Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 3

The United States being in a state of peace with most of the belligerent powers by treaty, and with all of them by the laws of nature, murders and robberies committed by our citizens within our territory, or on the high seas, on those with whom we are so at peace, are punishable equally as if committed on our own inhabitants. If I might venture to reason a little formally, without being charged with running into ‘subtleties and aphorisms,’ 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 its citizens) has a right to go to war, by the authority of its 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, and 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, and 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, and a transfer of jurisdiction over him to another sovereign. Our citizens are certainly free to divest themselves of that character by emigration and other acts manifesting their intention, and may then become the subjects of another power, and 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 disfranchise 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 Henfeild, a citizen of these States, charged with having engaged in the port of Charleston, in an enterprise against nations at peace with us, and with having joined in the actual commission of hostilities, the Attorney General of the United States, 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 United States, 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, and continues to affirm in his correspondence here, that no law of the United States authorizes their government to restrain either its own citizens or the foreigners inhabiting its territory, from warring against the enemies of France. It is true, indeed, that in the case of Henfeild, the jury which tried, absolved him. But it appeared on the trial, that the crime was not knowingly and wilfully committed; that Henfeild was ignorant of the unlawfulness of his undertaking; that in the moment he was apprized of it, he showed real contrition; that he had rendered meritorious services during the late war, and declared he would live and 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, and there being no case where it would have been more proper than where no offence was contemplated. Henfeild, therefore, was still an American citizen, and Mr. Genet’s reclamation of him was as unauthorized as the first enlistment of him.

2. Another doctrine advanced by Mr. Genet is, that our courts can take no cognizance of questions whether vessels, held by theirs, as prizes, are lawful prizes or not; that this jurisdiction belongs exclusively to their consulates here, which have been lately erected by the National Assembly into complete courts of admiralty. Let us consider, first, what is the extent of jurisdiction which the consulates of France may rightfully exercise here. Every nation has of natural right, entirely and exclusively, all the jurisdiction which may be rightfully exercised in the territory it occupies. If it cedes any portion of that jurisdiction to judges appointed by another nation, the limits of their power must depend on the instrument of cession. The United States and France have, by their consular convention, given mutually to their Consuls jurisdiction in certain cases especially enumerated. But that convention gives to neither the power of establishing complete courts of admiralty within the territory of the other, nor even of deciding the particular question of prize, or not prize. The consulates of France, then, cannot take judicial cognizance of those questions here. Of this opinion Mr. Genet was, when he wrote his letter of May the 27th, wherein he promises to correct the error of the Consul at Charleston, of whom, in my letter of the 15th instant, I had complained, as arrogating to himself that jurisdiction; though in his subsequent letters he has thought proper to embark in the errors of his Consuls.

But the United States, at the same time, do not pretend any right to try the validity of captures made on the high seas, by France, or any other nation, over its enemies. These questions belong of common usage to the sovereignty of the captor, and whenever it is necessary to determine them, resort must be had to his courts. This is the case provided for in the seventeenth article of the treaty, which says, that such prizes shall not be arrested, nor cognizance taken of the validity thereof; a stipulation much insisted on by Mr. Genet and the Consuls, and which we never thought of infringing or questioning. As the validity of captures then, made on the high seas by France over its enemies, cannot be tried within the United States by their Consuls, so neither can it by our own courts. Nor is this the question between us, though we have been misled into it.

The real question is, whether the United States have not a right to protect vessels within their waters and on their coasts? The Grange was taken within the Delaware, between the shores of Jersey and of the Delaware State, and several miles above its mouth. The seizing her was a flagrant violation of the jurisdiction of the United States. Mr. Genet, however, instead of apologizing, takes great merit in his letters for giving her up. The William is said to have been taken within two miles of the shores of the United States. When the admiralty declined cognizance of the case, she was delivered to the French Consul according to my letter of June the 25th, to be kept till the executive of the United States should examine into the case; and Mr. Genet was desired by my letter of June the 29th, to have them furnished with the evidence on behalf of the captors, as to the place of capture. Yet to this day it has never been done. The brig Fanny was alleged to be taken within five miles from our shore; the Catharine within two miles and a half. It is an essential attribute of the jurisdiction of every country to preserve peace, to punish acts in breach of it, and to restore property taken by force within its limits. Were the armed vessel of any nation to cut away one of our own from the wharves of Philadelphia, and to choose to call it a prize, would this exclude us from the right of redressing the wrong? Were it the vessel of another nation, are we not equally bound to protect it, while within our limits? Were it seized in any other of our waters, or on the shores of the United States, the right of redressing is still the same: and humble indeed would be our condition, were we obliged to depend for that on the will of a foreign Consul, or on negotiation with diplomatic agents. Accordingly, this right of protection within its waters and to a reasonable distance on its coasts, has been acknowledged by every nation, and denied to none: and if the property seized be yet within their power, it is their right and duty to redress the wrong themselves. France herself has asserted the right in herself and recognised it in us, in the sixth article of our treaty, where we mutually stipulate that we will, by all the means in our power (not by negotiation), protect and defend each other’s vessels and effects in our ports or roads, or on the seas near our countries, and recover and restore the same to the right owners. The United Netherlands, Prussia, and Sweden, have recognised it also in treaties with us; and indeed it is a standing formula, inserted in almost all the treaties of all nations, and proving the principle to be acknowledged by all nations.

