commerce, and equal to all parties in point of gain and loss; but this was altogether the effect of particular treaty, controlling, in special cases, the general principle of the law of nations, and therefore taking effect between such nations only as have so agreed to control it. England had generally determined to adhere to the rigorous principle, having in no instance, so far as he recollected, agreed to the modification of letting the property of the goods follow that of the vessel, except in the single one of her treaty with France. The United States had adopted this modification in their treaty with France, the United Netherlands, and Prussia; and therefore, as to them American vessels. covered the goods of their enemies, whilst the Americans lost their goods when in the vessels of their enemies. With England, Spain, Portugal, and Austria, the United States had nothing to oppose to these four powers acting according to the general law of nations, that enemy goods are lawful prize, though found in the vessels of a friend. Nor did he see that France could suffer on the whole, for though she lost her goods in American vessels when found therein by England, Spain, Portugal, or Austria; yet she gained American goods, when found in the vessels of England, Spain, Portugal, Austria, the United Netherlands, or Prussia and it might safely be affirmed that the Americans had more goods afloat in the vessels of these six nations, than France had afloat in their vessels; and consequently that France was the gainer, and America the loser by the principle of their treaty. Indeed the Americans were losers in every direction of that principle; for when it worked in their favour, it was to save the goods of their friends, when it worked against them, it was to lose their own, and they would thus continue to lose while the rule was only par

Mr. Jefferson is mistaken in this assertion, as there were at least two treaties of Great Britain in force at the time when he wrote by which she had conceded the rule of free ships, free goods, that of 1654 with Portugal, and that of 1674, with Holland. (See First Period, § 14.)

6. Discussion between

tially established. When they should have established it with all nations, they should be in a condition neither to gain nor lose, but would be less exposed to vexatious searches at sea. To this condition they were endeavouring to advance; but as it depended on the will of other nations, as well as their own, they could only obtain it when those other nations should be ready to concur.h

By the treaty of 1794 between Great Britain and the United States, art. 17, it was agreed, "that in all cases where vessels shall be captured or detained on just suspicions of having on board enemy's property, or of carrying to the enemy any of the articles which are contraband of war, the said vessel shall be brought to the nearest or most convenient port, and if any property of an enemy should be found on board of such vessel, that part only which belongs to the enemy shall be made prize, and the vessel shall be at liberty to proceed with the remainder without any impediment."i

The French government complained not only, as we have the American seen, that the goods of her citizens were taken out of and French American vessels without resistance on the part of the upon the rule American government; but that the latter had by its treaty of free ships, with Great Britain violated its antecedent engagements to free goods. France recognizing the principles of the armed neutrality

governments

of 1780.

To this latter complaint, it was answered on the part of the American government, that when the treaty of 1778 was concluded, the armed neutrality had not been formed, and consequently the state of things on which that treaty operated was regulated by the pre-existing law of nations, independently of the principles of the armed neutrality. By that law, free ships did not make free goods, nor enemy ships enemy goods. The stipulation therefore in the treaty of 1778 formed an exception to a general rule, which still

h American State Papers, vol. i. p. 134.

i Elliot's Dip. Cod. 236.

retained its obligation in all cases where not changed by compact. Had the treaty of 1794 between the United States and Great Britain not been formed, or had it entirely omitted any stipulation on this subject, the belligerent right would still have existed. The treaty did not concede a new right, but only mitigated the practical exercise of a right already acknowledged to exist. The desire of establishing universally the principle, that neutral ships should make neutral goods, was felt by no nation more strongly than by the United States. It was an object which they kept in view, and would pursue by such means as their judgment might dictate. But the wish to establish a principle was essentially different from an assumption that it is already established. However solicitous America might be to pursue all proper means tending to obtain the concession of this principle by any or all of the maritime powers of Europe, she had never conceived the idea of obtaining that consent by force. The United States would only arm to defend their own rights: neither their policy nor their interests permitted them to arm in order to compel a surrender of the rights of others.k

On the 2d March, 1796, (12 Nivose, an V,) the executive directory published a decree by which they declared that the United States had renounced, by their treaty of 1794 with Great Britain the privileges heretofore enjoyed under their treaty of 1778 with France, and consequently declared enemy's property taken by French cruizers from on board American vessels to be good prize. This decree also extended the list of contraband contained in the treaty of 1778 to naval stores, with the exception of unwrought iron and fir planks as provided in the treaty of 1794. It also confiscated all American vessels not provided with a

* Letter of the American Envoys at Paris, Messrs. Marshall, Pinkney, and Gerry, to M. de Talleyrand, Jan. 17, 1798. Waite's State Papers, vol. iv. pp. 38-47.

§ 7. Question

rôle d'équipage, in due form as provided by the treaty of

1778.

On the 18th of January, 1797, (29 Nivose, an VI,) the two councils of the republic passed a law declaring to be liable to capture and confiscation all neutral vessels laden with enemy's property.

These and other similar decrees issued during the government of the directory gave a wide range to the depredations committed on neutral commerce by French privateers, which were also aggravated by the irregular manner in which the jurisdiction of maritime captures was exercised by the judicial tribunals until the establishment of the council of prizes in 1800. The provisions of the treaty of 1778 with the United States, were then revived by a new convention, and the ordinance of that year was reestablished as the general rule by which the French cruizers and tri bunals were to be governed in respect to those neutral nations between whom and France there existed no special treaty stipulations. So long as this wise and moderate legislation continued, and so long as the decisions of the council of prizes were conducted by that learned and virtuous magistrate, the late M. Portalis, there was no ground of complaint on the part of neutral powers as to the prac tical administration of the French prize code. But this system of moderation was succeeded, soon after the rupture of the peace of Amiens, by those measures of violence, the French imperial decrees, and British orders in council, by which the two governments, reverting to the piratical war fare of the dark ages, in effect, prohibited all neutral commerce, under the pretext of retaliating on each other. It is deemed unnecessary to dwell upon the history of these anomalous edicts, because they were avowedly measures of retortion, not in accordance with the ordinary law of nations, and were constantly protested against by neutrals as inconsistent with its principles.

Whilst Russia, under her new sovereign the Emperor between G. Paul, continued to coöperate in the continental and mari

Britain and

sels under

time coalition against France, the other Baltic powers, the Northern Sweden and Denmark, endeavoured to protect their neutral powers as to the right of commerce from belligerent search by means of convoy. In search of vesJanuary, 1798, a fleet of Swedish merchantmen, carrying convoy. cargoes of naval stores, the produce of Sweden and the property of Swedish subjects, to the Mediterranean ports in possession of France, under convoy of a ship of war, was captured by a British squadron; and proceeded against in the British court of admiralty for an alleged breach of the right of visitation and search. The case was suspended by diplomatic negotiations until the 11th of June, 1799, when it was brought to adjudication, and Sir William Scott pronounced his famous judgment upon the right in question, which afterwards became the subject of so much criticism and controversy.

In this judgment this learned civilian laid down the three following principles of international law :

1. That the right of visiting and searching merchant ships on the high seas, whatever be the ships, the cargoes, or the destination, is an incontestable right of the lawfully commissioned cruizers of a belligerent nation. "I say, be the ships, the cargoes, and the destination what they may, because till they are visited and searched, it does not appear what the ships, the cargoes, or the destination are; and it is for the purpose of ascertaining these points, that the necessity of this right of visitation and search exists. This right is so clear in principle, that no man can deny it who admits the right of maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule that free ships make free goods, must admit the exercise of this right, at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as preexisting, and