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...I would say that if one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all it's citizens) has a right to go to war, by the authority of it's individual citizens. But this is not true either on the general principles of society, or by our Constitution, which gives that power to Congress alone, & not to the citizens individually. Then the first position was not true; and no citizen has a right to go to war of his own authority; and, for what he does without right, he ought to be punished.--Indeed, nothing can be more obviously absurd than to say, that all the citizens may be at war, & yet the nation at peace. It has been pretended, indeed, that the engagement of a citizen in an enterprise of this nature, was a divestment of the character of citizen, & a transfer of jurisdiction over him to another sovereign. Our citizens are certainly free to divest themselves of that character by emigration, & other acts manifesting their intention, & may then become the subjects of another power, & free to do whatever the subjects of that power may do. But the laws do not admit that the bare commission of a crime amounts of itself to a divestment of the character of citizen, and withdraws the criminal from their coercion. They would never prescribe an illegal act among the legal modes by which a citizen might disinfranchise himself; nor render treason, for instance, innocent by giving it the force of a dissolution of the obligation of the criminal to his country. Accordingly, in the case of Henfield, a citizen of these States, charged with having engaged in the port of Charleston, in an enterprise against nations at peace with us, & with having joined in the actual commission of hostilities, the Arty General of the U S., in an official opinion, declared that the act with which he was charged was punishable by law. The same thing has been unanimously declared by two of the circuit courts of the U S., as you will see in the charges of chief justice Jay, delivered at Richmond, and Judge Wilson*, delivered at Philadelphia, both of which are herewith sent. Yet mr. Genet, in the moment he lands at Charleston, is able to tell the Governor, & continues to affirm in his correspondence here, that no law of the U S authorizes their government to restrain either it's own citizens or the foreigners inhabiting it's territory, from warring against the enemies of France. It is true, indeed, that, in the case of Henfield, the jury which tried, absolved him. But it appeared on the trial, that the crime was not knowingly & wilfully committed; that Henfield was ignorant of the unlawfulness of his undertaking; that in the moment he was apprised of it he shewed real contrition; that he had rendered meritorious services during the late war, & declared he would live & die an American. The jury, therefore, in absolving him, did no more than the constitutional authority might have done, had they found him guilty: the Constitution having provided for the pardon of offences in certain cases, & there being no case where it would have been more proper than where no offence was contemplated....
