The conclusion of the sentence suggests a reflection too strong to be suppressed, "for the party may say with truth that it would not have allied itself with this nation if it had been under the present form of its government." The republic of the United States allied itself with France when under a despotic government. She changes her government, and declares it shall be a republic; prepares a form of republic extremely free, and in the meantime is governing herself as such. And it is proposed that America shall declare the treaties void, because it may say with truth that it would not have allied itself with that nation if it

had been under the present form of its government. Who is the American who can say with truth that he would not have allied himself to France if she had been a republic? Or that a republic of any form would be as disagreeable as her ancient despotism?

Upon the whole I conclude, that the treaties are still binding, notwithstanding the change of government in France; that no part of them but the clause of guarantee holds up danger, even at a distance, and consequently that a liberation from no other part would be prepared in any case; that if that clause may ever bring danger, it is neither extreme nor imminent, nor even probable that the authority for renouncing a treaty, when useless or disagreeable, is either misunderstood or in opposition to itself, to all other writers, and to every moral feeling; that were it not so, these treaties are in fact neither useless or disagreeable; that the receiving a minister from France at this time is an act of no significance with respect to the treaties, amounting neither to an admission nor denial of them, forasmuch as he comes not under any stipulation in them; that were it an explicit admission, or were it an express declaration of their obligation now to be made, it would not take from us that right which exists at all times, of liberating ourselves when an adherence to the treaties would be ruinous or destructive to the society; and that the not renouncing the treaties now is so far from being a breach of neutrality, that the doing it would be the breach, by giving just cause of war to France.

XXXVI. Opinion relative to granting of passports to American vessels.

May 3, 1793. It has been stated in our treaties with the French, Dutch and Prussians, that when it happens that either party is at war, and the other neutral, the neutral shall give passports of a certain tenor to the vessels belonging to their subjects, in order to avoid dissension; and it has been thought that passports of such high import to the persons and property of our citizens should have. the highest sanction; that of the signature of the President, and seal of the United States. The authority of Congress also, in the case of sea letters to East India vessels, was in favor of this sanction. It is now become a question whether these passports shall be given only to ships owned and built in the United States, or may be given also to those owned in the United States, though built in foreign countries.

The persons and property of our citizens are entitled to the protection of our government in all places where they may lawfully go. No laws forbid a merchant to buy, own, and use a foreign-built vessel. She is, then, his lawful property, and entitled to the protection of his nation whenever he is lawfully using her.

The laws indeed, for the encouragement of ship building, have given to home-built vessels the exclusive privilege of being registered and paying lighter duties. To this privilege, therefore, the foreign-built vessel, though owned at home, does not pretend. But the laws have not said that they withdraw their protection from the foreign-built vessel. To this protection, then, she retains her title, notwithstanding the preference given to the home-built vessel as to duties. It would be hard indeed because the law has given one valuable right to home-built vessels, to infer that it had taken away all rights from those foreign-built.

In conformity with the idea that all the vessels of a State are entitled to its protection, the treaties before mentioned have settled that passports shall be given, not merely to the vessels built

in the United States, but to the vessels belonging to them; and when one of these nations shall take a vessel, if she has not such a passport, they are to conclude she does not belong to the United States, and is therefore lawful prize; so that to refuse these passports to foreign-built vessels belonging to our merchants, is to give them up to capture with their cargoes. The most important interests of the United States hang upon this question. The produce of the earth is their principle source of wealth. Our home-built vessels would suffice for the transportation of a very small part of this produce to market, and even a part of these vessels will be withdrawn by high premiums to other lines of business. All the rest of our produce, then, must remain on our hands, or have its price reduced by a war insurance. Many descriptions of our produce will not bear this reduction, and would, therefore, remain on hand.

We shall lose also a great proportion of the profits of navigation. The great harvest for these is when other nations are at war, and our flag neutral. But if we can augment our stock of shipping only by the slow process of building, the harvest will be over while we are only preparing instruments to rear it. The moment of breeding seamen will be lost for want of bottoms to embark them in.

France and Holland permit our vessels to be neutralized with them; not even to suffer theirs to be purchased here might give them just cause to revoke the privilege of naturalization given to ours, and would inflict on the ship-building States and artizans a severe injury.

Objection. To protect foreign-built vessels will lessen the demand for ship building here.

Answer. Not at all; because as long as we can build cheaper than other nations, we shall be employed in preference to others; besides, shall we permit the greatest part of the produce of our fields to rot on our hands, or lose half its value by subjecting it to high insurance, merely that our ship builders may have brisker employ? Shall the whole mass of our farmers be sacrificed to the class of ship wrights?

Objection. There will be collusive transfers of foreign ships to our merchants, merely to obtain for them the cover of our passports.

Answer. The same objection lies to giving passports to homebuilt vessels. They may be owned, and are owned by foreigners, and may be collusively re-transferred to our merchants to obtain our passports. To lessen the danger of collusion, however, I should be for delivering passports in our own ports only. If they were to be sent blank to foreign ports to be delivered there, the power of checking collusion would be small, and they might be employed to cover purposes of no benefit to us (which we ought not to countenance), and to throw our vessels out of business; but if issued only to vessels in our own ports, we can generally be certain that the vessel is our property; and always that the cargo is of our produce. State the case that it shall be found that all our shipping, home-built and foreign-built, is inadequate to the transportation of our produce to market; so that after all these are loaded, there shall yet remain produce on hand. This must be put into vessels owned by foreigners. Should these obtain collusively the protection of our passport, it will cover their vessel indeed, but it will cover also our cargo. I repeat it then, that if the issuing passports be confined to our ports, it will be our own vessels for the most part, and always our cargoes which will be covered by them.

I am, therefore, of opinion, that passports ought to be issued to all vessels belonging to citizens of the United States, but only on their clearing out from our own ports, and for that voyage only.

XXXVII. Opinion relative to case of a British vessel captured by a French vessel, purchased by French citizens, and fitted out as a Privateer in one of our ports.

May 16, 1793.

The facts suggested, or to be taken for granted, because the contrary is not known, in the case now to be considered, are,

that a vessel was purchased at Charleston, and fitted out as a privateer by French citizens, manned with foreigners chiefly, but partly with citizens of the United States. The command given to a French citizen by a regular commission from his government; that she has made prize of an English vessel in the open sea, and sent her into Philadelphia. The British minister demands restitution, and the question is, whether the Executive of the United States shall undertake to make it?

This transaction may be considered, 1st, as an offence against the United States; 2d, as an injury to Great Britain.

In the first view it is not now to be taken up. The opinion being, that it has been an act of disrespect to the jurisdiction of the United States, of which proper notice is to be taken at a proper time.

Under the second point of view, it appears to me wrong on the part of the United States (where not constrained by treaties) to permit one party in the present war to do what cannot be permitted to the other. We cannot permit the enemies of France to fit out privateers in our ports, by the 22d article of our treaty. We ought not, therefore, to permit France to do it; the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair neutrality. Yet considering that the present is the first case which has arisen; that it has been in the first moment of the war, in one of the most distant ports of the United States, and before measures could be taken by the government to meet all the cases which may flow from the infant state of our governernment, and novelty of our position, it ought to be placed by Great Britain among the accidents of loss to which a nation is exposed in a state of war, and by no means as a premeditated wrong on the part of the government. In the last light it cannot be taken, because the act from which it results placed the United States with the offended, and not the offending party. Her minister has seen himself that there could have been on our part neither permission or connivance. A very moderate apology then from the United States ought to satisfy Great Britain.

The one we have made already is ample, to wit, a pointed