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• No . Xxiii 1

no. XVI

1795.

The second object of the seventh article, as stated in my last number, is “compensation to British citizens, for captures of their property within the limits and jurisdiction of the United States, or else-where, by vessels originally armed in our ports, in the cases in which the captured property having come within our power, there was a neglect to make restitution.”

This precise view of the thing stipulated, is calculated to place the whole subject at once before the mind, in its true shape; to evince the reasonableness of it, and to dismiss the objections which have been made, as being foreign to the real state of the case. These objections are, in substance, that the compensation promised is of great extent and amount; that an enormous expense is likely to be incurred; and that it is difficult to prove that a neutral nation is under an obligation to go the lengths of the stipulation.

These remarks obviously turn upon the supposition, erroneously entertained or disingenuously affected, that compensation is to be made for all captures within our limits or jurisdiction, or elsewhere, by vessels originally armed in our ports, where restitution has not, in fact, been made. Did the stipulation stand on this broad basis, it would be justly liable to the criticism which has been applied to it. But the truth is, that its basis is far more narrow,—that instead of extending to all those captures, it is confined to the particular cases of them only, in which the captured property came, or was, after the capture, within our power, so as to have admitted of restitution by us but restitution was not made, through the omission or neglect of our Government. It does not extend to a single case, where the property, if taken within our jurisdiction, was immediately carried out of our reach—or where, if taken within our jurisdiction, it was never brought within our reach, or where, if at any time within our reach, due means were employed without success to effect restitution.

It will follow from this, that the cases within the purview of the article, must be very few—for, except with regard to three prizes, made in the first instance, where special considerations restrained the Government from interposing, there has been a regular and constant effort of the executive, in which our courts have efficaciously cooperated, to restore prizes made within our jurisdiction, or by vessels armed in our ports. The extent or amount, therefore, of the compensation to be made, can by no possible means be considerable.

Let us, however, examine if the construction I give to the clause be the true one.

It is in these words: “It is agreed that in all such cases where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated September 5, 1793, a copy of which is annexed to this treaty, the complaints of the parties shall be and are hereby referred to the commissioners to be appointed by virtue of this article, who are hereby authorized and required to proceed in the like manner relative to these as to the other cases committed to them; and the United States undertake to pay to the complainants in specie, without deduction, the amount of such sums as shall be awarded to them respectively,” etc.

The letter of Mr. Jefferson, by this reference to it, and its annexation to the treaty, is made virtually a part of the treaty. The cases in which compensation is promised, are expressly those in which restitution has not been made agreeably to the tenor of that letter.

An analysis of the letter will of course unfold the cases intended.

• 1.It recapitulates an assurance before given by a letter of the 7th August, to the British Minister, that measures were taken for excluding from further asylum in our ports, vessels armed in them to cruise on nations with which we were at peace, and for the restoration of the prizes the Lovely Lass, Prince William Henry, and the Fane of Dublin; and that, should the measures of restitution fail in their effect, the President considered it as incumbent on the United States to make compensation for the vessels. These vessels had been captured by French privateers, originally armed in our ports, and had been afterwards brought within our ports.
• 2.It states that we are bound by our treaties with three of the belligerent nations,1 by all the means in our power, to protect and defend their vessels and effects in our ports or waters, or on the seas near our shore, and to recover and restore the same to the right owners, when taken from them; adding, that if all the means in our power are used, and fail in their effect, we are not bound by our treaties to make compensation. It further states, that 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 was to govern us with those 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.
• 3.It then draws this conclusion, that having, for particular reasons, forborne to use all means in our power for the restitution of the three vessels mentioned in the letter of the 7th of August, the President thought it incumbent upon 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 of June, and before the date of that letter, yet when the same forbearance had taken place, it was his opinion that compensation would be equally due. The cases, then, here described, are those in which illegal prizes are made and brought into our ports prior to the 7th of August, 1793, and in which we had forborne to use all the means in our power for restitution. Two characters are made essential to the cases in which the compensation is to be made: one, that the prizes were brought within our ports—the other, that we forbore to use all the means in our power to restore them.
• 4.The letter proceeds to observe, that, as to prizes made under the same circumstances, and brought in after the date of that letter, the President had determined that all means in our power should be used for their restitution; that if these failed, as we should not be bound to make compensation to the other powers, in the analogous case, he did not meanto give an opinion that it ought to be done to Great Britain. But still, if any case shall arise subsequent to that date, circumstances of which shall place them on a similar ground with those before it, the President would think compensation incumbent on the United States. The additional cases of which an expectation of compensation is given in this part of the letter, must stand on similar ground with those before described—that is, they must be characterized by the two circumstances of a bringing within our ports, and a neglect to use all the means in our power for their restitution. Everywhere the idea of compensation is negatived where the prizes have not come within our power, or where we have not forborne to use the proper means to restore them.

