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No Jacobin No. IV, [10 August 1793]

No Jacobin No. IV1

[Philadelphia, August 10, 1793]2

For the American Daily Advertiser.

I have, I believe, sufficiently answered the charges, which the Jacobin3 has brought against the Executive of the United States.

In doing this, it has been shewn, that the claim of a right on the part of France to fit out privateers in the ports of the United States, as derived from treaty, is without foundation. As this is the basis on which it has been rested, and, indeed, as it is the only one, upon which it could rest, if at all to be supported, it is not necessary, by way of answer to the Jacobin, to discuss how the claim of such a right would stand, independent of treaty. But a few remarks on this point, for the information of those, who may not be familiar with subjects of the kind, may not be without use.

It is a plain dictate of reason, and an established principle of the law of nations, that a neutral state, in any matter relating to war (not specially promised by some treaty made prior to the commencement of the war and without reference to it) cannot lawfully succour, aid, countenance or support either of two parties at war with each other; cannot make itself or suffer itself to be made with its own consent, permission, or connivance, an instrument of the hostility of one party against the other: and as a consequence of these general principles, cannot allow one party to prepare within its territories the means of annoying the other, or to carry on from thence, against the other, with means prepared there, military expeditions of any sort by land or water.

To allow such practices, is manifestly to associate with one party against the other. The state which does it, ceases thereby to be a neutral state—becomes an enemy, and may be justly treated as such. In common life, it is readily understood, that whoever knowingly assists my enemy, to injure me, becomes himself, by doing so, my enemy also; and the reason being the same, the rule cannot be different between nations.

Could it be necessary to enforce principles so clearly founded in common sense, by authorities and precedents, it might be done by an appeal to writers, and to the general practice of nations. The following are a few of those which might be adduced. Vatel, book III, sec. 104;4 Bynkerschoeck, quest. jur. pub. lib. I chap. ix, particularly pages 69, 70, of Latin edition; Idem, chap. VIII, particularly page 65 of the same edition.5 Leoline Jenkins, 2d vol. 728–756.6 Valin, Liv. III. Tit. ix. art. xiv. p. 272.7

Some of these establish only the general principles; others of them go directly to the point of carrying on military expeditions from the territories of the neutral state, and even to that of fitting out privateers in the ports of such state; pronouncing the neutral state to be answerable for the consequences, and giving the party injured a right to reparation. This reparation may either be in damages, to be paid by the neutral state or by reprisals, at the option of the party injured.

It appears from them, moreover, that on the ground of the laws of neutrality, some nations, (if it be not a general usage) go so far as to exclude from remaining in their ports, more than 24 hours (if not detained by tempest) armed vessels of one belligerent party coming within its ports with prizes made of another.

It was an article of the marine ordinances of France under the former government (and it is not known to have been changed) that “no vessel taken by a captain having a foreign commission, can remain more than 24 hours in the ports or harbours of France, if not detained there by tempest, or if the prize has not been made of the enemies of France.”8

And Valin, advocate and procurator for the King, at the seat of the admiralty of Rochelle, has this comment upon that article:9

“Plenary asylum is due only to those with whom we are not at war. To enemies we owe no more than the safety of their lives: to others we owe hospitality and good treatment, with liberty to go away when they judge proper.”

“Nevertheless, as neutrality with two powers at war, permits not to favour one to the prejudice of the other, to conciliate this consideration with the right of asylum, nations have tacitly agreed, and usage has made it a common law, that asylum shall be granted to foreign armed vessels with their prizes—that is to say, if entered into a port through tempest, as long as the bad weather shall not permit them to put to sea, and for four and twenty hours only, if they shall have to put in from any other cause.”

“Thus, except the case of tempest, vessels being in condition to make sail, there is an obligation to make them depart, and return to sea, after twenty-four hours, whatever danger there may be of recapture by their enemies; otherwise it would be to violate the law of neutrality.” (See the authorities before referred to.)

