"4. Equipments in the ports of the United States, by any of the parties at war with France, of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature, as being applicable either to commerce or war, are deemed lawful, except those which shall have made prize, &c. "5. Equipments of any of the vessels of France, in the ports of the United States, which are doubtful in their nature as being applicable to commerce or war, are deemed lawful. "6. Equipments of every kind, in the ports of the United States, of privateers of the powers at war with France, are deemed unlawful. 7. Equipments of vessels in the ports of the United States, which are of a nature solely adapted to war, are deemed unlawful; except those stranded or wrecked, as mentioned in the 18th article of our treaty with France, the 16th of our treaty with the United Netherlands, the 18th of our treaty with Prussia. "8. Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens, not being inhabitants of the United States, except privateers of the powers at war with France, and except those vessels which have made prizes, &c." On the 7th of August Mr. Jefferson wrote to M. Genet, stating that American State the President had decided that compensation or restitution should be Papers, vol. i, page made in the case of vessels brought into United States ports as prizes 167. by privateers fitted out in such ports since the 5th of June, and consequently called on him to restore these prizes, as otherwise the government of France would be considered liable for the repayment of the compensation paid to the persons aggrieved. Mr. Jefferson adds, "that besides taking efficacious measures to prevent the future fitting out of privateers in the ports of the United States, they will not give asylum therein to any which shall have been at any time so fitted out, and will cause restitution of all such prizes as shall be hereafter brought within their ports by any of the said privateers." Mr. Hammond was also informed of this decision of the President: Mr. Jefferson to Mr. Hammond. "PHILADELPHIA, August 7, 1793. "SIR: A constant expectation of carrying into full effect the declaration of the President against permitting the armament of vesselt MS. inclosure in within the ports of the United States to cruise on nations with which Mr. Hammond's dis patch to Lord Grenthey are at peace, has hitherto prevented me giving you a final answer ville, Aug. 10, 1793. on the subject of such vessels and their prizes. Measures to this effecs are still taking, and particularly for excluding from all further asylum in our ports the vessels so armed, and for the restoration of the prizes the Lively Lass, the Prince William Henry, and the Jane of Dublin, taken by them; and I am authorized in the mean time to assure you that should the measures for restoration fail in their effect, the President considers it as incumbent upon the United States to make compensation for the vessels. "I have, &c., "T. JEFFERSON." Mr. Morris, Uni The affair of the Little Democrat, in which the government was thus Mr. Jefferson to “insulted and set at defiance by M. Genet," determined them on asking ted States minisfor his recall; and the United States minister at Paris was accordingly ter at Paris, Auinstructed, on the 16th of August, to represent to the French govern- gust 16, 1793. ment that if M. Genet persevered in his proceedings the United States American State government would "be forced even to suspend his functions before a Papers, vol. i,page successor could arrive to continue them." 167. M. Genet to Mr. M. Genet seems to have tried to test the neutrality of the United States government on every point. He maintained the right of the French government not only to issue commissions and to equip vessels, but also openly to man their privateers in American ports. Two seamen, named Henfield and Singletary, were arrested on board the Citizen Genet at Philadelphia for having enlisted in the French service. M. Genet remonstrated in his usual bombastic style, demanding their immediate release. This was refused, and Henfield brought to trial. The jury, however, Jefferson; June 1, acquitted him on the plea of his having been ignorant of having com- 1793. mitted an offense in taking service in a French privateer. M. Genet also engaged in an intrigue for the seizure of New Orleans by some malcontents in Kentucky. In short, he managed, during the few months Papers, vol.i, page he remained the representative of France, to damage the interests of his country in every conceivable way; while the temperate remonstrances of the English minister afforded a contrast to these exaggerated pretensions, and served to confirm the President in his policy of pages 517 and 518. neutrality and to influence the cabinet in favor of England. American State 151. Tucker, vol. i, MS. inclosure in Certain prizes having been brought in by vessels fitted out after the Mr. Hammond's 5th of June, as well as those brought in by vessels fitted out before that dispatch to Lord date, of which restitution had already been refused, Mr. Hammond Grenville, of the 17th of September, wrote, on the 30th of August, to Mr. Jefferson requesting to be informed of the precise intentions of the government respecting the restoration of prizes. 