To Isaac Holmes1
Sepr. 4. 1794
A temporary absence from the seat of Government,2 an extreme press of still more urgent business since my return and ill health have conspired to delay an answer to your letter of the 30th of June last.3 My regret at this delay has become extreme since the receipt of your letter of the 9th of August,4 which shews the continuance of a most unfortunate & mischievous error—contrary to what I had hoped considering the very plain tenor of the Act of Congress entitled “An Act in addition to the Act for the punishment of certain Crimes against the UStates” passed the 5th of June last.5
The construction that expressions “Equipments of a doubtful nature as being applicable either to Commerce or War are deemed lawful” which occur in the 4th & 5th of the rules transmitted in my letter of the 4th of Aug 17936—were intended to tolerate the fitting and arming of vessels for defence or for merchandize and war is wholly erroneous, and as far as I know peculiar to Charlestown.
It is to the last degree embarrassing to conceive how such a construction could have been reconciled to the clear terms of the first rule which declare that “The original arming and equipping of vessels in ports of the UStates by any of the belligerent parties for military service, offensive or defensive is deemed unlawful.”
Now all arming is for military service offensive or defensive. It is for war, for combat, which is military service, to commit or to repel hostility, the first being offensive the last defensive. A letter of Marque, armed for the protection of her Merchandize, is as unequivocally a vessel armed for military service as a frigate, though the object be primarily and principally self-defence. Indeed the having or being without a commission can make no difference in the case—tis the arming ’tis the warlike nature of an equipment that is the criterion of its destination for military service.
I observe with surprise the idea that a Commission was deemed to be within the meaning of the word “equipping” in the first rule. It is repugnant to the familiar and obvious sense of the term; which includes only those things which are done to the Vessel herself as a machine, and perhaps articles of furniture & supply; but was never before (I believe) understood to comprehend a military Commission. If this had been intended, the expression would naturally have been “arming equipping and commissioning” the stopping at the second term was a manifest exclusion of the last.
It follows that every thing which has been permitted under this unfortunate construction of the rules has been a contravention of them and of the Neutrality of the Ustates.
What then it may be asked was intended by the terms “Equipment, of a doubtful nature as being applicable either to commerce or War?” I will answer by stating a case or two that occurred. A vessel had her waste board raised considerably higher than is usual & strengthened with additional timber & plank which was understood to be preparatory to the opening of Port Holes. This was considered as an equipment of a doubtful nature. ’Till port holes were actually opened it could not be pronounced with certainty that the object was a military one. But port holes themselves have been determined to be a military equipment, being foreign to mere navigation, and solely adapted to combat or war.7
Again—A French Privateer procured at Baltimore an extra number of oars. It was suggested, that this must have been for military service, as it was intirely unusual to have so great a number for mere navigation. The determination was that it was an equipment of a doubtful nature & therefore permitted. An oar is purely an instrument of navigation—the having an extra number did not clearly alter the nature of the Equipment. There was no certain criterion by which to determine what excess should change the nature of the thing.
But how could it have been imagined for a moment that arms were an equipment of a doubtful nature? Their peculiar & appropriate use is war offensive or defensive. The first rule proves that defensive equipments was as much intended to be prohibited as offensive ones. It is manifest too that any difference in this particular was liable to a degree of evasion that would intirely defeat the regulations.
I feel myself compelled to ask how it has happened, that a construction of this kind, about the justness of which doubts must certainly have been entertained, defeating in its operation the manifest intention of the Executive Government could have been adopted & so long acted upon without resorting for an explanation to this Department?
As to the construction which the District Attorney8 has given to the Act, I must acknowlege that it intirely confounds me. After what has been said, I need scarcely add that it must not govern your conduct.
You are to consider all arming or augmentation of force by or for any of the belligerent parties as absolutely prohibitted, & you are to act accordingly. I request too that you will communicate the substance of this letter both to the Governor9 & to the District Attorney.
It is my duty to lay before The President the correspondence to which this is a reply. His chagrin, I may anticipate, will not be less than mine.10
With consideration I am sir Your obed ser
The Collector of Charles Town
ADf, Connecticut Historical Society, Hartford.
1. This letter concerns the equipping of a vessel in Charleston about which Holmes had apparently written to H in a letter which has not been found. The Cygnet, an American brig, which had originally been an American privateer that had been converted to a merchant ship, was purchased by Abraham Sasportas and Jean Gaillard, both of Charleston. In May and June, 1794, Sasportas supervised her reconversion to a privateer. She was then sold to an American citizen and renamed le Général Laveaux. Before she could sail, Holmes detained her, removed her guns, and compelled her owner to reseal her gun ports. She then put to sea, where it was charged that she received her guns from another vessel. After she eventually returned to Charleston with a British prize, the Mermaid, the British consul, Benjamin. Moodie, filed a libel charging that she had been illegally fitted out. For this case, see British Consul v Ship Mermaid, April 3, 1795 (Bee, Reports of Cases Adjudged in the District Court of South Carolina description begins Thomas Bee, Reports of Cases Adjudged in the District Court of South Carolina by the Hon. Thomas Bee, Judge of That Court (Philadelphia, 1810). description ends , 69–73). See also Moodie to Phineas Bond, December 17, 1794 (PRO: F.O. description begins Transcripts or photostats from the Public Record Office of Great Britain deposited in the Library of Congress. description ends [Great Britain], 5/6), Melvin H. Jackson, Privateers in Charleston, 1793–1796 (Washington, 1969), 69–72.
