Questions Proposed to be Submitted to the Justices of the Supreme Court, [18 July 1793]
Questions Proposed to be Submitted to the Justices of the Supreme Court
[Philadelphia, 18 July 1793]1
1. Do the treaties between the US. & 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 originally2 in & from the ports of the US. vessels armed for war,3 with or without Commissions?4
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?5
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 what6 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 merchandize 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 & war, with or without commission, on account of the subjects or citizens of such power, or any vessels other than those commonly called privateers7 to sell freely whatsoever they may bring into the ports of the US. & freely to purchase in & carry from the ports of the US. goods, merchandize & commodities, except as excepted in the last question?
8. Do they oblige the US. to permit France, in the case supposed, to sell in these 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 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 & condemnation of prizes made by armed vessels in her service?8
10. Do the laws & usages of nations authorize her, as of right, to erect such courts for such purposes?
11. Do the laws of Neutrality, considered relatively to the treaties of the US. with foreign powers, or independently of those treaties permit the US. in the case supposed, to allow to France, or her citizens the privilege of fitting out originally in & from the ports of the US. vessels armed & 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 & commissioned for war? ^may such privilege include an augmentation of force of such vessels?^
14. Do those laws permit the US. to extend the like privilege to a power at war with France?9
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, & 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 & 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 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 prizes shall be within their power?
20. To what distance may the US. by the laws & usages of nations, exercize the right of prohibiting the hostilities of foreign powers at war with each other within their rivers, bays & arms of the sea & 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 soldiers for the service of such vessel, 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?10
23. To what extent does the reparation permitted in the 19. Article of the treaty with France go?
24. What may be done as to vessels armed in our ports before the 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, & 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?11
D, in TJ’s hand, DLC: Washington, ser. 4 (EJ: 12414). Endorsed by Tobias Lear: “Questions proposed to be submitted to the Chief Justice & Judges of the Sup. Court of US. July 1793.” PrCs (2), DLC: Jefferson; C, in the hand of Tobias Lear, DLC: Washington (EJ: 12414); C, in the hand of Daniel Brent, DLC: Hamilton; C, in the hand of Jacob Wagner, NNGL: Knox; C, in JJ’s hand, InU-Li (EJ: 13604). The first PrC is of the document in DLC: Washington that TJ wrote and enclosed in his letter to GW of 18 July. TJ added a title in ink to this PrC that reads “Questions to be proposed to the Judges.” On the second PrC, filed erroneously under the date 26 July 1791, TJ added in ink, “the first 21. questions by A. H. 22. to 28. by Th: J. 29. by the Presidt.” Minor variations in wording in JJ’s copy, usually made for greater conciseness, and not substantive, have not been noted, but words JJ underlined for emphasis that were not underlined in TJ’s text are indicated in the endnotes.
1. According to the 19 July entry in GW’s executive journal, GW directed TJ “to put the questions agreed to yesterday into the hands of the Judges”. , 13: 247. However, there is no record of their having actually been sent; no cover letter or official copy of the questions has been found for any of the judges, nor did they acknowledge receipt of them. On 31 July, TJ returned to GW “the copy of questions which had been destined for the judges.” Nevertheless, JJ at least saw the questions, and, as noted in the source note, made a copy of them, adapted somewhat to his own purposes. See , 6: 751n8; , 26: 594.
2. In his copy JJ underlined the word “originally”.
3. In his copy JJ underlined the word “war”.
4. In the margin of the first PrC next to this question TJ added “A.H.” in ink to indicate AH’s authorship of questions 1–21.
5. In his copy JJ underlined in this sentence the words “particular”, “latter”, and “what”.
6. In his copy JJ underlined the words “latter” and “what”.
7. In his copy JJ underlined the word “privateers”.
8. See the editorial note “The Franco-American Consular Convention,” and note 31, and Report to Congress on the Consular Convention with France, 4 July 1785, , 4: 112–34.
9. In his copy JJ omitted this question.
10. TJ marked “T.J.” in ink in the margin of the first PrC next to this question to indicate his authorship of questions 22–28.
11. TJ added this question after the PrC was made. The question is added in ink to the first PrC with the marginal notation “Presidt.” to indicate that GW had proposed it. For the separate lists of questions prepared by AH, TJ, and Henry Knox for consideration at the cabinet meeting on 18 July, see , 26: 527–33. For further discussion on the formulation of these questions by the cabinet, see the editorial note “John Jay and the Issue of Neutrality,” above. For the justices’ responses, see Justices of the Supreme Court to GW, 20 July and 8 Aug., below.