"The seventeenth article of our treaty (with France) leaves armed vessels free to conduct whithersoever they please, the ships and goods taken from their enemies, without paying any duty, and to depart and be conducted freely to the places expressed in their commissions, which the captain shall be obliged to show. It is evident that this article does not contemplate a freedom to sell their prizes here; but on the contrary a departure to some other place, always to be expressed in their commission, where their validity is to be finally adjudged." On the claim of the French agents at that time, not only to sell their prize goods, but to sell them free of duty, Mr. Jefferson remarks, that this article" does not give the right to sell at all;" and afterwards, in the same letter, he mentions" the exclusive admission to sell here the prizes made by France on her enemies, in the present war, though unstipulated in our treaties, and unfounded in her own practice, or in that of other nations, as we believe." For the sense of France on this point, you will permit me to resort to her treaty of navigation and commerce, made with Great Britain in 1786. In the 16th article it is stipulated, that it should not be lawful for foreigners, not subjects of either crown, and who should have commissions from any other Prince or State, an enemy to one or the other, to arm their vessels in the ports of either of the two Kingdoms, to sell there the prizes they shall make, or to exchange them in any manner whatever. This treaty having been made subsequent to the treaty between France and the United States, it is plain, that she did not consider the 16th article as militating with the 17th of her prior treaty with us. The truth is, that the corresponding articles in the two treaties, contain only negative stipulations in regard to the enemies of the respective contracting parties, to prevent the fitting out of privateers and the selling of prizes by such enemies, without any affirmative stipulation that the parties themselves may do either.

Instead of detaining you by any further observations, allow me to refer you to the aforementioned letter of Mr. Jefferson, which has been published, in which the construction we give to the articles of our treaty of amity and commerce with France, which you have quoted, is illustrated and maintained, with a clearness and force of reasoning that removes every doubt.

It being then a position demonstrated, that France has no claim of right to sell prizes in the ports of the United States, nor the latter in the ports of France, it is unnecessary to enter into any consideration of the conveniences or inconveniences which either party might receive or suffer, by the permission or prohibition of such sales. Each nation, except where treaties with other nations impose a restraint, has a right to judge for itself. France exercised this right in her aforementioned treaty of commerce with Great Britain; and the United States propose to exercise the same right by law.

The remaining observations in your letter being grounded on the supposition of a right to sell French prizes in our ports, and this supposed right having been proved not to exist, I may be excused from making any remarks upon them. You quote the assurance given you

by the late Secretary of State, that the 22d article of our treaty with France, forbidding any of her enemies, and consequently at this time the British, to bring and dispose of their prizes in our ports, would be faithfully observed by the American Government; and I may confidently repeat, that it will be observed: the law in question furnishes a proof of it, by the universality of its prohibitions. This form of the proposed law ought to rescue the United States from the reproach of favoring Great Britain: for a neutral nation can be responsible only for the equality of its rules of conduct towards the belligerent Powers, and not for the effects of an exact observance of those rules, which must depend on the situation and circumstances of the warring Powers themselves.

I am, with great respect, Sir, &c.

TIMOTHY PICKERING.

No. 217.

Secretary of State to the French Minister.

Department of STATE, May 25th, 1796.

your

SIR: I intended long since to have returned an answer to letter of the 11th March, in which you renew your objections to the purchase and exportation of horses by the British from the United States. It was some time before it was in my power to consider your remarks and examine the authority of Galliani, which you quoted: but that consideration and examination convinced me, that the line of conduct which the Government of the United States had prescribed to itself, was that which it ought still to pursue. I considered the right of the eitizens of the United States to sell and export contraband goods to any of the belligerent powers, as incontrovertibly established in our commercial treaty with France. The arguments which I drew from demonstration of this this source, and which in my view contained right, you have passed over in silence, and recurred to the authorities of Vattel and Galliani, especially of the latter, on the rights and duties of neutral Powers. These authorities, however, appear to me as little to support your claims, as the articles of the commercial treaty formerly adduced.

