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Objection. There will be collusive transfers of foreign ships to our merchants, merely to obtain for them the cover of our passports.
Answer. The same objection lies to giving passports to homebuilt vessels. They may be owned, and are owned by foreigners, and may be collusively re-transferred to our merchants to obtain our passports. To lessen the danger of collusion, however, I should be for delivering passports in our own ports only. If they were to be sent blank to foreign ports to be delivered there, the power of checking collusion would be small, and they might be employed to cover purposes of no benefit to us (which we ought not to countenance), and to throw our vessels out of business ; but if issued only to vessels in our own ports, we can generally be certain that the vessel is our property; and always that the cargo is of our produce. State the case that it shall be found that all our shipping, home-built and foreign-built, is inadequate to the transportation of our produce to market; so that after all these are loaded, there shall yet remain produce on hand. This must be put into vessels owned by foreigners. Should these obtain collusively the protection of our passport, it will cover their vessel indeed, but it will cover also our cargo. I repeat it then, that if the issuing passports be confined to our ports, it will be our own vessels for the most part, and always our cargoes which will be covered by them.
I am, therefore, of opinion, that passports ought to be issued to all vessels belonging to citizens of the United States, but only on their clearing out from our own ports, and for that voyage only.
XXXVII.—Opinion relative to case of a British vessel captured
by a French vessel, purchased by French citizens, and fitted out as a Privateer in one of our ports.
May 16, 1793. The facts suggested, or to be taken for granted, because the contrary is not known, in the case now to be considered, are, that a vessel was purchased at Charleston, and fitted out as a privateer by French citizens, manned with foreigners chiefly, but partly with citizens of the United States. The command given to a French citizen by a regular commission from his government; that she has made prize of an English vessel in the open sea, and sent her into Philadelphia. The British minister demands restitution, and the question is, whether the Executive of the United States shall undertake to make it?
This transaction may be considered, 1st, as an offence against the United States; 2d, as an injury to Great Britain.
In the first view it is not now to be taken up. The opinion being, that it has been an act of disrespect to the jurisdiction of the United States, of which proper notice is to be taken at a
Under the second point of view, it appears to me wrong on the part of the United States (where not constrained by treaties) to permit one party in the present war to do what cannot be permitted to the other. We cannot permit the enemies of France to fit out privateers in our ports, by the 22d article of our treaty. We ought not, therefore, to permit France to do it; the treaty leaving us free to refuse, and the refusal being necessary to preserve a fair neutrality. Yet considering that the present is the first case which has arisen ; that it has been in the first moment of the war, in one of the most distant ports of the United States, and before measures could be taken by the government to meet all the cases which may flow from the infant state of our governernment, and novelty of our position, it ought to be placed by Great Britain among the accidents of loss to which a nation is exposed in a state of war, and by no means as a premeditated wrong on the part of the government. In the last light it cannot be taken, because the act from which it results placed the United States with the offended, and not the offending party. Her minister has seen himself that there could have been on our part neither permission or connivance. A very moderate apology then from the United States ought to satisfy Great Britain.
The one we have made already is ample, to wit, a pointed
disapprobation of the transaction, a promise to prosecute and punish according to law such of our citizens as have been concerned in it, and to take effectual measures against a repetition. To demand more would be a wrong in Great Britain ; for to demand satisfaction beyond what is adequate, is wrong. proposed further to take the prize from the captors and restore hier to the English. This is a very serious proposition.
The dilemma proposed in our conferences, appears to me unanswerable. Either the commission to the commander of the privateer was good, or not good. If not good, then the tribunals of the country will take cognizance of the transaction, receive the demand of the former owner, and make restitution of the capture ; and there being, on this supposition, regular remedy at law, it would be irregular for the government to interpose. If the commission be good, then the capture having been made on the high seas, under a valid commission from a power at war with Great Britain, the British owner has lost all his right, and the prize would be deemed good, even in his own courts, were the question to be brought before his own courts. He has now no more claim on the vessel than any stranger would have who never owned her, his whole right being transferred by the laws of war to the captor.
The legal right then being in the captors, on what ground can we take it from him? Not on that of right, for the right has been transferred to him. It can only be by an act of force, , that is to say, of reprisal for the offence committed against us in the port of Charleston. But the making reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction ought to precede ; and when reprisal follows, it is considered as an act of war, and never yet failed to produce it in the case of a nation able to make war; besides, if the case were important enough to require reprisal, and ripe for that step, Congress must be called on to take it; the right of reprisal being expressly lodged with them by the Constitution, and not with the Executive.
I therefore think that the satisfaction already made to the gorernment of Great Britain is quite equal to what ought to be desired in the present case ; that the property of the British owner is transferred by the laws of war to the captor ; that for us to take it from the captor would be an act of force or reprisal, which the circumstances of the case do not justify, and to which the powers of the Executive are not competent by the Constitution.
XXXVIII. - Opinion on the proposition of the Secretary of the Treasury to open a new Loan.
June 5, 1793. Instructions having been given to borrow two millions of florins in Holland, and the Secretary of the Treasury proposing to open a further loan of three millions of florins, which he says “a comprehensive view of the affairs of the United States, in various relations, appears to him to recommend,” the President is pleased to ask whether I see any objections to the proposition ?
The power to borrow money is confided to the President by the two acts of the 4th and 12th of August, 1790, and the monies, when borrowed, are appropriated to two purposes only; to wit, the twelve millions to be borrowed under the former, are appropriated to discharge the arrears of interest and instalments of the foreign debt; and the two millions, under the latter, to the purchase of the public debt, under direction of the trustees of the sinking fund.
These appropriations render very simple the duties of the President in the discharge of this trust. He has only to look to the payment of the foreign debt, and the purchase of the general one. And in order to judge for himself of the necessity of the loan proposed for effecting these two purposes, he will need from the treasury the following statements :
A. A statement of the nett amount of the loans already made under these acts, adding to that the two millions of florins now in course of being borrowed. This will form the debit of the trust.
The credit side of the account will consist of the following statements, to wit :
B. Amount of the principal and interest of foreign debt, paid and payable, to the close of 17,92.
C. Ditto, payable to the close of 1793.
D. Ditto, payable to the close of 1794 (for I think our prepaations should be a year beforehand).
E. Amount of monies necessary for the sinking fund to the end of 1794.
If the amount of the four last articles exceeds the first, it will prove a further loan necessary, and to what extent.
The treasury alone can furnish these statements with perfect accuracy. But to show that there is probable cause to go into the examination, I will hazard a statement from materials which, though perhaps not perfectly exact, are not much otherwise.
Report of January 3, 1793. New Edition.
treasury report, to wit, 18,678,000 florins, at 99 florins to
$10, the treasury exchange To loan now going on for 2,000,000 florins .