The Writings of Thomas Jefferson, Vol. 3 (of 9)

TO GOUVERNEUR MORRIS

Philadelphia, June 13, 1793.

Dear Sir,—The insulated state in which France is placed with respect to almost all the world, by the present war, has cut off all means of addressing letters to you through other countries. I embrace the present occasion by a private individual going to France directly, to mention, that since the date of my last public letter, which was April the 24th, and which covered the President's proclamation of April, I have received your Nos. 17 to 24. M. de Ternant notified us of his recall on the 17th of May, and delivered the letter of the Provisory Executive Council to that effect. I now enclose you the President's answer to the Council, which you will be pleased to deliver; a copy of it is also enclosed, open, for your information. Mr. Genet delivered his credentials on the same day on which M. de Ternant took his leave, and was received by the President. He found himself immediately immersed in business, the consequence of this war. The incidents to which that gives daily rise, and the questions respecting chiefly France and England, fills the executive with business, equally delicate, difficult and disagreeable. The course intended to be pursued being that of a strict and impartial neutrality, decisions rendered by the President rigorously on that principle, dissatisfy both parties, and draw complaints from both. That you may have a proper idea of them, I enclose you copies of several memorials and letters, which have passed between the executive and the ministers of those two countries, which will at the same time develop the principles of the proceedings, and enable you to satisfy them in your communications, should it be necessary. I enclose also the answer given to Mr. Genet, on a proposition from him to pay up the whole of the French debt at once. While it will enable you to explain the impracticability of the operation proposed, it may put it in your power to judge of the answer which would be given to any future proposition to that effect, and perhaps to prevent their being brought forward. The bill lately passed in England, prohibiting the business of this country with France from passing through the medium of England, is a temporary embarrassment to our commerce, from the unhappy predicament of its all hanging on the pivot of London. It will be happy for us, should it be continued till our merchants may establish connections in the countries in which our produce is consumed, and to which it should go directly.

Our commissioners have proceeded to the treaty with the northwestern Indians. They write, however, that the treaty will be a month later than was expected. This delay, should it be extended, will endanger our losing the benefit of our preparations for the campaign, and consequently bring on a delicate question, whether these shall be relinquished for the result of a treaty in which we never had any confidence? The Creeks have proceeded in their depredations till they assume the appearance of formal war. It scarcely seems possible to avoid its becoming so. They are so strong and so far from us, as to make very serious addition to our Indian difficulties. It is very probable that some of the circumstances arising out of our affairs with the Indians, or with the belligerent powers of Europe, may occasion the convocation of Congress at an earlier day than that to which its meeting stands at present.

I send you the forms of the passports given here. The one in three columns is that now used; the other having been soon discontinued. It is determined that they shall be given in our own ports only, and to serve but for one voyage. It has also been determined, that they shall be given to all vessels bona fide owned by American citizens wholly, whether built here or not. Our property, whether in the form of vessels, cargoes, or anything else, has a right to pass the seas untouched by any nation, by the law of nations; and no one has a right to ask where a vessel was built, but where is she owned? To the security which the law of nations gives to such vessels against all nations, are added particular stipulations with three of the belligerent powers. Had it not been in our power to enlarge our national stock of shipping suddenly in the present exigency, a great proportion of our produce must have remained on our hands for want of the means of transportation to market. At this time, indeed, a great proportion is in that predicament. The most rigorous measures will be taken to prevent any vessel, not wholly and bona fide owned by American citizens, from obtaining our passports. It is much our interest to prevent the competition of other nations from taking from us the benefits we have a right to expect from the neutrality of our flag; and I think we may be very sure that few, if any, will be fraudulently obtained within our ports.

Though our spring has been cold and wet, yet the crops of small grain are as promising as they have ever been seen. The Hessian fly, however, to the north, and the weavil to the south of the Potomac, will probably abridge the quantity. Still it seems very doubtful whether we shall not lose more for want of the means of transportation, and I have no doubt that the ships of Sweden and Denmark would find full employment here.

We shall endeavor to get your newspapers under the care of Major Reid, the bearer of this letter.

I have the honor to be, with great respect and esteem, dear Sir, your most obedient, and most humble servant.

TO MR. PINCKNEY

Philadelphia, June 14, 1793.

My last letters to you have been of the 7th of May and 4th instant. Since the last date, yours of April the 15th has come to hand.

