Upon the whole I conclude, that the treaties are still binding, notwithstanding the change of government in France; that no part of them but the clause of guarantee holds up danger, even at a distance, and consequently that a liberation from no other part would be prepared in any case; that if that clause may ever bring danger, it is neither extreme nor imminent, nor even probable that the authority for renouncing a treaty, when useless or disagreeable, is either misunderstood or in opposition to itself, to all other writers, and to every moral feeling; that were it not so, these treaties are in fact neither useless or disagreeable; that the receiving a minister from France at this time is an act of no significance with respect to the treaties, amounting neither to an admission nor denial of them, forasmuch as he comes not under any stipulation in them; that were it an explicit admission, or were it an express declaration of their obligation now to be made, it would not take from us that right which exists at all times, of liberating ourselves when an adherence to the treaties would be ruinous or destructive to the society; and that the not renouncing the treaties now is so far from being a breach of neutrality, that the doing it would be the breach, by giving just cause of war to France.
XXXVI.—Opinion relative to granting of passports to American vessels.
May 3, 1793.
It has been stated in our treaties with the French, Dutch and Prussians, that when it happens that either party is at war, and the other neutral, the neutral shall give passports of a certain tenor to the vessels belonging to their subjects, in order to avoid dissension; and it has been thought that passports of such high import to the persons and property of our citizens should have the highest sanction; that of the signature of the President, and seal of the United States. The authority of Congress also, in the case of sea letters to East India vessels, was in favor of this sanction. It is now become a question whether these passports shall be given only to ships owned and built in the United States, or may be given also to those owned in the United States, though built in foreign countries.
The persons and property of our citizens are entitled to the protection of our government in all places where they may lawfully go. No laws forbid a merchant to buy, own, and use a foreign-built vessel. She is, then, his lawful property, and entitled to the protection of his nation whenever he is lawfully using her.
The laws indeed, for the encouragement of ship building, have given to home-built vessels the exclusive privilege of being registered and paying lighter duties. To this privilege, therefore, the foreign-built vessel, though owned at home, does not pretend. But the laws have not said that they withdraw their protection from the foreign-built vessel. To this protection, then, she retains her title, notwithstanding the preference given to the home-built vessel as to duties. It would be hard indeed because the law has given one valuable right to home-built vessels, to infer that it had taken away all rights from those foreign-built.
In conformity with the idea that all the vessels of a State are entitled to its protection, the treaties before mentioned have settled that passports shall be given, not merely to the vessels built in the United States, but to the vessels belonging to them; and when one of these nations shall take a vessel, if she has not such a passport, they are to conclude she does not belong to the United States, and is therefore lawful prize; so that to refuse these passports to foreign-built vessels belonging to our merchants, is to give them up to capture with their cargoes. The most important interests of the United States hang upon this question. The produce of the earth is their principle source of wealth. Our home-built vessels would suffice for the transportation of a very small part of this produce to market, and even a part of these vessels will be withdrawn by high premiums to other lines of business. All the rest of our produce, then, must remain on our hands, or have its price reduced by a war insurance. Many descriptions of our produce will not bear this reduction, and would, therefore, remain on hand.
We shall lose also a great proportion of the profits of navigation. The great harvest for these is when other nations are at war, and our flag neutral. But if we can augment our stock of shipping only by the slow process of building, the harvest will be over while we are only preparing instruments to reap it. The moment of breeding seamen will be lost for want of bottoms to embark them in.
France and Holland permit our vessels to be neutralized with them; not even to suffer theirs to be purchased here might give them just cause to revoke the privilege of naturalization given to ours, and would inflict on the ship-building States and artizans a severe injury.
Objection. To protect foreign-built vessels will lessen the demand for ship building here.