tions denominated as such, and (2) that if the United States were at war with Great Britain, the shipping of France, carrying naval stores to Great Britain, could not be seized by American cruisers, while the same shipping, bringing naval stores to the United States, might be seized by British cruisers. He concluded with the statement that the Jay treaty did not vary the situation of France nor better the rights of Great Britain in regard to contraband.

1

Pickering, Secretary of State ad interim, further explained the eighteenth article of Jay's treaty in an instruction of September 12, 1795, to the Minister in France. He stated that the result of the negotiation with Great Britain had shown that she would not relax in favor of the United States the strict maxims of the law of nations which defined contraband as provided in the treaty. Though the first clause of the eighteenth article embraced several kinds of merchandise "which the policy of modern times " had by special treaties admitted to be articles of free commerce, yet not a single one was included which had not been ranked as such by approved writers on the law of nations. The treaty barely recited in the list of contraband, he explained, what was before so, under a law which the United States could not mitigate, and though we desired to relax the rigor of the law, yet a recital of it in the treaty was the best which could be done.

Pickering next considered the second clause of this article, which referred to the doctrine asserted by Great Britain that provisions might become contraband when destined to places not invested or blockaded. "To this pretension," he stated, "which is contrary to our interests, and as we are inclined to believe unwarranted by the law of Nations, especially in the extent asserted by Great Britain, we could not accede." He further stated that though we had been unable to induce Great Britain to relinquish her construction, we had not abandoned ours; the result was a stipulation that whenever provisions and other articles not generally contraband should become so, and for that reason should be seized, they should not be confiscated, but paid for. We guarded by such means as were in our power against the full effects of a doctrine which had been and would be strenuously opposed. Finally, he stated that the effect of this clause would be to encourage trade in provisions with France as in the event of either arrival or capture the American merchant was assured a profitable voyage. If American vessels reached French ports, all the expected profits of the voyage would be gained; if they were taken by the British, there might be less profit but there could be no loss.

TREATY OF 1795 WITH SPAIN

During this period a commercial treaty between the United States and Spain was signed. This treaty of October 27, 1795, contained three of the principles regarding neutral commerce of the plan of 1776. In the contraband list (article 16), in the statement that free ships should make free goods, and in the provision for trade from port to port of the enemy (article 15), the original American treaty plan was followed without change. The treaty was even more favorable to neutral commerce than the plan because it included no statement that enemy ships should make enemy goods. The omission of any statement in this regard indicates that the parties intended to follow the law of nations by which neutral goods not contraband, were free in enemy vessels.

FURTHER DISCUSSION OF JAY'S TREATY

2

In an instruction of June 8, 1796, Secretary Pickering instructed the Minister in Great Britain to further negotiations on the points "noticed" but not finally settled in the Jay treaty. Regarding the point whether in any and what cases neutral vessels should protect enemy property, he believed it to be to the true interest of the United States to secure the freedom which such a provision would give their commerce. Regarding the question in what cases provisions and other articles not generally contraband might become so, he considered it essential to obtain an entire exemption from restraint in their exportation except to a blockaded place. Further, to guard against the abusive extension of the term "blockade ", he said it would be necessary explicitly to describe its meaning and to confine it, as in the declaration of the armed neutrality, to a port where by the disposition of the attacking power, with vessels stationed sufficiently near, there would be evident danger in entering.

Secretary of State Pickering in an instruction of January 16, 1797, to Minister Pinckney in France restated the American case on two points in controversy. In combating the French contention that free ships made free goods under the modern law of nations, he pointed out that Vattel stated positively that "effects belonging to an enemy, found on board a neutral ship, are seizable by the rights of war," and that France herself in her inaritime laws had followed this practice.

The second point related to the French contention that timber and naval stores for the equipment and armament of vessels were not con

traband of war. Pickering quoted Vattel's definition of contraband goods: "commodities particularly used in war-such are arms, military and naval stores, timber, horses, and even provisions in certain junctures, when there are hopes of reducing the enemy by famine.”

After further argument Pickering stated his conclusion that “the law of nations, the marine laws of France, her own treaties as well as those of other nations, and even the system of the armed neutrality, incontestably established these principles, That enemy goods on board neutral vessels are rightful subjects of capture and condemnation, and that timber and other articles for the equipment and armament of ships, are contraband of war."

It was also necessary for Secretary Pickering to explain to the Spanish Minister the statement in Jay's treaty regarding the provisions for confiscating enemy goods in neutral ships and for considering ship timber and naval stores as contraband. In a note of May 17, 1797,1 he again made the points that under the law of nations enemy property could be captured on neutral ships and that ship timber and naval stores were contraband of war.

