No Jacobin No. II, [5 August 1793]
No Jacobin No. II1
[Philadelphia, August 5, 1793]2
The next charge of breach of Treaty exhibited by the Jacobin3 against the Executive of the UStates, is to use his own language—“the seizure of prizes made known to the Agents of the French Republic at the moment those prizes were held up for sale—the orders given to the Military to take possession of a French Vessel without previous complaint explanation or communication with the Agents of the French Republic.”—said to be contraventions of the XVII article of the Treaty of Commerce; by which it is provided “that it shall be lawful for the Ships of War of either party and privateers freely to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any duty to the officers of the admiralty or any other Judges; and without those vessels or their prizes entring into the Ports of the one party or the other, being liable to be arrested or seized; nor can the Officers of the places take cognizance of the validity of the said prizes; which may go out and be conducted freely and in all liberty to the places expressed in their Commissions, which the Commanders of the said vessels shall be obliged to shew &c.”4
It is presumed that the facts complained of are more particularly applicable to the case of the Ship William arrested in this Port; though it is understood, that the same proceedings with some small difference of circumstances took place in the case of another Vessel at New York.5
To judge of the propriety of the complaint in each case it is necessary to attend to the following particulars.6 According to the general laws and usages of Nations, the jurisdiction of every country extends a certain distance into the sea along the whole extent of its coast. What this distance is remains a matter of some uncertainty; though it is an agreed principle that it at least extends to the utmost range of cannon shot, that is, not less than four Miles. But most nations claim and exercise jurisdiction to a greater extent: Three leagues, or nine Miles, seem to accord with the most approved rule; and would appear from [Martin]7 a French author to be that which is adopted by France; though Valin8 another French author, states it at only two leagues or six miles.
Within this distance of the coast of a neutral Country all captures made by a power at War upon its enemy are illegal and null—on the principle of its being a violation of the jurisdiction and Protection of the neutral Country. This is principle founded upon the most evident ⟨reas⟩on, asserted ⟨by⟩ all Writers, ⟨and⟩ practiced upon by all Nations.9
Every Nation has a right to prevent a violation of its jurisdiction, and consequently to prevent the making of captures within that jurisdiction.10 A right to redress if such captures be made, is a necessary consequence.
A neutral nation is bound to prevent injuries within its jurisdiction to a Power with which it is at peace, by any other power. In other words it owes safeguard & protection to the citizens & subjects of every power with which it is at Peace. It is therefore bound to exert itself to prevent captures, within the limits of its protection, of the subjects or Property of one power by another power and if any such capture happens to avail itself of its own right of redress against the power making it for the purpose of effecting a restoration of the person or thing captured.
This is too plain to be denied—but it is pretended that the redress of the injury is to be sought through the channel of negotiation only, and not by the immediate exertion of the authority of the neutral Nation to cause restitution to be made in the first instance either by means of its Courts of Justice or by the use of the public force.
It may boldly be affirmed, that this position is founded neither on principle, on the opinions of writers, nor on the practice of Nations; not on principle, because it is unreasonable to suppose that a Nation ought to pospone the opportunity of redressing itself and of doing justice to another, upon the uncertain issue of a negotiation of which it cannot foresee the success. When the object is out of its reach, the way of negotiation ought to be pursued for the alternative then is to negotiate or go to war; and a due moderation requires that a preference should be given to the milder course; but if the object to which the injury relates is within its power, the most prudent as well as the most dignified and efficacious course, is to embrace the opportunity of rectifying what has been done amiss; for this serves to terminate the affair and avoid the controversies and heats too often incident to negotiation.
The position in question is not founded on the opinions of Writers; for these establish a contrary doctrine; as may be seen in Bynkershock’s quaestiones Publici Juris Book [I] Chap. [8.11 Vatel book 2. Sect. 84, 101, 102 and 289.12 2. R. inst. 587–589.13 Leoline Jenkins life and papers 1 vol. xcv. 2 vol. page 727: 733: 751: 2. 754. 755. 780.14 Woodesons lectures page 443 15—Douglass Rep. 595.16—Lee on captures ch: ix.]17 nor in the practice of Nations, for this is in favour of summary prevention & redress, as may be seen by the examples which those writers quote and as is within the experience of individuals among ourselves. A neutral fortress never scruples to fire upon the Vessel of any Power which attempts to commit a hostility against another Power within the reach of its Cannon; nor a neutral sovereign or magistrate to prevent or restore captures made within his jurisdiction.*
These observations will lead to a right judgment of the merits of the complaint which is made.
Each of the vessels in question is understood to have been taken, within a distance short of the least of the two distances which have been mentioned as forming the rule observed by France; one of them within less than three Miles; the other within less than five Miles.