1793. Mr. Hammond says: "I understand that all captures made subsequently to the 5th of June, and antecedently to the 7th of August, by any vessel fitted out, armed, and equipped in the ports of the United States, are either to be restored to the captors, or a compensation for their full value is to be paid to their owners by the government of the United States, and that all prizes made by vessels of this description subsequently to the 7th of August are to be seized and immediately restored by the government of the United States; or if the restitution cannot be effected, a compensation for their full value is to be paid in the same manner as in the former case." Mr. Jefferson replied, on the 5th of September: "PHILADELPHIA, September 5, 1793. "SIR: I am honored with yours of August 30. Mine of the 7th of that month assured you that measures were taken for excluding from all further asylum in our ports vessels armed in them to cruise on nations with which we are at peace, and for the restoration of the prizes the Lovely Lass, Prince William Henry, and the Jane of Dublin, and that should the measures for restitution fail in their effect, the President considered it ;as incumbent on the United States to make compensation for the vessels. "We are bound by our treaties with three of the belligerent nations, by all the means in our power, to protect and defend their vessels and effects in our ports or waters, or on the seas near our shores, and to recover and restore the same to the right owners when taken from them. If all the means in our power are used, and fail in their effect, we are not bound by our treaties with those nations to make compensation. "Though we have no similar treaty with Great Britain, it was the opinion of the President that we should use toward that nation the same rule which, under this article, was to govern us with the other nations, and even to extend it to captures made on the high seas and brought into our ports, if done by vessels which had been armed within them. "Having, for particular reasons, forbore to use all the means in our power for the restitution of the three vessels mentioned in my letter of August 7, the President thought it incumbent on the United States to make compensation for them; and though nothing was said in that letter of other vessels taken under like circumstances and brought in after the 5th of June, and before the date of that letter, yet, when the same forbearance had taken place, it was and is his opinion that compensation would be equally due. "As to prizes made under the same circumstances and brought in after the date of that letter, the President determined that all the means in our power should be used for their restitution. If these fail, as we should not be bound by our treaties to make compensation to the other powers in the analogous case, he did not mean to give an opinion that it ought to be done to Great Britain. But still, if any cases shall arise subsequent to that date, the circumstances of which shall place them on similar ground with those before it, the President would think compensation equally incumbent on the United States. "Instructions are given to the governors of the different States to use all the means in their power for restoring prizes of this last description found within their ports. Though they will, of course, take measures to be informed of them, and the general government has given them the aid of the custom-house officers for this purpose, yet you will be sensible of the importance of multiplying the channels of their information as far as shall depend on yourself or any person under your direction, in order that the governors may use the means in their power for making restitution. Without knowledge of the capture, they cannot restore it. It will always be best to give the notice to them directly; but any information which you shall be pleased to send to me also, at any time, shall be forwarded to them as quickly as distance will permit. "Hence you will perceive, sir, that the President contemplates restitution or compensation in the cases before the 7th of August; and after that date, restitution, if it can be effected by any means in our power; and that it will be important that you should substantiate the fact that such prizes are in our ports or waters. "Your list of the privateers illicitly armed in our ports is, I believe, correct. "With respect to losses by detention, waste, spoliation, sustained by vessels taken as before mentioned, between the dates of the 5th June and the 7th August, it is proposed as a provisional measure that the collector of the customs of the district, and the British consul, or any other person you please, shall appoint persons to establish the value of the vessel and cargo at the time of her capture and of her arrival in the port into (which she is brought, according to their value in that port. "If this shall be agreeable to you, and you will be pleased to signify it to me, with the names of the prizes understood to be of this description, instructions will be given accordingly to the collectors of the customs where the respective vessels are. "I have, &c., "TH. JEFFERSON." This letter was appended to the treaty of the 19th of November, 1794. by force. 