
and Other International Acts_i . ., Vol. 2, "Treaty of
Amith and Commerce [France]," February 6, 1778, Article XXVI,
pp. 21-23; "Treaty of Amity and Commerce [Netherlands],"
October 8, 1782, Article XXIV, pp. 79-80; "Treaty of Amity
and Commerce [Sweden]," April 3, 1783, Article IX, pp. 129-
130; "Treaty of Amity and Commerce [Prussia]," September 10,
1785, Article XIII, pp. 171-172.

137

however, define a blockade in the terms used by the League
of Armed Neutrality that it had to constitute a positive
danger to ships attempting to enter the port. Britain was
free to continue to levy essentially paper blockades and
maintain their legality.42
Article XVIII was, understandably, controversial.
That it was not to the ultimate American advantage to have
such an article in a treaty was clear to most, even the
supporters of the treaty. The question was the extent to
which it was to America's disadvantage. Alexander Hamilton
argued that while the article was not entirely satisfactory,
it had to be consented to with reluctance for no clear right
was abandoned, no material interest damaged. In any case,
the treaty had to be examined in its broad context, not
merely the particular, and on that basis the treaty was
clearly to the advantage of the United States. Britain's
case was supported by the law of nations and that law was
a fair way to solve the problem; the compensation given by

Britain in doubtful cases should remove any cause for

complaint. Hamilton's defense was probably the best that

 

42Miller, Treaties and Other International Acts . . .,
Vol. 2, "Treaty of Amity, Commerce, and Navigation [Great
Britain]," November 19, 1794, Article XVIII, pp. 258-259.
Wharton, ed., Revolutionary Diplomatic Correspondence, Vol.
III, "John Adams to the President of Congress," April 10,
1780, pp. 606-608. American State Papers, Vol. I, "Instruc-
tions to Mr. Jay," May 6, 1794, pp. 472-474.

 

138

could be said for the article and it is doubtful whether
by itself it could ever have been accepted.43
The opponents of the treaty saw the article in much the
same light as the previous one. It was an instance where
the United States had agreed to concessions with one bellig-
erent that it would not concede to the other nor had ever
agreed to before. James Madison argued that "in the face of
former complaints of our executive, as well as against the
fundamental rights, actions, and duties of humanity," a new
principle had been created "for the purpose of aiding in the
horrible schemecflfstarving a whole people out of their
liberty." It gave license to Britain to seize American goods
and recognized the policy of starving whole nations.44
The two articles examined above were at the heart of
the controversy over the Jay Treaty but they did not have
equal impact on American foreign policy or neutral rights.
The debates gave the absence of an article declaring that

"free ships make free goods" a significance far beyond that

which it deserved. The principle was, of course, favorable

 

43Alexander Hamilton, The Works of Alexander Hamilton,
Vol. VI, "Camillus XXXII," pp. 114-126.

44Annals of Congress, 4th Congress, lst Session, "Speech
by John Swanwick of Pennsylvania," April 15, 1796, pp. 990-
1003; "Speech by James Madison of Virginia," April 15, 1796,
pp. 976-987. James Madison, James Madisog Pa ers, Presi-
dential Papers Microfilm, Series 1, Reel 5, 'James Madison
to A. J. Dallas," April 23, 1795.

 

 

139

to neutral trade, allowing a non-belligerent to take over

the carrying trade that, by necessity, had been abandoned

by a belligerent. The absence of it, however, did not mean
that a neutral could not trade with both belligerents but
merely that it was more hazardous for it to carry enemy

goods because of the possibility of seizure. In the case of
the Jay Treaty the major question did not revolve around the
absence of "free ships make free goods" but the wisdom of
abandoning a policy that had been strongly held and supported
over a period of eighteen years.

Article XVIII was far more injurious to American policy
and neutrality. By adopting the system of contraband con-
templated by the Jay Treaty, the United States, in effect,
agreed that everything carried by its vessels could be sub-
ject to seizure. In substance, while publicly maintaining
that it was neutral, this country agreed to cut off trade
with one belligerent in favor of the other. In the process
it destroyed whatever pretensions to equal treatment of the
two belligerents it might have entertained, something that
would not have resulted from the mere absence of a provision
establishing "free ships make free goods."

The Jay Treaty did contain some positive features for
the United States along with some striking omissions. It
provided for compensation by Britain for its illegal seizures

while, at the same time, the United States accepted formally

140

the responsibility for seizures by French privateers armed

in its ports and agreed to make restitution. There was

also a promise of future negotiations on the sc0pe of neutral
rights contained in Article XII which, in the end, turned

out to be an empty one. Finally, sequestration was abandoned
as a possible tactic, an act aligning the United States with
the law of nations, if one supported the treaty, or unjusti-
fiably relinquishing a possible weapon if one did not.45
At the same time, however, it did not mention the Rule of
1756 or impressment, both of which would plague American
efforts during the remaining years of the existing war and

throughout that which followed.46

 

45Miller, Treaties and Other Inrernational Acts . . .,
Vol. 2, "Treaty of Amity, Commerce, and Navigation [Great
Britain]," November 19, 1794, Articles VI, pp. 249-251;
VII, pp. 252-253; and XII, pp. 254-255.

46In the case of the Rule of 1756, the total achievement
of the objectives stated in Jay's instructions would have
obviated many of the irritations of that doctrine. As the
treaty was finally adopted, however, particularly in the case
of Article XVIII dealing with contraband, it was obvious that
American interests in this regard had not been met.

Impressment had been a problem since at least May, 1790.
Its implications in relation to American sovereignty made it
clear that if some settlement was not reached the problem
would grow worse as in fact it did. Though his instructions
did not specifically call for such a provision, Jay attempted
to gain acceptance of one but failed. In commenting on this
omission, Alexander Hamilton pointed to the difficulty of
distinguishing American from British seamen and took essential-
ly the same position as that taken by Jay on neutral rights
in general, that it would have been difficult for Britain to
agree to anything that would weaken its navy, the first line
of defense. George Grenville said largely the same thing
but Rufus King, American minister in Britain, believed that

141

Though supporters could point to favorable aspects of
the treaty, the agreement as a whole was a sharp setback for
the principles of the law of nations and neutrality that had
been strongly supported by previous American policy. In
essence, the treaty indicated the victory of a short term
policy aimed at stabilizing relations with Britain in order
to concentrate efforts on France, a far less dangerous
adversary, over the long term interest of maintaining a strict
neutrality. In many respects the choice was similar to the
one made at the time of the acceptance of an alliance with
France during the Revolution. Necessity had been the govern-
ing force in 1778 just as it was in 1794.

There was, however, a significant qualitative difference

in the two decisions. That of 1778, while in opposition to

 

the impressment problem was, even in 1796, much more serious
than the seizure of American ships.

American State Papers, Vol. I, "Gouverneur Morris to
George Washington," May 29, 1790, p. 124; "Instructions to
Mr. Jay," May 6, 1794, pp. 472-474; "Questions asked of
Grenville," September 16, 1794, p. 492. Thomas Jefferson,
The Writingg of Thomas Jefferson, Vol. VIII, ed. by Lipscomb
and Bergh, "Thomas Jefferson to Joshua Johnson," December 17,
1790, pp. 117-120; "Thomas Jefferson to the President of the
United States," February 7, 1792, pp. 304-306; "Thomas
Jefferson to Thomas Pinckney," June 11, 1792, pp. 369-374.
Alexander Hamilton, The Works of Alexander Hamilton, Vol. V,
ed. by Henry Cabot Lodge (New York: G. P. Putnast Sons,
1904), "Camillus VI," pp. 244-251. Instructions to the
British Ministers . . ., "George Grenville to Phineas Bond,"
May 19, 1796, pp. 118-119. Rufus King, Life and Corre-
spondence, Vol. II, ed. by Charles R. King, Reprint (New
York: De Capo Press, 1971), "Rufus King to John Quincy
Adams," November 10, 1796, pp. 103-104; "Rufus King to Lord
Grenville," November 30, 1796, pp. 113-115.

 

 

 

 

 

142

the purely American prejudice against forming any foreign
connection, did not compromise the principles of the law of
nations for which it stood or the foundations of future
American neutrality. Indeed, the Treaty of Amity and Com-
merce, signed at the same time as the alliance, contained
"free ships make free goods," the most basic of neutral
rights. The Jay Treaty, however, destroyed or greatly
weakened every principle of the law of nations favorable to
neutral rights, for which the United States had for so long
been striving. It reflected a sense of disillusionment with
previous policy, an acceptance of the idea that it was

power rather than law which did and ought to regulate inter-
national relations. There was an implicit acceptance of
Pufendorf's view that a belligerent

. . . usually allows or forbids, the maritime commerce

of neutral people with its enemy; either according as

it is in its interest to preserve the friendship of
those people, or it finds itself strong enough to ob-
tain from them what it requires.

This sense <1f disillusionment was clear in the case of
"free ships make free goods." John Adams, in October, 1800,
told John Marshall, Secretary of State, that the doctrine
was a great one, of immense benefit to mankind for it would

open the seas and end maritime war, but that he questioned

its feasibility under existing conditions because

 

47Pufendorf, The Law of Nature and Nations, B. VIII,
C. VI, fn. 1.

143

However desirable this may be to humanity, how
much so ever philosophy may approve it and
Christianity desire it, I am firmly convinced that it
will never take place. The dominant power on the
ocean will forever trample on it. The French would
despise it more than any nation in the world, if they
had the maritime superiority of power, and the
Russians next to them. We must treat the subject with
great attention, and, if all other nations will agree
to it we will. But while one holds out, we shall be
dupes if we agree to it.48

His meaning was clear, the law of nations was the refuge of
the weak, and it was useless to fight for an unachievable
principle, against a power that could not be defeated.

The Jay Treaty had a great impact on future American
efforts. Its obvious effect on relations with France will
be examined later but it also, in part, influenced the
ultimate fate of Pinckney's Treaty with Spain. It also
determined the type of provisions that the United States would
accept in a new treaty with Prussia, and, through a growing
awareness of the weaknesses of the treaty in relation to
American interests, brought attempts to modify it as it
related to naval stores as contraband.

To a large degree the Jay Treaty was merely an excuse
rather than a substantive cause for Spanish objections to
its treaty with the United States. Nevertheless, the nego-

tiation of a treaty, such as that with Britain containing

provisions almost directly contradictory to those contained

 

48John Adams, The Works of John Adams, Vol. IX, "John

Adams to John Marshall, Secretary of State," October 3, 1800,
pp. 86-87.

144

in another treaty negotiated at almost the same time, would
have been enough, even in the best of times, to give rise
to some apprehension on the part of the second nation. The
Pinckney Treaty contained both "free ships make free goods"
and a definitive list of contraband. Pinckney supported his
arguments on the latter with essentially the same language
that had always been used, appealing to the law of nations
and the actions of the League of Armed Neutrality as proof
that the doctrine had become part of the law of nations.49
To the Spanish, the Jay Treaty made it seem that the
United States had abandoned that position and adopted another.
Spain protested that Articles XVII and XVIII of the Jay
Treaty had contravened XV and XVI of its treaty and thus
denied it reciprocity.50 The United States protested that
Spain had known of the provisions of the Jay Treaty even as
it had been negotiating and that the concessions in that

treaty could hardly be a surprise, considering Britain's

adament opposition to a liberal settlement of the two

 

49American State Papers, Vol. I, "Thomas Pinckney to the
Prince of Peace,’i September 20, 1795, pp. 539-540; "Thomas
Pinckney to Edmund Randolph," October 28, 1795, pp. 546-549.
Note: The latter contained a copy of the treaty signed the
same day, Article XVI of which provided for "free ships make
free goods," and Article XVII for the enumeration of contra-
band and non-contraband articles.

50American State Papers, Vol. II, "Minister of Spain to
the Secretary of State," May 6, 1797, pp. 14—15.

145

issues.51 Though Spanish opposition was probably the result
of French pressure and apprehension about the future of its

claims to the Mississippi Valley, the Jay Treaty provided a

clear opportunity for conflict.

The effect of the Jay Treaty and the attitude that it
presaged were even more evident in the negotiation of a new
treaty with Prussia. It was clear that the emphasis was on
self-interest rather than the advancement of the law of
nations or neutral rights. John Quincy Adams was instructed
to delete the provision prohibiting privateers because they
constituted the first line of American defense, a sharp
departure from the self—denying statements at the time of the
original treaty. Second, and more importantly, he was told
that while the United States had adopted "free ships make
free goods," in all of its treaties except that with England
and hoped sincerely that it would become universal, it found
treaties containing the doctrine

. . . to be of little or no avail; because the princi-

ple is not universally admitted among the maritime

nations. It had not been regarded in respect to the

United States; when it would operate to their benefit;

and may be insisted on only when it may be injurious
to their interest,

 

51Ibid., "Secretary of State to the Minister of Spain,"
May 17, 1797, p. 16; "Report of the Secretary of STate to
the President of the United States," January 1, 1798, pp.
78-83; "Secretary of State to Charles Pinckney," October 25,
1801, pp. 476-478.

