Th:  Jefferson.

LETTER CCXC.—­TO ROBERT R. LIVINGSTON, September 9, 1801

TO ROBERT R. LIVINGSTON.

Monticello, September 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 any thing 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 be useful 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, and 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 find 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 and sufficient evidence of the law of nature among nations, we should unquestionably place this principle among those of the natural laws.  But its inconveniences, as they affected neutral nations peaceably pursuing their commerce, and its 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 its 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 the genuine principle dictated by national morality; and that the first practice arose from accident, and the particular convenience of the States [* Venice and Genoa] 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, and on the dictates of moral law applied to these.  Thus it had never