It may therefore be affirmed that both these captures were made within the limits of the protection of the UStates and in violation of their jurisdiction; and it will follow from the principles which have been maintained that the UStates have a right and are bound to cause restitution of those prizes.
To this conclusion is opposed that provision of the article of the Treaty which declares that the local officers cannot take cognizance of the validity of the prizes which are carried by one party into the harbours or Ports of the other.
But there is no better established rule of interpretation with regard either to laws or Treaties than that general expressions shall never be so understood as to involve unreasonableness or absurdity. According to this rule The General Expression—“the local Officers (les officiers des lieux) cannot take cognizance of the validity of the prizes” must naturaly be understood with reference to prizes made on the high seas, without the jurisdiction of the party into whose harbours or ports they are brought; not in reference to prizes taken within the protection and jurisdiction of such party. The following qualification is from the nature of things implied in the general terms (to wit); provided the prizes have not been taken within the jurisdiction of the party in whose ports they shall be.” An interpretation so extensive as to embrace Prizes made within the jurisdiction of such party would lead to a consequence no less absurd than this—a vessel of the UStates might be taken by a French Privateer in the Port of Philadelphia, and there would be no power to question the validity of the prize or enforce restitution. Such a consequence is too violent to be admissible and a position which includes it refutes itself. It can never be imagined that any Nation could mean to tie up his hands to such an extent.
If then prizes of vessels belonging to the US or their Citizens must be excepted it will follow that the clause cannot in this respect be taken in a literal sense; and if it is to be taken in a rational not a literal sense, it will admit the exception of all prizes taken within the jurisdiction or protection of the party within whose territories they are found, being at peace with the Nation of whom or of whose citizens they are made: For a state owes protection not only to its own citizens but to the citizens of every other Nation, with which it is at peace, coming within its jurisdiction for commerce or any other lawful cause. Nor can it even be supposed, upon the strength of mere general expressions that it has meant to exchange the right of affording protection & security by its own power and authority, for that of negotiating with another Nation the reparation which may be due to a violation of its jurisdiction. So essential an alienation of Jurisdiction could only be deduced from precise and specific as well as express terms.
Besides, such an inference is broader even than the letter of the clause. Tis only to the officiers des lieux, the local Officers or officers of the harbours, ports, or places, to which the prizes are brought, that the cognizance of their validity is forbidden—tis not to the general Judiciary Tribunals or to the general executive authority of the country that such cognizance is denied. The expressions officers des lieux are not of a nature to comprehend them. They therefore are under no prohibition by the Treaty, and consequently, as far as consists with the jus gentium, or law of nations, are at liberty to interpose.
And the rule of the law of Nations is this—That a Neutral Nation shall not interpose to examine the validity of prizes made by a Power at War at any place, except one which is within the jurisdiction of such Neutral Nation. It is of the essence of Jurisdiction to redress all wrongs, which happen within its sphere. Powers at war have no rights, in derogation from the peculiar purisdiction of a neutral Nation. That jurisdiction therefore is in the same force against them, as against Powers at Peace. What would be a marine Trespass in the one case is so in the other. A capture within the protection or jurisdiction of a neutral State is not a lawful act of war but a mere trespass; of course within the competency of the neutral state to redress it.19
It is clearly demonstrated by what has been said that the Government of the UStates had an undoubted right to interpose coercively, not by mere negotiation, to effect the restoration of the Ships in Question to their original owners; and that the doing so either by a direct exertion of the public force or by means of Judicial process is consistent both with the laws of Nations and with the true meaning of our treaty with France. It therefore gives no handle to the the complaint of breach of Treaty.
To what department of the Government it most regularly belongs to effect the requisite redress—whether to the Executive or to the Judiciary or to both indiscriminately is not yet settled in this Country; nor is it material to any foreign Nation. It is a mere question between the Departments of our own Government. So long as nothing is done which is contrary to the laws of Nations or to Treaty, a foreign Power can have no ground of complaint.
As to the point of previous application to the Agents of the Foreign Nation concerned, this belongs to a mere question of civility not of right. There being in every such case a direct responsibility on the part of the Neutral Nation to the Power whose citizens or property may have been captured, the Power making the capture cannot justly be dissatisfied if the surest method of performing its duty is adopted by the Neutral Nation. This is to take the prize in the first instance into custody, till a fair and full examination can be had into the fact, with regard to the place of Capture; as was done in the instances in question.
This course too would naturally obtain till some arrangement should have been concerted between the Government and the Agents of the powers at War, and is the only one which can be observed at places where there are no such Agents. And it would seem from what took place in the case of the William immediately after her seizure that such an arrangement has been subsequently agreed upon; which is a proof that the course pursued was not the effect of unkind disposition.
