Draft of Questions to Be Submitted to
Justices of the Supreme Court1
[Philadelphia, July 18, 1793]
ºI Do the Treaties between the United States and France give to France or her Citizens a right, when at War with a Power with whom the UStates are at peace, to fit out originally, in and from the Ports of the UStates, vessels armed for War, with or without commission?2
ºII If they give such a right Does it extend to all manner of armed vessels or to particular kinds only? If the latter, to what kinds does it extend?
ºIII Do they give to France or her Citizens, in the case supposed, a right to refit or arm anew vessels, which before their coming within any port of the UStates were armed for war—with or without commission?
ºIV If they give such a right, does it extend to all manner of armed vessels or to particular kinds only? If the latter, to what kinds does it extend? Does it include an augmentation of force, or does it only extend ⟨to⟩3 replacing the vessel in statu quo?
ºV Does the XXII Article of the Treaty of Commerce4 in the case supposed, extend to Vessels armed for War, on account of the Government of a Power at War with ⟨France,⟩ or to Merchant-armed vessels belonging to the subjects or citizens of that Power (viz), of the description of those which by the English are called Letters of Marque-Ships by the French “Batiments armé en marchandize et en guerre”?
VI Do the Treaties aforesaid prohibit the UStates from permitting in the case supposed, the armed vessels belonging to a ºPower at War with France or to the citizens or subjects of such Power to come within the ports of the UStates there to remain as long as they may think fit except in the case of their coming in with Prizes made of the subjects or property of France?
ºVII Do they prohibit the UStates from permitting in the case supposed, vessels armed on account of the Government of a Power at War with France or vessels armed for merchandize and war, with or without Commission on account of the subjects or citizens of such Power or any vessels other than those commonly called Privateers to sell freely whatsoever they may bring into the Ports of the UStates and freely to purchase in and carry from the ports of the U States goods merchandize and commodities; except as excepted in the last question?
VIII Do they oblige the United States to permit France in the case supposed to sell in their ports the prizes which she or her citizens may have made of any Power at War with her, the Citizens or subjects of such Power; or exempt ºfrom the payment of the usual duties, on ships and merchandize, the prizes so made in the case of their being to be sold within the Ports of the UStates?
ºIX Do those Treaties particularly the Consular Convention5 authorise France as of right to erect Courts within the Jurisdiction of the UStates for the trial and condemnation of Prizes made by armed vessels in her service?6
ºX Do the laws and usages of Nations authorise her as of right to erect such Courts for such purpose?
ºXI Do the laws of neutrality considered relatively to the Treaties of the UStates with Foreign Powers or Independently of those Treaties permit the UStates in the case supposed, to allow to France or her citizens the privilege of fitting out originally in & from the Ports of the UStates vessels armed & Commissioned for War either on account of the Government or of private persons or both?
XII Do those laws permit the UStates to extend the like privilege to a Power at War with France?
XII Do the laws of Neutrality considered as aforesaid permit the UStates in the case supposed to allow to France ºor her Citizens the privilege of refitting or arming anew vessels which before their coming within the UStates were armed and commissioned for war. May such privilege include an augmentation of the force of such vessels?
XIII Do those laws permit the UStates to extend the like privilege to a Power at War with France?
ºXIV Do those laws in the case supposed, permit Merchant Vessels of either of the powers at War to arm in the Ports of the UStates, without being commissioned? May this privilege be rightfully refused?
ºXV Does it make any difference in point of principle, whether a vessel be armed for War or the force of an armed vessel be augmented in the ports of the UStates with the means procured in the UStates or with the means brought into them by the party who shall so arm or augt. the force of such Vessel? If the first be unlawful is the last lawful?
ºXVI Do the laws of neutrality considered as aforesaid authorise the U States to permit to France her subjects or citizens the sale within their Ports of Prizes made of the subjects or property of a power at War with France before they have been carried into some Port of France & there condemned refusing the like privilege to her enemy?
ºXVII Do those Laws authorise the UStates to permit to France the erection of Courts within their territory & jurisdiction for the trial & condemnation of Prizes7 refusing that privilege to a Power at War with France?