How, and by what organ of the government, whether judiciary or executive, it shall be redressed, is not yet perfectly settled with us. One of the subordinate courts of admiralty has been of opinion, in the first instance, in the case of the ship William, that it does not belong to the judiciary. Another, perhaps, may be of a contrary opinion. The question is still subjudice, and an appeal to the court of last resort will decide it finally. If finally the judiciary shall declare that it does not belong to the civil authority, it then results to the executive, charged with the direction of the military force of the Union, and the conduct of its affairs with foreign nations. But this is a mere question of internal arrangement between the different departments of the government, depending on the particular diction of the laws and constitution; and it can in no wise concern a foreign nation to which department these have delegated it.

3. Mr. Genet, in his letter of July the 9th, requires that the ship Jane, which he calls an English privateer, shall be immediately ordered to depart; and to justify this, he appeals to the 22nd article of our treaty, which provides that it shall not be lawful for any foreign privateer to fit their ships in our ports, to sell what they have taken, or purchase victuals, &c. The ship Jane is an English merchant vessel, which has been many years employed in the commerce between Jamaica and these States. She brought here a cargo of produce from that island, and was to take away a cargo of flour. Knowing of the war when she left Jamaica, and that our coast was lined with small French privateers, she armed for her defence, and took one of those commissions usually called letters of marque. She arrived here safely without having had any reencounter of any sort. Can it be necessary to say that a merchant vessel is not a privateer? That though she has arms to defend herself in time of war, in the course of her regular commerce, this no more makes her a privateer, than a husbandman following his plough in time of war, with a knife or pistol in his pocket, is thereby made a soldier? The occupation of a privateer is attack and plunder, that of a merchant vessel is commerce and self-preservation. The article excludes the former from our ports, and from selling what she has taken, that is what she has acquired by war, to show it did not mean the merchant vessel and what she had acquired by commerce. Were the merchant vessels coming for our produce forbidden to have any arms for their defence, every adventurer who had a boat, or money enough to buy one, would make her a privateer, our coasts would swarm with them, foreign vessels must cease to come, our commerce must be suppressed, our produce remain on our hands, or at least that great portion of it which we have not vessels to carry away, our ploughs must be laid aside, and agriculture suspended. This is a sacrifice no treaty could ever contemplate, and which we are not disposed to make out of mere complaisance to a false definition of the term privateer. Finding that the Jane had purchased new carriages to mount two or three additional guns, which she had brought in her hold, and that she had opened additional port-holes for them, the carriages were ordered to be relanded, the additional port-holes stopped, and her means of defence reduced, to be exactly the same at her departure as at her arrival. This was done on the general principle of allowing no party to arm within our ports.

4. The seventeenth article of our treaty leaves armed vessels free to conduct, whithersoever they please, the ships and goods taken from their enemies without paying any duty, and to depart and be conducted freely to the places expressed in their commissions, which the captain shall be obliged to show. It is evident, that this article does not contemplate a freedom to sell their prizes here; but on the contrary, a departure to some other place, always to be expressed in their commission, where their validity is to be finally adjudged. In such case, it would be as unreasonable to demand duties on the goods they had taken from an enemy, as it would be on the cargo of a merchant vessel touching in our ports for refreshment or advices; and against this the article provides. But the armed vessels of France have been also admitted to land and sell their prize-goods here for a consumption, in which case, it is as reasonable they should pay duties, as the goods of a merchantman landed and sold for consumption. They have however demanded, and as a matter of right, to sell them free of duty, a right, they say, given by this article of the treaty, though the article does not give the right to sell at all. Where a treaty does not give the principal right of selling, the additional one of selling duty free cannot be given: and the laws, in admitting the principal right of selling, may withhold the additional one of selling duty free. It must be observed, that our revenues are raised almost wholly on imported goods. Suppose prize-goods enough should be brought in to supply our whole consumption. According to their construction we are to lose our whole revenue. I put the extreme case to evince, more extremely, the unreasonableness of the claim. Partial supplies would affect the revenue but partially. They would lessen the evil, but not the error, of the construction: and I believe we may say, with truth, that neither party had it in contemplation, when penning this article, to abandon any part of its revenue for the encouragement of the sea-robbers of the other.

