our citizens, and that we have no right to restrain him or punish them.
Examining this question under the law of nations, founded on the general
sense and usage of mankind, we have produced proofs, from the most
enlightened and approved writers on the subject, that a neutral nation
must, in all things relating to the war, observe an exact impartiality
towards the parties; that favors to one to the prejudice of the other
would import a fraudulent neutrality, of which no nation would be the
dupe; that no succor should be given to either, unless stipulated by
treaty, in men, arms, or any thing else directly serving for war; that
the right of raising troops being one of the rights of sovereignty, and
consequently appertaining exclusively to the nation itself, no foreign
power or person can levy men within its territory without its consent;
and he who does, may be rightfully and severely punished; that if the
United States have a right to refuse the permission to arm vessels and
raise men within their ports and territories, they are bound by the laws
of neutrality to exercise that right, and to prohibit such armaments
and enlistments. To these principles of the law of nations Mr. Genet
answers, by calling them ‘diplomatic subtleties,’ and ‘aphorisms
of Vattel and others.’ But something more than this is necessary to
disprove them; and till they are disproved, we hold it certain that the
law of nations and the rules of neutrality forbid our permitting either
party to arm in our ports.
But Mr. Genet says, that the twenty-second article of our treaty allows
him expressly to arm in our ports. Why has he not quoted the very words
of that article expressly allowing it? For that would have put an end
to all further question. The words of the article are, ‘It shall not be
lawful for any foreign privateers not belonging to subjects of the M. C.
King, nor citizens of the said United States, who have commissions from
any foreign Prince or State in enmity with either nation, to fit their
ships in the ports of either the one or the other of the aforesaid
parties.’ Translate this from the general terms in which it here stands,
into the special case produced by the present war. ‘Privateers not
belonging to France or the United States, and having commissions from
the enemies of one of them,’ are, in the present state of things,’
British, Dutch, and Spanish privateers.’ Substituting these then for
the equivalent terms, it will stand thus, ‘It shall not be lawful for
British, Dutch, or Spanish privateers, to fit their ships in the ports
of the United States.’ Is this an express permission to France to do
it? Does the negative to the enemies of France, and silence as to France
herself, imply an affirmative to France? Certainly not; it leaves
the question as to France open, and free to be decided according to
circumstances. And if the parties had meant an affirmative stipulation,
they would have provided for it expressly; they would never have left
so important a point to be inferred from mere silence or implications.
Suppose they had desired to stipulate a refusal to their enemies, but
nothing to themselves; what form of expression would they have used?
Certainly the one they have used; an express stipulation as to their
enemies, and silence as to themselves. And such an intention corresponds
not only with the words, but with the circumstances of the times. It was
of value to each party to exclude its enemies from arming in the ports
of the other, and could in no case embarrass them. They therefore
stipulated so far mutually. But each might be embarrassed by permitting
the other to arm in its ports. They therefore would not stipulate to
permit that. Let us go back to the state of things in France when this
treaty was made, and we shall find several cases wherein France could
not have permitted us to arm in her ports. Suppose a war between these
States and Spain. We know, that by the treaties between France and
Spain, the former could not permit the enemies of the latter to arm in
her ports. It was honest in her, therefore, not to deceive us by such
a stipulation. Suppose a war between these States and Great Britain. By
the treaties between France and Great Britain, in force at the signature
of ours, we could not have been permitted to arm in the ports of France.
She could not then have meant in this article to give us such a right.
She has manifested the same sense of it in her subsequent treaty with
England, made eight years after the date of ours, stipulating in
the sixteenth article of it, as in our twenty-second, that foreign
privateers, not being subjects of either crown, should not arm against
either in the ports of the other. If this had amounted to an affirmative
stipulation that the subjects of the other crown might arm in her
ports against us, it would have been in direct contradiction to her
twenty-second article with us. So that to give to these negative
stipulations an affirmative effect, is to render them inconsistent with
each other, and with good faith; to give them only their negative and
natural effect, is to reconcile them to one another and to good faith,
and is clearly to adopt the sense in which France herself has expounded
them. We may justly conclude then, that the article only obliges us to
refuse this right, in the present case, to Great Britain and the other
enemies of France. It does not go on to give it to France, either
expressly or by implication. We may then refuse it. And since we are
bound by treaty to refuse it to the one party, and are free to refuse
it to the other, we are bound by the laws of neutrality to refuse it
to that other. The aiding either party then with vessels, arms, or men,
being unlawful by the law of nations, and not rendered lawful by the
treaty, it is made a question whether our citizens, joining in these
unlawful enterprises, may be punished.