146

and therefore should be removed in any new treaty with
Prussia. Finally, naval stores, except for fir planks and
unwrought iron, were to be contraband as was the case in
the Jay Treaty.52

Adams' instructions were clear and were amplified by
later ones. He was again told that under ideal conditions
the United States would support the doctrine of "free ships
make free goods,"

. . . but the abandonment of the principle was sug-
gested by the measures of the belligerent powers

during the present war, in which we have found neither
its obligations by the pretended modern law of nations,
nor the solemn stipulations of treaties, secured its
observation: on the contrary, it has been made the
sport of events. Under such circumstances, it appeared
to the President desirable to avoid renewing an arti-
cle which would probably be enforced when our interests
should require its disolution; and be condemned when

we could derive some advantage from its observance.

The only condition under which it might be retained would be
if a general peace adopted it as a universal principle, the
same being true for naval stores, but in no case was there
to be any retention of the doctrine if it appeared that open
war would soon break out between France and the United
States.53

Adams disagreed with his instructions. While they might

meet certain short range objectives, in the long run they

 

52Ibid., "Instructions from the Secretary of State to
John Quincy Adams," July 15, 1797, p. 250.
53Ibid., "Secretary of State to John Quincy Adams,"

July 17, 1797, p. 250; "Secretary of State to John Quincy
ADams, March 17, 1798, p. 251.

147

would be very injurious to American interests. At the same
time he believed that the instructions indicated some con-
fusion about who the real enemy was. He told the Secretary
of State that the doctrine of "free ships make free goods"
had been violated largely because Britain controlled the
seas and because France, in the midst of revolution, had
dismissed most of the principles of the law of nations,
seeing itself as liberated from those things that hampered

its purpose. Adams favored principles that would check

British power because

. . . even during this war, several decrees of the
French Convention, proposed when the force of solemn
national engagements has been felt have recognized
the promise in the treaty of 1778. . . . France is
still attached to the principles of the armed
neutrality, and yet more attached to the idea of com-
pelling Great Britain to assent to them. Indeed,
every naval state is interested in the maintainence
of liberal maxims in maritime affairs against the
domineering policy of Britain. Every instance
therefore, in which these principles are abandoned by
neutral powers, which favor the rights of neutrality,
is to be regretted, as furnishing arguments or at
least examples, to support the British doctrine.54

To Adams there "was only one power in Europe averse to the
general establishment of the principle favorable to neutral-
ity; a power which does not even disguise the pretension of

domineering upon the ocean."55

 

5412i§3r JOhn QUinCy Adams to the Secretary of State,"
October 31, 1797, p. 251,

55Ibid., "John Quincy Adams to the Secretary of State,"
May 17, 1798, p. 252. Note: This statement is in line with
Adams' declaration in 1795 that Britain was aiming at

148

Though he did not agree with his instructions, John
Quincy Adams accepted them as the basis for the negoti-
ations. He faced the strong opposition of the Prussian
negotiators who saw "free ships make free goods, as part of
the law of nations and pointed to Prussia's long adherence
to the principle. In the end, Adams gained acceptance of
a conditional article that committed the two nations to
an attempt, after a general peace, to gain acceptance of the
principle as a universal law of nations. In the meantime,
however, if

. . . either of the contracting parties should be

engaged in a war to which the other should remain

neutral, the ships of war and privateers of the
belligerent power shall conduct themselves towards

the merchant vessels of the neutral power as favour-

ably as the course of the war then existing may

permit, observing the principles and rules of the
law of nations generally acknowledged.56

 

"universal monopoly" on the high seas. John Quincy Adams,
The Writings of John Quingy Adams, Vol. I, 1779 to 1795, ed.
by Worthington Chauncy Ford (New York: Macmillan Company,
1913), "John Quincy Adams to Timothy Pickering," February
22, 1795.

56American State Papegg, Vol. II, "John Quincy Adams
to the Secretary of State," May 25, 1798, p. 252; "John
Quincy Adams to their Excellencies the Ministers of State
and of the Cabinet of the King," July 11, 1798, pp. 252-253;
"Prussian Ministers to Mr. Adams," October 29, 1798, p. 260;
"John Quincy Adams to the Prussian Ministers," October 29,
1798, pp. 257-258; "John Quincy Adams to the Prussian Min-
isters," December 24, 1798, pp. 262-263; "Prussian Ministers
to John Quincy Adams," February 19, 1799, p. 265. Miller,
Treaties and Other InternationaliActs . . ., Vol. 2, "Treaty
of Amity and Commerce [Prussia]," July 11, 1799, pp. 433-455;
Article XII, pp. 441-442.

149

Though the article did not establish the doctrine as it had
been in other treaties negotiated by the United States, at
the same time it clearly indicated that the United States
still supported the principle and would strive to gain its
acceptance as a universal law of nations. Because of the
significant concession by Prussia on "free ships make free
goods," Adams did not press them to include naval stores
although the article dealing with that subject was modified
to include a definitive list of the articles of war that
could be detained.57
To a large degree the instructions to Adams on the
negotiation of a treaty with Prussia expressed the changed
attitude of the United States even more clearly than did
the Jay Treaty. The Jay Treaty and its concessions had been
justified as a single instance of having to compromise
principles in order to gain a needed agreement and thus avoid
war. The treaty with Prussia, however, was a case where the
same provisions that had been placed in the Jay Treaty were
to be incorporated into another and with a country that
supported "free ships make free goods" and a limited list of

contraband. Indeed, the treaty with Prussia had been the

 

57American State Papers, Vol. II, "John Quincy Adams to
the Secretary of State," April 4, 1799, pp. 262-264. Miller,
Treaties and Other International Acts . . ., Vol. 2, "Treaty
of Amity and Commerce [PrussiafTiJuly 11, 1799, Article XIII,
pp. 442-443.

150

most liberal of all those signed by the United States and

had been violated by neither party. The tone of the instruc-
tions and particularly the reference to the "pretended

modern law of nations" was ample indication of the reversal
of previous American policy and the degree to which self-
interest had come to dominate it at the expense of American
ideals.

As the eighteenth century drew to a close it became
evident that the Jay Treaty seriously compromised the abil-
ity of the United States to carry on a viable international
commerce. As a result, with very indifferent success, a
campaign was begun to modify the more objectionable parts of
the treaty. Proposals were introduced that would have
limited the effect of Article XVIII on merchandise in general
and naval stores in particular. The owner's intent was pro-
posed as the governing factor in the seizure of goods that
might be used for either war or peace. This initiative
stemmed largely from Britain's interpretation of the words
"and generally whatever may serve directly to the equipment
of vessels," contained in Article XVIII, to include anything
that might remotely be usable in ship building or outfitting

regardless of whether that was its primary purpose.58

 

58American State Papers, Vol. II, "Rufus King to Lord

Grenville," March 25, 1799, p. 494; "Lord Grenville to Rufus
King," April 22, 1799, p. 494; "Rufus King to Lord Grenville,"
April 30, 1799, p. 494; "Evan Nepean to George Hammond," May
24, 1799, p. 494; "Rufus King to Lord Grenville," June 5, 1799,

151

At the same time British policy in regard to blockades,
impressment, and the Rule of 1756 came under attack but only
in the latter case was there any real success. Rufus King
argued that Britain could not, under any pretense of the
law of nations, seize produce of enemy colonies that was
part of the usual trade of the United States upon re-export
if such merchandise had been taken directly to the United
States and duties paid thus interrupting the continuity of
the voyage. In 1801 the Advocate General of England decided
in King's favor and declared that a voyage could be inter-
rupted.59

In the end the United States had little success in its
efforts to modify the Jay Treaty and alleviate the effects
of British policy. The stipulative law had been set and
there could be little pressure on Britain to change a treaty

that operated so much to its advantage. The United States

had obligated itself to faithfully observe the dictates of

 

p. 495; "Rufus King to Lord Grenville," August 1, 1799, p.
495; "Rufus King to George Hammond," September 14, 1799, p.
495; "John Marshall, Secretary of State, to Mr. King,"
September 20, 1800, pp. 486-490; "Rufus King to Lord Hawks-
bury," March 10, 1801. Note: John Marshall's letter of
September 20, 1800 was a strong attack on the British inter-
pretation of Article XVIII which led them to seize nails
usable only for building houses, casks, boxes, and oznaburg
which was a cloth used primarily for slave's clothing with
marginal value as sailcloth as contraband under the designa-
tion of naval stores.

59Ibid., "John Marshall, Secretary of State to Mr. King,"
September 20, 1800, pp. 486-490; "Rufus King to Lord Hawks-
bury," March 13, 1801, p. 490; "Lord Hawksbury to Rufus King,"
April 11, 1801, p. 491.

152

an agreement that ignored its ideals and flouted its inter—

ests. War had been avoided but at a tremendous cost.

CHAPTER SIX

AN ALLIANCE DESTROYED

In 1778 the United States and France had signed two
treaties to establish a relationship to exist indefinitely.
Momentarily the interests of the two nations had coincided
but with the passage of time they diverged, a fact that was
particularly evident during the French Revolution and the
wars that followed. By 1793 the United States had returned
to the long range objectives of non-involvement in the
political affairs of Europe and the promotion of its pros-
perity. While there had been wide support for the French
Revolution, its excesses and ideological orientation were
foreign to the American experience and inhibited any outpour-
ing of aid to the French cause. France, on the other hand,
found itself facing war, an outcast among European nations,
and turned to the United States, both as an ally and a sister
republic, expecting it to adopt the French cause as its own
and provide aid in areas where France was unable to act. In
doing so France ignored the very real interests of the United
States in remaining neutral, the non-ideological framework of

American society, and the pervasive influence of nationalism

153

154

that led Americans, of whatever political bent, to resent any
attempt by a foreign nation to influence its policy. Taken
together these forces weakened any desire that might have
existed to court danger by aiding openly and directly the
French cause. Inevitably this led to a conflict that, from
the American point of view, could not be resolved until the
relationship was adjusted to meet the needs of the United
States.

From the first day of the European war in 1793 the
treaties between the United States and France occupied the
center of attention. The rights and obligations in those
treaties related to the viability of American neutrality and
the ability of France to fight a successful war. The Treaty
of Alliance has already been discussed in regard to the
American desire to remain neutral despite its obligations.
The decision of May was, however, of little consequence at
the beginning of the war for it was not advantageous for

France to declare a casus foederis immediately and it could,

 

with reasonable sincerity, declare that it did not intend to
invoke the guaranty.1 This did not stem from a sympathetic
awareness of American desires but the fact that as long as
American neutrality offered the opportunity to evade the full

effect of British efforts to destroy French trade and starve

 

1James Madison, James Madison Papers, Presidential
Papers Microfilm, Series 1, Reel 5, "Thomas Jefferson to
James Madison," May 19, 1793.

 

155

France and its colonies into submission an America at peace
was far more valuable than an America at war. Not until it
became clear that American neutrality would not or could not
serve the interests of France did an Anglo-American war become
an attractive alternative.2 By that time, however, regardless
of the decision of May, 1793, it was too late.

The Treaty of Amity and Commerce, rather than the Treaty
of Alliance, provided the most difficulty because of the
opportunities that it offered each party. Articles XVI, XIX,
XXIV, XXV, and XXVI, dealing with privateers or neutral

commerce were at the heart of the controversy.3 Though in

 

2John Quincy Adams, The Writings of John Quinc cy Adams,

Vol. I, "John Quincy Adams to John Adams," May 22, 1795, pp.
353-363.

3The article numbering used here is taken from Hunter
Miller's Treaties and Other International Acts of the United
States, the most authoritative collection of American treaties.
The numbers may not, however, agree with those contained in
the various documents cited. This is because Articles XI and
XII of the original treaty never went into effect. Miller
states that in early American versions Articles XI and XII
were included with no change in numbering but later, in the
1780's, the two articles were omitted with the original
Article XIII becoming the new Article XI, XIV becoming XII,
etc. This form of numbering was, however, according to
Miller, followed by France from the beginning. In order to
avoid confusion I have attempted to determine what numbering
system was being used in a particular instance and then cited
the corresponding article in Miller. For instance, in the
controversy over privateers Genet almost always referred to
Articles XVII and XXII which correspond to Articles XIX and
XXIV in the Miller collection. In another case, however, the
Decree of May 23, 1793 that referred to Article XVI, it
appears that, for whatever reason, France reverted to the
numbering system contained in the original agreement for, using
the new numbering, the article refers to the return of ships
rescued from the hands of "pirates and robbers on the high
seas" which makes little sense considering the context of the
decree.

