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which shall have been made, of any of the parties at war with France, subsequent to the 5th day of June last, by privateers fitted out of our ports;" that it was consequently expected that he would "cause restitution to be made " of all prizes so taken and brought in subsequent to that day, "in defect of which, the President considers it as incumbent upon the United States to indemnify the owners of those prizes, the indemnification to be reimbursed by the French nation;" and that, "besides taking efficacious measures to prevent the future fitting out 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."
A similar note was addressed to the British minister, and this was followed up, on September 5, 1793, by another, in which Mr. Jefferson comprehensively defined the position of the United States. Referring to the treaties of the United States with France, the Netherlands, and Prussia, by which the contracting parties were bound to endeavor, "by all the means in their power," each to protect and defend in its ports or waters, or the seas near its coasts, vessels and effects belonging to citizens of the other, and to recover and cause to be restored to the right owners any such vessels or effects as should there be taken from them, Mr. Jefferson said:
"Though we have no similar treaty with Great Britain, it was the opinion of the President that we should use towards 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, forborne to use all the means in our power for the restitution of the three vessels mentioned in my letter of August 7th, 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 June, and before the date of that letter, yet, where 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
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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 depends on yourself, or any persons under your direction, in order that the governors may use the means in their power for making restitution. Without knowledge of the capture, they can not restore it. It will always be best to give the notice to them directly; but any information, which you shall be pleased to send 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 June 5th, and August 7th, 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 times 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, 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.”
Referring to this letter, Hall says: "The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced.
In the main however it is identical with the standard of conduct which is now adopted by the community of nations."
Mr. Jefferson, Sec. of State, to M. Genet, June 5, 1793, Am. State Papers,
See, also, Mr. Jefferson to Mr. Madison, May 13, 1793, 2 Randall's Jeffer-
“Under the second point of view it appears to me wrong on the part of the United States (where not constrained by treaties) to permit one party in the present war to do what can not be permitted to the other. We can not permit the enemies of France to fit out privateers in our ports, by the 22d article of our treaty. We ought not, therefore, to permit France to do it; the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair neutrality. Yet considering that the present is the first case which has arisen; that it has been in the first moment of the war, in one of the most distant ports of the United States, and before measures could be taken by the Government to meet all the cases which may flow from the infant state of our Government, and novelty of our position, it ought to be placed by Great Britain among the accidents of loss to which a nation is exposed in a state of war, and by no means as a premeditated wrong on the part of the Government. In the last light it can not be taken, because the act from which it results placed the United States with the offended, and not the offending party. Her minister has seen himself that there could have been on our part neither permission nor connivance. A very moderate apology then from the United States ought to satisfy Great Britain." (Opinion of Mr. Jefferson, Sec. of State, on the restitution by the United States of prizes taken by French privateers fitted out in Charleston, May 15, 1793, 2 Randalls' Life of Jefferson, 137.) "The practice of commissioning, equipping and manning vessels in our ports, to cruise on any of the belligerent parties, is equally and entirely disapproved; and the Government will take effectual measures to prevent a repetition of it." (Mr. Jefferson, Sec. of State, to the minister of Great Britain, May 15, 1793, 3 Jeff. Works, 559.) "As it was apprehended by the President of the United States that attempts might be made by persons within the United States to arm and equip vessels for the purpose of cruising against some of the powers at this time engaged in war, whereby the peace of the United States might be committed, the governors of the several States were desired to be on the watch against such enterprises, and to seize such vessels found within the jurisdiction of their States." (Mr. Jefferson, Sec. of Sate, to U. S. district attorney for New York, June 12, 1793, 5 MS. Dom. Let. 143.)
