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actions, it has been a great comfort to us to believe, that none of them were within the intentions or expectations of his employers. These had been too recently expressed in acts which nothing could discolor, in the letters of the Executive Council, in the letters and decrees of the National Assembly, and in the general demeanor of the nation towards us, to ascribe to them things of so contrary a character. Our first duty, therefore, was to draw a strong line between their intentions and the proceedings of their minister; our second, to lay those proceedings faithfully before them. • On the declaration of war between France and England, the United States being at peace with both, their situation was so new and unexperienced by themselves, that their citizens were not, in the first instant, [instance, sensible of the new duties resulting therefrom, and of the restraints it would impose even on their dispositions towards the belligerent Powers. Some of them imagined (and chiefly their transient sea-faring citizens.) that they were free to indulge those dispositions, to take side with either party, and enrich themselves by depredations on the commerce of the other, and were meditating enterprizes of this nature, as there was reason to believe. .
In this state of the public mind, and before it should take an erroneous direction, difficult to be set right, and dangerous to themselves and their country, the President thought it expedient, through the channel of a proclamation, to remind our fellow citizens, that we were in a state of peace with all the belligerent Powers; that in that state it was our duty, neither to aid nor to injure any ; to exhort and warn them against acts which might contravene this duty, and particularly those of positive hostility, for the punishment of which the laws would be appealed to ; and to put them on their guard also as to the risks they would run, if they should attempt to carry articles of contraband to any. This proclamation, ordered on the 19th, and signed on the 22d day of April, was sent to you in iny letter of the 26th of the same month.
On the day of its publication, we received, through the channel of the newspapers, the first intimation that Mr. Genet had arrived, on the sth of the month, at Charleston, in character of Minister Plenipotentiary from his nation to the United States, and soon after that he had sent on to Philadelphia the vessel in which he came, and would himself perform the journey by land. His landing at one of the most distant ports of the Union from his points both of departure and destination, was calculated to excite attention; and very soon afterwards we learnt that he was undertaking to authorize the fitting and arming of vessels in that port, enlisting men, foreigners and citizens, and giving them commissions to cruize and commit hostilities on nations at peace with us ; that these vessels were taking and bringing prizes into our ports; that the Consuls of France were assuming to hold Courts of Admiralty on them, to try, condemn, and authorize their sale as legal prize, and all this before Mr. Genet had presented him. self or his credentials to the President, before he was rereived by him, without his consent or consultation, and directly in con ravention of the state of peace existing, and declared to exist in the President's
proclamation, and incumbent on him to preserve, till the constitutional authority should otherwise declare. These proceedings became immediately, as was naturally to be expected, the subject of complaint by the representative here, of that Power against whom they would chiefly operate. The British minister presented several memorials thereon, to which we gave the answer of May 15th, heretofore enclosed to you, corresponding in substance with a letter of the same date, written to Mr. Terpant, the minister of France then residing here, a copy of which I send herewith. On the next day Mr. Genet reached this place, about five or six weeks after he had arrived at Charleston, and might have been at Philadelphia if he had steered for it directly. He was immediately presented to the President, and received by him as the minister of the Republic; and as the conduct before stated, seemed to bespeak a design of forcing us into the war, without allowing us the exercise of any free will in the case, nothing could be more assuaging than his assurances to the President at his reception, which he repeated to me afterwards in conversation, and in public to the citizens of Philadelpbia, in answer to an address from them, that, on account of our reinote situation, and other circum. stances, France did not expect that we should become a party to the war, but wished to see us pursue our prosperity and happiness in peace.
In a conversation, a few days after, Mr. Genet told me that M. de Ternant had delivered hiin my letter of May 15th; he spoke something of the case of the Grange, and then of the armament at Charles. ton; explained the circumstances which had led him to it before he had been received by the Government and consulted its will; expressed a hope that the President had not so absolutely decided against the measure, but that he would hear what was to be said in support of it; that he would write me a letter on the subject, in which he thought he could justify it under our treaty ; but that, if the President should fi. nally determine otherwise, he must submit: for that, assuredly, his instructions were to do what would be agreeable to us. He accord. ingly wrote the letter of May 27. The President took the case again into consideration, and found nothing in that letter which could shake the grounds of his former decision. My letter of June 5th, notifying this to him, his of June 8th and 14th, mine of the 17th, and his again of the 22d, will show what further passed on this subject. and that he was far from retaining his disposition to acquiesce in the ultimate will of the President.
It would be tedious to pursue this and our subsequent correspon. depces through all their details. Referring, therefore, for these, to the letters themselves, which shall accompany this, I will present a summary view only, of the points of difference which have arisen, and the grounds on which they rest.
Mr. Genet asserts his right of arming in our ports, Letters, Jane 8, a 22, 1, May 27.
8. and of enlisting 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
citizens, and Examining and us 259
approved writers on the subject, that a neutral nation June 17.
104 must, in all things relating to the war, observe an exact Vait-11,3, $ 104
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 succour 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 apperWolf 1174.
His taining 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 sich armaments and enlistments. To these principles of the law of nations, Mr. Genet answers (vide letter June 220] by calling them “di. plomatic subtleties” and aphorisins 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.'
99 But Mr. Genet says, that the 22d 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 the subjects of the most Christian King, nor citizens of the said United States, who have commissions from any 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 importailt a point to be inferred from mere silence, or implication. Suppose they had desired to stipulate a refusal to their enemies, but nothing as 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 again, in her subsequent treaty with England, made eight years after the date of ours, stipulating, in the 16th article of it, as in our 22d, that foreign privateers, wt 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 22d article with us. So that, to give to these negative stipulations an affirmative effect, is to render thein 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 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 ó- subtletics 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 a 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 obligations of the criminal to lix; country. Accordingly, in the case of Hentield, 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 opi. nion, 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 ('ourts of the United States, as you will see in the chargos of Chief Justice Jay, delivered at Richmond, and Judge Wilson, de. livered 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, froin warring against the enemies of France. It is true, indeed, that in the case of Henfield, the jury which trice, absolved him. But it appeared, on the trial, that the crime was not knowingly and wilfully' committed ; that Henfield was ignorant of the unlawfulness of his undertaking; that in the moment he was apprised of it, he shewed 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 allthority 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 could have been more proper, than where no offence was contemplated. Henfield, therefore, was still an American citizen, and Mr. Genet's reclamation of him, was as unauthorized as the first enlistment of him.
2d. 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 adeniraliy.