156

each case problems arose as to the obligations contained in
or the interpretation of the particular article the issues
that were raised were not narrowly legal but rather reflected
the positions of the two states in relation to each other.
From the American point of View France wanted the United
States to abjure rights that were in the American interest,
and, at the same time, to grant new rights, not provided for
by the treaty, thus compromising its neutrality. As a result
the American reaction to French overtures was sharp and not
negotiable. This was particularly true of Articles XIX and
XXIV which, as interpreted by France, posed the greatest
potential threat to American neutrality.

Article XIX dealt almost wholly with the rights of the
public ships and privateers of the two nations. It was law-
ful for such vessels from either nation to carry freely,
to any destination, the ships or goods taken from an enemy
without being subject to duties, arrest, or seizure when
brought into the ports of the other party. No examination
as to the legality of the prize was to be made by the offi-
cers at the port and at any time the public ship or privateer
was free to depart and take its prize to the place named in
its commission. Finally, no ship that had made a prize of
the subjects or property of either nation could be given
shelter except under stress of weather in which case it was

to depart at the earliest possible moment.

157

Article XXIV had three parts. First, no enemy of either
party to the treaty could fit out a privateer in the ports of
the other. Second, it was illegal for a prize taken from
one of the signatories to be sold in the ports of the other.
Third, a foreign privateer that had taken a prize from one
of the parties was prohibited from purchasing even "victuals"
except in an amount that would allow it to proceed to the
port of the state giving its commission.4

On May 15, 1793 the debate began. Thomas Jefferson
asked the French minister if his consul at Charleston had
condemned a prize which, if true, was an error in judgment
that should not be repeated. At the same time he wished to
know if that same consul had fitted out a privateer, an act
that the United States was bound to oppose for

The arming of men and vessels within our territory
and without consent or consultation on our part, to

wage war on a nation with which we are at peace are

acts which we will not gratuitously impute to the pub-

lic authority of France.5
The American position was, as Jefferson made clear in a letter

to the Governor of Virginia, that no stipulation existed in

the treaty with France, or indeed any other nation, allowing

 

4Miller, Treaties and Other International Agts . . .,
Vol. II, "Treaty of Amity and Commerce [France]," February
6, 1778, Articles XIX, pp. 16-17; and XXIV, pp. 19-20.

50. 8., Aaerican State Papers, Vol. I, "Thomas Jefferson
to M. Teinant," May 15, 1793, pp. 148-149.

158
it to arm in American ports.6
Genet, the new French minister, was equally definite in
his statement of the French position. He maintained that the
condemnation of prizes was condoned by the Treaty of Amity
and Commerce which allowed French ships to bring their prizes
into American ports while withholding that right from other
states. In regard to the arming of privateers, he stated
that since there was no law prohibiting France from taking
such action it was legal.7
The debate soon increased in vigor. On June 5 Jefferson
told Genet that the arming of privateers was a direct in-
fringement of American sovereignty, an attempt to subvert
American citizens from the duty owed the United States.8
Alexander Hamilton agreed, stating that clearly no nation

without the consent of the United States could organize

military expeditions on its territory.9

 

6Thomas Jefferson, The Writings of Thomas Jefferson,
Vol. IX, Thomas Jefferson Memorial Association, "Thomas
Jefferson to the Governor of Virginia," May 21, 1793, pp.
98-99.

7U. 8., American State Papers, Vol. I, "Genet to Thomas
Jefferson," May 27, 1793, pp. 149-150.

8

 

 

Ibid., "Thomas Jefferson to Genet," June 5, 1793, p.
150.

9Alexander Hamilton, The Papers of Alexanderyflamilton,
Vol. XIV, "Alexander Hamilton to Richard Harrison," June
l3-15, 1793, p. 539.

 

159

In his reply, Genet took the same tone that he would
take in most of his later correspondence, one that did little
to resolve the issues. He saw

. . . with pain . . . that the President of the

United States persists in thinking that a nation at

war had not the right of giving commissions of war

to those of its vessels which may be in the ports

of a neutral nation; this being in his opinion an

act of sovereignty.

While not retreating from his previous statements he had, in
a gesture of goodwill, instructed his consuls to grant
letters only to captains who would swear to "respect the
territory of the United States, and the political opinions

of their President until the representatives of the sovereign
[Congress] shall have confirmed or rejected them." This was
in line with his opinion that the United States could only
require that no hostile acts be committed in its territory.10
Genet also attacked the American seizure of privateers,
those armed in the United States, and their prizes as a vio-
lation of the French right to bring prizes into American
ports without being subject to the regulation of port offi-

ll

cials and fit out privateers. In these and other statements

 

10U. 8., American State Papegs, Vol. I, "Genet to Thomas
Jefferson," June 8, 1793, p. 151; "Genet to Thomas Jefferson,"
June 15, 1793, p. 158.

llIbid., "Genet to Thomas Jefferson," June 14, 1793,
pp. 152-154; "Genet to Thomas Jefferson," June 15, 1793, p.
158.

 

160

Genet clearly indicated a lack of distinction between a
privateer armed in France or its possessions and one sent
out from an American port.

By late June the debate had become one in which the two
sides spoke at, rather than to, each other. For Jefferson
the question was whether or not the United States could allow
ships of war to be sent against a nation with whom it was at
peace. The United States wished to be neutral but to grant
to France the rights it sought made war with Britain
likely.12 Genet saw no justification for such a position
and appealed to Jefferson as a fellow republican not to
lower their discussion "to the level of ancient politics by
diplomatic subleties" or, as in his note of June 17, dwell
on the "aphorisms of Vattel." According to Genet, the United
States was violating the treaty and repaying France badly
for its past favors.13

By late July, 1793 it was clear that the United States
had to take immediate, positive action or the situation would
soon be beyond its control. The Proclamation of Neutrality

contained a prohibition against hostile action by American

 

12Ibid., "Thomas Jefferson to Genet," June 17, 1793, p.
155. See also: Alexander Hamilton, The Papers of Alexander
Hamilton, Vol. XV, "Pacificus I," January 29, 1793, pp. 33-
3.

 

13U. 8., American State Papers, Vol. I, "Genet to
Thomas Jefferson," June 22, 1793, pp. 155-156.

161

citizens against either belligerent but, because the docu-
ment was a general policy statement, it could not meet the
changed circumstances.l4 Thus, after the refusal of the
Supreme Court to render an advisory opinion on the whole
gamut of issues raised by Genet, the Cabinet adopted a set
of rules aimed directly at the arming of privateers in
American ports. The equipping of vessels was permitted only
if it was of a type applicable to both war and peace and
original arming of privateers or other ships was totally
prohibited. The prohibition against the arming or provision-
ing of an enemy's privateers was reaffirmed but recruitment
was specifically limited to the citizens of the belligerent

15 These

powers or people not citizens of the United States.
rules reflected the consensus that existed among members of
the cabinet and although it was not as strong as the law
passed in 1797, specifically prohibiting Americans from

privateering against nations with whom it was at peace, it

 

14
p. 140.

15Alexander Hamilton, The Papers of Alexander Hamilton,
Vol. XV, "Draft of Questions to be Submitted to Justices of
the Supreme Court," July 18, 1793, pp. 110-116; "Cabinet
Meeting: Proposed Rules Concerning Arming and Equipping of
Vessels by Belligerents in the Ports of the United States,"
July 29-30, 1793, pp. 139-142; "Cabinet Meeting: Proposed
Rules Governing Belligerents," August 3, 1793, pp. 168-169.
U. 8., American State Papers, Vol. I, "Instructions to the
Collectors of the Customs," August 4, 1793, pp. 140-141.

Ibid., "Proclamation of Neutrality," April 22, 1793,

 

 

 

162

nevertheless, clearly stated what the United States would
and would not permit to take place on its territory.16

Regardless, however, of the consensus existing in the
American government or the clarity of its policy, Genet
refused to accept any check on his activities. Ultimately
this led to a demand for his recall and the acceptance by
the United States of full responsibility for the damage to
British commerce caused by privateers armed in American

17

ports. In his letter demanding the departure of Genet

Jefferson asked:

Does the negative to the enemies of France, and
silence as to France herself, imply an affirmative
to France? Certainly not: it leaves the question
as to France, open and free to be decided according
to circumstances; and if the parties had meant an
affirmative stipulation, they would have provided for
it expressly. . . .

More specifically, on the question of prizes, he stated that

 

16Thomas Jefferson, The Writings of Thomasigefferson,
Vol. I, Thomas Jefferson Memorial Association, "Anas," July
12, 1793, pp. 371-373. Public Statutes at Large, Vol. I,
"An Act to Prevent Citizens of the United States from Priva-
teering against Nations in Amity with, or against Citizens
of the United States," June 14, 1797, 5th Congress, lst
Session, Chapter I, Statute I, p. 520.

170. 8., American State Papers, Vol. I, "Thomas Jefferson
to Genet," August 7, 1793, p. 167; "Thomas Jefferson to
George Hammond," September 5, 1793, pp. 174-175; "Thomas
Jefferson to Genet," November 22, 1793, p. 185; "Genet to
Thomas Jefferson," November 29, 1793, p. 185. Note: The
letter of September 5, 1793 was referred to in Article VII
of the Jay Treaty and included as an annex to the agreement.
Miller, Treaties and Other International Acts . . ., Vol. II,
"Treaty of Amity, Commerce and Navigation [Great Britain],"
November 19, 1794, Article VII, pp. 252-253; Annex, pp. 265-
266.

163

the United States had never questioned the taking of prizes
on the high seas, only those taken in its jurisdiction and
by ships illegally armed in an American port. Finally, he
emphasized that Article XIX allowed prizes to be conducted
into a friendly port, not to be sold there. Such was the
position of the American government, one which Genet con-
tinually tried to circumvent, in the process acting the part
of a sovereign within the territory of another sovereign
state, something that the United States could not and would
not permit.18
The controversy did not die with the replacement of
Genet but, before discussing it further, it is necessary to
examine the positions of France and the United States under
the law of nations. The issue of privateers and prizes,
though it reflected the differing circumstances of the two
nations, was a more narrowly legal question than that of
"free ships make free goods." It was argued on that basis
by the United States and the fact that Genet, having little
knowledge of the law, did not see it in the same light did
not make it any less so. The issues raised by Genet re-
volved largely around a broad or narrow interpretation of
the treaty. This was explicit in Genet's position that as
long as an action was not prohibited it was permitted and

Jefferson's that the lack of a prohibition left it up to the

 

18U. 8., American State Papers, Vol. I, "Thomas Jefferson
to Gouverneur Morris," August 16, 1793, pp. 167-172.

 

164

party involved as to what could be allowed. Grotius stated
that a broad interpretation could be made only if a clear
implication existed that such had been the intent of the
negotiators.19 Genet, however, never strongly maintained
that his object in 1793 had been that of the negotiation of
1778 but rather based his concentions on the interests of
France and a supposed ideological bond between the two
nations. Such a position was untenable because, as Wolff
states, in agreement with Vattel,

. . . no one can be the interpretor of his own words

in stipulations, nor is the promisee allowed to

interpret the words of the promisor in the sense in

which he wishes them to be understood. . .

If that were allowed there could be little reason for a
nation to have a treaty since its rights and interests would
be ignored.

More important, however, was the assumption that the
text was the definitive statement of the intent of the
negotiators and that its meaning had to be established dur-
ing the negotiation. Grotius stated that if there was no
implication that a different meaning than that generally

understood was to be given to the words then they had to be

taken in their "natural sense," according to current usage.

 

19
S. XX.

20Vattel, The Law of Nations . . ., B. II, C. XVII,
S. 266. Wolff, The Law of Nations, S. 375.

Grotius, On the Law of Peace and War, B. II, C. XVI,

 

 

 

165

To adopt any other position was, in his mind, to impute
fraud on the part of the negotiators in which case the
article in question was void.21
Clearly, according to the authorities, the meaning of
a treaty had to be settled at the time of the negotiation
and maintained throughout the life of the treaty. This
stemmed from the fact that, unlike the Constitution of the
United States where the Supreme Court could make definitive
judgments as to its meaning and opt for a broad or narrow
interpretation of its terms, there was no higher body to
determine if one side or the other was faithfully observing
its obligations for the general rule was that "no one may
pass on the intrinsic justice of a nation's conduct."22
It is clear that Genet was on solid ground neither
in his efforts to get a broad interpretation of the treaty
nor in regard to the rights that he sought from the United
States. From an examination of the authorities it is clear
that the power to make war and conscript men were two of the

most basic of sovereign rights. The first was so because

if it were not "every individual of a nation might involve

 

21Grotius, On the Law of Peace and War, B. II, C. XVI,
8. II. Vattel, The Law of Nations . . ., B. II, C. XVII,
S. 267.

22Vattel, The Law of Nations . . ., Introduction,
S. 21.

