On the 4th August, 1793, circular instructions were sent to the collectors of customs within the United States, intended, though not exclusively intended, to provide against violations of neutrality. According to these instructions, vessels originally fitted out by either belligerent in ports of the United States were not thenceforth to have asylum in any district of the United States. Any vessel contravening the rules laid down was to be refused a clearance until she should have complied with what the governor of the State might decide in reference to her. Care, however, was to be taken in this not necessarily or unreasonably to embarrass trade or vex any of the parties concerned. In order to guard against contraventions, the condition as to military equipment of every vessel arriving in a port of the United States was to be ascer tained by accurate survey made on her arrival and again before her [27] departure; but no attempt was to be made to inspect "any *ves sel of war in the immediate service of the government of a foreign nation." A schedule of rules was appended to these instructions; and it is material to observe what these rules permitted and what they prohibited in the ports of the United States, disregarding only some specific limitations which had reference to treaties then existing between the United States and France. They permitted— 1. Equipments of merchant vessels by either belligerent, "purely for the accommodation of them as such." 2. Equipments of vessels of war in the immediate service of the government of either belligerent, which, if done to other vessels, would be of a doubtful nature, as applicable either to commerce or war. 3. Equipments of a like nature done to vessels fitted for merchandise and war, whether with or without commissions. 4. They permitted also armed vessels of either belligerent, which should not have infringed any of its rules, to "engage or enlist their own subjects or citizens, not being inhabitants of the United States." They prohibited "equipments of vessels in the ports of the United States which are of a nature solely adapted for war."1 Any kind of equipment, therefore, which might be applicable either to war or to commerce, was declared lawful, whether done to a vessel fitted for war and commerce, or to a vessel actually commissioned as a public ship of war. The only question was as to the nature of the equipment. If it was of such a character as to be applicable solely and exclusively to war, it was forbidden; if not, it was not forbidden. These rules have always been referred to with approval and respect by American writers on international law. Notwithstanding the instructions, privateers continued to be fitted out in American ports, and privateers which had been previously fitted out appear to have been suffered to enter, refit, and depart unmolested. Thus, on the 29th December, 1793, the British minister, Mr. Hammond, wrote to Mr. Jefferson: The danger to be apprehended from these last-mentioned vessels (privateers illegally fitted out in ports of the United States) still continues to exist to a very alarming degree; since, notwithstanding the repeated assurances I have received from the Federal Government of its determination to exclude those privateers from any future asylum in its ports, and the sincerity of its desire to enforce this determination, I have reason to infer that, in other quarters, means have been successfully devised either to elude its vigilance, or to render nugatory its injunctions. This inference arises from the information I have received-that the privateer Le Citoyen Genêt, fitted out at Charleston, was, on the 21st of August, permitted to return to the port of Philadelphia for the second time, to remain there some days, and then to proceed to sea for the pur 1 1 Appendix to British case, vol. v., pp. 269, 270. pose of commencing new depredations, which, as it appears from the public prints, she is now prosecuting in the adjacent seas; that Le Petit Democrat, and La Carmagnole, both fitted out in the Delaware, were permitted to enter the port of New York, and to continue therein unmolested during a great part of the months of August, September, and October last; that the latter vessel is still in that port, and that the former, having sailed from thence in company with the French fleet, under the charge of Admiral Sercy, and having separated from it at sea, proceeded first to Boston, and afterward returned for a second time to New York, wherein she at present remains.1 On the 5th November, 1794, he wrote to Lord Grenville: In conformity to the intention expressed in my dispatch No. 31, I have now the honor of transmitting to your lordship a list, compiled from returns sent to me by His Majesty's consuls, of such British vessels as have been brought as prizes into ports of the United States, since the commencement of the present hostilities to the beginning of the month of August. On this list it is proper for me to remark, that the value of a considerable proportion of the British vessels captured, and of their cargoes, is omitted in the consular returns; that of those of which the value is mentioned, though it be much underrated, the amount is £195,548 sterling; and that of seventy-five British prizes, forty-six were made by privateers fitted out in ports of the United States. The depredations of these last-mentioned vessels, which seemed to have been in somb measure