The United States being in a state of peace with most of the belligerent
powers by treaty, and with all of them by the laws of nature, murders
and robberies committed by our citizens within our territory, or on the
high seas, on those with whom we are so at peace, are punishable equally
as if committed on our own inhabitants. If I might venture to reason a
little formally, without being charged with running into ‘subtleties and
aphorisms,’ I would say, that if one citizen has a right to go to war of
his own authority, every citizen has the same. If every citizen has that
right, then the nation (which is composed of all its citizens) has a
right to go to war, by the authority of its individual citizens. But
this is not true either on the general principles of society, or by our
constitution, which gives that power to Congress alone, and not to the
citizens individually. Then the first position was not true; and no
citizen has a right to go to war of his own authority, and for what he
does without right, he ought to be punished. Indeed, nothing can be more
obviously absurd than to say, that all the citizens may be at war, and
yet the nation at peace.
It has been pretended, indeed, that the engagement of a citizen in an
enterprise of this nature, was a divestment of the character of citizen,
and a transfer of jurisdiction over him to another sovereign. Our
citizens are certainly free to divest themselves of that character by
emigration and other acts manifesting their intention, and may then
become the subjects of another power, and free to do whatever the
subjects of that power may do. But the laws do not admit that the bare
commission of a crime amounts of itself to a divestment of the character
of citizen, and withdraws the criminal from their coercion. They would
never prescribe an illegal act among the legal modes by, which a citizen
might disfranchise himself; nor render treason, for instance, innocent
by giving it the force of a dissolution of the obligation of the
criminal to his country. Accordingly, in the case of Henfeild, a citizen
of these States, charged with having engaged in the port of Charleston,
in an enterprise against nations at peace with us, and with having
joined in the actual commission of hostilities, the Attorney General of
the United States, in an official opinion, declared, that the act with
which he was charged was punishable by law. The same thing has been
unanimously declared by two of the Circuit Courts of the United States,
as you will see in the charges of Chief Justice Jay, delivered at
Richmond, and Judge Wilson, delivered at Philadelphia, both of which are
herewith sent. Yet Mr. Genet, in the moment he lands at Charleston, is
able to tell the Governor, and continues to affirm in his correspondence
here, that no law of the United States authorizes their government
to restrain either its own citizens or the foreigners inhabiting its
territory, from warring against the enemies of France. It is true,
indeed, that in the case of Henfeild, the jury which tried, absolved
him. But it appeared on the trial, that the crime was not knowingly and
wilfully committed; that Henfeild was ignorant of the unlawfulness of
his undertaking; that in the moment he was apprized of it, he showed
real contrition; that he had rendered meritorious services during the
late war, and declared he would live and die an American. The jury,
therefore, in absolving him, did no more than the constitutional
authority might have done, had they found him guilty: the constitution
having provided for the pardon of offences in certain cases, and there
being no case where it would have been more proper than where no offence
was contemplated. Henfeild, therefore, was still an American citizen,
and Mr. Genet’s reclamation of him was as unauthorized as the first
enlistment of him.
2. Another doctrine advanced by Mr. Genet is, that our courts can take
no cognizance of questions whether vessels, held by theirs, as prizes,
are lawful prizes or not; that this jurisdiction belongs exclusively to
their consulates here, which have been lately erected by the National
Assembly into complete courts of admiralty. Let us consider, first,
what is the extent of jurisdiction which the consulates of France may
rightfully exercise here. Every nation has of natural right, entirely
and exclusively, all the jurisdiction which may be rightfully
exercised in the territory it occupies. If it cedes any portion of that
jurisdiction to judges appointed by another nation, the limits of their
power must depend on the instrument of cession. The United States and
France have, by their consular convention, given mutually to their
Consuls jurisdiction in certain cases especially enumerated. But that
convention gives to neither the power of establishing complete courts
of admiralty within the territory of the other, nor even of deciding the
particular question of prize, or not prize. The consulates of France,
then, cannot take judicial cognizance of those questions here. Of this
opinion Mr. Genet was, when he wrote his letter of May the 27th, wherein
he promises to correct the error of the Consul at Charleston, of whom,
in my letter of the 15th instant, I had complained, as arrogating to
himself that jurisdiction; though in his subsequent letters he has
thought proper to embark in the errors of his Consuls.