I enclose you several memorials and letters which have passed between the Executive and the ministers of France and England. These will develop to you the principles on which we are proceeding between the belligerent powers. The decisions being founded in what is conceived to be rigorous justice, give dissatisfaction to both parties, and produce complaints from both. It is our duty, however, to persevere in them, and to meet the consequences. You will observe that Mr. Hammond proposes to refer to his court the determination of the President, that the prizes taken by the Citoyen Genet, could not be given up. The reasons for this are explained in the papers. Mr. Genet had stated that she was manned by French citizens. Mr. Hammond had not stated the contrary before the decision. Neither produced any proofs. It was therefore supposed that she was manned, principally, with French citizens. After the decision, Mr. Hammond denies the fact, but without producing any proof. I am really unable to say how it was; but I believe it to be certain there were very few Americans. He says, the issuing the commission, &c., by Mr. Genet, within our territory, was an infringement of our sovereignty; therefore, the proceeds of it should be given up to Great Britain. The infringement was a matter between France and us. Had we insisted on any penalty or forfeiture by way of satisfaction to our insulted rights, it would have belonged to us, not to a third party. As between Great Britain and us, considering all the circumstances explained in the papers, we deemed we did enough to satisfy her. We are, moreover, assured, that it is the standing usage of France, perhaps too of other nations in all wars, to lodge blank commissions with all their foreign consuls, to be given to every vessel of their nation, merchant or armed; without which a merchant vessel would be punished as a pirate, were she to take the smallest thing of the enemy that should fall in her way. Indeed, the place of the delivery of a commission is immaterial. As it may be sent by letter to any one, so it may be delivered by hand to him anywhere. The place of signature by the Sovereign is the material thing. Were that to be done in any other jurisdiction than his own, it might draw the validity of the act into question. I mention these things, because I think it would be proper, that after considering them and such other circumstances as appear in the papers, or may occur to yourself, you should make it the subject of a conversation with the minister. Perhaps it may give you an opportunity of touching on another subject. Whenever Mr. Hammond applies to our government on any matter whatever, be it ever so new or difficult, if he does not receive his answer in two or three days or a week, we are goaded with new letters on the subject. Sometimes it is the sailing of the packet, which is made the pretext for forcing us into premature and undigested determinations. You know best how far your applications meet such early attentions, and whether you may with propriety claim a return of them; you can best judge, too, of the expediency of an intimation, that where despatch is not reciprocal, it may be expedient and justifiable that delay should be so.

Our Commissioners have set out for the place of treaty with the North Western Indians. They have learned on their arrival at Niagara that the treaty will be a month later than was expected. Should further procrastination take place, it may wear the appearance of being intended to make us lose the present campaign, for which all our preparations are made. We have had little expectations of any favorable result from the treaty; and whether for such a prospect we should give up a campaign, will be a disagreeable question. The Creeks have proceeded in their depredations and murder till they assume the appearance of unequivocal war. It scarcely seems possible to avoid its becoming so. It is very possible that our affairs with the Indians or with the belligerent powers of Europe, may occasion the convocation of Congress at an earlier day than that to which its meeting stands at present.

Though our spring has been cold and wet, yet the crops of small grain are as promising as could be desired. They will suffer, however, by the Hessian fly to the north and the weavil to the south of the Patowmac.

My letter of the 4th instant was written to go by the Packet, but hearing before its departure that Major Jackson was to go in a few days by a private vessel, it was committed to him, as is also the present letter.

I have the honor to be, with great and sincere esteem, dear Sir, your most obedient, and most humble servant.

TO M. GENET

Philadelphia, June 17, 1793.

Sir,—I have received and laid before the President your letter of the 14th instant, stating that certain judiciary officers of the United States, contrary to the laws of nations, and the treaties subsisting between France and the United States, had arrested certain vessels and cargoes taken by a French armed vessel and brought into this port, and desiring that the authority of the President might be interposed to restore the prizes with the damages for their detention.

