IV. Questions for the Supreme Court
[18 July 1793]
1. Do the treaties between the US. and France give to France or her citizens a right, when at war with a power with whom the US. are at peace, to fit out originally in and from the ports of the US, vessels armed for war, with or without commission?1
2. 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?
3. 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 US. were armed for war, with or without commission?
4. 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 replacing the vessel in statu quo?
5. Does the 22d. article of the Treaty of commerce, 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 armés en marchandize et en guerre’?
6. Do the treaties aforesaid prohibit the US. from permitting in the case supposed, the armed vessels belonging to a power at war with France, or to the citizens or subjects of such power to come within the ports of the US. 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?
7. Do they prohibit the US. 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 US. and freely to purchase in and carry from the ports of the US. goods, merchandize and commodities, except as excepted in the last question?
8. Do they oblige the US. 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 from 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 US?
9. Do those treaties, particularly the Consular convention, authorize France, as of right, to erect courts within the jurisdiction of the US. for the trial and condemnation of prizes made by armed vessels in her service?
10. Do the laws and usages of nations authorize her, as of right, to erect such courts for such purpose?
11. Do the laws of Neutrality, considered relatively to the treaties of the US. with foreign powers, or independantly of those treaties permit the US. in the case supposed, to allow to France, or her citizens the privilege of fitting out originally, in and from the ports of the US. vessels armed and commissioned for war, either on account of the government, or of private persons, or both?
12. Do those laws permit the US. to extend the like privilege to a power at war with France?
13. Do the laws of Neutrality, considered as aforesaid, permit the US. in the case supposed, to allow to France or her citizens, the privilege of refitting, or arming anew, vessels which before their coming within the US. were armed and commissioned for war? May such privilege include an augmentation of the force of such vessels?2
14. Do those laws permit the US. to extend the like privilege to a power at war with France?
15. Do those laws, in the case supposed, permit merchant vessels of either of the powers at war, to arm in the ports of the US. without being commissioned? May this privilege be rightfully refused?
16. 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 US. with means procured in the US. or with means brought into them by the party who shall so arm or augment the force of such vessel? If the first be unlawful, is the last lawful?
17. Do the laws of neutrality, considered as aforesaid, authorize the US. 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 and there condemned, refusing the like privilege to her enemy?
18. Do those laws authorize the US. to permit to France the erection of courts within their territory and jurisdiction, for the trial and condemnation of prizes, refusing that privilege to a power at war with France?
19. If any armed vessel of a foreign power at war with another, with whom the US. are at peace, shall make prize of the subjects or property of it’s enemy within the territory or jurisdiction of the US. have not the US. 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?
20. To what distance, by the laws and usages of nations, may the US. 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 US?
21. Have vessels armed for war under commission from a foreign power, a right, without the consent of the US. to engage, within their jurisdiction, seamen or souldiers, for the service of such vessels, being citizens of that power, or of another foreign power, or citizens of the US?
22. What are the articles, by name, to be prohibited to both or either party?3
23. To what extent does the reparation permitted in the 19. Article of the treaty with France, go?4
24. What may be done as to vessels armed in our ports before the President’s proclamation? and what as to the prizes they made before and after?
25. May we, within our own ports, sell ships to both parties, prepared merely for merchandize? May they be pierced for guns?
26. May we carry either or both kinds to the ports of the belligerent powers for sale?
27. 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?
28. 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 souldiers, and their baggage?
29. 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?5
MS (DLC: Washington Papers); entirely in TJ’s hand; undated, but prepared immediately following Cabinet meeting of 18 July 1793; with questions 1–21 by Alexander Hamilton taken from Document i above, questions 22–28 by TJ taken from Document ii above, and final question added at the President’s behest after PrC was made; endorsed by Tobias Lear: “Questions proposed to be submitted to the Chief Justice & Judges of the Sup. Court of U.S. July 1793.” PrC (DLC: TJ Papers, 90: 15550–4); with three marginal notations (see notes 1, 3, and 5 below) and final question added by TJ in ink; at head of text by TJ in ink: “Questions to be proposd to the Judges.” Tr (MHi: Knox Papers); in the hand of a State Department clerk; undated. PrC (DLC: TJ Papers, 61: 10619–22); at foot of text by TJ in ink: “the first 21. questions by A.H. 22. to 28. by Th:J. 29. [by the Presidt.?].” Tr (DLC: Washington Papers); in Lear’s hand; undated, but endorsed by Lear in part: “July 1793.” Tr (DLC: Hamilton Papers); in the hand of Daniel Brent; undated. Recorded in SJPL under 18 July: “Queries for [the judges].” Enclosed in Document v below; TJ to Washington, 31 July 1793; and TJ to James Madison, 3 Aug. 1793.
1. In the margin of the PrC next to this question TJ added “A.H.” in ink to indicate Hamilton’s authorship of questions 1–21.
2. Preceding sentence interlined.
3. In the margin of the PrC next to this question TJ added “T.J.” in ink to indicate his authorship of questions 22–28.
4. Word written over “extend,” erased.
5. TJ added this question after the PrC was made. In the PrC he added the question in ink, writing “Presidt.” in the margin to indicate Washington’s responsibility for it.