Newspaper Page Text
ties between France and Spain, the
former could not permit the enemies
of the latter toarn in her ports. It
was hon est in her, therefore, not to
deceive Us by Inch a ft:pulaiion. Sup
pole a war between tliefe dates and
Great Britain. By the treaties be
tween France and Great Britain, in
force at thelignatttreof ours, we could
net have been permitted to arm in
the ports pf France. She could not
then have meant in this article to
give us such a right. She has mtlni
tefted the fame 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
not bringjubjefis of tit her crown, should
not arm against either in the ports of
the other. If this had amounted to
an affirmative ftipillatiori, that the
{ubjedL of the other, crown might arm
in her ports agahjl us, it would have
been in direct contradiction to heb
22d article with us. So that to give
tothefe negativeftipulations, an affir
mative effect, is to render them in:
confident with each other, and with
good faith : to give them only their
negative and natural effect, is to re
concile them to one another, and to
good faith, and is clearly to adopt the
i’erife in which’France her lei f has ex
pounded them. Wfi may juffiy con
clude, then, that the article only
Obliges us to refufe 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 refufe it, and lince we are bound
by treaty to refufe it to the one party,
and are free to refufe it to the other,
Vve are bound by the laws of neutrali
ty to refufe 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
quedion whether our citizens, joining
in these unlawful enterprizes may be
puniihed ? The United States, being
in a date of peace with mod of the
belhgerant 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 leas, on those with whom
we are so at peace, are p uni (liable,
equally as if committed on our own
inhabitants. If I might venture to
reason a little formally, without be
ing charged with running into “ lub
tilties and aphortfms,” 1 would fay
that if one citizen has a right to go to
war of his own authority, every citi
zen lias the lame. If every citizen
has that right, then the nation (which
is composed of all 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
oflocicty, or by our conftinitron, which
gives that power to congreis alone, and
not to the citizens individually. Then
the firlt polition was not true ; and no
citizen has a right to go to war of his
own authority : and for what he does
without right, lie ought to be punch
ed. ‘lndeed, nothing can be more
obvioufty ablurd, than to fay rhat all
the citizens may be at war, and yet the
nation at peace. It has been pre
tended, that the engagement of a
citizen in an enterprile of this nature
was a divestment of the character of
citizen, and a transfer of jurildi&ion
over him to another sovereign. Our
citizens are certainly free to dived
themielvesof that character, by emi
gration, and other acts manifefting
their intention, and mdy then become
the Subjects of another power, and
free to do whatever the iiibjedt of that
power may do. But the laws do not
admit that the bare commiHion of a
crime amounts of itfelf to a divedment
of the charafter of citizen, and with
draws the criminal from their coer
cion. They would never preferibe
, f an illegal aft among the legal modes
Iby which a citizen might disfranchise
htmfelf ; not render treason for in
dance, innocent by giving it the force
oi a diflolution of the obligations of
the criminal to his country. Accord
ingly, in the caie of Henfield, a citi*
zen of these dates, charged with hav
ing engaged in the port of Charles
ton, in an enterprise against nations
at peace with us, and with having
joined in the adfual commission of
hodiliries, the attorney general of
the United States, in an official opin
ion, declared that the adi with which
he was charged was punishable by law.
The fame thing has been unanirnoufiy
declared by two of the circuit courts
of the United States, as you will lee
in the charges of chief justice Jay, de
livered at Richmond, and judge Wil
son, delivered at Philadelphia, both
of which are herewith lent- Yet
tnr. Genet, in the moment he lands
at Charleston, is able to tell the go
vernor, and continues to affirm in his
Correspondence here, that no law of
the United States authorifes their
government to redrain either its own
citizens or the foreigners inhabiting
its territory, from warring againd the
enemies of France. It is true indeed,
that, in the case of Henfield, the jury
which tried, dbfolved him. But it
appeared qn the trial that the crime
Was not knowingly and wilfully com
mitted ; that Henfield was ignorant
of the nnlawfulnels of his undertak
ing ; that in the moment he was ap
priled of it, he shewed real contri
tion ; that he had rendered meritori
ous fer Vices during the late war, and
declared he would live and die an
American. The jury therefore, in
ablolving him, did no more than the
conditutional authority might have
done, had they found him guilty :
the constitution having provided for
the pardon of offences in certain tales,
and there being no case where it could
have been more proper than where no
offence was contemplated. Henfield
therefore was Itill an American citi
zen, and rar. Genet’s reclamation of
him was as unauthorifed as the firft
enliftmenr of him.
