The American herald of liberty — Exeter, N.H., 1794-01-14 00:00:00, page 1

American Herald of Liberty.
Let us confider, firft, what is the ex
tent of the jurildidion which the consul
ate of France may rightfully exercise
here. Every nation has of natural right,
entirely, and exclusively, all the jurif
ci 61 ion which may be rightfully exercis
ed in the territory it occupies, if it cedes
any portion of that jurifdidion to judges
appointed by another nation, the limits
of their power mult depended on the
inftrumenc of teffion. The United States
and France have by their consular con*
venrion, given to their COnfuls jurifdidion
in certain cases especially enumerated.
But that convention gives to neither the
power of eftablilhing complete courts of
admiralty within the territory of ,the o
ther, nor even of deciding the particular
question of prize or not prize. The con
sulates of France,nhen, cannot take ju
dicial cognizence ofthofe questions here-
Os this opinion Mr. Genet was, when
he Wrote his letter of May 2^th, where.
he promises to cor.feft the error of the
consul at Charleston, of whom, in my
letter of the 15th, I had complained, as
arrogating to himfelf the jurifdidion;
tho’ in his subsequent let era he has
thought proper to embark in the errors
of his consuls.
2d. y\NOTHEßdoflrine advanced
by Mr. Genet, is that our courts can take
no cognizance of questions whether of
veflels, held by theirs as prizes, are law
ful prizes or not; that thisjurifdiftion
belongs exclusively to their confula'e
here, which have lately been erefted by
the National Assembly into complete
courts of admiralty.
But the United States, at the fame
time, do not pretend any right to try the
validity of captures made on the high feat y
byFrance, or any other nation, over its
enemies. These questions belong, of
common ufage,tothefovereigQof thecap
tor,and whenever it is necessary to deter
mine them, resort must be had to his
courts. This is the case provided for in
the 17;h article of the treaty,,which fays
that such prizes (hall not be arrested, nor
cognizance taken of the validity thereof;
a liipulation much infilled on by Mr.
Genet and the consuls, and which we
never thought of infringing or queftion
mg. As the validity of captures then,
made on the high feat by France over its
enemies, cannot be tried within the Uni
ted States by their consuls, so neither
can it by our own courts. Nor is this
the quellion between us, though we
have been milled into it.
The real queAion is, whether the U
nited States have not a right to protect
veflels within their waters, and on their
coafts* 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 jutifdidlion
of the United States. Mr. Genet, how •
ever, instead g' apologizing, takes great
merrit in Ais letters for giving her up.
The WHliam is said so have been taken
within two miles of the fhotes of the
United States. When the Admiralty de
dined cogfiiiance of the caf?j Ihe was
delivered to the French cohful, according
to my letter of June 25th, to be kept till
the executive of theUniied States fhodd
examine into the case ; and Mr. Genet
was desired bv my letter of June 29th
to have them furnilhed with the evidence
on behalf of the captors, as to the place
of capture. Yet, to this day it has never
From Mr. JEFFERSON, Secretary of
State, to Mr. MORRIS, MiniJi er Ple
nipotentiary of the United States.
[Volume VIIL
Important Letter,
EX ETE R (New-Hamp/hire) Printed and Publiihed by Sterns and Winslow^ in Main-Sirett, at 6f% per annum.
\Con ludedJromour laji ]
been done. The brig Fanny was alledg
ed to betaken within five miles from
our shore. The Catharine within two
miles and a ML It is an eflential attri
bute of the jurifdidion of every country
to prderve peace.to punish ails in breach
of it, and to restore property taken by
force within its limits. Were the armed
veflels of arty nation to cut away one of
our own from the wharves of Philadel
phia, and to chufe 10 cal) it a prize,
would this exclude us from the right of
redrefling the wrong ? Where is the vef
lel of another nation, are we not equally
bound to protest it, while wtrain our
limits ? were it seized in any other wa
ters,or on the Ihores of the United States,
the rights of redrefling are still the fame;
and humble indeed, would be our don
-
dition, were we obliged to depend lor
that on the will of a foreign consul, Or
on negociation with diplomatic Agents.
Accordingly, this right of protection,
within its waters, and to a reafonabie
difUnce on its coasts, has been acknow
ledged 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 themfdves.