166

it in a war."23 The second because of the inherent power
of the state over its people and the assumption that only
by the leave of a sovereign authority could troops be raised
by a foreign power within its territory because such an
action involved a "conditional surrender of the right of the
corporate body over the individuals," in itself an act
requiring the exercise of sovereign authority.2

If then, troops or in this case the crews of privateers
were raised for the service of a foreign power against a
nation with whom it was at peace it was assumed that at
least the tacit consent of the sovereign power had been given
in which case it became responsible for the actions of its
citizens. Grotius stated that "kings and public officials
are liable for neglect if they do not employ the remedies
which they can and ought to employ for the prevention of
robbery and piracy."25 Vattel, in fact, believed that men
taking commissions from a foreign prince to war against a
state with whom their nation was at peace were robbers and

pirates.26 Pufendorf stated that "the governors of the

 

23Ibid., B. III, C. I, S. $. Grotius, On the Law of
Peace and War, B. I, C. III, S. IV, Wolff, The Law of
Nations, 8. 613.

24Vattel, The Law of Nations . °_;' B. III, C. II, S.
15. Wolff, The Law of Nations, 8'3. 745, 747, 753, and 754.

25
S. XX.
26

Vattel, The Law of Nations . . ., B. III, C. XII,
S. 229.

 

 

 

Grotius, On the Law of Peace and War, B. II, C. XVII,

167

commonwealth are presumed to know what their subjects openly
and frequently commit and their power to hinder it is always

"27
supposed.

Finally, Vattel, in essential agreement with
Wolff, declared that
If a sovereign, who might keep his subjects with-

in the rule of justice and peace, suffers them to

injure a foreign nation, either in its body or its

members, he does no less injury to that nation than if

he injured them himself.28

It was this situation that the United States wanted to
avoid. To allow France to arm privateers, raise crews of
American citizens, and sell the subsequent prizes in its
ports could be construed as an exercise of sovereignty in
favor of France and an act of war against Britain. In 1802,
in a similar situation, the United States rejected Spain's
contention that it could do nothing about the French priva-
teers operating out of Spanish ports. It stated that a
sovereign state, by definition, controlled its ports and
thus could have and should have stopped the arming of the

French privateers and, therefore, was responsible for their

actions.29 It is quite likely that Britain would have adopted

 

27Pufendorf, The Law of Nature and Nations, B. VIII,

C. II, S. XII.
28Vattel, The Law of Nations . . ., B. II, C. VI, S.
72. Wolff, The Law of Nations, 8. 316.

29H. 8., American State Pepers, Vol. II, "Charles
Pinckney to the Secretary of State," July 6, 1802, pp. 481-
482.

168

a similar position in 1793.

The only point in the debate on which France appeared
to have any real justification for its position was the
entry of British public ships into American ports. The
United States took the position that only privateers, as a
class, and public ships in company with a French prize were
prohibited from entering an American port. In other words,
as long as a British ship, not a privateer, did not have a
prize in its possession, regardless of whether it had taken
a prize in the past, it could enter American ports.30
France, however, saw such a policy as "servile acquiescence"
to Britain and interpreted the treaty to mean that no ship
that had ever taken a French prize could be admitted and
demanded that the rule be applied to the whole British
fleet.31 While France probably went beyond the bounds of

interpretation in applying the prohibition to the entire

fleet, the treaty, nevertheless implies that a ship, upon

 

30Ibid., "Thomas Jefferson to George Hammond," September
9, 1793, p. 176; "Edmund Randolph to Fauchet," September 7,
1794, p. 601; "Ministers Plenipotentiary of the United States

to the Minister of Foreign Affairs of the French Republic,"

March 15, 1796, p. 661.

31Ibid., "Fauchet to Edmund Randolph," September 18,
1794, pp. 601-603; "Fauchet to Edmund Randolph," May 2, 1795,
p. 609; "Summary Statement of the Complaints of the French
Republic against the Government of the United States,"
March 9, 1796, p. 659; "Adet to Timothy Pickering," November

15, 1796, pp. 586-587.

169

taking a French prize, was barred from entering an American
port. The exact words were that "no shelter or refuge shall
be given . . . to such as shall have made prize of the sub-
jects, people, or property of either of the parties." The
French interpretation would, therefore, seem to be supported
first by the words which made no reference to a prohibition
dependent on the actual possession of a prize at the moment
of entrance into port and second, by the rule that what was
said must be assumed to be what was meant.32
With the replacement of Genet the controversy over the
arming of privateers died down but the problem of prizes
and their sale remained. Ultimately it became involved in
the debate over the Jay Treaty and is an example of the per-
vasive influence of that agreement on Franco-American rela-
tions. The United States always saw the right to sell
prizes as dependent on its willingness to grant it and not
as one possessed by France by virtue of the Treaty of Amity
and Commerce. France, on the other hand, saw it as a right,
to be exercised independently of any regulation by the United
States and, in October, 1794, threatened to withdraw from

the treaty if that right became "illusory."33

 

32Miller, Treaties and Other International Acts . . .,
Vol. II, "Treaty of Amity and Commerce [France],“February
6, 1778, Article XIX, pp. 16-17.

33D. 8., American State Pepers, Vol. I, "Fauchet to
Edmund Randolph," October 17, 1794, p. 589.

 

170

The United States faced a serious problem in regard to
the sale of prizes, particularly those taken from Great
Britain. While it had grounds for refusing to permit the
sale of prizes taken by privateers armed in American ports,
its position was less solid in regard to prizes taken, even
by its definition, legally on the high seas but which, if
it allowed their sale, might compromise its neutrality.

In support of its policy it could point to its right, under
the law of nations, to control its ports or the rule that
what was stated in a treaty constituted the extent of the
rights granted by it. It could not, however, until the
signing and ratification of the Jay Treaty refer to any
positive prohibition either in a treaty or law that speci-
fically prohibited the practice.34

This situation changed, at least in regard to Britain,
the major target of French privateers, with the adoption of
the Jay Treaty. Had this agreement existed during the tenure

of Genet there would have been no question but that France

could not arm privateers in American ports for Article XXI

 

34In 1796 an attempt was made to pass a law prohibiting

the sale of prizes in American ports that failed. Adet pro-
tested such action in May, 1796 because it violated Articles
XIX and XXIV of the Treaty of Amity and Commerce, a question-
able position because, as has been pointed out, the treaty
gave no specific right to sell prizes to France. Ibid.,
"Adet to Timothy Pickering," May 18, 1796, p. 651.

171

specifically prohibited such a practice.35 More importantly,
however, Article XXIV specifically enjoined a privateer of

a nation at war with either Britain or the United States

from selling a prize taken from one in the ports of the
other.36 France saw these articles as being in conflict
with the rights granted to it by the Treaty of Amity and
Commerce. The United States, never having regarded the
French pretensions as rights but only as privileges to be
given or withheld, denied that a conflict existed and instead

took the Jay Treaty to be a positive prohibition against the

sale of British prizes and a reinforcement of its neutrality.

 

35Miller, Treaties and Other International Acts . . .,
Vol. II, "Treaty of Amity, Commerce and Navigation [Great
Britain]," November 19, 1794, Article XXI, pp. 260-261.
This article's equivalent in the French treaty was Article
XXIII which did the same thing in regard to France as did
XXI of the Jay Treaty for Britain. Such articles were almost
routinely included in treaties of this kind and since they
referred only to the relationship between the two signatories
must be seen as part of the stipulative law but as not pro-
hibiting similar articles in other treaties. See: "Treaty
of Amity and Commerce [France]," February 6, 1778, Article
XXIII, p. 19.

36Ibid., "Treaty of Amity, Commerce and Navigation
[Great Britain]," November 19, 1794, Article XXIV, p. 262.

37U. 5., American State Papers, Vol. I, "Timothy
Pickering to Adet," May 24, 1796, pp. 651-652; "Timothy
Pickering to Adet," July 19, 1796, pp. 653-654. Obviously
this is but a small sample of American statements on this
subject since almost all American correspondence on the
sale of prizes took the same line.

 

37

172

By November, 1796 the American position was finally
established. France could bring British prizes into port
but, because of the provisions of the Jay Treaty, could not
sell them. This did not, however, apply to non-English
prizes that it could do with as it pleased.38 At the same
time it was clear that the basic issues had not been settled
but would have to wait until the old treaty was modified or
a new one negotiated.

A second major problem was American trade with France
and its enemies. Unlike the issue just discussed it did
not turn on the interpretation of ambiguous articles but
rather a positive grant of rights to one party while the
other was at war. The three articles involved were XVI
which stated that "enemy ships make enemy goods," XXV which
established that "free ships make free goods," and XXVI
which set down a limited list of contraband, specifically
omitting provisions and naval stores.39 Taken together
these articles had formed the core of American efforts, be-
tween 1776 and 1789, to improve the law of nations and

insure a sound basis for future neutrality and though, by

 

381bid., "Timothy pickering to Adet," November 15,

1796, pp. 655-656.

39Miller, Treaties and Other Internationa1_§cts . . .,
Vol. II, "Treaty of Amity and Commerce [France]," February 6,
1778, Articles XVI, pp. 14-15; XXV, pp. 20-21, and XXVI,
pp. 21-23.

173

the 1790's, policies and priorities had changed they were
not rights to be dispensed with lightly.

Although the debate that developed had a strong bearing
on the law of nations, to an even greater extent it re-
flected the positions of the two states. The greatest
single determinant of French policy was its lack of a credit-
able naval force able to meet the British fleet on equal
terms and insure the supply of itself and its colonies.
France was, therefore, forced to turn to the neutral trader
in order to maintain any semblance of a foreign trade in the
midst of war. Because that solution turned out to be un-
workable it began to retaliate against British naval superi-
ority through neutral nations and, in the case of the
United States, acted in direct violation of its treaties and
the law of nations.

French policy took shape in the first days of the war.
On February 18, 1793 it opened its ports, both home and
colonial, to American ships. According to Genet, this was
meant to promote the prosperity of the United States but a
more likely explanation was that France was attempting to
avoid the Rule of 1756 and the full effect of British
attempts to starve it into submission. It was accompanied
by an offer of a new treaty, establishing a true "family

compact."40 The French effort failed because the United

 

40U. S., Amepican StatejPapers, Vol. I, "Genet to
Thomas Jefferson," May 23, 1793, p. 147.

174

States could not take full advantage of the new commercial
regulations and because a "family compact" would tend to
involve the United States further in the affairs of Europe,
indicated an ideological bond that did not exist, and would
have opened it to charges from Britain, similar to those
made by France in regard to the Jay Treaty, that it had
altered its neutrality in favor of one belligerent in the
midst of war.41
Had the United States been inclined to act on the French
offers, the actions of the National Assembly removed most of
the impetus for such a course. On May 9, two weeks before
Genet made his announcement, the National Convention, because
"the flag of neutral powers is not respected by the enemies
of France," issued a decree declaring ships carrying provi-
sions to Britain or containing British merchandise to be
good prize. Like the British order of June 8 it provided

42 This was followed, in

payment for the provisions seized.
response to American protests that it violated the Treaty of

Amity and Commerce, with a new order, on May 23, that

 

1Thomas Jefferson stated another reason for its failure,
the antipathy of some Americans for France that produced a
desire to take part in "the confederacy of princes against
human liberty." James Madison, James Madison Papers,
Presidential Papers Microfilm, Series 1, Reel 5, "Thomas
Jefferson to James Madison," May 19, 1793.

420. 8., American State Papers, Vol. III, Foreign Rela-
tions, "Decree of the National Convention," May 9, 1793, pp.
284~285.

 

 

 

175

relaxed the order in regard to American ships conformable
to Article XVI of the Treaty of 1778, an abortive attempt
that by July 27 had been revoked, returning the United
States to the strictures of the May 9 decree.43

France, by its decrees indicated that it meant to
retaliate against its enemies through the neutral trader.
Genet, for instance, in presenting the decrees of May 9 and
23, stated that the latter had been issued by France

. . . with the confidence that she has that the

Americans will not abuse this privelege by carrying

to her enemies the productions by which they ought

to assist in he defense of a cause as much their

own as hers.
Lebrun, the Foreign Minister, declared that American vessels

would enjoy the "advantage resulting from their neutrality,

as long as that neutrality assures the supplies of the

 

430. 8., American Spete Papers, Vol. I, "Gouverneur
Morris to Lebrun," May, 1793, p. 364; "Lebrun to Gouverneur
Morris," May 17, 1793, p. 364. Four decrees were promulgated
by the National Assembly subsequent to that of May 9, ulti-
mately returning the United States to its dictates. They
appeared on May 23, May 28, July 1, and July 27. Copies of
the second and fourth do not appear in the American State
Papers, none being found in the files of the Department of
State at the time that the collection of decrees was sent to
Congress, but can be found in J. B. Duvergier, ed., Collec-
tion Complete des Lois, DecreEs, Ordonnances, Reglemens avis
du Conseil D'Etat, Tomes 5, 1792-1793; et 6, 1793-An 2
(Paris, 1834). U. 8., American State Papers, Vol. III,
"Decree of the National Convention,“—May 23, 1793, p. 285;
"Decree of the National Convention," July 1, 1793, p. 285.
Duvergier, Collection Complete des Lois . . ., Tome 5,
"Decree of the National Convention,fiMay 28, 1793, p. 307.
Duvergier, Collection Complete des Lois . . ., Tome 6,
"Decree of the National Convention:W July 27, 1793, p. 60.