The residue of the letter merely contains suggestions for giving effect to the foregoing assurances.

This analysis leaves no doubt that the true construction is such as I have stated. Can there be any greater doubt that the expectations given by the President, in the first instance, and which have been only ratified by the treaty, were in themselves proper, and have been properly ratified?

The laws of nations, as dictated by reason, as received and practised upon among nations, as recognized by writers, establish these principles for regulating the conduct of neutral Powers.

A neutral nation (except as to points to which it is clearly obliged by antecedent treaties) whatever may be its opinion of the justice or injustice of the war on either side, cannot, without departing from its neutrality, favor one of two belligerent parties more than the other—benefit one, to the prejudice of the other—furnish or permit the furnishing to either, the instruments of acts of hostility, or any warlike succor or aid whatever, especially without extending the same advantage to the other; cannot suffer any force to be exerted, or warlike enterprise to be carried on from its territory, by one party against the other, or the preparation or organization there of the means of annoyance; has a right and is bound to prevent acts of hostility within its jurisdiction; and, if they happen against its will, to restore any property which may have been taken in exercising them. These positions will all be found supported in the letter or spirit of the following authorities: Barbeyrac’s note on Puffendorff, B. VIII., Ch. VI., f. 7. Grotius, B. III., Ch. XVII., f. 3. Bynkershoeck, B. I., Ch. VIII., p. 61-65. Chap. XI., p. 69, 70. Vatel, B. III., Ch. VII. Bynkershoeck cites examples of restitution in the case mentioned.

Every treaty we have made with foreign Powers promises protection within our jurisdiction, and the restoration of property taken there. A similar stipulation is, indeed, a general formula in treaties, giving an express sanction to the rule of the laws of nations in this particular.

An act of Congress of the 5th of June, 1794, which is expressly a declaratory act, recognizes at large the foregoing principles of the laws of nations, providing, among other things, for the punishment of any person who, within the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or is knowingly concerned in furnishing, fitting out, or arming, any ship or vessel, with intent to be employed in the service of a foreign state, to cruise or commit hostilities upon the subjects or citizens of another foreign state, with which the United States are at peace; or issues or delivers a commission for any such ship or vessel, or increases or augments, or procures to be increased or augmented, or is knowingly concerned in increasing or augmenting the force of any ship of war, cruiser, or other armed vessel, in the service of a foreign state at war with another foreign state, with which the United States are at peace; or within the territory of the United States, begins or sets on foot, or provides or prepares the means of any military expedition or enterprise, to be carried on from thence against the dominions of any foreign state, with which the United States are at peace.

And our courts have adopted, in its fullest latitude, as conformable, in their opinion, with those laws, the principle of restitution of property, when either captured within our jurisdiction, or elsewhere, by vessels armed in our ports. The Supreme Court of the United States has given to this doctrine, by solemn decisions, the most complete and comprehensive sanction.

It is, therefore, undoubtedly the law of the land, determined by the proper constitutional tribunal, in the last resort, that restitution is due in the abovementioned cases.

And it is a direct and necessary consequence from this, that where it is not made by reason of the neglect of the government, to use the means in its power for the purpose, there results an obligation to make reparation. For, between nations, as between individuals, wherever there exists a perfect obligation to do a thing, there is a concomitant obligation to make reparation for omissions and neglects.

The President was, therefore, most strictly justifiable, upon principle, in the opinion which he communicated, that, in the cases of such omissions or neglects, compensation ought to be made. And in point of policy, nothing could be wiser; for had he not done it, there is the highest probability that war would have ensued.