France herfelf has aflerted the right in
herfelf, and recognized’ it in iis, in the
6th article of our treaty, white we mu
tually stipulate that we will, by all means
in our power, (nbt by negociation) pro
test and defend each other's Vcffcls and
effefts, in our ports or roads, or on the
leas near our countries, and recover and
restore the fame to the right owners.
The United Netherlands,, Prussia, and
Sweden have recognized it also in trea
ties with us; and indeed it is a Handing
formula, inferred in almost all the trea.
ties of all nations, and proving the prin
ciple to be acknowledged by all nations.
How, and by what organ of the gov
ernment, whether judiciary or executing
it shall be redressed, is not yet perfe^O
fett'ed with us. One of the fubordinaVe
Courts of Admiralty has been of opinion,
in the firft instance, in the case of the
ship William, that it does not belong to
the judiciary. Another, perhaps miy be
of a contrary opinion. The question is
still lubjudice, and an appeal to the
Court, of last resort, will decide it final
ly. if finally, the judiciary shall de
clare that it does not belong to the (I*oll
authority, it then results to the execu.
five, charged with the direction of the
military force of the Union, and the
conduft^of its affairs with foreign na
tions. But this is a mere question of
internal arrangement between, the dif
ferent departments of the government,
depending on the particular didioii of
the laws and constitution ; and it can,
in no wife, concern a foreign nation
to which departments these have de
legated it.
3d. Mr Genet, in his leter of July
9th, requires that the ship Jane, which
he calls an English privateer, shall be
immediately ordered to depart; and, to
juftify this,he appeals tp t|ie 22d artide of
our Treaties, which provides that it (hall
not be lawful for any foreign privateer
to fit their (hips in our ports, to fell what
they have taken, or purchase vi&uals, &c.
The (hip Jane is an English merchant
veflel which has been many years em
ployed in the commerce between Jamai
caand these States* She brought here
a cargo of produce from that I (land, afld
was to take away a cargo of flower.
Knowing of the war when she left Jamai
ca, and. that our co oft was lined with
small French privateers, (he armed for
her defence, and took one of those com
millions usually called letters of Marque
She arrived here fafelyi without having
any rencounter of any fort. Gan it be
necessary to fay that ,a merchant-veflel is
not a privateer7 That though the has
TUESDAY, January 14, 6794.
arms to defend herfelf in time of war,
in the courle of her regular commerce,
this no more makes her a privateer, than
a husbandman following his plow, in time
of war, with a knife or pistol in his pock
et, is thereby made a soldier. The occu
pation of a privateer, is attack and plunder,
and that of a merchant-veflel, commerce
and fdbi^ervation. The article excluder
the f^RHßrom our ports, and from el-
X^whatlbe has taken, that is, what (he
has acquiWa by war, to fliew it did not
mean th^ merchant-veflel and what (he*
4rad acquired by commerce. Were the
merchant veflels, coming for our pro
duce, forbidden to have any arms for
their defence,every adventurer whohas a
boat, or money enough to buy one,
would make her a priva-eer t our coasts
would (warm with them, foreign veflels
mull cease to edme, our commerce must
be fupprefltd,our produce remain on our
hands, or at least that great portion of
it, which we have not veflels to carry a
way, our plows must be laid glide, and
agriculture suspended. This is a facri
fice no treaty could ever contemplate,
and which we are not disposed to make
out of mere complaisance to a falfe de
finition of the term privateer. Finding
that the Jane had purchased new carria
ges to mount two or three additional
guns, which (he had brought in her
hold, and that (he had opened additional
port holes for them, the carriages were
ordered to be relanded, the additional
port holes ftoped,and her means of defence
reduced to be exactly the fame at her
departure, as at her arrival. This was
done on the general principle of allow
ing no party to arm in our ports.