Referring to Vattel, book 3, ch. 7, (the object of which entire chapter is to delineate the rights and duties of neutrality) your first remark is, that the 113th section, which you quoted, has no relation to the 110th cited by me. But permit me to observe, that it would be a novel mode of interpreting an author, to take up a single paragraph. and detach from all his other remarks and reasonings in the same chapter and on the same subject. Doubtless (as the same author says elsewhere) We ought to consider the whole discourse together, in order perfectly to conceive the sense of it." (b. 2. ch. 17, sec. 285) In both the sections cited (110 and 113) the rights of neutrals to trade in arti

cles contraband of war is clearly established; in the first by selling to the warring Powers, who come to the neutral country to buy them; in the second, by the neutral subjects or citizens carrying them to the countries of the Powers at war and there sell them.

The same just rule of interpretation, applied to the discourse of Galliani on this subject, will exhibit a result not less justificatory to the conduct of the United States. Your first quotation from that author is a marginal note, importing, that, if a belligerent Power cannot seize contraband articles sold to an enemy, it may nevertheless object against it, complain of it as an injury, and demand and do itself that justice, which an injured sovereign has a right to exact.

To this I will subjoin a passage from the 4th section of the same chapter and book which you have cited: "I repeat it then, once for all, that neutral nations must observe the most conscientious sincerity, as well in refraining from the sale of contraband of war, as from all exportation of it, except only in the cases I have above spoken of." A recurrence to these exceptions, and to the other observations of this writer, will show, that his doctrine does not oppose the principles adopted by the Government of the United States. It would be too tedious to recite all his reasoning on this subject. I shall content myself with quoting a few of his remarks.

Book 1, chap. 9, sec. 3. "Much greater is the number of those, who believed that every belligerent Power possesses essentially the right of forbidding neutral Powers to sell arms and warlike stores to its enemy; and that this is a full right, that is, a right of strict jus tice. They do not distinguish the circumstance, when the neutral Powers carry on trade with one of the belligerents and supply it with arms and warlike stores, and when with perfect impartiality they trade with both. In the first case, the preference of one party is apparent, and thenceforward the slighted and neglected party begins to possess a right in regard of the neutral State: for friendship with it is at an end; but as in the other case friendship does not appear to have ceased, there is not yet to be discovered any reason to act inimically on this account towards a friend."

"And in truth this reflection has led many writers to conclude, that neutral Powers cannot be forbidden to exercise a free trade even in contraband, as long as they exercise it in an impartial manner, with both belligerent parties, or are willing to do so. I too cannot say that they decide very unjustly.”

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I say then, that, for those nations who have not otherwise bound themselves by express compact, it is not a duty of strict right to carry no contraband articles to the belligerent Powers. For, if even a belligerent Power had a full and complete right to set itself against such trade, yet, between two sovereigns, who are placed in the situation of neutral equality, freedom, and independence, the full right of the one is not annulled by the full right of the other. And in regard of neutral nations, the renunciation of their own convenience in favor of the greater convenience of another, is only a duty of equity, but not of essential and strict right."

"Hence it follows, that we must often inquire and distinguish, whether the trade in those goods, which are called contraband, is of greater or less importance to the nation, which exercises it. In the first case, since we are discussing a duty of favor, which admits of infinite gradations, we cannot confidently expect an extraordinary and very affecting sacrifice, as we may when it extends only to a small inconvenience.'

Then follows what the author states as the true positions on this matter, some of which you have cited:

1. When a belligerent nation desires a friendly neutral nation to carry no contraband to its enemy, it must formally disclose its wish; silence importing a satisfaction in the natural state of things.

2. When it has thus disclosed its request, it must itself renounce all pretensions to be furnished with contraband goods.

3. When a neutral State has entered into a treaty of peace and commerce with one of the belligerent Powers, stipulating to carry no contraband to the enemy, there is always a condition implied. that the like goods shall be denied to both the belligerent Powers without distinction.