suspended by the appearance of a British naval force in these seas, have, by recent accounts from Charleston, recommenced. I likewise learn from Baltimore that several vessels are now arming in that port, for the purpose of proceeding to Port de Paix, in Saint Domingo, or to Guadaloupe, and of there procuring French commissions. Though, by an act passed in the last session of Congress, this be a punishable offense, the difficulty of obtaining legal proof of the intention of the persons arming such vessels is a sufficient objection to the institution of any judicial proceedings thereon; and it is useless to address any complaints upon subjects of this nature to the General Government, since the investigation of them is commonly committed to the governors of the respective States, of whom a great majority is so hostile to Great Britain as readily to connive at measures the execution of which may be injurious to her interests. The British vice-consul at Charleston wrote as follows, on the 28th November, 1794, to the consul, (who was then absent on leave:) [28] *Notwithstanding the laws of the United States are so guarded against any breach of neutrality, the French here evade them, and arm as many privateers as ever. Yesterday I acquainted the collector of the Federal customs in this port, who is directed by the Secretary of the Treasury to inspect all vessels in this place, and see that none of them in any way whatever commit a breach of the laws That the brig Cygnet, fitted for war in this harbor, but afterward permitted to clear out as a merchantman, having been disarmed and her ports nailed up, had her guns sent after her in the privateer L'Ami de la Pointe à Petre, took them on board off this bar, mounted them, knocked out her ports, and proceeded to sea, fully equipped as a privateer. That the schooner St. Joseph Sugna cleared for Port au Paix as a Spanish prize; had no guns mounted when she dropped down to the fort, nor any appearance in her hull of having been fitted for war, although her rigging had every apparent mark of the privateer; had previously to her going over the bar her quarter-deck off, port-holes cut, and guns mounted. That there was a brigantine fitting at Gaillard's wharf, which came in from Port au Paix, pierced for twelve guns, with a high quarter-deck, the bulk-head of which was ent away, and beams laid level with the main deck, which, from every appearance, is meant to proceed in the same manner the above schooner did, by cutting away the old quarter-deck after she drops down, and getting her guns sent after her. That a new prize schooner, called the Swallow, was fitting in same manner, and a Providence sloop, with many vessels of a larger size, among which is the old Delaware frigate that was sold after the peace, and fitted for a South Sea whaler. Also, a sloop lying on the stream, with a large quantity of gunpowder on board, supposed to be for the purpose of supplying the privateers.3 The Cygnet cleared for Port au Paix with a trifling cargo, there got a commission, and on her return made several prizes, which she sent into Charleston, and of which the local court refused to decree restitution. The dispatches of the British consuls at Charleston and elsewhere in 1794, 1795, and some subsequent years, repeatedly refer to privateers fitting out or increasing their armament in ports of the United States, the difficulty of obtaining evidence against them, and the absence of effectual means of repression. Thus the consul at New York, on the 30th November, 1795, after a complaint of a privateer (the Coquette) fitted out in New York, which had taken four prizes, writes: When such vessels are fitted out in America in a secret manner, it is difficult to procure proof against them, and I apprehend the law prohibiting the practice is not adequate to the purpose, nor is it enforced with sufficient activity. 1 And, on the 27th April, 1796, the vice-consul at Charleston wrote: Inclosed you will, however, receive the state of them, (the proceedings in prize causes before the Supreme Court,) as handed me by His Majesty's chargé d'affaires in Philadelphia, from which it would appear nothing but the ownership being in American citizens will cause a restoration of prizes, and that the law of the 5th June, 1794, passed in Congress, as well as the general law of nations, so far as respects the arming, equipping, augmenting, or altering the ships of war or privateers of any power at war in neutral ports, are entirely set aside in the courts of this country. Indeed, Mr. Chase, one of the Federal judges, gave it as his opinion that the citizens of the United States had a right to build and equip ships of war as an article of trade, and to dispose of them to either of the belligerent powers without any breach of their neutrality, provided none of those were in any manner concerned in them after they became cruisers.2 It has thus been seen that privateers were fitted out, armed, and commissioned in American ports. These privateers committed considerable depredations on British shipping, and took many prizes. Let us now see what was done as to the restitution of the prizes, and compensation for the injuries thus sustained by Great Britain. The final judgment of the American Government as to what was right to be done in this matter was conveyed in a letter which Mr. Jefferson addressed to the British minister, dated 5th September, 1793. The substance