War Department 16th April, 1800.
The Secretary of War respectfully submits the following observations in obedience to the direction of the President of the United States.
The Secretary very much doubts the soundness of the principle, upon which a refusal to deliver up merchant vessels captured by a Belligerent power is founded. It appears to the Secretary, considering the question upon general ground, that merchant vessels belonging to a neutral nation, seized by a Belligerent power upon the high Sea, for violating the Laws of Neutrality, cannot, agreeably to the Law of Nations, be rightfully retaken by a vessel of the neutral power <
from the Captain>, < said> nor, if retaken and brought into a port of the neutral nation, < cannot be> rightfully withheld < from legal examination and trial >[. . .] by that nation from the captors. It results from this principle, that a vessel or its cargo, being prize or no prize, cannot be rightfully determined in other tribunals than those of the nation exercising the right of < seizure> capture, the right to try in the appropriate courts of the country of the Captors following the right to < seizure> capture.
It may be asked, is the right which a Belligerent power acquires to the property of its enemy seized in a neutral vessel full and perfect. To this it may be answered, that the right thus acquired <
by seizure> is full and perfect as relative to < its exemption> exempting it from capture by any neutral vessel. For, if the < neutral> merchant vessel which contains the property, may after its being seized or possessed by the Belligerent power, use force to recover it < from the Belligerent power>, so may every other < [. . .]> merchant < [. . .]> vessel belonging to the neutral nation. Further, if the crews of our neutral vessels may recapture it would seem that our vessels of war could also recapture, the contrary whereof is to be collected from the Statute which authorizes recaptures of our vessels taken by the French. But the State of Neutrality does not permit a neutral power to espouse in any manner whatever either side, or to prefer one to the other Belligerent party. It is the < ir> indispensible duty of neutrals < duty> “Bello se non interponant”. To < fight for, or> recapture the property of either from the other, is a clear meddling in the War, and < a> direct violation of every principle of Neutrality.
If the property in a neutral vessel was enemy’s property, or contraband of war, the Belligerent Vessel, having once made prize of it, has a clear right to it, of which the crew of the neutral vessel cannot divest her by recapture. To the Secretary it appears a sound position, that neutral nations ought to regard the parties at war as lawful proprietors of all that they take from each other: consequently, it cannot be right for the Citizens of a neutral nation to interfere to rescue from one of the belligerent powers property which he had taken belonging to the other. A neutral vessel loads with enemy goods at a known risk, that of their being subject to capture, and under the obligation only to use all due endeavours to avoid an enemy or capture; here the obligation of the neutral ends, for she is not permitted if taken to recover the goods by recapture, the nation only to whose citizens or subjects they belonged (or the parties at war with the captors) possessing that right.
By the Law of Nations, a neutral vessel met at sea, is liable to be seized by a vessel of war as the case may be of either of the Belligerent powers. This Law gives the additional right, if the Belligerent vessel is not satisfied with his search, to carry the neutral vessel into the country of the captors, there to be further examined, tried and condemned (if she has violated the neutrality) in its courts, established for the inquiry into the subject, and to compel by force the neutral to submit to search, and also to be carried into the country of the Captors.
“If such Ships shall be attacked in order to an examination, and shall refuse, they may be assaulted, like a House supposed to have Thieves or Pirates in it, refuses to yield up their persons, may be broken up by the Officer, and the persons resisters may be slain.” Molloy de Jure Mar. et Nav. L.1. C.3. s.XIII.
It also <
accord> appears to the Secretary, that, if a neutral vessel found at sea refuses & resists by force to be searched, she, for such conduct, is liable to be condemned as lawful prize If the Law of Nations gives a right to search, it cannot allow a right to resist a search by force. The two Rights cannot exist. They are perfectly inconsistent. If the first is lawful, the latter must be unlawful, consequently liable to some punishment, or the right would be nugatory. If the Law of Nations gives also a right to carry the neutral vessel into the Country of the Captor’s Courts, this right also cannot be resisted or opposed by force, without violating the Law. It would seem to the Secretary, that the persons who resist the search by force, or resist or prevent by force the neutral vessel being carried into the Captor’s Country for trial, must by such conduct be guilty of a Breach of the Law of Nations, and, if so, they must be liable to some punishment; and if the Nation to which they belong < (on application to punish them)> does not permit them on application to that effect it thereby becomes a party to the wrong. The Secretary cannot think that either the right of search or of carrying the neutral into the country of the captors is founded on superiority of force, but on the law of Nations. This Opinion < of> the Secretary rests upon Vattel L. 3. C. 7. s. IIII: Marten’s Law of Nations. N. 323: the Report on the Silesia Loan: See on Captures &ca.
The Secretary however cannot venture to disapprove of the Answer proposed to be given by the Secretary of State. He does not know of any precedent of a neutral nation exerting its power in any similar case of recapture in aid of the Right of the Belligerent Power; but unquestionably there is reason so to do, if the idea he has presented of the Law of Nations is accurate. <
It is> He thinks it probable, also without pretending to be positive < (the Secretary believes)> that instances of recapture like the present are few. < If the Crews of our neutral Vessels can recapture, it would seem that our vessels of War could also recapture but I the Secretary collects otherwise from the Statute which authorises recaptures of our Vessels taken by the French.>
In some future time, America may stand in Relation to other powers as Great Britain stands at this time, and may wish to make the same claim <
as> that she does now. The Secretary greatly doubts, but with great deference, whether the cases in question of recaptures are cognizable before our Courts of Justice: the Subject seems rather to belong to the Executive. Peculiar caution may be proper for fear at some future period our proceeding may < not> be urged against us to our detriment. If it appears necessary to reconsider the Subject, the Secretary would beg leave to suggest the propriety of adding, that, as there is no provision by treaty or apposite Law of the United States on the Subject, it might be advisable to make some Stipulation by Treaty.
The Secretary is inclined to believe that, if any, there is not Sufficient Remedy for the Delivery of Deserters from British Vessels. He has understood that some of our Courts have determined that the Law of Congress concerning Seamen relates to American Seamen only. The Claim for British Seamen, who have or may desert is just and ought to be reciprocal. The Secretary thinks the project of Mr. Liston may be substantially accepted, except the Seventh Article, which seems to provide that the United States shall not demand the delivery of any sailors, although their citizens, if they have been employed on board British Vessels, and who have in time of war or threatened hostility voluntarily entered into the British Service or have been compelled to enter therein, according to the Law & practice prevailing in Great Britain. This Article is very inaccurately expressed, for it says “employed or entered into the Service of their own Sovereign or Nation, or compelled to enter therein &c.” If this Article means, what it is apprehended it does, it is wholly inadmissible. It establishes a principle reprobated by this Country. The Counter project of the Secretary of State, in Substance, meets the Secretary’s approbation, but it is submitted whether the adoption of part of the Draught by the Secretary of the Treasury will not improve it.
All which is respectfully submitted.
DLC: James McHenry Papers.