44

Jefferson,

 

 

U. 8., American State Papers, Vol. I, "Genet to Thomas

T‘
II

September 27, 1793, pp. 243-244.

176

republic and her colonies."45 In October, as it became clear
that the neutrality of the United States would not meet
French needs, Morris was told that France could not be held
to the dictates of the law of nations "so cruelly violated
by her enemies" because

. . . it would result, that the neutrality of several

powers would be partial; that it would operate only

in favor of our enemies, whose commerce could be

peacably carried on under the shelter of a borrowed

flag while ours could not, under any flag whatever.46

American policy conflicted with the French on a variety
of points, the most basic being the desire to remain neutral
while maintaining the right and ability to trade with all
belligerents. The classic definition of neutrality was that
contained in the Proclamation of Neutrality, namely to treat
both sides equally.47 If both belligerents possessed equal
resources, allowing them equal access to the commerce and
produce of the neutral state such a policy would have little
difficulty. If, however, as was the case in the war then
going on, one side possessed the power to shut off such

access the neutrality became slanted toward the more powerful

belligerent. This was what happened to American neutrality

 

45

p. 368.
Ibid., "Deforgues to Gouverneur Morris," October 14,

Ibid., "Lebrun to Gouverneur Morris," June 21, 1793,

46

1793, pp.—_376-377.
47

p. 140.

Ibid., "Proclamation of Neutrality," April 22, 1793,

177

because France, unable to realize the fruits of either

American neutrality or its treaty relationship, found itself

bound to obligations that enabled its enemy to benefit while

it could not. For this reason statements of the French

government and some Americans that American policy favored

Britain to the detriment of France had substance.48
The abandonment by the United States of "free ships

make free goods" as a general principle of the law of nations,

one that it could with propriety demand that Britain observe,

provides an example of the effect of this situation. The

American action, though in the abstract an unexceptionable

change in policy supported by the authorities, was a severe

blow to France. It, as would also be true later of the

provisions in the Jay Treaty, rather clearly established

that the power of Great Britain would determine the access

of France to American commerce. To a large degree it was,

in regard to France, an institutionalization of an "English

neutrality."

 

481bid., "Genet to Thomas Jefferson," July 9, 1793,
p. 164; "Genet to Thomas Jefferson," July 25, 1793, p. 165;
"James Monroe to the Secretary of State," November 7, 1794,
p. 682. James Monroe, James Monroe Papers, Presidential
Papers Microfilm (Washington: Library of Congress, 1960),
Series 1, Reel 1, "Robert Livingston to James Monroe,"
January 4, 1794; "Robert R. Livingston to James Monroe,"
March 13, 1794. James Madison, James Madisee_Papers, Presi-
dential Papers Microfilm, Series 1, Reel 5, "James Madison
to Thomas Jefferson," June 29, 1793. Note: This is a very
small sampling of correspondence of a like nature passing
between those who were critical of American policy.

 

 

178

That this was the effect is clear in the way the deci-
sion was presented to France. Thomas Jefferson stated
that the new policy was merely a return to the general law
of nations about which France could have no complaint and
that any hardship resulting from the alteration was counter-
balanced by the fact that France could seize American prop-
erty on British ships that existed in far larger amounts

than on French vessels.49

The first point was unacceptable

to France because of the contrary obligations in its treaties
with the United States. The second, while it seemed a reason-
able trade-off, was no more acceptable than the first because
it supposed the existence of a French navy able to make use

of its right. Such a force did not, in fact, exist.SO

 

49U. 5., American State Papers, Vol. I, "Thomas Jefferson
to Genet," July 24, 1793, pp. 166-167. See also: Alexander
Hamilton, The Papers of Alexander Hamilton, Vol. XV, "No
Jacobin No. III," August 8, 1793, pp. 203-207. Such state-
ments as these were repeatedly made as the controversy
developed, particularly by defenders of the Jay Treaty.

50Another example of the real effect of American policy
was the sale of and trade in contraband goods. The law of
nations permitted the seizure of contraband wherever found.
That did not mean that a vessel could not carry such goods,
only that it did so at its own risk. The Proclamation of
Neutrality recognized this when it denied the protection of
the United States against "such punishment or forefeitures"
that might be allowed under the law of nations but did not
otherwise prohibit the trade. In June, 1793, regarding the
French purchase of arms, Jefferson stated that the law of
nations did not prohibit such trade and thus a refusal to
sell such goods would be a violation of neutrality. While at
the time the ruling favored France, it cut both ways. If the
sale of contraband was allowed to one nation it had to be
allowed for the other. In January, 1796, Adet, the French
minister, protested the sale of flour and horses to Britain

 

179

France was determined to change the drift of American
neutrality but the action it demanded would, very likely,
have resulted in an Anglo-American war. A war, however, was
exactly what the United States wanted to avoid, hence the
partial reconciliation with Britain in the Jay Treaty.
Indeed, the statements in defense of the Jay Treaty were as
applicable to American objectives in 1793 as they were later.
In September, 1795 Timothy Pickering made it clear that under
no circumstances would the United States risk its neutrality
and thus its commerce to the uncertainties of war because

The degree of security which we enjoy is well
known to depend more upon the common wants of the
nations at war, than upon the exertions which we

can immediately make of an offensive nature. Indeed,

nothing of this kind could be attempted without a

total sacrifice of our commerce. How preposterous

is that policy which requires us to abandon and

destroy the very object, for the preservation of
which we are invited to commence hostilities.S

 

for use against the French islands and implied that it was
an act of war. The Secretary of State replied that the only
American obligation was to treat both sides alike, there
existing no obligation to destroy its commerce in remaining
neutral. Unfortunately, while the United States might be
willing to deal with both sides, by 1796 and even in 1793,
France was unable to take advantage of it.

U. 8., American St§£9 Papers, Vol. I, "Proclamation of
Neutrality," April 22, 1793, p. 140; "Thomas Jefferson to
M. Teinant," May 15, 1793, pp. 148-149; "Adet to Timothy
Pickering," January 12, 1796, p. 645; "Adet to Timothy
Pickering," March 11, 1796, pp. 646-649; "Timothy Pickering
to Adet," January 20, 1796, pp. 645-646.

51Ibid., "Timothy Pickering to James Monroe," September

12, 1795, pp. 596-598.

180

In 1797 Pickering pointed to the absurdity of believing that
the United States in its undeveloped condition, one that
France certainly recognized in 1778 would continue for some
time, could "compel the maritime nations in general and
Great Britain in particular, to admit our commerce to perfect
freedom." But, if that was what France had wanted

. . . then instead of a treaty of commerce containing

regulations for conducting it, when France should be

at war, she could have demarched from us a stipulation

that in every future war in which she should be en-

gaged with any other maritime power, we also would

engage in it as her associate. But this was a condi-

tion that France was too just to demand and to which

the United States would never have agreed.52

The law of nations was an important issue in the debate.
A treaty established the stipulative law of nations and while
its provisions might modify the general or necessary law
insofar as the two nations were concerned, they could, in
themselves, have no influence on the law as it affected
others.53 At the same time it was clear that, regardless
of the content of an agreement, both parties to it were

54

obligated to observe its provisions. The reason for this

was that it made little sense to permit a nation to end a

 

SZEEiQ-r "Timothy Pickering to Charles Pinckney,"
January 16. 1797, pp. 559-572.

53Vattel, The Law of Nations . . ., Introduction, 8'5.
8, 9, and 24; B. II, C. XII, S. 158. Wolff, The Law of
Nations, 5'5. 5 and 23.

54Vattel, The Law of Nations . . ., B. II, C. XII, S.
163; B. III, C. XV, S. 221.

 

 

181

treaty as soon as it saw that its interests could be better
served by other stipulations. The United States opposed
France on this basis, insisting that the general law of
nations was irrelevant to relations between the two states.
What was significant was the existence of a treaty that had
modified the operation of the general law of nations and
which France was required to honor according to the general
obligation of all nations to observe their agreements. This
was stated by Gouverneur Morris in May, 1793 and was re-
emphasized by James Monroe upon his arrival in France.55

In response to American protests and demands for its
adherence to the Treaty of Amity and Commerce, France used
essentially the same arguments proposed by Hamilton against
the Alliance in May, 1793. Unfortunately it had to use them
openly and, in the process, found them attacked on the same
grounds that Jefferson had used in the debate with Hamilton.
France argued that the Treaty of Amity and Commerce put it
at such a disadvantage that its very existence was threatened.
In some cases this would have been a substantial argument
but, in this instance more than most, the rule that a signa-
tory to a treaty had to calculate the effects of the treaty

for its duration had great relevancy. As Timothy Pickering

 

55U. S., Americen State Papers, Vol. I, "Gouverneur
Morris to Deforgues," October 19, 1793, pp. 313-314; "James
Monroe to the Committee of Public Safety," September 3,
1794, pp. 676-678.

 

182

pointed out, France, in 1778, must have been aware of the
long-term American weakness and inability to defend ade-
quately its maritime interests. At the same time it must
have been clear that the probability of future wars with
Britain was great and, considering the general British policy
toward neutral trade, that a provision establishing "free
ships make free goods" could only operate to its disadvantage
if Britain did not also observe the doctrine, a very unlikely
event. France thus had second thoughts about a situation
that should have been recognized in the beginning.

A second point of conflict on the law of nations was
over the substance of the law. Prior to 1789 the United
States had maintained, contrary to the accepted rule, that
the law of nations could be modified by treaty. It did so
because such was in the American interest and was particu-
larly evident in its reaction to the League of Armed Neutral-
ity. By the 1790's the situation had changed and the aban-
donment of "free ships make free goods" in regard to Britain
clearly indicated that the United States had gone to the
more usual rule that treaties could establish only the
stipulative law of nations. France protested the American
action of 1793, as it would later the Jay Treaty, stating
that "in vain do the principles of neutrality establish that

friendly vessels make friendly goods."56 France seemed to

 

56
p. 165.

Ibid., "Genet to Thomas Jefferson," July 25, 1793,

 

183

be indicating that it was adhering to the previous American
policy but, in reality, it was attempting to follow two
policies at the same time. While upholding "free ships make
free goods" as a principle established by treaties as part
of the general law of nations it was also, in its decrees,
stating that it, depending on its interests, would determine
the law of nations as it applied to France. The United
States could not accept this for to have done so would have
been to admit tacitly that there was no effective legal
system governing international relations, thus undermining
its interests, neutrality, and policy toward both belligerents.
In June, 1794, James Monroe became the new American
minister to France, replacing Gouverneur Morris who had
become unacceptable to the French government. This did not
mean, however, that the fundamental policy of the United
States had changed. He was instructed to insist on the full
observance of the Treaty of Amity and Commerce and to warn
France that its continued seizures could only alienate
American merchants and curtail trade.57 In July he was
exhorted to push to the fullest for an end to French depreda-
tions and treaty violations while being careful not to offend

France or weaken existing ties.58 In September, 1794, he

 

57Ibid., "Instructions to James Monroe from Edmund
Randolph," June 10, 1794, pp. 668-669.

58Ibid., "Secretary of State to James Monroe," July 30,

1794: Pp. 669-670.

 

184

carried out his instructions, making clear the American
opposition to French violations of the treaty.59 Initially
this had little effect for in November, France issued a new
decree that, while removing some restrictions, denied a
return to "free ships make free goods" until Britain had
removed its orders and provided indemnities for the damage
resulting from them.60 In January, however, that condition
was removed and the provisions of the treaty were apparently

61 In better times this would

returned to full operation.
have been a victory for the United States but by then the
die was cast, the Jay Treaty had been signed.

Under any conditions American overtures to Britain
would have been regarded with suspicion by France but that
was particularly true in the climate of 1794 and 1795. This
was apparent to Washington's administration at the time of
the dispatch of the Jay mission. In an effort to remove

French apprehensions Fauchet, the French minister, was told

that Jay was instructed not to weaken, in any way, the French

 

59;§3§., "James Monroe to the Committee of Public
Safety," September 3, 1794, pp. 676-678.

60U. 8., American State Papers, Vol. III, "Extract of
the Register of Arrets of the Committee of Public Safety,
Finance, and Supplies," November 18, 1794, pp. 285-286.

61;§3§., "Extract of the Register of Arrets of the
Committee of Public Safety," January 3, 1795, p. 286.

