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Edmund Randolph’s Opinion on the Grange, 14 May 1793

Edmund Randolph’s Opinion on the Grange

The attorney general of the U.S. has the honor of submitting to the secretary of state his opinion concerning the seizure of the ship Grange.

The essential facts are,

that the river Delaware takes its rise within the limits of the U.S:

that in the whole of its descent to the Atlantic ocean, it is covered on each side by the territory of the U.S:

that from tide water to the distance of about Sixty miles from the Atlantic ocean, it is called the river Delaware:

that at this distance from the sea, it widens, and assumes the name of the bay of Delaware, which it retains to the mouth:

that its mouth is formed by the Capes Henlopen and May; the former belonging to the state of Delaware in property and jurisdiction; the latter to the state of New Jersey:

that the Delaware does not lead from the sea to the dominions of any foreign nation:

that from the establishment of the British provinces on the banks of the Delaware to the American revolution, it was deemed the peculiar navigation of the British empire:

that by the treaty of Paris on the 3d. day of September 1783, his Britannick Majesty relinquished, with the privity of France, the sovereignty of those provinces, as well as of the other provinces and colonies:

and that the Grange was arrested in the Delaware, within the capes, before she had reached the sea, after her departure from the port of Philadelphia.

It is a principle, firm in reason, supported by the civilians, and tacitly approved in the document, transmitted by the French minister, that to attack an enemy in a neutral territory is absolutely unlawful.

Hence the inquiry is reduced to this simple form, whether the place of seizure was in the territory of the U.S.?

From a question, originating under the foregoing circumstances is obviously and properly excluded every consideration of a dominion over the Sea. The solidity of our neutral right does not depend in this case, on any of the various distances, claimed on that element, by different nations, possessing the neighbouring shore. But if it did, the field would probably be found more extensive, and more favorable to our demand, than is supposed by the document, above-referred to. For the necessary or natural law of nations, unchanged as it is in this instance by any compact or other obligation of the U.S., will perhaps, when combined with the treaty of Paris in 1783, justify1 us in attaching to our coasts an extent into the sea, beyond the reach of cannon-shot.

In like manner is excluded every consideration, how far the spot of seizure was capable of being defended by the U.S. For, altho’ it will not be2 conceded, that this could not be done; yet will it rather3 appear, that the mutual rights of the states of New Jersey and Delaware up to the middle of the river4 supersede the necessity of such an investigation.

No. The corner-stone of our claim is, that the U.S. are proprietors of the lands on both sides of the Delaware from its head to its enterance into the sea.

The high ocean in general,5 it is true, is unsusceptible of becoming property. It is a gift of nature, manifestly destined for the use of all mankind—inexhaustible in its benefits—not admitting metes and bounds. But rivers may be appropriated; because the reverse is their situation. Were they open to all the world, they would prove the inlets of perpetual disturbance and discord; would soon be rendered barren by the number of those, who would share in their products; and moreover may be defined.

“A river, considered merely as such, is the property of the people, thro’ whose lands it flows, or of him, under whose jurisdiction that people is.” Grot: b.2. c.2. §12.

“Rivers might be held in property; tho’ neither where they rise, nor where they discharge themselves, be within our territory, but they join to both or the sea. It is sufficient for us, that the larger part of water, that is, the sides, is shut up in our banks, and that the river, in respect of our land, is itself small and insignificant.” Grot: b.2. c.3. §.7. And Barbeyrac in his note subjoins, that neither of these is necessary.

—“Rivers may be the property of whole states.” Puff: b.3. c.3. §4.

“To render a thing, capable of being appropriated, it is not strictly necessary, that we should inclose it, or be able to inclose it within artificial bounds, or such as are different from its own substance; it is sufficient, if the compass and extent of it can be any way determined. And therefore Grotius hath given himself a needless trouble, when, to prove rivers, capable of property he useth this argument, that altho’ they are bounded by the land at neither End, but united to the other rivers or the sea; yet it is enough, that the greater part of them, that is, their sides, are inclosed. Puff: b.4. c.5. §.3.