But the United States, at the same time, do not pretend any right to try
the validity of captures made on the high seas, by France, or any other
nation, over its enemies. These questions belong of common usage to the
sovereignty of the captor, and whenever it is necessary to determine
them, resort must be had to his courts. This is the case provided for
in the seventeenth article of the treaty, which says, that such prizes
shall not be arrested, nor cognizance taken of the validity thereof; a
stipulation much insisted on by Mr. Genet and the Consuls, and which we
never thought of infringing or questioning. As the validity of captures
then, made on the high seas by France over its enemies, cannot be tried
within the United States by their Consuls, so neither can it by our own
courts. Nor is this the question between us, though we have been misled
into it.
The real question is, whether the United States have not a right to
protect vessels within their waters and on their coasts? The Grange
was taken within the Delaware, between the shores of Jersey and of the
Delaware State, and several miles above its mouth. The seizing her was a
flagrant violation of the jurisdiction of the United States. Mr. Genet,
however, instead of apologizing, takes great merit in his letters for
giving her up. The William is said to have been taken within two
miles of the shores of the United States. When the admiralty declined
cognizance of the case, she was delivered to the French Consul according
to my letter of June the 25th, to be kept till the executive of the
United States should examine into the case; and Mr. Genet was desired by
my letter of June the 29th, to have them furnished with the evidence on
behalf of the captors, as to the place of capture. Yet to this day it
has never been done. The brig Fanny was alleged to be taken within five
miles from our shore; the Catharine within two miles and a half. It is
an essential attribute of the jurisdiction of every country to preserve
peace, to punish acts in breach of it, and to restore property taken by
force within its limits. Were the armed vessel of any nation to cut away
one of our own from the wharves of Philadelphia, and to choose to call
it a prize, would this exclude us from the right of redressing the
wrong? Were it the vessel of another nation, are we not equally bound to
protect it, while within our limits? Were it seized in any other of our
waters, or on the shores of the United States, the right of redressing
is still the same: and humble indeed would be our condition, were
we obliged to depend for that on the will of a foreign Consul, or
on negotiation with diplomatic agents. Accordingly, this right of
protection within its waters and to a reasonable distance on its coasts,
has been acknowledged by every nation, and denied to none: and if the
property seized be yet within their power, it is their right and duty to
redress the wrong themselves. France herself has asserted the right in
herself and recognised it in us, in the sixth article of our treaty,
where we mutually stipulate that we will, by all the means in our
power (not by negotiation), protect and defend each other’s vessels and
effects in our ports or roads, or on the seas near our countries,
and recover and restore the same to the right owners. The United
Netherlands, Prussia, and Sweden, have recognised it also in treaties
with us; and indeed it is a standing formula, inserted in almost all the
treaties of all nations, and proving the principle to be acknowledged by
all nations.
How, and by what organ of the government, whether judiciary or
executive, it shall be redressed, is not yet perfectly settled with us.
One of the subordinate courts of admiralty has been of opinion, in the
first instance, in the case of the ship William, that it does not belong
to the judiciary. Another, perhaps, may be of a contrary opinion. The
question is still subjudice, and an appeal to the court of last resort
will decide it finally. If finally the judiciary shall declare that
it does not belong to the civil authority, it then results to the
executive, charged with the direction of the military force of the
Union, and the conduct of its affairs with foreign nations. But this
is a mere question of internal arrangement between the different
departments of the government, depending on the particular diction
of the laws and constitution; and it can in no wise concern a foreign
nation to which department these have delegated it.
3. Mr. Genet, in his letter of July the 9th, requires that the ship
Jane, which he calls an English privateer, shall be immediately ordered
to depart; and to justify this, he appeals to the 22nd article of our
treaty, which provides that it shall not be lawful for any foreign
privateer to fit their ships in our ports, to sell what they have taken,
or purchase victuals, &c. The ship Jane is an English merchant vessel,
which has been many years employed in the commerce between Jamaica and
these States. She brought here a cargo of produce from that island,
and was to take away a cargo of flour. Knowing of the war when she left
Jamaica, and that our coast was lined with small French privateers, she
armed for her defence, and took one of those commissions usually called
letters of marque. She arrived here safely without having had any
reencounter of any sort. Can it be necessary to say that a merchant
vessel is not a privateer? That though she has arms to defend herself in
time of war, in the course of her regular commerce, this no more makes
her a privateer, than a husbandman following his plough in time of war,
with a knife or pistol in his pocket, is thereby made a soldier? The
occupation of a privateer is attack and plunder, that of a merchant
vessel is commerce and self-preservation. The article excludes the
former from our ports, and from selling what she has taken, that is what
she has acquired by war, to show it did not mean the merchant vessel and
what she had acquired by commerce. Were the merchant vessels coming
for our produce forbidden to have any arms for their defence, every
adventurer who had a boat, or money enough to buy one, would make her a
privateer, our coasts would swarm with them, foreign vessels must cease
to come, our commerce must be suppressed, our produce remain on our
hands, or at least that great portion of it which we have not vessels to
carry away, our ploughs must be laid aside, and agriculture suspended.