The same idea, which is to be found in this author, appears in the writings of Leoline Jenkins, also above referred to, who was judge of the High Court of Admiralty of England, in the reign of James the IId.10

This serves to shew the extreme nicety of nations on the point of neutrality. But how much stronger the case of fitting out armed vessels in a neutral port, to make prizes, than that of simply coming into and staying in it with prizes, that have been made!

Another reflection occurs in relation to this point, which is this—that the government of the United States, in a matter at least of doubtful propriety, has given to France a doubtful privilege, to which she was not entitled by treaty—that of selling the prizes made by her armed vessels in their ports; the treaty stipulating nothing more than a free access and egress.11 Let it be judged from this, how far a disposition to deny to France the privileges which she may claim by treaty, has governed!

It is true, and in that the United States must seek their justification with other powers, that writers are not agreed as to this rule with regard to prizes: some considering it as lawful to sell them in neutral ports as may be seen, Vatel, book III. chap. vii. sec. 132.12

But still it appears, that the government, in a doubtful case, has followed the course which favours France. And it is questionable, whether the examples of national regulations, and the opinions of a judge and a lawyer versed in the practice of courts of admiralty and more drawn to attend critically to the point of usage, ought not to have more weight than those of writers who were in a situation to have been guided more by general theory.

It appears likewise that the regent of Sweden, who, like us, has pursued the path of neutrality in the present war, has made the point of fitting out privateers a particular article of prohibition: an example, in practice, which has great weight in the question.13 The governments of Europe know, by long experience, the usages of war, and without consulting the authorities or precedents, are able to pronounce with facility, on what is lawful, what unlawful.

The example, then, of Sweden, is a respectable confirmation of what is the usage of nations on the point in question.

It is easy too to discern, that the United States would become one of the most mischievous enemies which the maritime powers opposed to France could have, if, from their territories, armed vessels could be fitted out to an indefinite extent, with the full use of the means to cruise against the trade of those powers, if the prizes made by such armed vessels could be brought into their ports and sold, and if their professed neutrality could give asylum and security to those vessels, and the fruits of their depredations. The inference is, that such a state of things could not possibly be long tolerated by those powers; but would lead inevitably to involving the United States in the war.

A consequence, no doubt, well understood, and unquestionably intended by the agents of France; who, with delusive professions of not desiring to embark this country in the war, are industriously employing every expedient, that can tend to produce the events.

No Jacobin.

Dunlap’s [Philadelphia] Daily American Advertiser, August 10, 1793.

1The other “No Jacobin” essays are dated July 31, August 5, 8, 14, 16, 23, 26, 28, 1793.

2In JCHW description begins John C. Hamilton, ed., The Works of Alexander Hamilton (New York, 1851–1856). description ends , VII, 134–37, and HCLW description begins Henry Cabot Lodge, ed., The Works of Alexander Hamilton (New York, 1904). description ends , V, 40–45, this essay is dated “1793.”

4Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends .

5Bynkershoek, Quæstionum description begins Cornelis van Bynkershoek, Quœstionum juris publici libri duo, quorum primus est de regus bellicis, secondus de rebus varii argumenti (Leyden, 1752). description ends .

6Wynne, The Life of Sir Leoline Jenkins description begins William Wynne, The Life of Sir Leoline Jenkins, Judge of the High-Court of Admiralty, and Prerogative Court of Canterbury, &c. Ambassador and Plenipotentiary for the General Peace at Cologn and Nimeguen, and Secretary of State to K. Charles II. and a Compleat Series of Letters, from the Beginning to the End of those Two Important Treaties. Wherein are related the most Remarkable Transactions of those Times, both Foreign and Domestick. Together with many Valuable Papers and Original Letters… (London: Printed for Joseph Downing, in Bartholomew-Close; William Taylor, at the Ship in Paternoster-Row; William and John Innys, at the West-End of St. Paul’s; and John Osborn, at the Oxford-Arms in Lombard-Street, 1724). description ends .