801. The result of the publication of the rules of the 4th August was that Mr. Jefferson to the system of privateering was, generally speaking, suppressed, though Mr. Morris; Aucases seem to have occurred until the arrival of M. Genet's successor in gust 16, 1793. February, 1794, who disavowed his acts, and recalled the commissions Papers, vol. i, p. he had granted to privateers. American State 167. It must be remembered that the United States did not possess any navy at this time, the construction of a naval force not being carried out until 1794; so that even if the the government wished to stop a privateer, they could only do so by employing the militia to board her, unless she happened to be lying under the guns of a fort. In October, M. Duplaine, the French vice-consul at Boston, having rescued by force a suspected vessel which had been seized by the marshal, the United States government withdrew his exequatur. Congress met on the 3d December, and in his address the President spoke of the measures adopted for the preservation of neutrality, and the necessity for legislation on the subject, in the following terms: 21. American State "As soon as the war in Europe had embraced those powers with whom the United States have the most extensive relations, there was reason to apprehend that our intercourse with them might be interrupted, and pers, vol. i, p. our disposition for peace drawn into question by the suspicions too often entertained by belligerent nations." "In this posture of affairs, both new and delicate, I resolved to adopt general rules which should conform to the treaties and assert the privileges of the United States." "Although I have not thought myself at liberty to forbid the sale of prizes permitted by our treaty of commerce with France to be brought into our ports, I have not refused to cause them to be restored when they were taken within the protection of our territory or by vessels commissioned or equipped in warlike form within the limits of the United States. It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure, and it will probably be found expedient to extend the legal code and the jurisdiction of the courts of the United States to many cases which, though dependent on principles already recognized, demand some further provisions. "Where individuals shall, within the United States, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States, or usurp and exercise judicial authority within the United States, or where the penalties on violations of the law of nations may have been indistinctly marked or are inadequate, these offenses cannot receive too early and close an attention, and require prompt and decisive remedies." "In like manner, as several of the courts have doubted, under particular circumstances, their power to liberate the vessels of a nation at peace, and even of a citizen of the United States, although seized under a false color of being hostile property, and have denied their power to liberate certain captures within the protection of our territory, it would seem proper to regulate their jurisdiction in these points." Soon after the opening of the session Jefferson retired from the cabi net into private life, and did not take any active part in politics for the Tucker, vol. i, next three years. Washington was thus left free to carry out his policy page 526. and to establish relations with England on a more friendly footing. The early part of the session was occupied with discussions on the imposition of a protective duty on trade with nations not having commercial treaties with the United States. This measure was aimed at British trade, and was a consequence of the ill feeling that had been occasioned by the British orders in council of June and November, 1793, authorizing the seizure of United States merchant ships laden with corn for France, or found attempting to break the blockade. The next measure introduced was for the construction of a navy, and was intended as a provision against the contingency of a war with England, although nominally adopted as a defense for American commerce against the Algerine pirates. On the 27th of March, Mr. Dayton, of New Jersey, offered a resolution for sequestering all debts due to British subjects, as a fund to indemnify citizens of the United States for the unlawful depredations of British cruisers. Before any vote was taken, Mr. Clarke, of New Jersey, proposed that all intercourse with Great Britain should be prohibited until satisfaction was obtained. 