4th. The 17th article of our treaty
leaves armed veflels free to conduct whi
therfoever they pleafe,the veflels & goods
taken from their enemies, without pay
ing any duty, and to depart and be con
du&ed freely to places exprefled in their
commiflions, which the Captain shall be
obliged to (hew. It is evident that this
article does not contemplate a freedom
to fell their prizes here : but on the
contrary, a departure to some othe;
place, always to be exprefled in their
Commiflion, where .their validity is to
be Anally adjudged. In such a case it
would be as unreasonable to demand
duties on the goods they have taken
from an enemy, as it would on the car
go of a merchant veflel touching in our
ports for refrefhment or advices, end
against this the article provides. But
the armed veflels of France have been allo
admitted to land and fell their prize
goods here for consumption ; in which
case it is as reafonabie they (hould pay
duties, as the goods of a merchantman
landed and fold for consumption. They
have, however, demanded, and as a mat
ter of right, to fell them free of duty,
a right, they fay given by this article of
the treaty, chough the article does not
give the right to fell at all. Where a
treaty does not give the principal
right of felling, the additional right of
felling duty free cannot be given ; and
the laws, in admiring the principal
right of felling, may withhold the addi
tional one of felling duty free. It must
be observed that our revenues are raised
almost wholly on imported goods. Bup
pofe prize goods enough (hould be
brought in to supply our whole confump
non- According to their conftruftion
we are to lose our whole revenue* I put
;he extreme case toevince moree'xtreme
ly, the onreafonablenefs of the claim.
Partial supplies would effeft the revenue
but partially. They would leflen the
evil, but not the error of the construc
tion ; and I believe we may fay with
truth, that neither party had k in con
templation, when penning this article,
to abandon ady pare of its revenue for
sth. Another source of complaint
with Mr. Genet has been,thatthe English.
take French goods out of American vef
lels, which he fays is against the law of
nation.', and ought to be prevented by
us. On the contrary, we suppose it to
have been long an cftablilhed princi
ple of the law of nations, that the goods
of a friend are free in an enemy’s vef
lel, and an enemy's goods lawful prize iu
the veflelof a friend. The inconveni
ence of this principle, which fubjeds
merchant veflels to be flapped at sea,
searched, ransacked, led out of their
courle, has induced several nations lat
terly to stipulate against it by treaty,
and to substitute another in its (lead, that
free.bottoms make free goods,and enemy
bottoms, enemy good'; a rule equal to
the other in point of lols and gain, but
lefsoppnflive to commerce. As far as
it has been introduced, it depends on
the treaties stipulating it, and forms ex
ceptions in special cales to the general
operation of the law of nations. We
have introduced it into our treaties with
France,Holland ano Pruflia ; and French
goods found by the two htcer 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 aft
on the general principle, without giving
us or France caule of complaint. Nor
do I fee that France can lose by it on
the whole, for though she looses her
goods when found in our veflels by the
nations with whom we have no treaties,
yet she gains our good', when found in
the veflels of the fame, and all o her na
tions ; and we believe the latter mals to
be greater than the former. It is
co be lamented, indeed, that the general
principle has operated so cruelly in tjic
dreadfq) calamity which has lately hap
pened in St. Domingo. The misera
ble fagativer, who, to save their lives,
had taken asylum in our veflels, 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-ro
vers of their enemies. This has fwdU
led, on this occasion, the disadvantages
of the general principle, that “ an ene
my’s goods are prize in the veflels of
a friend.” But it is one of those de
plorable and unforefeen calamities, to
which they expose themfdves who enter
into a state of war, furnifhing to us an
awful leflon to avoid it by justice and
moderatioo, and not a cause or encour
agemeot to expose our own towns to the
fame burnings and butcheries, nor of
complaint because we do not,
6th* In a case like the pfefent, where
the miflionary of one government con
strues differently from that to which he
is sent, the treaties and laws which are
to form a common rule of aftion for both,
it would be unjust in either, to claim an
excluflve right of conftruftion. Eaph
nation has an equal right to expound the
meaning of their common rules ; and
reason and usage have established, in
such case», a convenient and well under
stood train of proceeding. It is the
right and duty of the foreign miflionary
to urge his own ebnftruftions, to sup
port them wkh reasons which may con
vince, and in terras of decency and re
fpeft which may reconcile the govern
ment of the country to a concurrence*
It is the duty of that government to lis
ten to his reafopings 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 fide, it fol
lows of ncccflity, that cxcrciang the
the encouragement of the sea robbers
of the other.
[Number 28.