ºXVIII If any armed vessel of a foreign power at War with another, with whom the UStates are at Peace, shall make prize of the subjects or property of its enemy within the territory or jurisdiction of the UStates—have not the UStates a right to cause restitution of such prize? are they bound or not by the principles of neutrality so to do? if such prize shall be within their power?
ºXIX To what distance, by the laws and usages of Nations, may the UStates exercise the right of prohibiting the hostilities of foreign Powers at War with each other,—within rivers, bays and arms of the sea, and upon the sea along the Coasts of the UStates?
ºXX Have Vessels armed for war under commission from a foreign Power a right, without the consent of the UStates, to engage within their jurisdiction seamen or soldiers for the service of such vessels being Citizens of that Power or of another foreign Power or Citizens of the UStates?
XXI Is it lawful for the Citizens of such Power or citizen of the UStates so to engage being within the jurisdiction of the UStates?8
XXII What are the articles, by name, to be prohibited to both or either party.9
XXIII To what extent does the reparation permitted in the 19th article of the treaty with France go.10
XXIV What may be done as to vessels armed in our ports before the President’s proclamation?11 and what as to the prizes they made before and after?
XXV May we, within our own ports, sell ships to both parties, prepared merely for merchandize? may they be pierced for guns?
XXVI May we carry either or both kinds to the ports of the belligerent powers for sale?
XXVII Is the principle that free bottoms make free goods, and enemy bottoms make enemy goods to be considered as now an established part of the law of Nations?
XXVIII If it is not, are nations with whom we have no treaties, authorized by the law of Nations to take out of our vessels enemy passengers, not being soldiers, and their baggage?
XXIX May an armed vessel belonging to any of the belligerent powers follow immediately merchant vessels, enemies, departing from our ports, for the purpose of making prizes of them? If not, how long ought the former to remain after the latter has sailed? And what shall be considered as the place of departure, from which the time is to be counted? And how are the facts to be ascertained?12
Df, in the handwriting of H, George Washington Papers, Library of Congress; copy, in the handwriting of Thomas Jefferson, Thomas Jefferson Papers, Library of Congress; copy, in the handwriting of Tobias Lear, George Washington Papers, Library of Congress; copy, in the handwriting of Lear, Hamilton Papers, Library of Congress.
1. On July 12, 1793, the cabinet requested the opinion of the justices of the Supreme Court upon “certain matters of public concern which will be referred to them by the President.” See “Cabinet Meeting. Opinion on Vessels Arming and Arriving in United States Ports,” July 12, 1793. On July 18 the “Heads of Departments met & agreed upon certain questions relative to the Treaty between the US. & France, to be laid before the Judges of the Supreme Court for their decision thereupon” (JPP description begins “Journal of the Proceedings of the President,” George Washington Papers, Library of Congress. description ends , 182).
In the final version of this document there are twenty-nine questions which the Administration intended to submit to the court. H’s draft contains only the first twenty-one questions submitted. There are actually twenty-two questions in H’s draft but because of an error in numbering (the Roman numeral “XII” appears beside two questions) the last question is numbered “XXI.” The question numbered “XXI” was omitted from the final version. The remaining questions have been printed from the copy in the handwriting of Tobias Lear, George Washington Papers, Library of Congress. There are minor changes in wording between H’s draft and the final version. Knox also submitted a draft of questions for the justices (ADf, Knox to Washington, July 18, 1793, George Washington Papers, Library of Congress).
On July 18, 1793, Jefferson, writing to the justices of the Supreme Court on behalf of the President, asked their advice on the diplomatic problems which had arisen out of the European War. He wrote that the President “has … asked the attendance of such of the judges as could be collected in time for the occasion, to know, in the first place, their opinion, whether the public may, with propriety, be availed of their advice on these questions? and if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on” (AL, letterpress copy, Thomas Jefferson Papers, Library of Congress).
