3247. FREE SHIPS, Free goods, treaties and.—[continued].
In our treaties with
France, the United Netherlands, Sweden and
Prussia, the principle of free bottoms, 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 and
England, the representative of the French Republic
then residing in the United States
[Genet], 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 the war against that country. We
denied his position, and appealed to the universal
practice of Europe, in proof that the
principle of “free bottoms, free goods”, was
not acknowledged as of the natural law of nations,
but only of its conventional law. And
I believe we may safely affirm, that not a single
instance can be produced where any nation of
Europe, acting professedly under the law of
nations alone, unrestrained by treaty, has,
either by its executive or judiciary organs, decided
on the principle of “free bottoms, free
goods”. Judging of the law of nations by
what has been practiced among nations, we
were authorized to say that the contrary principle
was their rule, and this but an exception
to it, introduced by special treaties in special
cases only; that having no treaty with England
substituting this instead of the ordinary rule,
we had neither the right nor the disposition
to go to war for its establishment. But though
we would not then, nor will we now, engage in
war to establish this principle, we are nevertheless
sincerely friendly to it. We think that
the nations of Europe have originally set out
in error; that experience has proved the error
oppressive to the rights and interests of the
peaceable part of mankind; that every nation
but one has acknowledged this, by consenting
to the change, and that one has consented in
particular cases; that nations have a right to
correct an erroneous principle, and to establish
that which is right as their rule of action; and
if they should adopt measures for effecting this
in a peaceable way, we shall wish them success
and not stand in the way to it. But should it
become, at any time, expedient for us to cooperate
in the establishment of this principle,
the opinion of the executive on the advice of
its constitutional counsellors, must then be
given; and that of the Legislature, an independent
and essential organ in the operation,
must also be expressed; in forming which, they
will be governed, every man by his own judgment,
and may, very possibly, judge differently
from the Executive. With the same honest
views, the most honest men often form different
conclusions. As far, however, as we can
judge, the principle of “free bottoms, free
goods”, is that which would carry the wishes
of our nation.—
To Robert R. Livingston. Washington ed. iv, 411.
Ford ed., viii, 91.
(M.
Sep. 1801)