By the laws of this country every individual claiming a right to any article of property, may demand process from a court of justice, and decision on the validity of his claim. This is understood to be the case, which is the subject of your letter. Individuals claiming a right to the prizes, have attached them by process from the Court of Admiralty, which that Court was not free to deny, because justice is to be denied to no man. If, at the hearing of the cause, it shall be found that it is not cognizable before that Court, you may so far rely on its learning and integrity as to be assured it will so pronounce itself. In like manner, if having jurisdiction of the causes, it shall find the rights of the claimants to be null, be assured it will pronounce that nullity, and in either case the property will be restored, but whether with damages or not, the Court alone is to decide. It happens in this particular case that the rule of decision will be not the municipal laws of the United States but the law of nations, and the law maritime, as admitted and practised in all civilized countries, that the same sentence will be pronounced here, that would be pronounced in the Republic of France, or in any other country of Europe; and that if it should be unfavorable to the captors, it will be for reasons understood and acknowledged in your own country, and for the justice of which we might safely appeal to the jurists of your own country. I will add, that if the seizure should be found contrary to the treaties subsisting between France and the United States, the judges will consider these treaties as constituting a conventional law for the two nations, controlling all other laws, and will decree accordingly. The functions of the Executive are not competent to the decision of questions of property between individuals. These are ascribed to the judiciary alone, and when either persons or property are taken into their custody, there is no power in this country that can take them out. You will, therefore, be sensible, Sir, that though the President is not the organ for doing what is just in the present case, it will be effectually done by those to whom the Constitution has ascribed the duty, and be assured that the interests, the rights and the dignity of the French nation will receive within the bosom of the United States all the support which a friendly nation could desire, and a natural one yield.

I have the honor to be, with sentiments of great respect and esteem, Sir, your most obedient, and most humble servant.

TO MR. GENET

Philadelphia, June 17, 1793.

Sir,—I shall now have the honor of answering your letter of the 1st instant, and so much of that of the 14th (both of which have been laid before the President) as relates to a vessel armed in the port of New York and about to depart from thence, but stopped by order of the Government. And here I beg leave to premise, that the case supposed in your letter, of a vessel arming for her own defence, and to repel unjust aggressions, is not that in question, nor that on which I mean to answer, because not having yet happened, as far as is known to the Government, I have no instructions on the subject. The case in question is that of a vessel armed, equipped, and manned in a port of the United States, for the purpose of committing hostilities on nations at peace with the United States.

As soon as it was perceived that such enterprises would be attempted, orders to prevent them were despatched to all the States and ports of the Union. In consequence of these, the Governor of New York, receiving information that a sloop heretofore called the Polly, now the Republican, was fitting out, arming, and manning in the port of New York, for the express and sole purpose of cruising against certain nations with whom we are at peace, that she had taken her guns and ammunition aboard, and was on the point of departure, seized the vessel. That the Governor was not mistaken in the previous indications of her object, appears by the subsequent avowal of the citizen Hauterieve, consul of France at that port, who, in a letter to the Governor, reclaims her as "Un vaisseau armé en guerre, et pret à mettre à la voile;" and describes her object in these expressions: "Cet usage etrange de la force publique contre les citoyens d'une nation amie qui se reunissent ici pour aller defendre leur freres," &c.; and again: "Je requiers, monsieur, l'autorité dont vous etes revetu, pour faire rendre à des Francois, à des alliés, &c., la liberté de voler au secours de leur patrie." This transaction being reported to the President, orders were immediately sent to deliver over the vessel, and the persons concerned in the enterprise, to the tribunals of the country, that if the act was of those forbidden by the law, it might be punished; if it was not forbidden, it might be so declared, and all persons apprized of what they might or might not do.

This, we have reason to believe, is the true state of the case, and it is a repetition of that which was the subject of my letter of the 5th instant, which animadverted, not merely on the single fact of the granting commissions of war by one nation within the territory of another, but on the aggregate of the facts; for it states the opinion of the President to be, "that the arming and equipping vessels in the ports of the United States, to cruise against nations with whom we are at peace, was incompatible with the sovereignty of the United States; that it made them instrumental to the annoyance of those nations, and thereby tended to commit their peace." And this opinion is still conceived to be not contrary to the principles of natural law, the usage of nations, the engagements which unite the two people, nor the proclamation of the President, as you seem to think.

Surely, not a syllable can be found in the last-mentioned instrument, permitting the preparation of hostilities in the ports of the United States. Its object was to enjoin on our citizens "a friendly conduct towards all the belligerent powers;" but a preparation of hostilities is the reverse of this.

None of the engagements in our treaties stipulate this permission. The XVIIth article of that of commerce, permits the armed vessels of either party to enter the ports of the other, and to depart with their prizes freely; but the entry of an armed vessel into a port, is one act; the equipping a vessel in that port, arming her, and manning her, is a different one, and not engaged by any article of the treaty.