2d. Another doctrine advanced by mr.
Genet, is, that our courts can take
no cog ni fa nee of questions whether
velfels, held by theirs , as prizes, are
lawful prizes or not ; that this juriff
diction belongs excluiively to their
confdlates here, which have been
lately ereftecl by the national assembly
into complete courts of admiralty.
Let us conlider, firlt, what is the
extent of the jurilcliction, which the
consulates of France may rightfully
exercile here. Every nation has of
natural right, entirely andexdufively,
all the jurildiction which may be right
fully exercised in the territory it oc
cupies. If it cedes, fly part of that
jurildiction to judges appointed by
another nation, the limits of their
power mult depend on the inltrument
of cellion. The United States and
France have by their consular con
vention, given mutually to their con
lu'ls jurildiction in certain cases ef
pccially enumerated. But that con
vention, gives to neither the power of
establishing complete courts of admi
ralty 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 those ques
tions here. Os this opinion mr. Ge
net was, when he wrote his letter of
May 27, wherein he promises to cor
rect the error of the consul at Charles
ton, of wffom, in my letter of the
15th, I had complained, as arrogat
ing tohimfelf that jurifdiftion; though
in his subsequent letters he has thought
proper to embark in the errors of his
consul s.
But the United States, at the lame
time, do not pretend any right to try
the validity of captures madeaw the high
feds, by France or any other nation, o
verits enemies. Thelequeltionsbelong,
of common usage, to the sovereign of
the captor ; and whenever it is necef
fary to determine then!, resort muff
be had to his courts. This is the cale
provided for in the 17th article of the
treaty, which fays, that luth prizes
lhall not be arrested, nor cognizance
taken of the validity thereof; a stipu
lation much infilled on by mr. Genet,
and the consuls, and which we never
thought of infringing or quertioning.
As the validity of captures then,
made an the high fens, by F ranee o\er
its enemies, cannot be tried within the
United States by their consuls, so
neither can it by our own courts. INOI
is this the question between us, though
we have been milled into it.
The real question is, whether the
United States have not a right to pro
tect velfels within their waters and
on their coasts. The Grange was
taken within the Delaware, between
the fliores of Jerfeyandof the Dela
ware state, and l'everal miles above its
mouth. The seizing her was a
flagrant violation of the juriidiftion
of the United States. Mr. Genet,
however, inltead of apologizing, takes
great merit in his letter for giving
her up.—The William is said to have
been taken within two miles of the
Ihores of the United State • When
the admiralty declined cognizance of
the case, (he was delivered to the
French consul, according to my letter
of June 25th, to he kept till the ex
ecutive of the United States Ihould
examine into the cale ; and mr. Ge
net was delired by my letter of June
29th, to have them furniftied 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 from our shore.
The Catherine within ttvo miles and
a half.
It is an efiential attribute of the
jnrildidion of every country to pre
serve peace, to punifti atfts in breach
of ir, and to restore property taken by
force within its limits. Were the
armed vessels of any nation to cut
away one of our own from the
wharves of Philadelphia, and to chufe
to call it a prize, would this exclude
us from the right of redrefling the
wrong ? Were it the veflel 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 Ihores of the United States,
the right of redrefling is ftili the
(ame: and humble indeed, would be
our condition, were we obliged to de
pend for that on the will of a foreign
consul, or on negociation with diplo
matic agents. Accordingly, this right
of protection, within its waters, and
to a reasonable cliftance on its coasts,
has been acknowledged by every na
tion, and denied to none : and if the
property seized, be yet within their
power, it is their right and duty to
redress the wrong ihemfelves. France
herlelf has asserted the right in her
felf, and recognized it in us, in the
6th article of our treaty, where we
mutually stipulate, that we will, by
till the means in our power (not by nego
ciation) proteift and defend each
other’s velfels and effefts, in our
ports or roads, or on the seas near
our countries, and recover and restore
the fame to the right owners. The
United Netherlands, Prussia, and
Sweden, have recognized it also in
treaties with us; and indeed it is a
Handing forrnule, inserted in almost
all the treaties of all nations, and
proving the principle to be acknow
ledged by all nations.
