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this instruction has been issued, and is the " acknowledged ground" of my former explanations of it—is founded in justice and reason—is warranted by precedent—and is inculcated by those writers whose sentiments on questions of this kind are entitled to every degree of authority and respect.
The only part of Mr. Pinckney's representation, upon which it remains for me to offer any farther remarks, is his apprehension lest the acquiescence of the United States in this instruction, being considered by France as a pretext and as a violation of neutrality, that nation might derive from those considerations the right of pursuing a similar course. But it is notorious that the conduct of the actually ruling party of France with relation to provisions the property of a neutral power, both previously (as it is indeed declared in the decree of the National Convention of the 9th of May) and subsequently to the instructiop in question, has been such as that which Mr. Pinckney appears to imagine that this measure on the part of the British government would have a tendency in future to produce.
Having now, sir, I hope satisfactorily evinced that the right of a belligerent power to detain and even seize provisions destined for its enemy is not a novel doctrine, but is consonant to the law of nations, as explained by the best authors on the subject, and is even recognised by the stipulations of particular treaties—I cannot avoid expressing my conviction that the modification contained in the instruction of the 8th of June, to which it is the intention of the king's government to adhere, will be regarded by this government, as more favourable to the commerce of America than the general principle of the law of nations, and consequently as a proof of his majesty's sincere disposition to cultivate and maintain with the United States the most cordial harmony and good understanding. 1 have the honour to be, &c.
GEO: HAMMOND. Mr. Randolph, Secretary of State. (Received April 12, 1794.)
True copy, GEO: TA VLOR, Jcx.
Philadelphia, May 1, 1794. Sir,—Your letter of the eleventh ult. renews a discussion here, which was supposed to be committed, with
greater convenience, to the ministers of our respective nations in London. For my own part, as the additional instructions of June 8th, 1793, are essentially connected with that system, which has since appeared in more ample form, I wished to consign to our envoy extraordinary, as well the representations against them, as those truly serious remonstrances which the instructions of November 6th. 1793, and the vexations and spoliations, lately experienced, cannot fail to produce. But, with the deep conviction, which I feel, that the United States have pursued with honour, the path of neutrality; that his Britannick majesty cannot with justice upbraid our conduct, and that the opinions which you are pleased to avow, tend to wrest from us the benefits due to our impartiality and love of peace; it is impossible to pass over the doctrines, contained in your letter, which seem to have been the germ of subsequent harsher measures. In your exposition of the instructions of the 8th of June. as collected from your letter to my predecessor on the 12th of September last, and from your remarks on Mr. Pinckney’s memorial, you rely on two principal arguments. 1st. That by the strictness of the right derived from the law of nations respecting contraband, and the actual situation of France, vessels of the United States, loaded wholly or in part with corn, meal or flour, bound to any port in France, or any port occupied by the armies of France, may at least be lawfully "...i and detained; and 2d that the rigour of this right has been softened, not only by exempting other provisions, and especially rice; but also assuring to the neutral proprietors even of cargoes of corn, a full indemnification, instead of confiscating them. You next endeavour to remove the discontents excited by the preference established against the United States in favour of Denmark and Sweden, in the case of a blockaded or besieged port, by ascribing it entirely to the stipulation of treatics; and to repel the apprehension expressed by Mr. Pinckney, that these instructions would become a precedent for a similar severity from France, by affirming that France had begun it before they were formed. 1st. The cpoch at which the distinction between a contraband and lawful commerce, was first settled among nations, is perhaps, neither known nor material. We have no reason to presume. that is originated in treaty, because it fs deducible from the internal law of nations, as denominated by Vattel, independently of treaty. For, as one government, by carrying the instruments of war to the enemies of another, without an obligation, contracted prior to the commencement of hostilities, would thereby abandon its neutrality; so could not the individuals who are the members of the former government, be free of offence towards the latter, in carrying like supplies. Such a fitness for war then, as is indicated by what are called instruments of war, is the original criterion of contraband. Corn, meal, and flour, do indeed support men; and men wield arms. But they support men no less in peace than in war: and if by a circuit of construction, food can be universalhj ranked among military engines,—what article, to which human comfort of any kind can be traced, is not to be registered as contraband? In some peculiar circumstances, it must be confessed, corn, meal, and flour are so; as in a blockade, siege or investment. There the exclusion of them directly and obviously goes to the reduction of the place; but neutral commerce, is, in this instance, infringed, only, where the exclusion, if continued without interruption, would be decisive in its effect. Should it be replied, that this position would withdraw naval stores, as being suited to peace or war, from the list of contraband; I shall be ready to examine, whether upon principle they partake not the qualities of ordinary merchandise : whether the ancient writers who first pronounced against them, did not live (*to use the language of a high British authority on the same occasion) when commerce was but little understood,—its rights were not sufficiently regarded—war was too much a season of rapine—they who entered into it, meant less to conquer than to plunder; and when naval stores were destined to hostile uses only; whether their dictum has not been the basis on which some later writers have proceeded; whether the modern usage of nations has not cast away the opinion as obsolete; and above all, whether corn," meal, and flour, do not hold a pre-eminence over naval stores, by being for the most part incapable of any immediate application, but to the sustenance of life.