4. Consequently the belligerent State which has never disclosed to its neutral friend that it did not see with contentment the latter supplying its enemy with contraband of war, and much more of it has availed itself of this privilege, has bought arms and other sorts of military stores, or what is of more account, has received from it soldiers, recruits, horses, has no further right to expect, that the neutral should not show the like to the enemy."

5. And finally I say that the desire expressed to the neutral State, that it should not, during the war, carry any contraband of war to the belligerent Powers, must always be followed, when it does not induce a very great and intolerable inconvenience; inasmuch as what tends immediately to the destruction of mankind is with better reason refused than permitted and therefore this desire, much more than its opposite, comports with true impartiality, sincere friendship, and the good of mankind."

I will cite only one more passage from Galliani, which appears to be the result of his considerations on this subject.

Book 1, chap. 9, sec. 4. If we reflect more upon it, it must be acknowledged, that the first position of the principle. which I have above established, recurs, that belligerent Powers have no full right to make this demand (not to carry contraband to the enemy.) as also, that there lies no duty of strict right upon the neutral to refrain from the trade of contraband of war. In the mean time, the desire of the belligerent, who possesses no full right to ask, must be declared in decent and temperate terms; and the request cannot be considered as discreet and acceptable, when it occasions too great inconvenience to the party to whom it is addressed."

I will close this letter with a few observations. It is well known, that a considerable portion of the exports of the United States consists of articles contraband of war. It is well known, that these have, during the whole of the present war, been freely exported to the dominions of France, as well as to those of the other belligerent Powers.

it seems then too late (agreeable to Galliani's 4th position) for France to desire that the citizens of the United States should now abandon a commerce, of which she has availed herself during the several years of the war to this time: and still less ought she, while continuing to enjoy an otherwise unrestrained trade in contraband goods, to expect such an abandonment of only a particular article of contraband, of which she may have no need; and is therefore willing to renounce, because it may chance to be very useful to her enemy. Under these circumstances, a compliance, on the part of the United States would compromit their interest as well as their neutrality. The wants of two or more belligerent Powers may together embrace the general objects of the commerce of a neutral nation but if each were possessed of a right to require the neutral nation to renounce that portion of its commerce which was peculiarly useful to its enemy, the entire commerce of such neutral nation might be annihilated.

The article of horses, although not constituting a principal part of the entire commerce of the United States, yet forms a very essential item in the trade of some of them, particularly of Connecticut; and from the first settlement of the country, it has been a valuable article of exportation from many of the colonies (now States) to all parts of the West-Indies; and during the whole of the present war, horses and mules (and oxen, which may be used for military purposes, as well as either) have been freely exported to the French, as well as to the English Islands.

You cite the example of the Swiss, that in the present war, they have prohibited the exportation of contraband goods to all the belligerent Powers. Without doubting the fact (of which I had no previous knowledge) I must suppose that very particular motives influenced the Swiss to this determination, which, however full of wisdom at this time, is repugnant to the common practice of those people for ages."Amidst all the wars of Europe (says Vattel) the Switzers keep their country in an unexceptionable neutrality. Every nation indiscriminately is allowed to come thither, and purchase provisions, if the country has a surplus, horses, military stores," &c.

I will now notice the other question which you again bring into view; whether the United States can, without compromitting their neutrality, allow their citizens to serve in the vessels of the enemies of France?

Having in my former letter entered into a full consideration of this subject, and the force of the distinctions and reasons then taken and urged appearing to me still unshaken, I will content myself with a few remarks.

I must still rely in the distinction taken in the law of the United States, between our citizens serving on board of armed and unarmed vessels. Had the Legislature viewed the latter as contrary to the law of nations, or our neutral duties, it would certainly have been forbidden, as well as the former. To admit that our citizens cannot lawfully enrol themselves in the direct military land or sea service of one of the Powers at war, is very different from your position, that they cannot,