University of Virginia Library

TO C. J. INGERSOLL.

Dear Sir I have received your favor of the 18th
instant, and delivered into the hands of Mr. Rush

the interesting extract inclosed in it. The armed
neutrality in 1780 forms an Epoch in the history of
maritime law, which makes it more than a point of
mere curiosity, to trace it to its real source. You
know perhaps that there is an American pretension
to a share at least in bringing about that measure.
The fact may not improperly enter into a general
research.

On the question of "free ships, free goods," it has
always appeared to me very clear, that the principle
was right in itself, and friendly to the general interest
of Nations. It is perhaps less clear, that the United
States have a special interest in it; unless combined
with another principle, of which an example is found
in our Treaty with Prussia, and probably in no other;
namely, that unarmed merchant vessels, like wagons
or ploughs, the property of one belligerent, should be
unmolested by the other. This principle has, I
believe, an undisputed American Father in Doctor
Franklin.

On the question, whether under the law of Nations,
as it stands de facto, "free ships make free Cargoes,"
the United States at an early day, took the negative
side[81] ; and although the acknowledgment of it has
been shunned as much as possible since, it seems to
have been generally understood, that the British
doctrine was practically admitted.

Were the question to be regarded as unsettled,
and open to fair discussion, I am persuaded, that

the weight of authority furnished by reason, public
good, treaties, and the luminaries of public law,
preponderates in favor of the principle "free ships
free goods."

The ablest defence of the opposite principle which
I have seen, is in a treatise by Croker the present
Vice Admiralty Judge, at Halifax, in answer to
Schlegel. I am sorry I neither possess a Copy, nor
can refer you to any convenient depository of
one.

On the side of "free ships, free goods" may be
urged not only the intrinsic merit of the rule, and
the number and character of distinguished Jurists,
but the predominant authority of Treaties, even of
Treaties to which Great Britain is a party. Prior
to the Treaty of Utrecht, her treaties, particularly
with the Dutch, carefully inserted the stipulation.
Sir W. Temple, her Ambassador, claimed great merit,
on one occasion for his success in obtaining from
them, an article to that effect. In the Treaty of
Utrecht in 1713, to which the several great maritime
powers were parties, the principle is stipulated in
the most explicit form. In the successive Treaties,
to which the great maritime powers were also parties
in 1748, 1763 & 1783, the Treaty of Utrecht is
renewed and made a part thereof. Perhaps no
article in maritime law, can be found which at one
time rested on such broad and solid evidence of that
general consent of Nations, which constitutes the
positive law among them. To those Treaties, embracing
so many parties, may be added the Treaty

of 1786, between the two most important of them,
Great Britain & France. In the negotiations at
Amiens, at a still later date, the British Government
was desirous of again re-enacting the Treaty, tho'
probably with a view rather to the political balance,
than to the maritime principles contained in it.

It has been unfortunate, that all the efforts of the
Baltic Powers to secure the interests of neutrals
have been frustrated by the want of a united and
determined perseverance. Their leagues have been
broken to pieces; and to finish the catastrophe, each
of the parties has separately deserted itself. The
latter Treaties of Russia, of Sweden, and of Denmark,
with Great Britain, have all, in some form or
other, let in the British doctrines, and become authorities
against the claims of neutrals.

If a purification of the Maritime Code ever take
place, the task seems to be reserved for the United
States. They cannot fail to acquire rapidly more and
more of respect from other Nations, and of influence
on those having a common interest with themselves.
They will soon become, in the Canvas they spread,
and in all the means of power, on the Ocean, rivals of
the Nation which has in fact legislated on that element.
Under such auspices, truth, justice, humanity,
and universal good, will be inculcated with
an advantage which must gradually and peaceably
enlist the civilized world, against a Code which violates
all those obligations; a code as noxious by the
wars and calamities it produces to its overbearing
patron, as to the Nations protesting against it.

As a preparation for such a result, it is of great
moment that the subject of maritime law should
appear in our public debates, in the judicial proceedings,
and in individual disquisitions, to have been
profoundly studied and understood; so as to attract
favorable attention elsewhere; and by inspiring respect
for the lights and the character of the Nation,
increase that for its power and importance. The
Law of Nations has been made by the powerful
nations; and these having been warlike in their dispositions
and institutions, the law has been moulded
to suit belligerent rather than peaceable nations.
With the faculties for war, it is to be hoped, our
country will continue friendly to peace, and exert
the influence belonging to it, in promoting a system
favorable to Nations cherishing peace and justice,
rather than to those devoted to ambition and
conquest.

The questions claiming more particular research
and elucidation seem to be, those relating to Contraband
of war, blockades, the Colonial and Coasting
trades, and the great question of "free ships, free
goods."

Accept &c