of this letter was, that the Government recognized an obligation to restore prizes actually brought into its ports after the 5th June, 1793, if captured by privateers which had been unlawfully fitted out within its jurisdiction, or to use all the means in its power to do so. If, in any case, it had forborne or should forbear to do this, it would hold itself bound to make compensation to the owners. It recognized no other obligation. We shall presently see how this engagement was understood. The promise or engagement contained in this letter was expressly confined to prizes brought in after the 5th June, 1793. The line of distinction thus drawn, though intelligible as between the United States and France, because this was the date of Mr. Jefferson's prohibitory letter to M. Genêt, was, so far as the rights of Great Britain were concerned, purely arbitrary, the prizes brought in before that date being as unlawful, according to the law of nations, as those brought in [29] after it, and the right to restitution or compensation being pre cisely the same. The American Government, however, refused to make either restitution or compensation for prizes brought in previous to the time at which the resolution that they were to be treated as illegal was formed and made known to the French envoy. The British minister as to this wrote as follows, on the 7th June, 1794, to the then Secretary of State, Mr. Randolph: From the same paper, it is also evident that I have never acquiesced in the propriety of the determination of this Government not to restore vessels captured previously to the 5th of June, as well for the reasons which I have there stated, as because I have never perfectly comprehended the principles which could legalize the prizes antece Appendix to British case, vol. v, p. 292. 3 Ibid., p. 255. dently to that period, and invalidate those which were made subsequently to it. The list of those prizes annexed to the memorial will evince that (whatever may have been conceived by some) their value was not inconsiderable; but even if their amount had been less considerable, the question in a national point of view could not have been affected by that circumstance.1 It may, perhaps, be supposed that the owners of these vessels, though they did not obtain restitution, would be awarded compensation under Article VII of the treaty of 1794. But it will presently be seen that this was refused to them. The cases in which the Government had "forborne" to make restitution were those of three British merchant-ships which had been captured by privateers unlawfully fitted out, and brought by the captors into American ports after the 5th June, 1793, but which the Government from motives of policy was unwilling to take forcibly out of the captors' hands. No provision having been made by Congress for the compensation promised in the case of these three vessels, the owners of these and of a fourth, which was admitted to stand on the same ground, had no other resource than to carry their claims before the commissioners afterward appointed, which they accordingly did. Decisions of the com VIIth Article of the By the seventh article of the treaty of 19th November, 1794, after a recital that certain British subjects complained "that, in the course of the war, they have sustained loss and dam- missioners under the age by reason of the capture of their vessels and merchan- Treaty of 1794. dise, taken within the limits and jurisdiction of the States and brought into the ports of the same, or taken by vessels originally armed in ports of the said States," it was agreed that, "in all such cases where restitution should not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond, dated at Philadelphia, September 5, 1793, (a copy of which was annexed to the treaty,)" the complaints should be referred to commissioners, who were empowered to award compensation. Various claims were made before the commissioners so appointed. Three leading decisions pronounced by them will be found in the appendix to this counter case. By these decisions it was ruled— 1. That, according to the true construction of Article VII of the treaty, coupled with Mr. Jefferson's letter, no claim could be made on account of a capture made before the 5th June, 1793. Hence compensation was refused in the case of a British vessel which had been captured on the 8th May by the Sans Culottes, a privateer fitted out at Charleston, and had been openly brought by her captors into the port of Philadelphia.2 2. That no compensation could be claimed for captures made by vessels illegally fitted out within the jurisdiction of the United States unless the prizes had been subsequently brought into an American port. The own 1Appendix to British case, vol. v, p. 276. The "All the documents above quoted were of the date of 1793, the latest of them of November 22. They were all public, and in the hands of the negotiators of the present treaty. That treaty, which was signed in November, 1794, makes the letter of September, 1793, the standard of the engagements of the United States in cases of this nature, and directs us, in all cases where restitution shall not have been made agreeably to the tenor of that letter, to proceed as in the other cases committed to us. tenor of that letter appears to me to respect only cases occurring after the 5th June, and contains no stipulation either of restitution or compensation in cases anterior to that date. The case of the Fanny, Pile, master, now under consideration, is of anterior date, and therefore is, in my opinion, not within the powers or duty of this board further to consider."