On July 20, 1793, the justices who were then in Philadelphia (John Jay, James Wilson, James Iredell, and William Paterson) replied to the President that they did not wish to consider “The Question ‘whether the public may with propriety be availed of the advice of the Judges on the Questions alluded to?’ … without the advice and participation of our absent Bretheren” (LS, RG 59, Miscellaneous Letters, 1790–1799, National Archives). On August 8 Jay and the associate justices sent to Washington a letter which reads in part as follows: “We have considered the previous Question stated in a Letter written to us by your Direction by the Secretary of State, on the 18th. of last month. The Lines of Separation drawn by the Constitution between the three Departments of government—their being in certain Respects checks on each other—and our being Judges of a Court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to the executive Departments” (LS, RG 59, Miscellaneous Letters, National Archives).
2. On the copy in the Thomas Jefferson Papers, Library of Congress, the initials “A. H.” appear opposite this paragraph.
3. The words within broken brackets have been taken from the copy in the George Washington Papers, Library of Congress.
4. For Article 22 of the 1778 Franco-American Treaty of Amity and Commerce, see H to John Jay, first letter of April 9, 1793, note 2.
5. This is a reference to the Consular Convention signed between the United States and France on November 14, 1788, and ratified by the Senate on July 29, 1789. For the text of this treaty, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends 228–41.
6. As early as May 8, 1793, George Hammond had complained in a memorial to Jefferson that the French consul in Charleston had condemned as legal prizes two British ships seized by French vessels and had offered them for sale instead of following the usual procedure of submitting them to a prize court. Hammond warned the Secretary of State that the French consul’s actions were “not warranted by the usage of nations nor by the stipulations of any existing treaties between the United States and France, and may lead to dangerous consequences” (copy, Thomas Jefferson Papers, Library of Congress). On May 15, 1793, Jefferson assured Hammond that the United States Government agreed that the activities of the consul were not authorized by the treaties with France or by the laws of the United States and that the sale of prizes carried out under such conditions had no validity (Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (New York, 1892–1899). description ends , VI, 252–54). Since Genet had not yet arrived in Philadelphia, Jefferson wrote a letter to Jean Baptiste de Ternant on the same day protesting the practice (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 147–48). On May 27, 1793, Genet replied to Jefferson’s protest and stated his own views on the consular courts. Genet contended that under the terms of the treaties “we alone have at present the right of bringing our prizes into the American ports, and of there doing with them as we please, as property on the validity of which the civil or judiciary officers of the United States have nothing to do, as long as the laws of the United States are not infringed” (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 149–50).
7. In MS “Privizes.”
8. This question was omitted in the final version. The remaining questions have been taken from the copy in the George Washington Papers, Library of Congress. On June 18, 1793, Jefferson wrote a letter to Washington inclosing “a copy of the questions to be proposed to the judges” (AL, RG 59, Miscellaneous Letters, 1790–1799, National Archives).
9. On the copy in the Thomas Jefferson Papers, Library of Congress, the initials “T. J.” appear opposite this paragraph.
10. Article 19 of the 1778 Franco-American Treaty of Amity and Commerce reads as follows: “In Case the Subjects and Inhabitants of either Party with their shipping whether publick and of War or private and of Merchants, be forced, through Stress of Weather, pursuit of Pirates or Enemies, or any other urgent necessity for seeking of Shelter and Harbour, to retreat and enter into any of the Rivers, Bays, Roads or Ports belonging to the other Party, they shall be received and treated with all humanity and Kindness and enjoy all friendly Protection & Help; and they shall be permitted to refresh and provide themselves at reasonable Rates with victuals and all things needful for the sustenence of their Persons or reparation of their Ships and conveniency of their Voyage; and they shall no Ways be detained or hindered from returning out of the said Ports or Roads but may remove and depart when and whither they please without any let or hindrance” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 17–18).
11. For the text of George Washington’s proclamation of neutrality, see John Jay to H, April 11, 1793, note 1.
12. On the copy in the Thomas Jefferson Papers, Library of Congress, the words “The Presidt.” appear in the margin opposite this paragraph.