“When a nation takes possession of a country in order to settle there, it possesses every thing included in it, as lands, lakes, rivers” &c. Vattel. b.1.c.22. §.266.

To this list might be added Bynkershoek and Selden. But the dissertation of the former de dominio maris cannot be quoted with advantage in detachment; and the authority of the latter on this head may, in the judgment of some, partake too much of Affection for the hypothesis of mare clausum. As Selden, however, sinks in influence on this question; so must Grotius rise, who contended for the mare liberum; and his accurate commentator, Rutherforth, confirms his principles in the following passage. “A nation, by settling upon any tract of land, which at the time of such settlement had no other owner, acquires, in respect of all other nations, an exclusive right of full or absolute property, not only in the land, but in the waters likewise, that are included within the land, such as rivers, pools, creeks or bays. The absolute property of a nation, in what it has thus seized upon, is its right of territory.” 2. Ruth: b.2. c.9. §.6.

Congress too have acted on these ideas, when, in their collectionlaws, they ascribe to a state the rivers, wholly within that state.

It would seem, however, that the spot of seizure is attempted to be withdrawn from the protection of these respectable authorities, as being in the bay of Delaware, instead of the river Delaware.

Who can seriously doubt the identity of the river and bay of Delaware? How often are different portions of the same stream denominated differently. This is sometimes accidental; sometimes for no other purpose, than to assist the intercourse between man and man by easy distinctions of space. Are not this river and this bay fed by the same springs from the land, and the same tides from the ocean? Are not both doubly6 flanked by the territory of the U.S.? Have any local laws at any time provided variable7 arrangements for the river and the bay? Has not the jurisdiction of the contiguous states been exercised equally on both?

But suppose that the river was dried up, and the bay alone remained. Grotius continues the argument of the 7th. Section, of the 3d. chapter of the 2d. book above cited, in the following words.

“By this instance it seems to appear, that the property and dominion of the sea might belong to him, who is in possession of the lands on both sides, tho’ it be open above, as a gulph, or above and below, as a straight; provided it is not so great a part of the sea, that, when compared with the lands on both sides, it cannot be supposed to be some part of them. And now, what is thus lawful to one king or people, may be also lawful to two or three, if they have a mind to take possession of a sea, thus inclosed within their lands; for ’tis in this manner, that a river, which separates two nations, has first been possessed by both, and then divided.”

“The gulphs and channels or arms of the sea are, according to the regular course, supposed to belong to the people, with whose lands they are encompassed.” Puff. b.4. c.5. §.8.

Valin, in b. 5. tit: 1. p. 685. of his commentary on the marine ordonnance of France, virtually acknowledges, that particular seas may be appropriated. After reviewing the contest between Grotius and Selden, he says. “S’il (Selden) s’en fût donc tenu là, ou plutôt, s’il eût distingué l’ocean des mers particuliers, et même dans l’ocean, l’etendue de mer, qui doit être censée appartenir aux souverains des côtes, qui en sont baignées, sa victoire eût été complette.”

These remarks may be enforced by asking, what nation can be injured in its rights, by the Delaware being appropriated to the U.S.? And to what degree may not the U.S. be injured on the contrary ground? It communicates with no foreign dominion; no foreign nation has, ever before, exacted a community of right in it, as if it were a main sea; under the former and present governments, the exclusive jurisdiction has been asserted; by the very first collection-law of the U.S. passed in 1789, the county of Cape May, which includes Cape May itself, and all the waters thereof, theretofore8 within the jurisdiction of the state of New Jersey, are comprehended in the district of Bridgetown; the whole of the state of Delaware, reaching to Cape Henlopen is made one district; nay unless these positions can be maintained, the bay of Chesapeak, which in the same law is so fully assumed to be within the U.S., and which for the9 length of the Virginia territory is subject to the process of several counties to any extent, will become a rendezvous to all the world, without any possible controul from the U.S. Nor will the evil stop here: It will require but another short10 link in the process of reasoning, to disappropriate the mouths of some of our most important rivers. If, as Vattel inclines to think in the 294th. Section of his first book, the Romans were free to appropriate the mediterranean, merely because they secured by one single stroke the immense range of their coast; how much stronger must the vindication of the U.S. be, should they adopt maxims for prohibiting foreigners from gaining, without permission, access into the heart of their country.