-Decision in the case of the Fanny, Pile, master. Appendix to British case, vol. v, p. 319. ers, therefore, of a vessel which the captors had destroyed at sea were entitled to no compensation.1 3. That where the prize had been brought in, no compensation could be claimed if the claimant had not taken proceedings in a district court of admiralty, and proved his case there by sufficient testimony, or if there had been any negligence or any delay in instituting or carrying on such proceedings, or in enforcing a judgment if obtained.2 [30] *The real effect, then, of the engagement entered into by the Government of the United States as to restitution or compensation, appears to have been this. The owner of a vessel captured by a ship which had offended within American waters against the prohibitions of the United States Government, was at liberty to obtain, if he could, by proceedings in a court of admiralty, a decree for restitution, and the Government undertook in that case either to use all the means in its power to enforce the decree should it be resisted, or else to indemnify him for the loss. If he could not obtain a decree, he had no redress; 3 Decision in the case of the Jamaica, Martin, master. Ibid., pp. 311 et seq. 2" From this examination of the letter, which is given to us for a rule, it results that it was the opinion of the President, therein expressed, that it was incumbent on the United States to make restitution of, or compensation for, all such vessels and property belonging to British subjects as should have been-first, captured between the dates of June 5 and August 7 within the line of jurisdictional protection of the United States, or even on the high seas; if, secondly, such captured vessel and property were brought into the ports of the United States; and, thirdly, provided that, in cases of capture on the high seas, this responsibility should be limited to captures made by vessels armed within their ports; and, fourthly, that the obligation of compensation should extend only to captures made before the 7th August, in which the United States had confessedly forborne to use all the means in their power to procure restitution; and that, with respect to cases of captures made under the first, second, and third circumstances above enumerated, but brought in after the 7th August, the President had determined that all the means in the power of the United States should be used for their restitution, and that he thought that compensation would be equally incumbent on the United States in such of these cases (if any such should at any future time occur) where the United States, having decreed restitution, and the captors having opposed or refused to comply with or submit to such decree, the United States should forbear to carry the same into effect by force. "Such was the promise. In what manner was that promise to be carried into effect? It was not absolute to restore, by the hand of power, in all cases where complaint should be made; if it had been such, there would have been no want of complaints, and France herself would have had a better reason for making them than any other party. No, the promise was conditional. We will restore in all those cases of complaint where it shall be established by sufficient testimony that the facts are true which form the basis of our promise-that is, that the property claimed belongs to British subjects; that it was taken either within the line of jurisdictional protection, or, if on the high seas, then by some vessel illegally armed in our ports; and that the property so taken has been brought within our ports. By whom were these facts to be proved? According to every principle of reason, justice, or equity, it belongs to him who claims the benefit of a promise to prove that he is the person in whose favor, or under the circumstances in which the promise was intended to operate; and since it is the party promising redress who must first be convinced by testimony of the truths and justice of the complaint before the obligation of his promise can apply and bind him to performance of the stipulated relief, he is, of course, the proper person to decide under what forms, and in what manner, the examination and proof of these facts is to be conducted. Accordingly, every civilized nation has established laws and judicial forms for doing right, for redressing wrongs, and for restoring to the true owner property which may have been unjustly wrested from him."-Decision in the case of the Elizabeth, Ross, master. Appendix to British case, vol. v, p. 322. 366 "It appears that by the expression all the means in their power,' they meant, first, those means which the Constitution and laws had provided for the redress of wrong and force whenever it should be rendered necessary by any act of opposition to the ordinary course of justice. That although doubts entertained by a part of the judicial establishment of its jurisdiction in these cases had placed them for a time under the immediate eye of the Executive power, yet to the complainant this produced no important change, since the same examination and proof of facts was required to establish the justice of his complaint and to guide the decision of the President, as would |