all the American government determined to observe an exact neutrality.

In the same proclamation, the citizens of the United States were cautioned against committing, aiding or abetting hostilities against any of the powers at war; and informed that if any of them by doing those things rendered themselves liable to punishment under the law of nations, the United States would not protect them. Since that time, the legislature of the United States have enacted a law which forbids any citizen of the United States accepting and exercising within their jurisdiction, "a commission to serve a foreign prince or state in war, by land or sea," or to enlist or enter himself in the service of any foreign prince or state as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer," under the penalty of fine and imprisonment.

This is the extent of the law of the United States, relative to the services which may not be rendered to the belligerent powers. And herein it was doubtless the intention of the legislature to conform to the rules of the law of nations; imposing adequate penalties for the violations of those rules, but prescribing no new restraints.

Hence I conclude, that it is not unlawful for the citizens of the United States to sell or hire their unarmed vessels to any of the powers at war, and to man the vessels so sold or hired, these continuing unarmed.

From the laws of nations and of the United States, permit me to pass to the subsisting treaty of amity and commerce between France and the United States: it will, if I mistake not, throw much light on the questions you have raised, and if there remain any doubt under the laws, the treaty will remove it.

By the 23d article of the treaty, the two powers agreed, that it should be lawful for the people of both countries, "to sail with their ships, with all manner of liberty and security, no distinction being made, who are the proprietors of the merchandises laden thereon, from any port to the places of those who then were or thereafter should be at enmity with either." It was also stipulated "that free ships should give a freedom to goods, and that every thing should be deemed free, which should be found on board the ships belonging to either of the contracting

parties, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted." It was also agreed, that the same liberty should be extended to persons who should be found on board a free ship; when, although they should be enemies to either party, they are not to be taken out of the ship, unless they are soldiers, and in the actual service of the enemy.

The 12th and 13th articles of the treaty particularly contemplate the case that the vessels of each of the contracting parties will take on board contraband goods to transport to the enemies of the other, and regulate the proceedings thereon. The contraband goods if discovered, may be taken and confiscated," but the ship itself as well as any other goods found therein are to be esteemed free." And we have seen above, that the 23d article makes provision for the case where the vessels of either party should be employed in transporting the enemies of the other, and that even these are to remain untouched "unless they are soldiers in the actual service of the enemy." But it is plain that the vessels themselves are to remain free.

With respect to any marine service of the people of the two contracting parties, if we recur to the 21st article of the treaty we shall see that it imposes no restraint but this; "that they shall not apply for or take any commission or letters of marque for arming any ship or ships to act as privateers against the other."

Practice has corresponded with these rules. Independent of the very numerous exportations in single vessels from this country of every article it could furnish useful to France and its dominions, two fleets, of which American vessels formed a part, sailed from the United States for France under convoy of French men of war: the American vessels thus ranging themselves (if you please) under the flag of France. And can we now, as an impartial neutral nation, deny the same to the British? But will it be said, that our sailors manned only our own vessels ? Without supposing that none of them served on board unarmed French vessels, permit me to ask, what is the dif ference between the citizens of a neutral nation hiring their unarmed vessels with their crews to transport provisions and stores for one of the powers at war, and selling,

and then manning the same vessels for the same service? I do not discover any, and until a distinction can be manifested, I shall conclude, that whatever consequences may result from the measures which are the subject of your letter, these measures the government of the United States have no right to restrain.

With great respect I am, sir, &c.

TIMOTHY PICKERING.

No. 129.

TRANSLATION.

The Minister Plenipotentiary of the French Republick, near the United States, to Mr. Pickering, Secretary of State of the United States. Philadelphia, the 11th March, 1796, (O. S.) 21 Ventose, 4th year of the French Republick, one and indivisible.