185

treaty.62 Monroe was instructed that, in order to meet
French suspicions, he could declare that
. . . the motives of that mission to be to obtain
immediate compensation for our plundered property,
and restitution of the posts. You may intimate, by
way of argument, but without ascribing it to the
government, that, if a war should be necessary, the
affections of the people of the United States towards
it, would be better secured by a manifestation that
every step had been taken to avoid it; and that the
British nation would be divided, when they found that
we had been forced into it.
In December, before the Jay Treaty was known in the United
States he was again instructed to "remove every suspicion
of our preferring a connexion with Great Britain, or in
any manner weakening our old attachment to France."64
Monroe's instructions, while not misleading in light of
the American tendency to isolate relations with Britain from
those with France, created serious problems in his repre-
sentations to the French government. As an ardent Republi-
can Monroe emphasized the portion of his instructions
intended to allay French fears about an Anglo-American

rapprochement rather than the substantive portion expressing

unalterable opposition to French violations of the Treaty of

 

62U. 8., American State Papers, Vol. I, "George
Washington to the Senate," April 16, 1794, p. 593.

63Ibid., "Instructions to James Monroe from Edmund

Randolph," June 10, 1794, pp. 668-669.
Ibid., "Secretary of State to James Monroe," December

 

64
5, 1794 pp. 690-691.

186

Amity and Commerce. This led him to express disapproval of
the hard line taken in his instructions and, when the Jay
Treaty became known, surprise at its content.65 Though he
was cautioned that his French sympathies might give France
a false impression of American policy, his position changed
little.66
French reaction to the treaty was predictable.

According to John Quincy Adams, this resulted not from the

content of the agreement but the existence of a treaty of

 

65Ibid., "James Monroe to the Secretary of State,"
November 7, 1794, pp. 681-683; "James Monroe to the Secre-
tary of State," February 12, 1795, pp. 694-695; "James
Monroe to the Secretary of State," August 17, 1795, pp. 720-
721. James Monroe, James Mopgoe Papers, Presidential Papers
Microfilm, Series 1, Reel 1, "James Monroe to James Madison,"
September, 1795. Note: Monroe's partiality toward France
was a serious problem for, to a large degree, he was substi-
tuting his own views for those of the American government.
This was particularly true in his intimation, in November,
1794, that the Alliance was still in effect and the United
States might soon join France in a war against Spain and
Britain. His actions were in violation of a cardinal rule
of diplomacy and brought severe criticism from George
Washington and even some Republicans such as James Madison.
U. 8., American State Papers, Vol. I, "Observations Submitted
by Mr. Monroe to the consideration of the Diplomatic Members
of the Committee of Public Safety," November, 1794, pp. 686-
687. George Washington, The Writings of George Washington,
Vol. 36, August 4, 1797 to October 28, 1798, ed. by John C.
Fitzpatrick (Washington, D.C.: Government Printing Office,
1941), "Remarks on Monroe's 'View of the Conduct of the
Executive of the United States,'" March, 1798, pp. 194-237.
James Madison, James Madison Papers, Presidential Papers
Microfilm, Series 1, Reel 5, "James Monroe to James Madison,"
February 12, 1795.

66U. S., American‘State Papers, Vol. I, "Secretary of
State to James Monroe," December 2, 1794, pp. 689-690;
"Secretary of State to James Monroe," August 22, 1796, p.
741; "Secretary of State to James Monroe," September 9, 1796,
p. 742.

187

any kind.67 The major defect of the treaty was that it made

an immediate Anglo-American confrontation improbable and
meant that American policy toward France would become, if
anything, more determined. To France,America had ceased to
be neutral, abandoning its ally for an alliance with England.
The neutral principles consecrated in the Treaty of Amity
and Commerce were for naught. "Free ships make free goods"
and a limited list of contraband that it saw as integral
parts of the law of nations counted for nothing. France saw
in the treaty,

. . . concluded in the midst of hostilities, a breach

of the friendship which unites the United States and

this republic, and in the stipulations which respect

the neutrality of the flag, an abandonment of the

tacit engagement which subsisted between the two

nations upon this point since their treaty of commerce

of 1778.6

The American response was sharp and to the point. It,
as a sovereign state, had negotiated a treaty with another
sovereign state to regulate commercial relations and settle

problems peculiar to their relationship. As an act of

sovereignty France could have no legitimate grievance

 

67John Quincy Adams, The Writings oflgohn Quincy_Aeams,
Vol. I, 1779 to 1796, ed. by Worthington Chauncy Ford, "John
Quincy Adams to John Adams," May 22, 1795, pp. 353-363.

680. 8., American State Papers, Vol. I, "Minister of
Foreign Affairs to the Minister Plenipotentiary of the
United States of America," July 7, 1796, p. 739.

 

188

regarding either its existence of content.69 Indeed, the
debate turned into one over the sovereignty and independence
of the United States with George Washington stating that
"we will not be dictated to by the politics of any nation
under heaven." He declared that
. . . if we are to be told by a foreign power (if our
engagements with it are not infracted) what we shall

do, and what we shall not do, we have independence
still to seek, and have contended hitherto for little.

70
Along the same line Pickering stated that "as an independent
nation, we were not bound to render an account to any other,
of the means we deemed proper for the protection of our own
citizens."71 On the question of "free ships make free goods"
and contraband, while the United States opposed the British

position on neutral rights and desired its recognition of the

 

69Ibid., "Timothy Pickering to James Monroe," November
12, 1795, pp. 596-598. This was the official view of the

Jay Treaty to be presented by Monroe to the French govern-
ment. The position taken in it is essentially the same as
that taken in all defenses of the treaty both past and
future. As is clear to anyone reading the correspondence on
this subject, the exchange became very repetitious, each side
stating its case over and over in the same terms and getting
again and again the same response.

70George Washington, The Writings of George Washington,
Vol. 35, March 30, 1796 to July 31, 1797, ed. by John C.
Fitzpatrick (Washington, D. C.: Government Printing Office,
1940), "George Washington to Alexander Hamilton," May 8,
1796, pp. 38-43. See also: Alexander Hamilton, The Works of
Alexander Hamilton, Vol. X, ed. by Henry Cabot Lodge (New
York: G. P. Putnam's Sons, 1904), "Alexander Hamilton to
William Bradford," May, 1795, pp. 98-101.

71U. 8., American State Papers, Vol. I, "Timothy
Pickering to Adet," November 1, 1796, p. 578.

 

 

 

189

American view, it had been unable to do so and was thus
forced, without giving up any solid right to turn to the
strict law of nations for the protection of its commerce.72
The most tangible reflection of French opposition to
the treaty came in the form of two decrees, the first on
July 2, 1796 and the other on March 2, 1797, declaring that
neutral ships would be treated as they allowed themselves to
be treated by England. They were justified because the
United States had not and was not making any attempt to halt
British practices and, instead, had acquiesced in them.73
The United States declared, in response, that France could
do what it wished against nations with whom it had no treaty
but not in regard to the United States, particularly since
it had done nothing but base its policy on the strict law
of nations with which no one could have any argument.74
In early 1796 James Monroe, on the basis of conversa-

tions with French officials, stated that an open split was

coming because the Jay Treaty had modified or amended the

 

72;§£g., "Secretary of State to Adet," July 6, 1795,
pp. 595-596; "Timothy Pickering to James Monroe," September
12, 1795, pp. 596-598.

73Ibid., "Adet to Timothy Pickering," October 27, 1796,
p. 577. U. 8., American State Papers, Vol. III, "Decree of
the Executive Directory,“ July 2, 1796, p. 287; "Decree of
the Executive Directory," March 2, 1797, pp. 287-288.

74U. 8., American State Papers, Vol. I, "Timothy
Pickering to Adet," November 1, 1796, p. 578.

 

 

190

existing treaties thus raising the question of the basis on
which either side could abrogate its agreements with the
other.75 In reality there were two issues involved, the
first concerning the conflict of articles in two different
treaties and the second, the conditions under which a treaty
could be ended for violations of its provisions.

France charged that the Jay Treaty conflicted with the
Treaty of Amity and Commerce in its provisions on "free
ships make free goods," contraband, and privateers, thus
constituting possible grounds for the abrogation of the
agreement. On this point the law of nations was clear, it
was not permissible to enter into a treaty that was in
conflict with one already existing for such would be contrary
to the perfect right gained by the signatory of the earlier
treaty.76 Vattel stated that

As express promises and engagements should be
inviolable every wise and virtuous nation will be
careful previously to examine and weigh a treaty of
commerce before the concluding, that it may not

thereby be engaged to anything contrary to the duties
it owes itself or others.77

 

75Ibid., "James Monroe to the Secretary of State,"
February 16, 1796, p. 730. James Madison, James Madison
Papers, Presidential Papers Microfilm, Series 1, Reel 6,
James Madison to Thomas Jefferson," May 22, 1796.

76Vattel, The Law of Nations . . ., B. II, C. XII, S.
165. Wolff, The Law of Nations, S's. 381-383.

77

 

 

 

Vattel, The Law of Nations . . ., B. II, C. II. S. 28.

 

191

According to both Vattel and Wolff, however, only those
portions of a treaty in conflict with an earlier one were
void.78 Thus, if conflict did, in fact, exist France would
have a perfect right to withdraw from those articles in
conflict but, as will be seen, it was questionable whether
such conflict did exist.

The Treaty of Amity and Commerce, being the earlier
agreement, thus took precedence over the Jay Treaty in those
parts giving rights exclusively to France. In the Franco-
American Treaty only Articles XIX and XXIV, referring to
privateers, gave to France an exclusive right not to be given
to any other power. The articles dealing with "free ships
make free goods" and contraband did not, by their language,
constitute rights given exclusively to France or ones that
had to be included in other treaties signed by the United
States in exactly the same form as in the agreement of 1778.79
Indeed, the Jay Treaty, in reference to the articles that,
if exercised, would directly conflict with the French treaty,

stated that "nothing in this treaty contained shall however

be construed or operate contrary to former or existing public

 

781bid., B. II, c. x11, 5. 165. Wolff, The Law of
Nations, S. 384.

79Miller, Treaties and Other International Acts . . .,
Vol. II, "Treaty of Amity and Commerce [France]," February
6, 1778, Articles XVI, pp. 14-15; XIX, pp. 16-17; XXIV pp.
19-20; XXV, pp. 20-21; and XXVI, pp. 21-23.

 

 

192

treaties with other sovereigns or states" thus bringing it
into conformity with the law of nations and removing the
possibility of a violation of the treaty for such could occur
only if an attempt were made to implement the conflicting
articles of the more recent treaty.80
The treaties were abrogated in July, 1798 not by France
because of conflicts with the Jay Treaty but by the United
States for continued French violations that made the agree-
ments "no longer obligatory on the United States."81 It came
on the heels of the failure of the Pinckney, Marshall, Gerry
mission, the instructions for which had indicated a change
in American policy and a willingness to renegotiate the
treaty, something suggested by Hamilton in May 1796.82
In January, 1797 there was little evidence that the
United States contemplated any change in its policy.
Instructions to Charles Pinckney, American minister to France,
sent on January 16, 1797 clearly indicated that the United

States would accept no deviation by France from its obliga-

tions and refused to admit that the Jay Treaty had compromised

 

80Ibid., "Treaty of Amity, Commerce and Navigation
[Great Britain]," November 19, 1794, Article XXV, pp. 262-
263.

81Public Statutes at Large, Vol. I, "An Act to Declare
the Treaties Heretofore Concluded with France, No Longer
Obligatory on the United States," July 7, 1798, 5th Congress,
2nd Session, Chapter LXVII, Statute II, p. 578.

82Alexander Hamilton, The Worke of Alexander Hamilton,
Vol. X, ed. by Henry Cabot Lodge, "Alexander Hamilton to
George Washington, May 20, 1796, pp. 165-170.

 

193

its neutrality or was in conflict with the provisions of the

83 At the same time Alexander

Treaty of Amity and Commerce.
Hamilton was charging, in "The Warning," that France,
because of its efforts at domination, was America's greatest
enemy.84

By July, however, a new initiative was to be offered in
an attempt to settle an apparently insoluble problem. As it
had in the Jay Treaty, the United States proposed to turn
to the general law of nations for the protection of its
commercial rights and was willing to give to France the same
rights in regard to marginal contraband that it had given
Britain. The envoys could substitute Articles XVII and
XVIII of the Jay Treaty, concerning the seizure of enemy
goods on neutral ships and contraband, for Articles XXV and
XXVI in the Treaty of Amity and Commerce if France would
agree to remove Article XVI providing for the seizure of
neutral goods on enemy ships.

On other issues modification or clarification was also

indicated. To combat the effects of the Rule of 1756, the

 

83U. 5., American State Pa ers, Vol. I, "Timothy
Pickering to Charles Pihckney,‘ January 16, 1797, pp. 559-
574.

84Alexander Hamilton, The Works of Alexander Hamilton
Vol. IV, ed. by Henry Cabot Lodge (N. Y.: G. P. Putnam's
Sons, 1904), "The Warning No. I," January 27, 1797, pp. 229-
235; "The Warning No. II," February 7, 1797, pp. 235-240;
"The Warning III," February 21, 1797, pp. 241-245; "The
Warning No. IV," February 27, 1797, pp. 245-249' "The Warning
No. V," March 13, 1797, pp. 249-253.

