Memorandum from Edmund Randolph
[Philadelphia] May 17. 1793.
The attorney general has the honor of submitting to the President the following opinion.
It appears, that a privateer has been equipped and commissioned at Charleston in South Carolina, under the authority of the French government; and was at the same time manned in part by American citizens: that on the high seas she captured an English vessel; and that both of them are now in the port of Philadelphia.
Restitution is demanded by the British minister from the executive.1
If this be considered as a contest between France and Great Britain upon a mere question of prize or no prize, the 17th article of our treaty with the former stands in the way of the inquiry; because it prohibits the officers of the U.S. from “making examination concerning the lawfulness of such prizes.”2 And indeed the duty of a neutral nation shuts up its courts against all such decisions.
It is therefore insisted, that some thing more, than a mere question of prize or no prize has arisen; namely, that as the commission was granted, and the privateer fitted out, and partly manned with American citizens, within the U.S., there is an obligation on them to restore.
Is the commission void as to the enemy? No; because the etiquette of the place of granting it has never been heard of, as an available plea, in their mouths; and because, if had even been suspended during the stay of the vessel at Charleston, it became active and lawful at the very moment, that the privateer entered upon the high sea. This aspect then of the case presents no hope of restitution.
Let it be supposed on the other hand, that the commission was absolutely void. Of course the capture would be annulled. But by whom? Not by the President; since the courts of the U.S. are competent to adequate relief; and proceeding according to the rules of the admiralty, they would consummate the business with no great expence of time.
But let a further supposition be made; that the commission was good in part, and bad in part; or in other words, that, while it would have authorized the capture, if only the enemy were concerned, it was an affront and injury to the U.S., to grant it without their leave in their territory; nay more, that the capture has been the consequence of this improper conduct in our own country, and of the inlistment of our own citizens.
What relates to the dignity of the U.S. is not an affair of any foreign nation. If they thought proper to waive satisfaction to themselves for the affront and injury, they cannot be called to an account by any foreign power; and, if they do require satisfaction, its degree and kind depend upon their discretion. But it has been unanimously agreed to advise the President to direct a remonstrance to Mr Genet against what is past, and a repetition of it in future. So that the dignity of the government will be asserted.
The punishment of the citizens, who have entered on board of the privateer may, in some measure, be a justice, due to the powers, warring against France. Accordingly the President is also unanimously advised, that prosecutions be instituted, as far as the law will go.3 If the person, who received the commission, be a citizen, he is a pirate under the treaty with Holland.4 The rest of the crew, who may be citizens, are conceived by a majority of the gentlemen to be guilty of a misdemeanor; and all of them are of opinion, that in a doubtful point, which cannot be ascertained too soon, the sentiments of some court ought to be immediately obtained. For, altho’ the experiment should miscarry, it will vindicate the sincerity of our neutrality.
The only remaining ground, upon which restitution has been pressed, is, that for this unlawful act, thus begun in our territory, and completed with the assistance of our own citizens, the U.S. are answerable to Great Britain. It has not been denied that, as between the French captor and the British owner, the capture is lawful; nor can it be affirmed that the U.S. are, in any other manner, responsible for the offences of their citizens, than to bring them to punishment. To say then, that Great Britain can impose upon the U.S. a certain rule and measure of procuring satisfaction for the insult by requiring the surrender of the vessel and restitution to the British subject, is to admit an unwarrantable intrusion into their internal police. If the omission to demand the vessel be a cause of offence, it must be, because the acquiescence of the U.S. in a too moderate retribution will indicate a partiality in the temper of the U.S. Should this be suspected, notwithstanding the proofs to the contrary, it may be repelled by other considerations. France has her rights, as well as Great Britain. Altho’ she will be content to offer concessions to the U.S., yet might she justly refuse to do so, if an estimate of the reparation was compounded, not only of the indignity to them, but also of the loss to the British subject. At least she might with reason denominate it a departure from strict neutrality—It may deserve attention too, what infinite trouble the U.S. would carve out to themselves, if they once commence the office of adjusting the validity of commissions between the warring powers. If a commission, perfect in every thing, except the place of issuing it, be a ground of restitution, it will be an easy matter to stretch the authority of the U.S. by little and little, until they become self-constituted into a tribunal for deciding the validity of prizes: a function, which is utterly inadmissible to a neutral nation.5
The situation of the U.S. is extremely peculiar. They are bound to pursue a different conduct to the different warring powers. To France, they must give the preference, by treaty; to Holland, they must Assign the next rank of favor by treaty; Great Britain stands upon the law of nations, pure and unqualified. Hence in this disparity of relations, they will be often thrown into great perplexities. Nothing can lead them with safety and honor thro’ the labyrinth, but an adherence to sound principle, which is always uniform.
Upon principle therefore, restitution ought not, in my judgment, to be attempted.
1. For French minister Edmond Genet’s commissioning of privateers at Charleston, and for the cabinet’s debate over, and GW’s response to, British minister George Hammond’s protests, see Alexander Hamilton’s Memorandum, 15 May 1793, n.1. Randolph is specifically referring to the capture of the William by the Citoyen Genet (Thomas Jefferson to William Rawle, 15 May, Enclosure II of Tobias Lear to Jefferson, 15 May).
2. For Article 17 of the Treaty of Amity and Commerce between the United States and France, signed in 1778, see Miller, Treaties, description begins Hunter Miller, ed. Treaties and Other International Acts of the United States of America. Vol. 2, 1776-1818. Washington, D.C., 1931. description ends 16–17.
4. For the Treaty of Amity and Commerce of 1782 between the United States and the Netherlands, see Miller, Treaties, description begins Hunter Miller, ed. Treaties and Other International Acts of the United States of America. Vol. 2, 1776-1818. Washington, D.C., 1931. description ends 59–90.