How, and by what organ of govern
ment, whether judiciary or execu
tive, it ftiall be redressed, is not yet
perfectly fettled with us. One of the
subordinate courts of admiralty has
been of opmion, in the firft instance,
in the case of the Ihip William, that
it does not belong to the judiciary.
Another, perhaps, may be ot a con
trary opinion. The question is ftili
fubjudice, and an appeal to the court
of lalt resort, will decide it finally.
If, finally, the judiciary ftiall declare
that it does not belong to the civil
authority, it then relults to the exe„
cutive, charged with the direction of
the military (dree of the union, and
the conduct of its affairs with foreign
nations. But this is a mere question
of internal arrangement between the
different departments of the govern,
ment, depending on the particular
diftion of the laws and constitution;
and it can, in no wife, concern a
foreign nation to which department
these have delegated it.
[To be concluded in our next, j
NEW-YORK, December 18.
Captain Sheffield, who arrived here
yesterday, from Cadiz, fays there was
no account of any American vessels
being captured by the Algerines, but
that several had been chafed by them
that many of the American sailors
left their -ftiips and entered on board
the men of war ; that at Cadiz they
had not received any account of the
retaking of Toulon, but that jt was
inverted by a powerful army of re
publicans—The Spaniards were ex
erting themselves to afford the garri
son relief, which had lately i'utFered
very great losses in attempting to dis.
lodge’ the French from fome adv.an.
tageous situation they poffefFed. Ihe
number of Englifti killed was reported
to be near 300 c, and as many Spaniih.
PETERSBURGH, (Virg.) Dec. 20.
The following is a copy of a letter,
directed to leveral gentlemen of
this town, from William B- Giles,
one of the reprelentatives from this
state in congress.
Philadelphia, Dec • 11,17 93*
“ Gentlemen,
te At the moment the house of re
prefentatives was engaged in reading
the executive communications relpect
irig the uniform efforts of the United
States for a fair and amicable accom
modation of our JidSc. t -r.ee>;■ will.
Great Britain, intelligence was re
ceived here, that through the inter
polition of the Britiih agent at Al
giers, a tfuce has been concluded be
tween Algiers, Portugal arid Hol
land * in coni’equence of which event,
nine Algerine cotfairs had aClually
entered into the Atlantic, and cap
tured three American vessels, &c.
“ Thismealure feetns to have been
diftated, not only by the ui’ual syste
matic enmity of Great Britain to the
riling commerce of the United States,
but by the particular conlideration of
counterbalancing, by these dilhonour
able and inhuman means, the advan
tages of z\merican over Britifii bot
toms, which would necessarily have
flowed from our neutrality in the pre
lent European war.
“ When we reflect upon our abor-,
tive efforts for a just and reasonable
accommodation with Great Britain,
and the symptoms presented in the at
tempts of negociation, which furnifh
no prolpeftive consolation to the
friends of justice and of peace, and
add to such reflections the aggravation
of this unexpected and unprovoked
attack upon our commerce, it will be
found difficult to anticipate the ulti
mate point to which such injuries and
insults may lead us.
“ This information being deemed
immediately and extremely interesting
to the whole commercial interest
throughout the United States, I have
thought it a duty to make this early
communication, to enable you, in
your future commercial arrangements,
to view it with that lerioufnefs which
its authenticity and importance may
merit.
“ The objeft of this letter being,
to give publicity to the information it
contains, you are at liberty to make
any use of it.which may anywile con
duce to that end.
W. B. GILES.”