This is a sacrifice no treaty could ever contemplate, and which we are
not disposed to make out of mere complaisance to a false definition of
the term privateer. Finding that the Jane had purchased new carriages to
mount two or three additional guns, which she had brought in her hold,
and that she had opened additional port-holes for them, the carriages
were ordered to be relanded, the additional port-holes stopped, and her
means of defence reduced, to be exactly the same at her departure as at
her arrival. This was done on the general principle of allowing no party
to arm within our ports.
4. The seventeenth article of our treaty leaves armed vessels free to
conduct, whithersoever they please, the ships and goods taken from their
enemies without paying any duty, and to depart and be conducted freely
to the places expressed in their commissions, which the captain shall be
obliged to show. It is evident, that this article does not contemplate
a freedom to sell their prizes here; but on the contrary, a departure
to some other place, always to be expressed in their commission, where
their validity is to be finally adjudged. In such case, it would be as
unreasonable to demand duties on the goods they had taken from an enemy,
as it would be on the cargo of a merchant vessel touching in our ports
for refreshment or advices; and against this the article provides. But
the armed vessels of France have been also admitted to land and sell
their prize-goods here for a consumption, in which case, it is as
reasonable they should pay duties, as the goods of a merchantman landed
and sold for consumption. They have however demanded, and as a matter
of right, to sell them free of duty, a right, they say, given by this
article of the treaty, though the article does not give the right
to sell at all. Where a treaty does not give the principal right of
selling, the additional one of selling duty free cannot be given: and
the laws, in admitting the principal right of selling, may withhold
the additional one of selling duty free. It must be observed, that our
revenues are raised almost wholly on imported goods. Suppose prize-goods
enough should be brought in to supply our whole consumption. According
to their construction we are to lose our whole revenue. I put the
extreme case to evince, more extremely, the unreasonableness of the
claim. Partial supplies would affect the revenue but partially. They
would lessen the evil, but not the error, of the construction: and
I believe we may say, with truth, that neither party had it in
contemplation, when penning this article, to abandon any part of its
revenue for the encouragement of the sea-robbers of the other.
5. Another source of complaint with Mr. Genet has been, that the English
take French goods out of American vessels, which he says is against the
law of nations, and ought to be prevented by us. On the contrary, we
suppose it to have been long an established principle of the law of
nations, that the goods of a friend are free in an enemy’s vessel,
and an enemy’s goods lawful prize in the vessel of a friend. The
inconvenience of this principle, which subjects merchant vessels to
be stopped at sea, searched, ransacked, led out of their course, has
induced several nations latterly to stipulate against it by treaty, and
to substitute another in its stead, that free bottoms shall make free
goods, and enemy bottoms enemy goods; a rule equal to the other in point
of loss and gain, but less oppressive to commerce. As far as it has
been introduced, it depends on the treaties stipulating it, and forms
exceptions, in special cases, to the general operation of the law of
nations. We have introduced it into our treaties with France, Holland,
and Prussia; and French goods found by the two latter nations in
American bottoms are not made prize of. It is our wish to establish it
with other nations. But this requires their consent also, is a work of
time, and in the mean while, they have a right to act on the general
principle, without giving to us or to France cause of complaint. Nor do
I see that France can lose by if on the whole. For though she loses
her goods when found in our vessels by the nations with whom we have no
treaties, yet she gains our goods, when found in the vessels of the same
and all other nations: and we believe the latter mass to be greater than
the former. It is to be lamented, indeed, that the general principle has
operated so cruelly in the dreadful calamity which has lately happened
in St. Domingo. The miserable fugitives, who, to save their lives, had
taken asylum in our vessels, with such valuable and portable things as
could be gathered in the moment out of the ashes of their houses and
wrecks of their fortunes, have been plundered of these remains by
the licensed sea-rovers of their enemies. This has swelled, on this
occasion, the disadvantages of the general principle, that ‘an enemy’s
goods are free prize in the vessels of a friend.’ But it is one of those
deplorable and unforeseen calamities to which they expose themselves who
enter into a state of war, furnishing to us an awful lesson to avoid it
by justice and moderation, and not a cause or encouragement to expose
our own towns to the same burnings and butcheries, nor of complaint
because we do not.