3. Letter not found.
4. Letter not found.
5. Section 3 of this act prohibited “any person … within any of the ports, harbors, bays, rivers or other waters of the United States” from the fitting out and arming “of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state to cruise or commit hostilities upon the subjects, citizens or property of another foreign prince or state with whom the United States are at peace” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 383). Section 4 of the same act prohibited the increasing or augmenting the force of “any ship of war, cruiser or other armed vessel in the service of a foreign prince or state or belonging to the subjects or citizens of such prince or state the same being at war with another foreign prince or state with whom the United States are at peace, by adding to the number or size of the guns of such vessel prepared for use, or by the addition thereto of any equipment solely applicable to war” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 383).
6. For the rules which H is discussing, see “Cabinet Meeting. Proposed Rules Governing Belligerents,” August 3, 1793. H enclosed the rules in “Treasury Department Circular to the Collectors of the Customs,” August 4, 1793.
7. The following notice appeared in The [Charleston] City Gazette & Daily Advertiser, July 22, 1794: “The following is the explanation, from the secretary of war, of the circumstances of equipment in any vessels belonging to the bel[l]igerent nations.
“The mounting additional guns, or changing or altering the calibre of the guns in any manner whatever; the making of new gun carriages, or the cutting of new port-holes in any part of a vessel, are each adjudged to be an unlawful augmentation of force, and is therefore to be prevented.
“The United States being a neutral nation, the vessels of their citizens, in most cases, do not require to be armed. To guard against any abuse, no vessel belonging to any citizen of the United States is to be permitted to be armed and sail, until after all circumstances concerning her shall have been transmitted to the President, and his decision thereon be made known.”
8. Thomas Parker.
9. William Moultrie.
10. On October 6, 1794, Oliver Wolcott, Jr., sent the following circular to the collectors of customs: “It appears from communications to this Department that the expressions ‘Equipments which are of a doubtful nature as being applicable either to commerce or war’ which occur in the 4th and 5th rules adopted by the President of the United States, which were communicated to you by the Secretary of the Treasury on the 4th of August 1793, have been in some instances understood to tolerate the fitting and arming of Vessels for defence or for Merchandize and War.
“As this construction is manifestly irreconcileable with the first of the rules referred to, and with the plain tenor of the supplementary act of Congress passed on the fifth of June 1794 for defining and punishing certain crimes against the United States, it is of importance immediately to correct an error, the operation of which is to defeat the intentions of the Government and contravene the neutrality of the United States.
“You will therefore be pleased to understand that the arming and equipping of vessels in the Ports of the United States for military service whether offensive or defensive, by any of the belligerent parties, is unlawful, and that the prohibition as effectually extends to military equipments destined for the protection and defence of a vessel and her merchandize, as to those equipments the object of which is combat or offensive hostility.
“The equipments of a ‘doubtful nature as being applicable either to commerce or war’ which were intended by the rules of the President and which are deemed lawful, will be best exemplified by stating certain cases which have occurred.
“1st. The Waste Boards of a vessel had been raised considerably higher than usual and strengthened with additional timber and plank, which was understood to be preparatory to the opening of Port Holes.
“In this case it was determined that the equipment was of a ‘doubtful nature’ for until Port Holes were actually opened it could not be pronounced that there existed a military object. Port Holes have however been determined to be a military equipment, their use being foreign to navigation and being merely applicable to combat or war.
“2d. A French Privateer procured an extra number of Oars and it was suggested that this must have been for military service, as it was intirely unusual to have so great a number for mere navigation.
“It was however decided that this equipment was also of a ‘doubtful nature’ an oar being merely an instrument of navigation and there being no criterion by which to determine what extra number should change the nature of the Equipment.
“It is an established principle that we cannot without a contravention of our Neutrality, permit either of the belligerent parties, to increase their force or means of annoyance or military defence within the Ports of the United States, and it is essential that this principle be maintained with good faith and according to the dictates of impartiality and reason.
“A temporary absence of the Secretary of Treasury on public business, is the cause of my addressing you on this subject—it is proper that I should add, that the principles of this communication are conformable to his opinion.” (LS, Connecticut Historical Society, Hartford.)