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〃FREE SHIPS MAKE FREE GOODS〃
_To the U。S。 Minister to France_
（ROBERT R。 LIVINGSTON）
_Monticello； Sep。 9； 1801_
DEAR SIR； You will receive； probably by this post； from the
Secretary of State； his final instructions for your mission to
France。 We have not thought it necessary to say anything in them on
the great question of the maritime law of nations； which at present
agitates Europe； that is to say； whether free ships shall make free
goods； because we do not mean to take any side in it during the war。
But； as I had before communicated to you some loose thoughts on that
subject； and have since considered it with somewhat more attention； I
have thought it might not be unuseful that you should possess my
ideas in a more matured form than that in which they were before
given。 Unforeseen circumstances may perhaps oblige you to hazard an
opinion； on some occasion or other； on this subject； and it is better
that it should not be at variance with ours。 I write this； too；
myself； that it may not be considered as official； but merely my
individual opinion； unadvised by those official counsellors whose
opinions I deem my safest guide； & should unquestionably take in
form； were circumstances to call for a solemn decision of the
question。
When Europe assumed the general form in which it is occupied by
the nations now composing it； and turned its attention to maritime
commerce； we found among its earliest practices； that of taking the
goods of an enemy from the ship of a friend； and that into this
practice every maritime State went sooner or later； as it appeared on
the theatre of the ocean。 If； therefore； we are to consider the
practice of nations as the sole & sufficient evidence of the law of
nature among nations； we should unquestionably place this principle
among those of natural laws。 But it's inconveniences； as they
affected neutral nations peaceably pursuing their commerce； and it's
tendency to embroil them with the powers happening to be at war； and
thus to extend the flames of war； induced nations to introduce by
special compacts； from time to time； a more convenient rule； that
〃free ships should make free goods；〃 and this latter principle has by
every maritime nation of Europe been established； to a greater or
less degree； in it's treaties with other nations； insomuch； that all
of them have； more or less frequently； assented to it； as a rule of
action in particular cases。 Indeed； it is now urged； and I think
with great appearance of reason； that this is genuine principle
dictated by national morality； & that the first practice arose from
accident； and the particular convenience of the States which first
figured on the water； rather than from well…digested reflections on
the relations of friend and enemy； on the rights of territorial
jurisdiction； & on the dictates of moral law applied to these。 Thus
it had never been supposed lawful； in the territory of a friend to
seize the goods of an enemy。 On an element which nature has not
subjected to the jurisdiction of any particular nation； but has made
common to all for the purposes to which it is fitted； it would seem
that the particular portion of it which happens to be occupied by the
vessel of any nation； in the course of it's voyage； is for the
moment； the exclusive property of that； and nation； with the vessel；
is exempt from intrusion by any other； & from it's jurisdiction； as
much as if it were lying in the harbor of it's sovereign。 In no
country； we believe； is the rule otherwise； as to the subjects of
property common to all。 Thus the place occupied by an individual in
a highway； a church； a theatre； or other public assembly； cannot be
intruded on； while it's occupant holds it for the purposes of it's
institution。 The persons on board a vessel traversing the ocean；
carry with them the laws of their nation； have among themselves a
jurisdiction； a police； not established by their individual will； but
by the authority of their nation； of whose territory their vessel
still seems to compose a part； so long as it does not enter the
exclusive territory of another。 No nation ever pretended a right to
govern by their laws the ship of another nation navigating the ocean。
By what law then can it enter that ship while in peaceable & orderly
use of the common element？ We recognize no natural precept for
submission to such a right； & perceive no distinction between the
movable & immovable jurisdiction of a friend； which would authorize
the entering the one & not the other； to seize the property of an
enemy。
It may be objected that this proves too much； as it proves you
cannot enter the ship of a friend to search for contraband of war。
But this is not proving too much。 We believe the practice of seizing
what is called contraband of war； is an abusive practice； not founded
in natural right。 War between two nations cannot diminish the rights
of the rest of the world remaining at peace。 The doctrine that the
rights of nations remaining quietly under the exercise of moral &
social duties； are to give way to the convenience of those who prefer
plundering & murdering one another； is a monstrous doctrine； and
ought to yield to the more rational law； that 〃the wrongs which two
nations endeavor to inflict on each other； must not infringe on the
rights or conveniences of those remaining at peace。〃 And what is
_contraband_； by the law of nature？ Either everything which may aid
or comfort an enemy； or nothing。 Either all commerce which would
accommodate him is unlawful； or none is。 The difference between
articles of one or another description； is a difference in degree
only。 No line between them can be drawn。 Either all intercourse
must cease between neutrals & belligerents； or all be permitted。 Can
the world hesitate to say which shall be the rule？ Shall two nations
turning tigers； break up in one instant the peaceable relations of
the whole world？ Reason & nature clearly pronounce that the neutral
is to go onin the enjoyment of all it's rights； that it's commerce
remains free； not subject to the jurisdiction of another； nor
consequently it's vessels to search； or to enquiries whether their
contents are the property of an enemy； or are of those which have
been called contraband of war。2
Nor does this doctrine contravene the right of preventing
vessels from entering a blockaded port。 This right stands on other
ground。 When the fleet of any nation actually beleaguers the port of
its enemy； no other has a right to enter their line； any more than
their line of battle in the open sea； or their lines of
circumvallation； or of encampment； or of battle array on land。 The
space included within their lines in any of those cases； is either
the property of their enemy； or it is common property assumed and
possessed for the moment； which cannot be intruded on； even by a
neutral； without committing the very trespass we are now considering；
that of intruding into the lawful possession of a friend。
Although I consider the observance of these principles as of
great importance to the interests of peaceable nations； among whom I
hope the U S will ever place themselves； yet in the present state of
things they are not worth a war。 Nor do I believe war the most
certain means of enforcing them。 Those peaceable coercions which are
in the power of every nation； if undertaken in concert & in time of
peace； are more likely to produce the desired effect。
The opinions I have here given are those which have generally
been sanctioned by our government。 In our treaties with France； the
United Netherlands； Sweden & Prussia； the principle of free bottom；
free goods； was uniformly maintained。 In the instructions of 1784；
given by Congress to their ministers appointed to treat with the
nations of Europe generally； the same principle； and the doing away
contraband of war； were enjoined； and were acceded to in the treaty
signed with Portugal。 In the late treaty with England； indeed； that
power perseveringly refused the principle of free bottoms； free
goods； and it was avoided in the late treaty with Prussia； at the
instance of our then administration； lest it should seem to take side
in a question then threatening decision by the sword。 At the
commencement of the war between France & England； the representative
of the French republic then residing in the U S； complaining that the
British armed ships captured French property in American bottoms；
insisted that the principle of 〃free bottoms； free goods；〃 was of the
acknowledged law of nations； that the violation of that principle by
the British was a wrong committed on us； and such an one as we ought
to repel by joining in a war against that country。 We denied his
position； and appealed to the universal practice of Europe； in proof
that the