NEGOTIATIONS WITH FRANCE AND PRUSSIA, 1797

On July 15, 1797, Secretary Pickering instructed Pinckney, Marshall, and Gerry respecting alterations of the commercial treaty with France. French complaints had been principally regarding enemy property in neutral ships and articles contraband of war. If the French Government pressed for alterations, the Secretary stated that the President would be willing to substitute "the principles of the law of Nations as stated in the 17th and 18th Articles" of Jay's treaty for those of the twenty-third and twenty-fourth articles of the commercial treaty with France. In respect to provisions and other articles not usually deemed contraband, a temporary compromise would be acceptable, like that in the eighteenth article of Jay's treaty and of the same duration. If these changes were made, the fourteenth article of the French treaty which subjected property of a neutral found on board an enemy ship to capture and condemnation "must of course be abolished."

Regarding the right claimed by Great Britain to prohibit neutral nations from carrying on a commerce between ports of her enemies which had not been allowed in time of peace, Pickering stated that it would "be desirable to come to an explicit understanding with France, and if possible to obviate the claim by an express stipulation." He also stated that it might be expedient to define a blockaded place or port as one actually invested by land or naval forces, or both, 2 Document 37, p. 218.

1 1 Document 36, p. 216.

and that no declaration of a blockade should have any effect without such actual investment. He repeated that in Jay's treaty the United States had merely assented "to the doctrine of the law of Nations respecting enemies property in neutral Ships, and Ship-timber and naval Stores, and in some cases provisions, as contraband of war.”

On the same date Pickering instructed Minister Adams regarding the renewal of the treaty of 1785 with Prussia.1 He stated that the principle that free ships make free goods had been included in all American treaties except Jay's treaty and that the United States sincerely desired it might become universal; but treaties formed for this object had been found of little or no avail because the principle was not universally admitted by maritime nations. He said the principle had not been regarded in respect to the United States when it would operate to our benefit; and might be insisted upon only when it would prove injurious to our interest. Adams was therefore to propose to abandon it in the new treaty. On the same ground he was to propose to include a list of articles contraband of war; and, among them, to enumerate timber for shipbuilding, tar, pitch, turpentine, and rosin, copper in sheets, sails, hemp, and cordage, and, generally, whatever might serve directly to the equipment of vessels, excepting only unwrought iron and fir planks.

Regarding the twenty-third article of the treaty of 1785 which forbade the commissioning of privateers to take or destroy the trading vessels, or to interrupt the commerce of the two countries in case of a war between them, Adams was to propose and endeavor to effect an alteration which would leave commerce, in case of a war between the United States and Prussia, to the attack of privateers. Pickering explained that although it had sometimes seemed desirable to abolish privateering altogether, such a course would be disadvantageous to a nation like the United States which had few vessels of war and inadequate means for equipping powerful fleets, but which was strong in the number of seamen, in private wealth, and in the "uncommon enterprize" of its citizens. Its chief means, therefore, of annoying and distressing a maritime enemy would be its privateers.

In concluding his comments on the proposed treaty Pickering said that although the proposed alterations appeared desirable, yet if the state of things should in Adams's judgment render it expedient not to propose them or, if proposed, not to insist on them, he was to act accordingly. In another period of ten years the Secretary thought it would probably not occasion any material embarrassment between the United States and Prussia to renew the treaty in its existing form. At the time he considered it "peculiarly

1 Document 38, p. 222.

interesting" for the United States to conciliate the good will of Prussia and other European nations.

In the same instruction of July 15, 1797, Adams was empowered to renew the commercial treaty with Sweden. It was to be changed so that enemy goods in neutral ships should be subject to capture and confiscation, and timber and naval stores as above enumerated were to be deemed contraband of war.

On July 17 Pickering gave Adams further instructions regarding the renewal of the treaties with Prussia and Sweden.1 The principle of free ships making free goods was peculiarly interesting to the United States because her naval concerns were mercantile and not warlike, and the abandonment of it was suggested because its observance was secured neither by the pretended modern law of nations nor by the solemn stipulations of treaties. However, if in the pending peace negotiations the principle of free ships making free goods should be adopted by all the great maritime powers, the United States would be among the first of the powers to accede to it and to observe it as a general rule. Furthermore, he stated that if the rigid rule of the law of nations respecting contraband should be relaxed and ship timber and naval stores be declared free, the United States would eagerly embrace this liberal rule. But if the negotiations for peace should be broken up and the war continue, and more especially, if the United States should be forced to become a party in it, then he said it would be extremely impolitic to confine the enterprises and exertions of American armed vessels within narrower limits than the law of nations prescribed.

TREATY OF 1799 WITH PRUSSIA

The resulting treaty with Prussia was signed July 11, 1799.2 Article 12 stated that experience having proved that the principle adopted in the twelfth article of the treaty of 1785, according to which free ships made free goods, had not been sufficiently respected during the last two wars, the parties proposed after the return of a general peace" to concert with the great maritime Powers of Europe, such arrangements, and such permanent principles as may serve to consolidate the liberty and the safety of the neutral Navigation and commerce in future Wars." If in the interval either of the parties should be engaged in a war to which the other should remain neutral, the ships of war and privateers of the belligerent power should conduct themselves toward the merchant vessels of the neutral power as favorably as the cause of the war then existing might permit, observing the principles and rules of the law of nations generally 2 Document 40, p. 225.

1 1 Document 39, p. 224.