But if there had been a disposition to proceed with strictness and rigour, it will be shewn as the sequel, that it was fully warranted by the very disrespectful treatment we have experienced from the Agents of France—who have acted towards us from the beginning more like a dependent Colony than like an Independent Nation! a state of degradation to which I trust the freedom of the American Mind will never deign to submit.
No Jacobin
ADf, Hamilton Papers, Library of Congress; Dunlap’s [Philadelphia] American Daily Advertiser, August 5, 1793.
1. The other “No Jacobin” essays are dated July 31, August 8, 10, 14, 16, 23, 26, 28, 1793. Only substantive cross-outs in the draft have been noted.
2. This essay has been assigned the date on which it was published in Dunlap’s American Daily Advertiser. In , VII, 124–30, and , V, 26–35, it is dated “1793.”
3. “A Jacobin” had appeared in the [Philadelphia] General Advertiser on July 12, 1793. See “No Jacobin No. I,” July 31, 1793.
4. For Article 17 of the 1778 Franco-American Treaty of Amity and Commerce, see H to John Jay, first letter of April 9, 1793, note 2.
5. For an account of the William, see H to Rufus King, June 15, 1793, note 4, and Thomas Jefferson to H and Henry Knox, June 25, 1793, note 1. For the Catharine, see “Cabinet Meeting. Opinion Respecting the Measures to Be Taken Relative to a Sloop Fitted Out as a Privateer,” June 12, 1793, and H to Richard Harison, June 13–15, 1793. George Hammond, the British Minister to the United States, maintained that both vessels had been taken within United States territorial waters.
6. At this point H wrote and crossed out: “Each of these Ships is alleged to have been captured within such a distance of our ⟨co⟩ast as according to the gen⟨eral⟩ rules established among nations ⟨and⟩ practiced upon by France herself put them within the protection of the UStates.”
7. All material within brackets in this document has been taken from the version published in Dunlap’s American Daily Advertiser, August 5, 1793. In the draft H left blank spaces which he intended to fill in later. The reference at this point is to Georg Friedrich von Martens, Precis du Droit de Gens moderne de l’europe, fondé sur les traités et l’usage. Auquel on a joint la liste de principaux traités conclus depuis 1748 jusqu’a présent, avec l’indication des ouvrages où ils se trouvent (Göttingen, 1789).
8. .
9. Material within broken brackets in this document has been taken from the newspaper version.
At this point H wrote and crossed out: “It follows from this that a neutral Country owes it to itself, when a capture is made within its jurisdiction to vindicate its rights and redress and upon this principle to.”
10. At this point H wrote and crossed out: “Every Nation has a right to reparation for an injury to its rights and consequently may redress itself when it has an opportunity, or, if it has may demand redress of the party who committed the injury.”
11. .
12. .
13. Thomas Rutherford, Institutes of Natural Law: Being the Substance of a Course of Lectures on Grotius’ de Jure Belli et Pacis (Cambridge, 1754–1756).
14. .
15. Richard Wooddeson, Elements of Jurisprudence, treated of in the Preliminary Part of a Course of Lectures on the Laws of England (London: T. Payne and Son, 1783).
16. Sylvester Douglas, Reports of Cases Argued and Determined in the Court of King’s Bench, in the Nineteenth, Twentieth, and Twenty-first Years of the Reign of George III (London, 1783–1784).
17. Richard Lee, A Treatise of Captures in War (London: Printed for W. Sandby, in Fleet-Street, 1759).
18. H is referring to the 1782 treaty with the Netherlands, the 1783 treaty with Sweden, and the 1785 treaty with Prussia. See , 64–65, 140–41, 167. The quotation is from Article 5 of the treaty with the Netherlands. H presumably meant to refer to Article 21 rather than Article 2 of the treaty with Sweden.
19. At this point in the newspaper version the following footnote has been inserted: “The rights of war only take place in the countries of the powers at war, or on the high seas which are common to both. If acts of hostility are committed within a neutral territory, they do not partake of the rights of war, they cannot be judged of by the laws of war, nor have any of the rules of war the smallest relation to them, as trespasses they are liable to be redressed in the ordinary course of justice as infringements of territorial rights, they claim redress and punishment from the executive authority of the injured country.”
The following paragraph also appears at this point in the newspaper version: “It may be asked why, if this was before, the rule of the law of nations, there should have been a particular article of treaty concerning it? The answer is 1st. that it is a common practice to introduce into treaties stipulations recognizing the rules of the laws of nations, in order to avoid controversy about them, of which there are several examples in our treaties. 2 That the article secures to France something more than the usage of several nations admits, namely a right to continue in our ports an indefinite time, and the benefit of an exclusion of the privateers of her enemies having made prize of the subjects people or property of France, from the degree of asylum to which they would otherwise be entitled. These are sufficient objects for the article, without giving to it an extension subversive of the just and necessary jurisdiction of the country.”