Our treaty with France forbids us expressly to permit the privateers of the enemy to arm in our ports, or to bring or sell there the prizes which they have made upon her. We could not, for that reason, have made the privilege of arming in our ports, if it had been allowed to France, reciprocal. The allowance of it to her would, consequently, have been a clear violation of neutrality, in the double sense of permitting a military aid, and of permitting it to the one and refusing it to the other. Had we suffered France to equip privateers in our ports, to cruise thence upon her enemies, and to bring back and vend there the spoils or prizes taken, we should have become by this the most mischievous foe they could have. For, while all our naval resources might have augmented the force of France, our neutrality, if tolerated, would, in a great degree, have sheltered and protected her cruisers. Such a state of things no nation at war could have acquiesced in. And, as well to the efficacy of our endeavors to prevent equipments in our ports as to the proof of the sincerity of those endeavors, it was essential that we should restore the prizes which came within our reach, made by vessels armed in our ports. It is known that, notwithstanding the utmost efforts of the Government to prevent it, French privateers have been clandestinely equipped in some of our ports, subsequent to the assurances which were given that the practice would be discountenanced. If prizes made by such vessels were suffered to be brought into our ports, and sold there, this would be not only a very great encouragement to the practice, but it would be impossible that it should be regarded in any other light than as a connivance.

In such circumstances, can we blame our Chief Magistrate? Can we even deny him praise, for having diverted an imminent danger to our peace, by incurring the responsibility of giving an expectation of compensation? The conjuncture we may remember was critical and urgent. Congress were at the time in recess. A due notice to convene them in so extensive a country, can hardly be rated at less than three months.

In this situation our envoy found the business. It is not true, in the sense in which it has been advanced, that he was to be governed by the fitness of the thing, unmindful of the opinion of the President. An opinion of the chief magistrate of the Union, was to a diplomatic agent an authority and a guide, which he could not justifiably have disregarded. The claim of compensation, on the other side, was greatly fortified by this opinion. Nor was it a matter of indifference to our national delicacy and dignity, that the expectation given by it should be fulfilled. It would have been indecent in our envoy to have resisted it. It was proper in him, by acceding to it, to refer the matter to the ultimate decision of that authority, which, by our Constitution, is charged with the power of making treaties. It was the more proper, because the thing was intrinsically right. Every candid man, every good citizen, will rejoice that the President acted as he did in the first instance—that our envoy acted as he did in the second, and that the conduct of both has received the final constitutional sanction.

The opinions of Mr. Jefferson, when they can be turned to the discredit of the treaty, are with its adversaries oracular truths. When they are to support it, they lose all their weight. The presumption, that the letter referred to had the concurrence of the judgment of that officer, results from a fact, generally understood and believed—namely: that the proceedings of the President, at the period when it was written, in relation to the war, were conformable with the unanimous advice of the heads of the executive departments.

This case of British property captured by privateers originally armed in our ports, falsifies the assertion of the adversaries of the treaty, that the pretensions of Great Britain have been fully provided for. She had a colorable ground to claim compensation for all captures made by vessels armed in our ports, whithersoever carried in, or howsoever disposed of, especially where their equipment had been tolerated by our Government. This toleration was to be inferred, as well from a forbearance to suppress those vessels when they came within our power, as from an original permission. Had compensation been stipulated on this scale, it is not certain that it would not have amounted to as much more than that which has been promised, as would counterbalance our claims for negroes carried away, and for the detention of the posts. But instead of this, it is narrowed down by the treaty to such prizes of those vessels as were brought within our ports, and in respect to which we forbore to use all the means in our power for restitution. Here, then, is a setoff against doubtful and questionable claims relinquished on our side. Here, also, is another proof how much the antagonists of the treaty are in the habit of making random assertions. But can we wonder at it, when we reflect that they have undertaken to become the instructors of their fellowcitizens on a subject, in the examination of which they unite a very superficial knowledge with the most perverse dispositions?

Camillus.

[1]France, Holland, and Prussia, and our treaty with Sweden includes a like proviso.