You think, Sir, that this opinion is also contrary to the law of nature and usage of nations. We are of opinion it is dictated by that law and usage; and this had been very maturely inquired into before it was adopted as a principle of conduct. But we will not assume the exclusive right of saying what that law and usage is. Let us appeal to enlightened and disinterested judges. None is more so than Vattel. He says, L. 3. 8. 104. "Tant qu'un peuple neutre veut jouir surement de cet état, il doit montrer en toutes choses une exacte impartialité entre ceux qui se font la guerre. Car s'il favorise l'un au préjudice de l'autre, il ne pourra pas se plaindre, quand celui ci le traitera comme adhérent et associé de son ennemi. Sa neutralité seroit une neutralité frauduleuse, dont personne ne veut être la dupe. Voyons donc en quoi consiste cette impartialité qu'un peuple neutre doit garder.

"Elle se rapporte uniquement à la guerre, et comprend deux choses 1. Ne point donner de secours quand on n'y est pas obligé; ne fournir librement ne troupes, ni armes, ni munitions, ni rien de ce qui sert directement à la guerre. Je dis ne point donner de secours, et non pas en donner egalement; car il seroit absurde qu'un etat secourut en même tems deux ennemis. Et puis il seroit impossible de le faire avec egalité; les mêmes choses, le même nombre de troupes, la même quantitié d'armes, de munitions, &c., fournies en des circonstances differentes, ne forment plus des secours equivalents," &c. If the neutral power may not, consistent with its neutrality, furnish men to either party, for their aid in war, as little can either enrol them in the neutral territory by the law of nations. Wolf, S. 1174, says, "Puisque le droit de lever des soldats est un droit de majesté, qui ne peut être violé par une nation etrangere, il n'est pas permis de lever des soldats sur le territorie d'autrui, sans le consentement du mâitre du territorie." And Vattel, before cited, L. 3. 8. 15. "Le droit de lever des soldats appartenant uniquement à la nation, on au souverain, personne ne peut en envoler en pays etranger sans la permission du souveraine: Ceux qui entre prennant d'engager des soldats en pays etranger sans la permission du souverain, et en general quiquonque debauche les sujets d'autrui, viole un des droits les plus sacrés du prince et de la nation. C'est le crime qu'on appelle plagiat, ou vol d'homme. Il n'est aucun etat police qui ne le punisse très sévérement," &c. For I choose to refer you to the passage, rather than follow it through all its developments. The testimony of these, and other writers, on the law and usage of nations, with your own just reflections on them, will satisfy you that the United States, in prohibiting all the belligerent powers from equipping, arming, and manning vessels of war in their ports, have exercised a right and a duty, with justice and with great moderation. By our treaties with several of the belligerent powers, which are a part of the laws of our land, we have established a state of peace with them. But, without appealing to treaties, we are at peace with them all by the law of nature. For by nature's law, man is at peace with man till some aggression is committed, which, by the same law, authorizes one to destroy another as his enemy. For our citizens, then, to commit murders and depredations on the members of nations at peace with us, or combine to do it, appeared to the Executive, and to those with whom they consulted, as much against the laws of the land, as to murder or rob, or combine to murder or rob its own citizens; and as much to require punishment, if done within their limits, where they have a territorial jurisdiction, or on the high seas, where they have a personal jurisdiction, that is to say, one which reaches their own citizens only, this being an appropriate part of each nation on an element where all have a common jurisdiction. So say our laws, as we understand them ourselves. To them the appeal is made; and whether we have construed them well or ill, the constitutional judges will decide. Till that decision shall be obtained, the government of the United States must pursue what they think right with firmness, as is their duty. On the first attempt that was made, the President was desirous of involving in the censures of the law as few as might be. Such of the individuals only, therefore, as were citizens of the United States, were singled out for prosecution. But this second attempt being after full knowledge of what had been done on the first, and indicating a disposition to go on in opposition to the laws, they are to take their course against all persons concerned, whether citizens or aliens; the latter, while within our jurisdiction and enjoying the protection of the laws, being bound to obedience to them, and to avoid disturbances of our peace within, or acts which would commit it without, equally as citizens are. I have the honor to be, with sentiments of great respect and esteem, Sir, your most obedient, and most humble servant.