 

194

access of the United States to the peace-time trade of

France was to be clearly established. In addition, to pre-
vent retaliation against neutrals it was considered desirable
to state that "the conduct of the enemy toward the neutral
powers shall not authorize or excuse the other belligerent
power in any departure from the law of nations or the
stipulations of the treaty." As to the guaranty, because
that by France of the independence of the United States would
add nothing to American security while that by the United
States of French possessions in America "will perpetually
eexpose us to the risk and expense of war, or to disputes

23nd questions concerning our national faith," it was con-
sidered necessary either to remove it entirely or substitute
a payment of money or goods, the latter to be transported in
the vessels of the belligerent. Finally, in regard to
privateers and prizes, the only major issue that the United
States refused to compromise on, the courts of the particular
nation were to take cognizance of captures made within its
territory or by illegal privateers and it was to be clearly
stated that it was illegal to arm privateers in the ports of
the other party and that the sale of prizes was a privilege,

not a right.85

 

85U. 8., American State Papers, Vol. II, "Instructions
to Pinckney, Marshall, Gerry, Esquires, Extraordinary and
.Ministers Plenipotentiary from the United States of America
to the French Republic," July 15, 1797, pp. 153-157.

 

195

Unfortunately the climate in France provided no possi-
bility for the achievement of American objectives. Indeed,
the concessions that the United States was prepared to make
never received a hearing or provided a basis for negotiation.
Instead, France charged that the United States favored Britain
and had abandoned France. It presented demands that were
both demeaning and an attack on American sovereignty. By
March, 1798, upon receiving the reports from Paris and after
France had issued a new decree declaring that the character
of neutral vessels would be determined by their cargoes,
John Adams stated that he could see no way in which "the ob-
jects of their mission can be accomplished on terms compat-
able with the safety, the honor, or the essential interests
of the nation" and called for preparations for war.86 In
June Adams declared that

I will never send another minister to France
without assurances that he will be received, respected,

and honored, as the representative of a great, free,
powerful, and independent nation.87

 

86Ibid., "Presidential Message to Congress," March 19,
1798, p. 152. Note: this is essentially what the envoys
stated in their letter of January 8, 1798 that declared that
"there was no hope of our being received by this government,
or that the object of our mission will be in any way accom-
plished." "Charles Pinckney, John Marshall, and Elbridge
Gerry to the Secretary of State," January 9, 1798, p. 151.

U. 8., American State Papers, Vol. III, "Law which Determines

the Character of Vessels . . .," January 18, 1798, p. 288.

87U. 8., American State Papers, Vol. II, "John Adams to
the Gentlemen of the Senate and the Gentlemen of the House
of Representatives," June 21, 1798, p. 199.

 

 

196

It was clear that no settlement could be reached in peace
and that American neutrality and friendship had become
expendable for France.

The abrogation of the treaties in July, 1798 was not
precipitate. France had violated them since 1793 and had
rejected an American offer to renegotiate the agreements
that represented a significant departure from past policy.
Vattel stated that if the provisions of a treaty injured
one of the signatories, as France argued that those of the
Treaty of Amity and Commerce did, the other party might
modify the agreement. It was not, however, required to do
so, particularly if such action would cause danger, hardship,
or severe 1033.88 It was such an alteration of the treaties
that the special mission was trying to achieve. It was an
indication that the United States had accepted, in substance,
such statements as Genet's that

. . . the engagements we have contracted with you

placing us in a most disadvantageous position, with

respect to our enemies, in depriving us of the
privilege of using, at every point, with regard to
them, the right of repirsals, it is as necessary for
your as for our interests, that we should agree quickly
to take other measures.89

At the same time it was an implied recognition that the Jay

Treaty had modified the American relationship with France and

 

88Vattel, The Law of Nations . . ., B. II, C. XII, S.

159.
89U. 8., American State_Papers, Vol. I, "Genet to
Thomas Jefferson," July 9, 1793, p. 164.

197

that an adjustment was needed to bring about an equality
between the two enemies, something that the United States
had rejected previously.

The rejection of the attempt at renegotiation left the
United States with little recourse under the law of nations.
According to the authorities, the violation of one article
of a treaty violated the whole treaty and, in return for
the injury received, a nation had the "perfect right" either
to compel the violator to observe its obligations or with-
draw from the articles infracted or the whole treaty.90
The first option was unacceptable, leaving only the second.
Under normal circumstances the rule that the violation of
one treaty did not affect others would have permitted the
United States to terminate only the Treaty of Amity and
Commerce since the alliance, never having been formally in-
voked, had never been violated by either party. However, if
satisfaction was not received or, according to Wolff, the
second treaty constituted what had been promised in return
for the other agreement, a nation could withdraw from other

treaties.91 It could thus be argued that the alliance, being

 

90Vattel, The Law of Nations . . ., Introduction, 8. 17;

E. II, C. XII, S. 164; B. II, C. XIII, S. 202; B. III, C. XV,
S. 221. Wolff, The Law of Nations, S. 430.

91Vattel, The Law of Nations . . ., B. II, C. XIII, S.
201. Wolff, The Law of Nations, 8'8. 431 and 432. Note:
This was, the very argument presented to the French negotia-
tors in support of the American abrogation of the treaties
by the Ellsworth, Davie, Murray Mission in August, 1800. U.S.,
American State Papers,Vol. II, "Envoys to the Ministers
Plenipotentiary of France," July 23, 1800, pp. 328-329.

 

198

the quid pro quo of the Treaty of Amity and Commerce was also

 

in jeopardy.

The termination of the treaties had important conse-
quences. For France it meant an end to the commercial
privileges granted to it under the agreement; more importantly,
it meant that the Jay Treaty took precedence over any agree-
ment that the United States might later negotiate with France.
Certainly the possibility of such an event was clear to
Britain as early as January, 1797 for Grenville instructed
Liston, the British minister to the United States, to insure
that, in the event of a Franco-American war or an abrogation
of the treaties, the Jay Treaty immediately took precedence.92
In January, 1801, after the negotiation of a new convention
with France, John Adams noted this fact and declared that,
according to the authorities, the Jay Treaty took precedence
over the new agreement.93

For the United States the abrogation of the treaties
meant that the policy, in its essentials, advocated by
Hamilton in 1793 had been implimented. No longer was the
United States tied to the alliance or to principles, however

admirable, that it was unable to maintain. It represented

a retreat from the liberal principles that it had formerly

 

92Instructions to the British Minieters . . ., "George
Grenville to Edward Liston," January 27, 1797, pp. 127-128.

93U. 8., American StateiPapers, Vol. II, "John Adams to
the Gentlemen of the Senate," January 21, 1801, p. 295.

 

199

supported at least as significant as that in the Jay Treaty.
The United States had recognized that its problems with
France could not be settled in the existing situation. It
thus prepared for a war with France that it had been unwill-
ing to risk with Britain.

The undeclared naval war that began in 1798 was, in
many respects, a more violent continuation of what had been
going on for several years but it was not a situation that
could be allowed to continue. The basic American interest
was peace and neutrality, not a war that, whatever its intent,
would tend to push the United States closer to England and
involvement in the affairs of Europe. As early as February,
1799, informal negotiations had begun between William Vans
Murray and a French diplomat in the Netherlands to open the
door to a settlement.94

In October, 1799 a new mission was sent to France but
its instructions were far different from those given the
earlier one. At the outset, there was to be no negotiation
unless the envoys were received as their positions demanded.
On the substantive portion of the negotiation, the old
treaties were not to be renewed either in whole or in part
because, by an act of Congress, they no longer existed.
Second, compensation was to be obtained for all illegal

seizures and a board established to determine the amount.

 

94Ibid., "John Adams to the Senate," February 18, 1799'
pp. 239-244.

200

Third, there was to be no guaranty or alliance in any form.
Fourth, in reference to the XYZ Affair, there was to be no
promise of aid or a loan. Fifth, nothing in conflict with
other treaties was to be accepted, particularly in regard to
Articles XXIV and XXV of the Jay Treaty that now took
precedence over XIX and XXVI of the former French agreement.
Sixth, there was to be nothing inconsistent with American
sovereignty. Finally, the treaty was to be limited to twelve
years.95

On April 17, 1800 the American ministers sent their
draft of a new treaty to those of France incorporating the
major portions of their instructions. In Article II, dealing
with compensation, there appeared a clear statement that the
old treaties no longer existed. The board would make its
decision on compensation

. . . according to the original merits of the several

cases and to justice, equity, and the law of nations;

and in all cases of complaint existing prior to the

7th of July, 1798, according to the treaties and

consular convention then existing between France and

the United States.
The project specifically authorized the capture of enemy

goods on neutral ships and, in the case of contraband, while

it was not as explicit about non-contraband as the previous

 

95Ibid., "Instructions to Oliver Ellsworth, William
Vans Murray, and William Richardson Davie, Esquires, Envoys
Extraordinary and Ministers Plenipotentiary of the United
States of America to the French Republic," October 22, 1799,
pp. 301-306.

201
treaty, it did not go as far as the Jay Treaty.96
Using the project as a basis for negotiation, the
talks proceeded. France immediately objected to any recog-
nition of the American abrogation and demanded that the
agreements be revived before any negotiations aimed at
their modification or the settlement of indemnities could
occur.97 The reason for this was that if France accepted
the American arguments then it was recognizing that the Jay
Treaty took precedence and would continue to do so in regard
to any agreement that was finally signed. It argued that
only a war could destroy a treaty and, therefore, if the
United States wanted a new treaty it would have to be pre-.
ceded by a peace treaty. In that event, however, there
would be no obligation, such as would exist under the old
treaties, to repair damages for to do so would be to
acknowledge an American victory in war and the acceptance of
an inferior position in regard to another power, a situation
that France could not endure since it could not recognize

the establishment of another's rights at the expense of its

 

96Ibid., "The Envoys Extraordinary and Ministers
Plenipotentiary of the United States of America to the
Ministers Plenipotentiary of the French Republic," April
17-18, 1800, pp. 316-317, 321-324.

97Ibid., "French Ministers to the Envoys," May 6, 1800,
pp. 319-320; "American Envoys to the Secretary of State,"
July 11, 1800, pp. 327-328; "French Ministers to the Ameri-
can Ministers," September 3, 1800, pp. 338-339.

202

own.98 In response the American ministers steadfastly refused
any renewal of the former treaties particularly in regard to
the sections dealing with privateers because of the Jay
Treaty but offered to remove "free ships make free goods,"
in return. They emphasized to France the desirability of an
agreement for the commerce of both nations. Finally, however,
an acceptable solution for either compensation or the renewal
of the treaties was not reached and, instead of a treaty, a
convention was signed.99

The final agreement signed on September 30, 1800 was,
regardless of the rhetoric, essentially a revival of the old
Treaty of Amity and Commerce. Nothing substantive was said
about either compensation or the status of the original
treaties of 1778. "Free ships make free goods" and a
limited list of contraband were retained. There was, however,

a greater regulation of privateers, the owners and captains

of such ships having to put up security against any illegal

 

98Ibid., "American Envoys to the Secretary of State,"
July 11, 1800, pp. 327-328; "French Ministers to the Envoys,"
July 26, 1800, p. 320; "French Ministers to the Envoys,"
August 11, 1800, pp. 331-332' "French Ministers to the
American Ministers," August 25, 1800, pp. 334-335.

99Ibid., "Envoys to the French Ministers," April 17, 1800,
pp. 316-317; "Envoys to the French Ministers," May 8, 1800,
pp. 320-321; "Envoys to the Secretary of State," July 15, 1800,
p; 328; "Envoys to the French Ministers," July 23, 1800, pp.
328-329; "Envoys to the French Ministers," August 20, 1800,
pp. 323-334; "Envoys to the French Ministers," August 29, 1800,
pp. 335-336; "Reflections of the American Ministers . . .,"
September 12, 1800, pp. 337-338; "Envoys to the French
Ministers," September 13, 1800, p. 339.

203

activities, and prizes, the determination of their status
being left to the prize courts in the respective nations.100
This effectively removed the problem of the sale of French
prizes in American ports because they obviously could not

be sold until they were determined to be legal prizes.

The ratification of the agreement presented several
problems because of the condition attached by the United
States Senate. Article II which placed the status of the
former treaties in doubt and deferred negotiation on endemni-
ties was to be removed and a provision limiting the agreement
to eight years inserted. France, while agreeing to the
eight year time limit was opposed to the total omission of
the article for it might be taken to mean that France was
adopting the American position on the treaties of 1778.
France, therefore, proposed to state that the convention would
run for eight years but that both nations would renounce the
pretensions that were the object of the original article.
This,<xfcourse,had.several implications, namely that France
had acknowledged the end of the agreements of 1778 while the
United States had renounced its claims for damages due to the

101

violation of those treaties. That this was the ultimate

 

100Miller, Treaties and Other International Acts . . .,
Vol. II, "Convention of Friendship and Commerce [France],"
September 30, 1800, pp. 457-459.