7Valin, Traité des Prises description begins René Josué Valin, Traité des Prises, ou Principles de La Jurisprudence Françoise Concernant les Prises qui se font sur mer Relativement aux dispositions tant de l’Ordonnance de la Marine du mois d’Août 1681, que des Arrêts du Conseil, Ordonnances & Réglemens antérieurs & postérieurs, rendus sur ce sujet. Avec une notice de la procédure qui doit être observée à cet égard (La Rochelle, 1763). description ends .

8H’s quotation is a translation of Article 14 of the French Marine Ordinance of August, 1681 (Valin, Traité des Prises description begins René Josué Valin, Traité des Prises, ou Principles de La Jurisprudence Françoise Concernant les Prises qui se font sur mer Relativement aux dispositions tant de l’Ordonnance de la Marine du mois d’Août 1681, que des Arrêts du Conseil, Ordonnances & Réglemens antérieurs & postérieurs, rendus sur ce sujet. Avec une notice de la procédure qui doit être observée à cet égard (La Rochelle, 1763). description ends , I, xxi).

9Valin, Traité des Prises description begins René Josué Valin, Traité des Prises, ou Principles de La Jurisprudence Françoise Concernant les Prises qui se font sur mer Relativement aux dispositions tant de l’Ordonnance de la Marine du mois d’Août 1681, que des Arrêts du Conseil, Ordonnances & Réglemens antérieurs & postérieurs, rendus sur ce sujet. Avec une notice de la procédure qui doit être observée à cet égard (La Rochelle, 1763). description ends , I, 107.

10Wynne, The Life of Sir Leoline Jenkins description begins William Wynne, The Life of Sir Leoline Jenkins, Judge of the High-Court of Admiralty, and Prerogative Court of Canterbury, &c. Ambassador and Plenipotentiary for the General Peace at Cologn and Nimeguen, and Secretary of State to K. Charles II. and a Compleat Series of Letters, from the Beginning to the End of those Two Important Treaties. Wherein are related the most Remarkable Transactions of those Times, both Foreign and Domestick. Together with many Valuable Papers and Original Letters… (London: Printed for Joseph Downing, in Bartholomew-Close; William Taylor, at the Ship in Paternoster-Row; William and John Innys, at the West-End of St. Paul’s; and John Osborn, at the Oxford-Arms in Lombard-Street, 1724). description ends , II, 732–33.

11See Article 17 (originally Article 19) of the 1778 Franco-American Treaty of Amity and Commerce (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 16–17). For the discrepancy in the numbering of the articles of the treaty, see H to John Jay, first letter of April 9, 1793, note 2.

12This passage from Vattel reads as follows: “as strangers can do nothing in a country against the sovereign’s will, to attack an enemy in a neutral country, or commit in it any other hostility, is absolutely unlawful. The DutchEast-India fleet having put into Bergen in Norway, in 1666, to avoid the English, were attacked by them. But the government of Bergen fired on the assailants, and the court of Denmark complained, perhaps too faintly, of an enterprize so injurious to its rights and dignity.

“To secure prisoners or spoil in a place of safety are acts of war, consequently not to be done in a neutral country; and whoever permitted it would break the neutrality, as favouring one of the parties. But I here speak of prisoners and goods, not yet perfectly in the enemy’s power, the capture of which is not, if I may be allowed the expression, fully compleated. A flying party, for instance, cannot make use of a neighbouring and neutral country as a staple for securing its prisoners and spoil. To permit this would be to countenance and support its hostilities. When the capture is completed, and the booty absolutely in the enemy’s power, no enquiry is made how he came by such effects, and he has a right to dispose of them any where. A privateer carries his prize into a neutral port, and there freely sells it; but he could not be allowed to put his prisoners ashore, in order to confine them; for to keep or detain prisoners of war is a continuation of hostilities.” (Vattel, Law of Nations description begins Emeric de Vattel, Law of Nations; or Principles of the Law of Nature: Applied to the Conduct and Affairs of Nations and Sovereigns (London, 1759–1760). description ends , II, 46.)

13The regent of Sweden was Charles, Duke of Södermanland, the second son of Adolphus Frederick. When Charles’s brother, Gustavus III, died in March, 1792, Charles became regent for his young nephew, Gustavus IV Adolphus.

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