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Let us consider, first, What is the extent of the 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 specially 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 these questions here. Of this opinion Mr. Genet was, when he wrote his letter of May 27th, wberein lie promises to correct the error of the consul at Charleston, of whom, in my letter of the 15th. I had
complained, as arrogating to himself that jurisdiction, 18, 22 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 sovereign 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 17th 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. Genct 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, 90 neither can it by our 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 Delawarc, between the shores of . the 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 25th, to he kept till the Executive of the Unitei States should examine into the case; and Mr. Genet was desired, by my letter of June 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 froin . our shore. The Catharine within two miles and a half. It is an es, sential attribute of the jurisdiction of every country, to preserve peace, to punish acts in breach of it, and to restore property takear by force
within its limits. Were the armed vessel of any nation, to cut away one of our own froin 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 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 natior., 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 as. serted the right in herself, and recognized it in us, in the 6th 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 and 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 recognized it also, in treaties with us; and indeed it is a standing formulæ, 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 Adiniralty 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 js 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 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 22d article of our treaty, which provides, that it shall not be lawful for any foreign privateer to fit their sbips 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 priva
teers, she armed for her defence, and took one of those commissions · usually called Letters of Marque. She arrived here safely, without
having had any rencontre of any soit. Can it be necessary tu say, that a merchant vessel is not a privateer? That though she has arms to defend herself in tiine 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 to 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 has 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 car. riages 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 portholes 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 prin. ciple of allowing no party to arm within our ports.
4. The 17th article of our treaty leaves armed vessels free to con. duct, wbithersoever 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 con. template 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 tu land and sell their prize goods here for 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 contemplatiou, when penning this article, to abandon any part of its revenue, for the encouragement of the sea-robbers of the other.
5th. 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 lawsul prize in the vessel of a friend. The inconvenience of this principle, which subjects merchant vessels to be stopped at seay 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 enemny bottoms enemy goods; a rule equal to the other in point of loss and gain, but less oppressive to cominerce. 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 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 it on the whole. For though she loses her goods when found in our vessels, by the nations with whoin 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, liad 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-róvers of their enemies. This has swelled, on this occasioil, the disadvantages of the general principle, that " an enemy's goods are free prize in the vessel of a friend.” But it is one of those deplorable and unforeseen calamities to which they expose themselves wlo 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 towus to the same burnings and butcheries, nor of complaint because we do not.
6th. In a case like the present, where the missionary of one government construes differently from that to wlich he is sent, the treaties and laws which are to form a common rule of action for both, it would be unjust in either to claim an exclusive right of construction. Each uation has an equal right to expound the meaning of their common rules; and reason and usage have established, in such cases, a convenient and well understood train of proceeding. It is the right and duty of the foreign missionary to urge his own constructions, to support them with reasons, which may convince, and, in terms of decency and respect which may reconcile, the Government of the country to a concurrence. It is the duty of that Government to lis. ten to his reasonings with attention and candour, and to yield to them when just. But if it shall still appear to them that reason and right are on their side, it follows of necessity that, exercising the sovereign powers of the country, they have a right to proceed on their own constructions and conclusions, as to whatever is to be done within their limits. The minister then refers the case to his own Government, asks new instructions, and in the mean time, acquiesces in the authority of the country. His Government examines his constructions ; abandons them if wrong; insists on them if right; and the case then becomes a matter of negotiation between the two nations. Mr. Ge. net, however, assumes a new and a bolder line of conduct. After deciding for himself ultimately, and without respect to the authority of the country, he proceeds to do, what even lis sovereign could not authorize: to put himself, within the country, on a line with its Government-acts as co-sovereign of the territory-arms vessels leries men
-gives commissions of war independently of them, and in direct opposition to their orders and efforts. When the Government forbids their citizens to arm and engage in the war, he undertakes to arm and engage them. When they forbid vessels to be fitted in their ports for cruising on nations with whom they are at peace, he commissions them to fit and cruise. When they forbid an unceded jurisdiction to be ex. ercised within their territory by foreign agents, he undertakes to uphold that exercise, and to avow it openly. The privateers, Citizen Genet, and Sans Culottes, having been fitted out at Charleston, . (though without permission of the Government, yet before it was for. bidden,) the President only required they might leave our ports, and did not interfere with their prizes.lgjastimar a : 081!
Instead, bowever, of their quitting our ports, the Sans Culottes remains still, strengthening and equipping herself, and the Citizen Genet went out only to cruise on our coast, and to brave the authority of the country, by returning into port again with her prizes. Though, in the letter of June 5th, the final determination of the President was communicated, that no future armanents in our ports should be permitted, the Vainqueur de la Bastille was afterwards equipped and commissioned in Charleston; the Anti 'George, in Savannah, the Caramagnole, in Delaware, a schooster and a sloop, in Boston, and the Polly, or Republican, was attempted to be equipped in New York, and was the subject of a reclamation by Mr. Genct, in a style that certainly did not look like relinquishing the practice. The Little Sarah or Little Democrat was armed, equipped, and manned, in the Port of Philadelphia, under the very eye of the Government, and as if meant to insalt it. Having fallen down the river, and being evidently on the point of