refit the privateer, it is absolutely forbidden. The directions you have already given as to the prize herself concide perfectly with what I think right. No pardon has come to me from Mr. Wagner for Hopkins. I consent to the transfer you propose of the superintendent of the light-houses of Portsmouth and New York to the present collectors of those ports, and to the appointment of the collector for Savannah recommended by General Jackson, if you learn nothing to the contrary from the delegates. Accept assurance of my affectionate esteem and high respect. TO THE U. S. MINISTER TO FRANCE. J. MSS. MONTICELLO, Aug. 28, 1801. DEAR SIR,-Your favor of the 10th instant came to hand yesterday, & I receive it with the respect & attention with which I do everything coming from you. Nothing can be done on the subject of it till after my return to Washington, which will probably be after your departure for France. Whatever may be determined by the gentlemen of the administration on the subject of Mr. Davis, other candidates have been brought forward on grounds so respectable that the prospects of any new candidate cannot but be very doubtful. On this view of the subject I could not undertake to recommend the change in the destination of Mr. Edward P. Livingston in his intended journey with you. We are in hourly expectation of receiving information that the treaty with France is ratified. The only letter from Dawson supposes it unquestionable and that it will be without delay. I am afraid that government may have ideas of sending either La Forest or Otto here. I believe them both unprincipled men, and entirely anti-revolutionary, & so much in sympathy with the monarchical federalists here, that I should expect nothing less than their betraying to them every transaction which should pass with the Executive. Under this impression we could never say a word to either which we should not be willing to publish at once. Whether our suspicions are just or not, their office would [subvert (?)] whatever should depend on confidential communications. Should no appointment be made before your arrival at Paris, it would be important that that government should be apprised in some delicate way that however confidential these men might be with the opposition, they cannot be so with any administration here which shall be republican. I shall trouble you with another letter before your departure. Health & happiness. TO THE U. S. MINISTER TO FRANCE. J. MSS. MONTICELLO, Sep. 9, 1801. DEAR SIR,-You will receive, probably by this post, from the Secretary of State, his final instructions for your mission to We have not thought it necessary to say anything in them on the great question of the maritime law of nations, which at present agitates Europe; that is to say, whether free ships shall make free goods; because we do not mean to take any side in it during the war. But, as I had before communicated to you some loose thoughts on that subject, and have since considered it with somewhat more attention, I have thought it might not be unuseful that you should possess my ideas in a more matured form than that in which they were before given. Unforeseen circumstances may perhaps oblige you to hazard an opinion, on some occasion or other, on this subject, and it is better that it should not be at variance with ours. I write this, too, myself, that it may not be considered as official, but merely my individual opinion, unadvised by those official counsellors whose opinions I deem my safest guide, & should unquestionably take in form, were circumstances to call for a solemn decision of the question. When Europe assumed the general form in which it is occupied by the nations now composing it, and turned its attention to maritime commerce, we found among its earliest practices, that of taking the goods of an enemy from the ship of a friend; and that into this practice every maritime State went sooner or later, as it appeared on the theatre of the ocean. If, therefore, we are to consider the practice of nations as the sole & suffi cient evidence of the law of nature among nations, we should unquestionably place this principle among those of natural laws. But it's inconveniences, as they affected neutral nations peaceably pursuing their commerce, and it's tendency to embroil them with the powers happening to be at war, and thus to extend the flames of war, induced nations to introduce by special compacts, from time to time, a more convenient rule; that "free ships should make free goods;" and this latter principle has by every maritime nation of Europe been established, to a greater or less degree, in it's treaties with other nations; insomuch, that all of them have, more or less frequently, assented to it, as a rule of action in particular cases. Indeed, it is now urged, and I think with great appearance of reason, that this is genuine principle dictated by national morality; & that the first practice arose from accident, and the particular convenience of the States' which first figured on the water, rather than from well-digested reflections on the relations of friend and enemy, on the rights of territorial jurisdiction, & on the dictates of moral law applied to these. Thus it had never been supposed lawful, in the territory of a friend to seize the goods of an enemy. On an element which nature has not subjected to the jurisdiction of any particular nation, but has made common to all for the purposes to which it is fitted, it would seem that the particular portion of it which happens to be occupied