When Mr. Pinckney refers to treaties for the enumeration of contraband, you answer that 'i they are not decla
ratory of the law of nations; but are restrictions and modifications of that law by special agreements between the parties”—“not binding on other powers, nor even on the parties themselves in other cases;” and that in the treaty of England with Sweden on the 21st of October, 1661, provisions are expressly included as contraband. After premising that treaties as well as statutes often reenact a pre-existing law, a few of the English treaties most into to the present purpose shall be consulted. e are at a loss to determine, why, in 1645, Cromwell omitted provisions from his treaty with the United Provinces, if they were contraband. The nerve of his character was not apt to stop short of his rights, or to discard any possibility, by which he might accomplish his designs. In the treaty of commerce between France and England in 1667, corn, barley, other grain, and every thing tending to the nourishment of life are said not to be contraband. In the treaty of commerce between Charles the second, T;ing of England, and the states of Holland, in 1668, the liberty of trade is granted to all goods which are not called contraband; and no goods are there so called but arms and things which serve for the use of war; those serving for sustenance and the support of life being excluded in terms. By the treaty of Utrecht in 1713, between England and Spain, wheat, rye, barley, other grain, and generally whatsoever belongs to the sustaining and nourishing of life, are excepted from contraband. In the treaty of commerce and navigation between England and Russia, in 1766, only military stores are contraband. In 1782, Denmark as well as Russia concur in the same ideas. And the last expression of the sense of Great Britain in the year 1786, in the treaty with France, was, that wheat, barley, any other kind of corn, were not to be reckoned contraband. In these treaties, grain, being nearer the boundary between contraband and lawful articles, was more liable to dispute; and therefore for greater caution, and greater caution only, was specified: Jenkinson in some degree favours this latter idea, as to the more early treaties, the model of those which followed. He observes that “about ihe middle of the last century, when the commercial regulations, which at present subsist between the European powers, first began to be formed, it became absolutely necessary to call back the attention of governments to those principles of neutral right, from whence they had strayed; and to fix and determine, what was the law of nations by the articles of their respective treaties."
But let this be otherwise, these treaties are powerful in another direction. For many years more than a century has Great Britain been in the habit of allowing in her commercial treaties, a free scope, even in the season of war, to the means of human subsistence. The period between the years 1668, and 1786, was a witness to changes in manners, in learning, and in politicks. England went through her revolutions in all. She has been seen in the field of negotiation with powers of different orders; with one against whom she has been employed in perpetual rivalship afid war; with others whose bias of commerce and the fruits of whose agriculture could most annoy her by supplies to her enemies; with Holland, with France, with Spain, and with Russia. I pretend not to assert that England has been immutable in conceding and accepting this immunity in her treaties. But if in that period she has deviated, without any mixture of those considerations, which weigh at the moment only, your access to her archives, and consequently to better information, will enable you to correct me. If, however, you appeal to the convention between England and Holland in 1689, as a proof of the contrary, I must cite the animadversions of Jenkinson and Vattel. "*Such therefore at this time was the avowed opinion of Holland, and England was induced to join with her in this convention, exceeding thereby those bounds of equity and moderation which shehad almost always practised in this point before, and which she will, I hope, most faithfully observe for the future. The northern crowns who were particularly affected by this prohibition, contended very vehemently against it: in answer to their objections were urged the circumstances of affairs, the danger of Europe, and the mighty strength, of that ambitious power, which if some? extraordinary effort was not made, would bring mankind