SIR, I have duly received the answer you were pleased to make to my letter of the 22 Nivose last. I have till now deferred presenting additional claims in support of those I had the honour to address to you, because from the arrest of the sloop Diana, by order of the governour of Virginia, I conceived that a new examination of the question had determined you to adopt a course entirely opposite to your first resolutions; but since it is otherwise, that the American government has ordered the governour of Virginia to permit to depart and even to protect the vessels the English have laden with horses; since the English renew in Connecticut and Massachusetts the purchase of horses which they have made in that state; since they are also disposed to export these horses in vessels purchased in your ports, and navigated by American captains and sailors, you will permit me, sir, to renew my solicitations with the government of the United States to induce it to take those measures which in these circumstances, its duty and neutrality dictate. You must recollect, sir, that in my letter of the 22 Nivose, I called your attention to two questions. 1. Should the government of the United States in conformity with its neutrality, prevent the exportation of an article contraband of war, purchased by the enemies of France? 2. Can that government without compromit

ting its neutrality, permit its citizens to serve on board of vessels of the enemies of France?

I contented myself with stating to you some of the reasons which led me to believe that these questions according to the law of neutrality should be determined in favour of the Republick. I flattered myself that your knowledge and the attachment of the government of the United States to our cause, would supply any deficiency occasioned by the small range of my arguments. But it appears to me that I did not explain myself in a manner sufficiently precise in order to realize my expectation.

Therefore I shall enter into a new discussion of the questions which I presented to you in answering the different passages of your letter.

When to prove to you that the United States should oppose the exportation of horses purchased by the English, I cited the paragraph 113. chap. 7. book 3. of Vattel, I was aware of the paragraph 110. which precedes it, and which you oppose to my quotation; but I'must observe to you that this paragraph has not the least connexion with article 113. which relates to the duties of governments as to contraband of war, it cannot therefore destroy the reasoning contained in the 113th paragraph, which is subsequent to it. If it were otherwise, if Vattel should be found to contradict himself in as clear a manner as might be supposed from your observations, we should not in fu-, ture bring this author to our support. But besides the matter in question at present does not relate to citizens or subjects of a neutral power carrying on commerce in contraband of war, at their risk, peril and fortune, and exposing their merchandise to confiscation, but several agents of a government in enmity with France* who coming here as to one of their provinces, purchase horses and collect them in stables prepared by themselves, put them on board of vessels purchased in this country, and export them with as much security as if they were drawing them from their own territory. If you can answer me as to cases in which your citizens shall traffick in this contraband of war, "Your government is to punish them if it can by confis cating their vessels," I should ask, sir, against whom should my government act when it cannot seize this con

* See the quotation at the conclusion of this letter.

traband which is carried on under the eye of the government of the United States. "For it would be a cruel errour, says Galliani* to think that a belligerent power has no other right as to contraband of war than that of arresting it herself, if she be able to seize it. If a sovereign who sees contraband merchandises selling to his enemy by a neutral state should not succeed in seizing them, his right to object and complain is not lessened, he has a right to think himself grievously offended, to demand, and to do himself all the justice that an offended sovereign is warranted in exacting."

In support of the conduct of the government of the United States, you cite this paragraph from Vattel: "If a nation carries on commerce in arms, timber, ships, and ammunition, I cannot be offended at her selling these things to the enemy, provided she does not refuse to sell them to me also." But, sir, can it be inferred that a neutral nation has in no case the power of preventing the belligerent nations drawing from her merchandises which are contraband of war? Can it be supposed that such a step would be contrary to the laws of neutrality? No, sir; for if a nation confines itself within the limits of neutrality by granting the same advantages to the belligerent parties, she does not depart from that neutrality by refusing them to those parties. The following passage of Galliani, which I have the honour of citing to you, will support this opinion.t "When a belligerent nation wishes a neutral and friendly people not to carry contraband of war to its enemy, she should formally and in a very explicit manner notify the neutral government of her intentions; should she not do it, the neutral nation has a right to regard her silence as an assent to the continuation of her ordinary commercial regulations."

"When a belligerent state makes such a declaration, it of course follows that it renounces the right to ask of a neutral people contraband merchandise, the exportation of which it desires to be prohibited to the enemy; and consequently it should confine itself to require of the neutral country, an impartial observance of the refusal or prohibi

* Vide book 1. ch. 9. § 5. Galliani's Recht der neutralitat uebersetzet von Casar. Leipzig, 1790.

+ Vide book 1. ch. 9. § 3. of the works already cited.