Enclosure Questions for the Supreme Court
[Philadelphia, 18 July 1793]
1. Do the treaties between the U.S. & France give to France or her citizens a right, when at war with a power with whom the U.S. are at peace, to fit out originally in & from the ports of the U.S., vessels armed for war, with or without commission?1
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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 & 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 U.S. & freely to purchase in & carry from the ports of the U.S. goods, merchandize & commodities, except as excepted in the last question?
8. Do they oblige the U.S. 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 & merchandize, the prizes so made, in the case of their being to be sold within the ports of the U.S.?
9. Do those treaties, particularly the Consular convention, authorize France, as of right, to erect courts within the jurisdic tion of the U.S. for the trial & condemnation of prizes made by armed vessels in her service?
10. Do the laws & usages of nations authorize her, as of right, to erect such courts for such purpose?
11. Do the laws of Neutrality,2 considered relatively to the treaties of the U.S. with foreign powers, or independantly of those treaties permit the U.S. in the case supposed, to allow to France, or her citizens the privilege of fitting out originally, in & from the ports of the U.S. vessels armed & commissioned for war, either on account of the government, or of private persons, or both?
12. Do those laws permit the U.S. to extend the like privilege to a power at war with France?
13. Do the laws of Neutrality, considered as aforesaid, permit the U.S. 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 U.S. were armed & commissioned for war? may such privilege include an augmentation of the force of such vessels?
14. Do those laws permit the U.S. 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 U.S. without being commissioned? may the 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 U.S. with means procured in the U.S. 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 U.S. 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 of her enemy?
18. Do those laws authorize the U.S. to permit to France the erection of courts within their territory & jurisdiction, for the trial & 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 U.S. are at peace, shall make prize of the subjects or property of it’s enemy within the territory or jurisdiction of the U.S. have not the U.S. 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 & usages of nations, may the U.S. exercise the right of prohibiting the hostilities of foreign powers at war with each other, within rivers, bays, & arms of the sea, & upon the sea along the coasts of the U.S.?
21. Have vessels armed for war under commission from a foreign power, a right, without the consent of the U.S. 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 U.S.?
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?5 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, & 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, & 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?6
D (in Thomas Jefferson’s writing), DLC:GW; copy (first letterpress copy), DLC: Jefferson Papers; copy (second letterpress copy), DLC: Jefferson Papers; copy (in Tobias Lear’s writing), DLC:GW; copy, DLC: Hamilton Papers; copy, NNGL: Knox Papers. The first letterpress copy is of the document at DLC:GW that Jefferson wrote and enclosed in his letter to GW of 18 July. Jefferson added a title in ink to this letterpress copy that reads “Questions to be proposed to the Judges.” On the second letterpress copy, which is filed erroneously under 26 July 1791, Jefferson added in ink, “the first 21. questions by A. H. 22. to 28. by Th: J. <29. by the Presidt>.” According to the 19 July entry in GW’s executive journal, GW “directed” Jefferson “to put the questions agreed to yesterday into the hands of the Judges” (JPP description begins Dorothy Twohig, ed. The Journal of the Proceedings of the President, 1793–1797. Charlottesville, Va., 1981. description ends , 204).
1. On the first letterpress copy Jefferson wrote the initials “A. H.” in ink next to this question to indicate that the first 21 questions came from Hamilton. For the Treaty of Alliance, the Treaty of Amity and Commerce, and the Consular Convention, all with France, 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 , 3–47, 228–44.
2. This is probably a reference to principles contained in Emmerich de Vattel’s three-volume work, The Law of Nations; or the Principles of the Law of Nature: Applied to the conduct and to the Affairs of Nations and Sovereigns (London, 1760).
3. On the first letterpress copy Jefferson wrote “T. J.” in ink next to this question to indicate that he had authored questions 22–28.
4. This refers to the 19th article in the Treaty of Alliance and Commerce.
6. Jefferson added this question in ink on the first letterpress copy and wrote “The Presidt” in the left margin to indicate that GW had suggested this question.