101
480-485.

Ibid., "Commentary on the Convention of 1800," pp.

 

204

effect was clear in the convention for the settlement of
claims signed in 1803 for it made no mention of the treaties
of 1778, only of claims incurred by either side prior to
September 30, 1800, the date of the original signature of
the Convention of Friendship and Commerce.102
Between 1793 and 1800 events forced the United States
to adapt its policies to changed conditions. In the process
it altered its conception of the substance of the law of
nations and came to see it as a support for rather than the
foundation of American foreign policy. The interests of
the United States dictated that it avoid war with England
at almost any cost and hold fast against French attempts to
change the direction of its policy. Conflict with France
thus became almost inevitable and was intensified because
there was no compelling reason for the United States to reach
a settlement on any terms not acceptable to it. The Conven-
tion of 1800 ended the undeclared naval war between the two
nations but it did not solve, anymore than did the Jay Treaty,
the problems that had plagued American neutrality. The war
in Europe ended temporarily with the Treaty of Amiens in 1802
but it was soon to break out again, bringing with it new
attacks on American policy. The only difference would be that
the United States, no longer tied to the treaties of 1778,
could turn to Britain, the far greater threat to its neutral-

ity, in earnest.

 

102Ibid., "Convention on Claims [France]," April 30'

1803, pp. 516-523.

CONCLUSION

This dissertation has examined the role of the law of

nations in American foreign policy between 1776 and 1803.
It must be concluded that the law played a major part in
the relations between the United States and other nations,
but one that was subject to the course of events and the
changing perceptions of Americans as to their interests and

the extent to which the law would support them.

From the American Revolution came an idealism and a
confidence in the fundamental soundness of American princi-
ples and their applicability to international relations.
American statesmen conceived of a world ruled by law rather
than force, where trade would be free with all nations in
either war or peace, and the smallest nation would be as
secure in its rights as the largest. It was not, however,

a dream that existed in isolation from American self-interest.
As early as 1776 men such as John Adams perceived that
American interests could be best served by neutrality in all
future European wars, general non-involvement in the political
affairs of Europe, and the encouragement of commercial expan-
sion in order to promote American prosperity. Only by this

means would the United States be assured of survival and be

205

206

allowed to achieve its destiny as a great and powerful
nation.

If the American world view and its fundamental inter-
ests were to be served, more than a mere implementation of
a foreign policy was needed. Indeed, a fundamental change
in the international system and the minds of those who
operated within it was required. To this end the United
States turned to the law of nations as the only existing
system that both supported its principles and that, if
observed, seemed to offer a hope for their attainment. The
law of nations appealed to Americans because of their attrac-
tion to the law of nature and because it was the only defense
that the United States, in its weak and undeveloped condi-
tion, had in case of conflict. Unfortunately, for the
United States, the lack of a serious external challenge to
its policy, aimed at establishing neutral rights, before 1789
made such events as the Declaration of the Armed Neutrality
and the negotiation of liberal commercial treaties with
European nations seem more supportive of the American inter-
ests and reliance on the law of nations than they really
were. The United States had, in fact, chosen to rely on a
system that was out of phase with conditions as they actually
existed in the eighteenth century and which could not ade-
quately support American interests in time of crisis such as

would exist in the 1790's.

207

The outbreak of the European war in 1792 and 1793
forced the United States to make a realistic appraisal of
the degree to which its principles and ideals could ade-
quately serve its interests in the changed circumstances.
The United States found itself subjected to strong pressure
by the two major European belligerents, Britain and France,
and in danger of being drawn into the war. Britain, with
its large navy, harassed American commerce and refused to
admit the validity of any of the principles favorable to
neutral rights that Americans had believed to be established
as part of the general law of nations. At the same time,
France, America's ally, chose to ignore the stipulations
of the Treaty of Amity and Commerce favorable to the United
States and, instead, demanded new rights that, if granted,
would have destroyed or at least severely compromised
American neutrality. It became clear that, in a world caught
up in war, the law of nations had little chance to operate
and thus could not meet American needs.

The United States had two choices, both relating
directly to Great Britain, its most dangerous adversary.
First, it could confront British policies aimed at control-
ling neutral trade and compel it to observe the principles
that the United States had sought to establish. Second, it
could moderate its policy and seek a settlement with Britain

thus abandoning or modifying its principles and relationship

208

with France. To choose the first meant war with the world's
leading naval power, one that it could not hope to win, and
the sacrifice of the trade that, because of its size, was
so necessary for continued American prosperity. The United
States, with the negotiation of the Jay Treaty, chose the
second option because the first was not a viable alternative.
In its weak and undeve10ped state, the United States could
not risk a conflict that might well end its existence as an
independent state. Though this policy brought conflict with
France, the United States could not allow its treaty obliga-
tions to that nation to override its greater interest in
self-preservation or the need to come to terms with an inter-
national system marked by intense rivalries and where power
resided in armies, navies, and financial resources. For the
United States the law of nations had become, in the 1790's,
"a rope of sand."1
Though the idealized American conception of the world
and the role of the law of nations in it collapsed under the
pressures that the Wars of the French Revolution brought upon
it, it should not be assumed that the interest of Americans
in the law and the creation of a better world died with it.
The change that took place in American policy was largely
the result of circumstances over which the United States had

no control rather than because of a fundamental change in the

 

1John Adams, The Works of John Adams, Vol. IX, "John
Adams to John Marshall, Secretary of State," October 3, 1800,
pp. 86-87.

 

209

American mind. Indeed, Thomas Jefferson's,administration,
with James Madison as Secretary of State, returned to the
law of nations with a vengeance. This was not because they,
any more than John Adams did, believed that the law of
nations could effectively protect American interests in a
war where the two major belligerents believed that the
neutral trader should be compelled to serve their interests,
but rather that they, in the absence of any other means,
were willing to use the law rather than compromise their
principles. It was a theme that would surface again and
again in American foreign policy to be used by such men as
Woodrow Wilson and Cordell Hull to gain the acceptance of
their conception of the idealism and promise of America.

The role of the law of nations or international law in
American foreign policy sprang from the idealism and sense
of accomplishment of the founding fathers and their belief
in the need to create an international system in which the
new nation could survive and prosper but it was to remain

as a force long after they were gone.

BIBLIOGRAPHY

PRIMARY SOURCES

Official Records

 

American State Papers. Vols. I to III. Foreign Relations.
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Annals of Congress. Vols. 1 to 10. lst to 6th Congress.
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Diplomatic Correspondence of the United States from the
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3 vols. Washington, D. C.: Blair and Ives, 1837.

 

Duvergier, J. B., ed. Collection Complete des Lois, Decrets,
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Hunt, Galliard, ed. Journals of the Continental Copgress.
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Public Statutes at Large. Vol. I. Boston: Charles C.
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Wharton, Francis. ed. The Revolutionary Diplomatic Corre-
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Collected Treaties

 

de Martens, Charles, ed. Recueil des Principaux Traites.
Vol. V. 1791 to 1795. Paris: 1826.

de Martens, George Frederick, ed. Recueil de Traites.
1761 to 1770. Paris: 1817.

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211

Jenkinson, Charles. lst Earl of Liverpool. A Collection of
Treaties of Peace, Commerce, and Alliance Between
Great Britain and other Powers, From the Year 1619
to 1734, To Which is Added a Discourse on the Conduct
of the Government of Great Britain by C. Jenkinson
Secretary of State. London: 1781.

 

U. S. Department of State. Treaties and Other International
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1818. Edited by David Hunter Miller. Washington, D. C.:
United States Government Printing Office, 1931.

 

Authorities on the Law of Nations

Burlamaqui, Jean Jacques. The Principles of Natural and
Politic Law. 4th ed. Boston: 1792.

Bynkershoek, Cornelius Van. Two Books on Questions of Public
peg, Translated by Frank Tenny. The Classics of Inter-
national Law. Edited by James Brown Scott. Oxford:
Clarendon Press, 1930.

 

 

Gentili, Alberico. Three Books on the Law of War. Trans-
lated by John C. Rolfe. The Classics of International
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Press, 1933.

 

Grotius, Hugo. Three Books on the Law of Peace and War.
Translated by Francis W. Kelsey. The Classics of
International Law. Edited by James Brown Scott.
Oxford: Clarendon Press, 1925.

 

Pufendorf, Baron Samuel. The Law of Nature and Nations.
5th ed. Translated by Basil Kennet. Notes by M.
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U. S. Department of State. Digest of Internatippal Law.
Vol. I. Washington, D. C.: United States Government
Printing Office, 1963.

 

Vattel, Emerich de. The Law of Nations or the Principles of
Natural Law Appliéd to the Conduct of the Affairs of
Nations and Sovereigns. Translated by Charles G.
Fenwick, The Classics of International Law. Edited by
James Brown Scott. Washington, D. C.: Carnegie
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welff, Christian. The Law of Nations Treated According to
a Scientific Method. Translated by Joseph H. Drake.
The Classics of International Law. Edited by James
Brown Scott. Oxford: Oxford University Press, 1934.

212

Commentaries on the Law of Nations

Jenkinson, Charles. lst Earl of Liverpool. A Discourse on
the Conduct of the Government of Great Britain in
Reepect to Neutral Nations. 3rd ed. London: 1759.

 

Madison, James. An Examination into British Doctrine Con-
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Collected Works

 

Adams, John. Dairy and Autobiography of John Adams. 4 vols.
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. The WOrks of John Adams. 10 vols. Edited by
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. Adams, Samuel, and Warren, James. Warren-Adams
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Adams, John Quincy. The Writings of John Quincy Adams.
7 vols. Edited by Worthington Chauncey Ford. New York:
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Burnett, Edmund C., ed. Letters of Members of the Conti-
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Franklin, Benjamin. The Works of Benjamin Franklin.
12 vols. Federal Edition. Edited by John Bigelow.
New York: G. P. Putnam's Sons, 1904.

Hamilton, Alexander. The Papers of Alexander Hamilton.
19 vols. Edited by Harold C. Syrett. New York:
Columbia University Press, l961--.

. The Works of Alexander Hamilton. 12 vols.
Federal Edition. Edited by Henry Cabot Lodge.
New York: G. P. Putnam's Sons, 1904.

 

 

Jay, John. The Correspondence and Public Papers of John
Jay. 4 vols. New York: G. P. Putnam's Sons, 1890-
1893.

 

Jefferson, Thomas. The Papers of Thomas Jefferson. 17 vols.
Edited by Julian P. Boyd. Princeton, New Jersey:
Princeton University Press, 1950--.

 

213

Jefferson, Thomas. The Writings of Thomas Jefferson.
10 vols. Edited by Paul Leciester Ford. New York:
G. P. Putnam's Sons, 1892-1899.

 

. The Writings of Thomas Jefferson. 20 vols.
Edited by Andrew A. Lipscomb and Albert E. Bergh.
Washington, D. C.: Thomas Jefferson Memorial Associa-
tion, 1903-1904.

 

King, Rufus. The Life and Correspondence of Rufus King.
6 vols. Edited by Charles R. King. New York: De Capo
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Madison, James. James Madison Papers. Presidential Papers
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. Letters and Other Writings of James Madison.
4 vols. Philadelphia: J. B. Lippincott Co., 1867.

 

 

. James Madison Papers. 8 vols. Edited by
William T. Hutchinson and William M. E. Rachal.
Chicago: University of Chicago Press, 1962--.

 

 

. The Writings of James Madison. 9 vols. Edited
by Galliard Hunt. New York: G. P. Putnam's Sons,
1900-1910.

 

 

Mayo, Bernard. Instrgctions to British Ministers to the
United States, 1791-1812. Vol. III. Annual Report of
the American Historical Association for 1936.
Washington, D. C.: United States Government Printing
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Monroe, James. James Monroe Papers. Presidential Papers
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Washington, George. The Writings of George Washington.
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Book Catalogues

 

College of New Jersey. Library. A Catalogue of Books in
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Harvard University. Catalogus Liborum Selectus. Boston:
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Harvard University. Library. Catalogus Bibliothecae.
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Knox, Henry. A Catalogue of Books. Boston: 1773.

 

Logan, James. Catalogus Bibliothecae Loganianae.
Philadelphia: 1760.

 

Yale College. Library. A Catalogpe of the Library of Yale
College. New London, Connecticut: 1743.

 

Yale University. Library. Catalogue of Books. New Haven,
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Bowman, Albert H. The Struggle for Neutrality. Knoxville:
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Boyd, Julian P. Number 7. Princeton, New Jersey: Princeton
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Brown, Marvin Luther. American Independence Through Prussian
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Combs, Jerald. The Jay Treaty. Berkeley: University of
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Corwin, Edward S. French Poliqy and the American Alliance
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Gilbert, Felix. To the Farewell Address. Princeton,
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Saint-Simon, Henri. De la Reorganization de la Societe
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