"I inclose you also several memorials and letters which have passed be tween the Executive and the ministers of France and England. These will develop to you the principles on which we are proceeding be tween the belligerent powers. The decisions, being founded on what is conceived to be rigorous justice, give dissatisfaction to both parties, and produce complaints from both. It is our duty, however, to persevere in them and to meet the consequences, You will observe that Mr. Hammond proposes to refer to his court the determination of the President that the prizes taken by the Citoyen Genet could not be given up; the reasons for this are explained in the papers. Mr. Genet had stated that she was manned by French citizens. Mr. Hammond had not stated to the contrary before the decision. Neither produced any proofs. It was therefore supposed that she was manned principally with French citizens. After the decision Mr. Hammond denies the fact, but without producing any proof. I am really unable to say how it was,. but I believe it to be certain that there were very few Americans. He says the issuing the commission, etc., by Mr. Genet within our territory was an infringement of our
sovereignty; therefore, the proceeds of it should be given up to Great Britain. The infringement was a matter between France and us. Had we insisted on any penalty or forfeiture by way of satisfaction to our insulted rights, it would have belonged to us, not to a third party. As between Great Britain and us, considering all the circumstances explained in the papers, we deemed we did enough to satisfy her. We are moreover assured that it is the standing usage of France. perhaps, too, of other nations, in all wars, to lodge blank commissions with all their foreign consuls to be given to every vessel of their nation, merchant or armed, without which a merchant vessel would be punished as a pirate were she to take the smallest thing of the enemy that should fall in her way. Indeed, the place of the delivery of a commission is immaterial, as it may be sent by letter to anyone. So it may be delivered by hand to him anywhere; the place of signature by the sovereign is the material thing. Were that to be done in any other jurisdiction than his own, it might draw the validity of the act into question." (Mr. Jefferson, Sec. of State, to Mr. Pinckney, min. to England, June 14, 1793, MS. Inst. U. States Ministers, I. 307.) See, also, Mr. Jefferson, Sec. of State, to Mr. Hammond, British min., June 19, 1793, 5 MS. Dom. Let. 164.
In Mr. Jefferson's letter of June 17, 1793, to M. Genet, he stated that, it being reported to the President that an armed French cruiser was fitting out, arming, and manning in the port of New York, for the express purpose of cruising against certain other nations with whom we were at peace, that she had taken her guns and ammunition aboard, and was on the point of departure, "orders were immediately sent to deliver over the vessel, and the persons concerned in the enterprise, to the tribunals of the country; that if the act was of those forbidden by the law, it might be punished, if it was not forbidden, it might be so declared." (1 Wait's State Papers, 90; 1 Am. State Papers, For. Rel. 154.)
Genet's notes of June 25, 1793, giving notice of arming of English vessels in United States harbors, are in 1 Am. State Papers, For. Rel. 159, and in succeeding pages of the same volume there is other correspondence as to the arming of vessels in such ports.
"The original arming and equipping of vessels in the ports of the United States, by any of the belligerent parties, for military service, offensive or defensive, is deemed unlawful.
'Equipments of merchant vessels, by either of the belligerent parties, in the ports of the United States, purely for the accommodation of them as such, is deemed lawful.
"Equipments in the ports of the United States, of vessels of war in the immediate service of the Government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful...
"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," etc.
Hamilton's Treasury Circular of Aug. 4, 1793, 1 Am. State Papers, For.
RULES ADOPTED BY THE CABINET AS TO THE EQUIPMENT OF VESSELS IN THE PORTS OF THE UNITED STATES BY BELLIGERENT POWERS, AND PROCEEDINGS ON THE CONDUCT OF THE FRENCH MINISTER.
"AUGUST 3D, 1793.
"1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service offensive or defensive is deemed unlawful.
"2. Equipments of merchant vessels by either of the belligerent parties, in the ports of the United States, purely for the accommodation of them as such, is deemed lawful.
"3. Equipments, in the ports of the United States, of vessels of war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful; except those which shall have made prize of the subjects, people, or property of France, coming with their prizes into the ports of the United States, pursuant to the seventeenth article of our treaty of amity and commerce with France.
"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 be 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 lawful [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 eighteenth article of our treaty with France, the sixteenth of our treaty with the United Netherlands, the ninth of our treaty with Prussia; and except those mentioned in the nineteenth article of our treaty with France, the seventeenth of our treaty with the United Netherlands, the eighteenth 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 shall have made prize, &c.