by the vessel of any nation, in the course of it's voyage, is for the moment, the exclusive property of that, and nation, with the vessel, is exempt from intrusion by any other, & from it's jurisdiction, as much as if it were lying in the harbor of it's sovereign. In no country, we believe, is the rule otherwise, as to the subjects of property common to all, Thus the place occupied by an individual in a highway, a church, a theatre, or other public assembly, cannot be intruded on, while it's occupant holds it for the purposes of it's institution. The persons on board a vessel traversing the ocean, carry with them the laws of their nation, have among themselves a jurisdiction, a police, not established by their individual will, but by the authority of their nation, of whose territory their vessel 1 Venice and Genoa (in margin). still seems to compose a part, so long as it does not enter the exclusive territory of another. No nation ever pretended a right to govern by their laws the ship of another nation navigating the ocean. By what law then can it enter that ship while in peaceable & orderly use of the common element? We recognize no natural precept for submission to such a right; & perceive no distinction between the movable & immovable jurisdiction of a friend, which would authorize the entering the one & not the other, to seize the property of an enemy. It may be objected that this proves too much, as it proves you cannot enter the ship of a friend to search for contraband of war. But this is not proving too much. We believe the practice of seizing what is called contraband of war, is an abusive practice, not founded in natural right. War between two nations cannot diminish the rights of the rest of the world remaining at peace. The doctrine that the rights of nations remaining quietly under the exercise of moral & social duties, are to give way to the convenience of those who prefer plundering & murdering one another, is a monstrous doctrine; and ought to yield to the more rational law, that "the wrongs which two nations endeavor to inflict on each other, must not infringe on the rights or conveniences of those remaining at peace." And what is contraband, by the law of nature? Either everything which may aid or comfort an enemy, or nothing. Either all commerce which would accommodate him is unlawful, or none is. The difference between articles of one or another description, is a difference in degree only. No line between them can be drawn. Either all intercourse must cease between neutrals & belligerents, or all be permitted. Can the world hesitate to say which shall be the rule? Shall two nations turning tigers, break up in one instant the peaceable relations of the whole world? Reason & nature clearly pronounce that the neutral is to go on in the enjoyment of all it's rights, that it's commerce remains free, not subject to the jurisdiction of another, nor consequently it's vessels to search, or to enquiries whether their contents are the property of an enemy, or are of those which have been called contraband of war. Nor does this doctrine contravene the right of preventing vessels from entering a blockaded port. This right stands on other ground. When the fleet of any nation actually beleaguers the port of its enemy, no other has a right to enter their line, any more than their line of battle in the open sea, or their lines of circumvallation, or of encampment, or of battle array on land. The space included within their lines in any of those cases, is either the property of their enemy, or it is common property assumed and possessed for the moment, which cannot be intruded on, even by a neutral, without committing the very trespass we are now considering, that of intruding into the lawful possession of a friend. Although I consider the observance of these principles as of great importance to the interests of peaceable nations, among whom I hope the US will ever place themselves, yet in the present state of things they are not worth a war. Nor do I believe war the most certain means of enforcing them. Those peaceable coercions which are in the power of every nation, if undertaken in concert & in time of peace, are more likely to produce the desired effect. The opinions I have here given are those which have generally been sanctioned by our government. In our treaties with France, the United Netherlands, Sweden & Prussia, the principle of free bottom, free goods, was uniformly maintained. In the instructions of 1784, given by Congress to their ministers appointed to treat with the nations of Europe generally, the same principle, and the doing away contraband of war, were enjoined, and were acceded to in the treaty signed with Portugal. In the late treaty with England, indeed, that power perseveringly refused the principle of free bottoms, free goods; and it was avoided in the late treaty with Prussia, at the instance of our then administration, lest it should seem to take side in a question then threatening decision by the sword. At the commencement of the war between France & England, the representative of the French republic then residing in the U S, complaining that the British armed ships captured French property in American bottoms, insisted that the principle of "free bottoms, free goods," was of the acknowledged law of nations; that the violation of that principle by the British was a wrong committed on us, and such an one as we ought to repel by joining in a war against that country. We denied his position, and appealed to the universal |