431. While these subjects were pending, the President, on the 4th of April, American State communicated to Congress a dispatch from Mr. Pinckney, the United Papers, vol. i, page States minister in London, forwarding a copy of an order in council of the 8th of January, modifying the instructions to cruisers contained in the previous orders. Tucker, vol. page 544. i, This caused the popular feeling to incline in favor of England, and the republican or anti-federal party abandoned their scheme of commercial retaliation, and assented to a proposition made by the federalists that a special mission should be sent to England to settle the various questions in Witt. dispute. Vie de Wash- Mr. Jay, Chief Justice of the Supreme Court, a descendant of one of ington, par De the families which took refuge in England at the time of the revocation of the edict of Nantes, a federalist, and friend of the English cause, was selected for the post of envoy.* He was nominated on the 16th of April, but did not arrive in London until the 15th of June. The inadequacy of the existing law to deal with even the grossest breach of the neutrality proclamation had been shown a short time previously by the grand jury of Philadelphia having refused to find a true bill against the French vice-consul, Duplaine, (the vice-consul whose exequatur had been withdrawn in October, 1793,) for the forcible rescue of the Greyhound. It was apparent that no time must be lost in amending the law on this subject, and in accordance with the recommendation in the President's message a bill was now introduced for the purpose. Tucker, vol. i, The bill was vigorously oposed by the republicans, and "would have page 546. been defeated in the Senate, if repeated motions made with that view had not been lost by the vote of the Vice-President. "The republican party had a majority in the Senate of one member, but the seat of Mr. Galatin, from Pennsylvania, one of that majority, having been contested and set aside on the ground that he had not been a citizen so long as the Constitution required, the two parties were exactly balanced." sess. This act, which forms the basis of the United States neutrality laws, United States contains ten clauses, and is entitled "An act in addition to the act for Statutes at Large; the punishment of certain crimes against the United States." (The third Congress, 1. ch. 50, act thus referred to is the act of April 30, 1790, providing for the punJune 5, 1794. Brit ishment of high treason and other offenses against the state or indiish State Papers, viduals.) As this act is substantially the same as the act of 1818, and (Hertslett's,) vol. as in referring to that act attention will be called to the points in which they differ, it will be sufficient to give here a short abstract of iv, page 339. the different articles: SECTION 1. Any citizen of the United States, within the jurisdiction of the same, accepting or exercising a commission to serve a foreign prince or state by sea or land, liable to a fine of $2,000 or imprisonment for not more than three years. SEC. 2. Any person within the jurisdiction of the United States entering himself or enlisting others, or hiring or retaining another person to enlist for the service of the army or navy of any foreign prince or state, liable to a fine of $1,000 or three years' imprisonment. This not to apply to foreigners transiently within the United States. Any person so enlisted giving information within thirty days to be indemnified from punishment. SEC. 3. Any person within any of the ports, harbors, bays, rivers, or other waters of the United States, fitting out and arming, or attempting to fit out and arm, or proeuring to be fitted out and armed, or attempting to, &c., or knowingly concerned in the furnishing, &c., of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign state, to cruise or commit hostilities against the subjects, citizens, or property of another state with which the United States shall be at peace, or commissioning any such vessel, to be liable to a fine of $5,000 or three years' imprisonment, and the vessel, tackle, &c., to be forfeited, one-half to the informer and the other half to the United States. SEC. 4. Any person augmenting or procuring to be augmented the force of any ship of war in the service of a state at war with a state with which the United States are at peace, by adding to the number or size of the guns of such vessel, or by the addition thereto of any equipment solely applicable to war, to be liable to a fine of $1,000 or imprisonment for one year. SEC. 5. Any person within the jurisdiction of the United States setting on foot or preparing any military enterprise against any state with which the United States are at peace, to be liable to a fine of $3,000 or one year's imprisonment. See the correspondence respecting Mr. Jay's mission, American State Papers, vol. i, pages 470 to 525. (There is an interesting report on the law of prize, furnished to Mr. Jay by Sir Walter Scott and Dr. Nicholl, which deserves attention, page 494.) SEC. 6. District courts to have cognizance of captures made within the waters or within a marine league of the coasts or shores of the United States. SEC. 7. The militia or land or naval forces to be employed for enforcing this act, for detaining any vessel contravening it and her prizes, and for restoring such prizes when restoration may be adjudged, and for preventing illegal military expeditions. SEC. 8. The militia, &c., to be employed as shall be necessary to compel any foreign ship or vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, they ought not to remain within the United States. SEC. 9. Prosecution of treason or piracy not to be impaired. SEC. 10. The act to continue in force for two years, and thence to the end of the next session of Congress.