This inquiry might be enlarged by a minute discussion of the practice of foreign nations in such circumstances. But I pass it by; because the U.S. in the commencement of their career ought not to be precipitate in declaring their approbation of any usages, (the precise facts concerning which we may not thoroughly understand) until those usages shall have grown into principles, and are incorporated into the law of nations; and because no usage has ever been accepted, which shakes the foregoing principles.

The conclusion then is, that the Grange has been seized on neutral ground. If this be admitted, the duty arising from the illegal act, is restitution.

Edm: Randolph
May 14. 1793.

RC (DLC); endorsed by TJ and George Taylor, Jr. FC (DNA: RG 59, Letters from and Opinions of the Attorneys General); in a clerk’s hand; at foot of text in Taylor’s hand: “True copy Geo. Taylor Jr.” PrC of Tr (DLC); in a clerk’s hand. Tr (DLC: Genet Papers). Tr (same); in French. Tr (AMAE: CPEU, xxxvii); in French. Printed in Message description begins A Message of the President of the United States to Congress Relative to France and Great-Britain. Delivered December 5, 1793. With the Papers therein Referred to. To Which Are Added the French Originals. Published by Order of the House of Representatives, Philadelphia, 1793 description ends , 18–20. Enclosed in TJ to Jean Baptiste Ternant, 15 May 1793, TJ to Gouverneur Morris, 13 June 1793, and TJ to Thomas Pinckney, 14 June 1793.

This document consists of the Attorney General’s response to the defense of the legality of the capture of the British merchant ship Grange by the Embuscade contained in the enclosure to Jean Baptiste Ternant to TJ, 9 May 1793, the Document, transmitted by the French Minister, which denied American jurisdiction over the part of Delaware Bay where the incident occurred. The President had directed TJ on the 9th to submit these documents to Randolph for a legal opinion (Washington, Journal description begins Dorothy Twohig, ed., The Journal of the Proceedings of the President, 1793–1797, Charlottesville, 1981 description ends , 132). For further information on this case and the significance of Randolph’s assertion of American jurisdiction over Delaware Bay, see note to Memorial from George Hammond, 2 May 1793.

Barbeyrac: Hugo Grotius, De Jure Belli ac Pacis ‥‥ Notulas denique additit Joannes Barbeyrac (Amsterdam, 1720) and later editions; first French translation by Barbeyrac (Amsterdam, 1724) and later editions. Bynkershoek: Cornelius van Bynkershoek, De Dominio Maris Dissertatio (The Hague, 1703; conjoined to Bynkershoek’s treatise on Rhodian law) and later editions. Selden: John Selden, Mare Clausum, seu De Dominio Maris Libri Duo (London, 1635) and later editions and translations. Rutherforth: Thomas Rutherforth, Institutes of Natural Law, being the Substance of a Course of Lectures on Grotius De Jure Belli et Pacis …, 2 vols. (Cambridge, Eng., 1754–56; 2d ed., Cambridge, 1779). Valin: René Josué Valin, Nouveau commentaire sur l’ordonnance de la marine, du mois d’août 1681 …, 2 vols. (La Rochelle, 1760). First Collection-Law: see U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, Boston, 1855–56, 8 vols. description ends , i, 29–49, esp. 32–3.

1Randolph here canceled “on our part.”

2Preceding three words interlined in place of “ought not to be admitt.”

3Word interlined.

4Preceding seven words interlined in place of canceled and illegible word.

5Preceding two words interlined.

6Word interlined.

7Word interlined in place of “different.”

8Word interlined.

9Randolph here canceled “whole.”

10Word interlined.

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