Edmund Randolph’s Draft for GW’s Annual Address to Congress
As soon as the European war had embraced those nations, with which the U.S. have an extensive commercial intercourse, there was reason to apprehend, that this intercourse might be interrupted, and our disposition for peace drawn into question, by the suspicions, usually entertained by belligerent powers. It seemed therefore to be my duty, to admonish my fellow-citizens, of the consequences of a contraband trade, and of hostile conduct towards any of the parties; and to obtain, by a declaration of the existing legal state of things, an easier admission of our right to the immunities, belonging to our situation. Under these impressions, the proclamation, which will be laid before you, was issued.1
It did not escape notice, that our treaties with France might probably produce claims for the performance of many important stipulations, contained in that instrument.2 But these, so far as their fulfilment might depend upon the opinions and authority of the executive, could not with propriety be considered, as clashing with the proclamation; and they have been accordingly fulfilled.
Several prizes, taken by the French ships of war and privateers, were brought into our ports, under the permission, given by the treaty of commerce; and being there, they have been sold by the captors. Howsoever salutary a prohibition or restriction of this practice might have been; it appeared to be a subject, more fit for a provision by law, than for the interposition of the executive.
On other occasions, when the jurisdiction of the U.S. has been infringed by captures within the protection of our territory, or by captures, made by vessels, commissioned or equipped in our ports, I have not refused to restore them; and I have also, in many instances, ordered the vessels, so equipped, to be reduced from their military preparations. But, notwithstanding every precaution, some of those captures were attended with such circumstances, as to render it proper for me to undertake, what is expressed in a communication to the ministers of foreign courts, resident here, concerning compensation.
It would however, have been very acceptable to me, if the constitution of the fœderal courts would have suffered me to consign to their decision many cases, upon which I was compelled to act definitively. Even now perhaps, it may be expedient to extend their cognizance of captures, as well to the ascertaining of facts by a jury, when the executive shall, for its own information, request it; as even to the making of restitution when restitution shall be due. The want of aids, like these, induced me to adopt a system of rules, of which copies will be presented to you.3
Nor is it less urgent, that some particular penalty should be enacted against those foreign consuls, who shall open courts within the U.S. for the condemnation of vessels, captured from their enemy. The means, which are in the hands of the executive for repressing this assumption of power, will not be always equal to the mischief, which may spring from it.
But with the wisest legislative institutions on these subjects, and with the greatest vigilance of the public officers against their violation, a respect to the authority of the U.S. cannot be insured from foreign vessels of force, without an ability to coerce them. On some of the waters of the U.S., a few forts have been adapted to effectual service; but on others, none are to be found.
Among other arrangements, which the posture of public affairs demands, it seems adviseable to define the extent of protection and jurisdiction from the coast of the U.S. into the ocean. Different nations have established different pretensions into the sea. For the present, no greater distance has been assumed by the U.S., than a marine league, which is the shortest distance, claimed by any nation. It remains therefore for congress to determine, whether it be better to rest this unsettled point, upon explanations and adjustments, which may be made thro’ the channel of negotiation, or to prescribe the range, to which the right of the U.S. shall be hereafter asserted.
1. Randolph was referring to GW’s Neutrality Proclamation of 22 April.
2. Randolph was referring to the Treaties of Amity and Commerce and of Alliance, both 6 Feb. 1778 (Miller, Treaties description begins Hunter Miller, ed. Treaties and Other International Acts of the United States of America. Vol. 2, 1776-1818. Washington, D.C., 1931. description ends , 3–44).
3. For GW’s unsuccessful attempt to obtain guidance from the Supreme Court, see Cabinet Opinion, 12 July, and n.4; Thomas Jefferson to GW, 18 July, enclosure; Jefferson to GW, 19 July, n.1; and Supreme Court Justices to GW, 8 August. For the system of rules, see Cabinet Opinion on the Rules of Neutrality, 3 August.