* This act afforded an answer to M. Genet's pretensions and to Mr. Hammond's complaints. It now only remains to be seen how the British claims acknowledged in Mr. Jefferson's letter of the 5th of September, 1793, were disposed of. American State This was done by the insertion in the treaty concluded by Mr. Jay on the 19th of November,t 1794, of articles providing for the appoint- Papers, vol. i, page ment of commissioners to consider the compensation to be awarded 520. (Article VII) in cases of complaints made by United States merchants of loss and damage sustained "by reason of irregular or illegal captures or condemnations of their vessels and other property under color of authority or commissions from his Majesty ;" and also in cases of complaints of his Majesty's subjects, "that in the course of the war they have sustained loss and damage by reason of the capture of their vessels and merchandise taken within the limits and jurisdiction of the States, and brought into the ports of the same, or taken by vessels originally armed in ports of the said States," "where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated at Philadelphia, September 5, 1793." And (Article XXI) it is likewise "agreed that the subjects and citizens of the two nations shall not do any acts of hostility or violence against each other, nor accept commissions or instructions so to act from any foreign prince or state," &c. * * * * * * * * “ART. XXIV. It shall not be lawful for any foreign privateers, (not being subjects or citizens of either of the said parties,) who have commissions from any other prince or state in enmity with either nation, to arm their ships in the ports of either of the said parties, nor to sell what they have taken," &c. "ART. XXVIII. It is agreed that the first ten articles of this treaty shall be permanent, and the subsequent articles, except the twelfth, (providing for trade with the West Indies,) shall be limited in their duration to twelve years" from the exchange of ratifications. As previously stated, Mr. Jefferson's letter of the 5th of September, 1793, was annexed to this treaty, so that the effect of the 7th article was to make compensation to Great Britain for all prizes taken by vessels fitted out by France in the United States after the 5th of June, 1793, (the date of Mr. Jefferson's letter of prohibition to Mr. Genet,) if such prizes had been brought into ports of the United States; but not to make compensation for any prizes brought in by vessels fitted out before the 5th of June, 1793, or for any prizes whatever not brought into United States ports. Having thus traced the United States neutrality law from its origin in the proclamation of the 22d of April, 1793, to the act of 1794, it may be convenient to notice some of the principal decisions in the Supreme Court of cases illustrative of the operation of the law as thus originally framed. February, 1794, the sloop Betsy, (a vessel captured by the French privateer the Citizen Genet, and sent in to Baltimore.) Judgment.-No foreign power can rightfully erect any court of judicature within the United States unless by force of a treaty. The admiralty jurisdiction exercised by consuls of France in the United States is not of right. Decisions in the Supreme Court of the United States. Curtis, vol. i, page 74. page 128. August, 1795. Talbot vs. Janson. Case of a Dutch vessel, the Magdalena, brought into Charleston by the privateer L'Ami de la Liberté, Curtis, vol. i. alleged to have been an American-owned ship, armed and equipped in Chesapeake Bay and Charleston. Judgment.-The capture of a vessel of a country at peace with the United States, made by a vessel fitted out in one of our ports and commanded by one of our citizens, is illegal; and if the captured vessel is brought within our jurisdiction the district courts, upon a libel for a tortious seizure, may inquire into the facts and decree restitu tion. Restitution decreed with damages. August, 1796. Moodie vs. The ship Alfred. Re-enacted March 2, 1797, and made perpotual April 24, 1800. A This was the first treaty providing for a commission to investigate British and American claims. second commission was appointed under the treaty of Ghent of 1814, to consider claims arising from the seizure of slaves; and a third under the convention of February 8, 1853, for the general settlement of outstanding claims. |