5. Another source of complaint with Mr. Genet has been, that the English take French goods out of American vessels, which he says is against the law of nations, and ought to be prevented by us. On the contrary, we suppose it to have been long an established principle of the law of nations, that the goods of a friend are free in an enemy’s vessel, and an enemy’s goods lawful prize in the vessel of a friend. The inconvenience of this principle, which subjects merchant vessels to be stopped at sea, searched, ransacked, led out of their course, has induced several nations latterly to stipulate against it by treaty, and to substitute another in its stead, that free bottoms shall make free goods, and enemy bottoms enemy goods; a rule equal to the other in point of loss and gain, but less oppressive to commerce. As far as it has been introduced, it depends on the treaties stipulating it, and forms exceptions, in special cases, to the general operation of the law of nations. We have introduced it into our treaties with France, Holland, and Prussia; and French goods found by the two latter nations in American bottoms are not made prize of. It is our wish to establish it with other nations. But this requires their consent also, is a work of time, and in the mean while, they have a right to act on the general principle, without giving to us or to France cause of complaint. Nor do I see that France can lose by if on the whole. For though she loses her goods when found in our vessels by the nations with whom we have no treaties, yet she gains our goods, when found in the vessels of the same and all other nations: and we believe the latter mass to be greater than the former. It is to be lamented, indeed, that the general principle has operated so cruelly in the dreadful calamity which has lately happened in St. Domingo. The miserable fugitives, who, to save their lives, had taken asylum in our vessels, with such valuable and portable things as could be gathered in the moment out of the ashes of their houses and wrecks of their fortunes, have been plundered of these remains by the licensed sea-rovers of their enemies. This has swelled, on this occasion, the disadvantages of the general principle, that ‘an enemy’s goods are free prize in the vessels of a friend.’ But it is one of those deplorable and unforeseen calamities to which they expose themselves who enter into a state of war, furnishing to us an awful lesson to avoid it by justice and moderation, and not a cause or encouragement to expose our own towns to the same burnings and butcheries, nor of complaint because we do not.

6. In a case like the present, where the missionary of one government construes differently from that to which he is sent, the treaties and laws which are to form a common rule of action for both, it would be unjust in either to claim an exclusive right of construction. Each nation has an equal right to expound the meaning of their common rules; and reason and usage have established, in such cases, a convenient and well understood train of proceeding. It is the right and duty of the foreign missionary to urge his own constructions, to support them with reasons which may convince, and in terms of decency and respect which may reconcile the government of the country to a concurrence. It is the duty of that government to listen to his reasonings with attention and candor, and to yield to them when just. But if it shall still appear to them that reason and right are on their side, it follows of necessity, that exercising the sovereign powers of the country, they have a right to proceed on their own constructions and conclusions as to whatever is to be done within their limits. The minister then refers the case to his own government, asks new instructions, and, in the mean time, acquiesces in the authority of the country. His government examines his constructions, abandons them if wrong, insists on them if right, and the case then becomes a matter of negotiation between the two nations. Mr. Genet, however, assumes a new and bolder line of conduct. After deciding for himself ultimately, and without respect to the authority of the country, he proceeds to do what even his sovereign could not authorize, to put himself within the country on a line with its government, to act as co-sovereign of the territory; he arms vessels, levies men, gives commissions of war, independently of them, and in direct opposition to their orders and efforts. When the government forbids their citizens to arm and engage in the war, he undertakes to arm and engage them. When they forbid vessels to be fitted in their ports for cruising on nations with whom they are at peace, he commissions them to fit and cruise. When they forbid an unceded jurisdiction to be exercised within their territory by foreign agents, he undertakes to uphold that exercise, and to avow it openly. The privateers Citoyen Genet and Sans Culottes having been fitted out at Charleston (though without the permission of the government, yet before it was forbidden) the President only required they might leave our ports, and did not interfere with their prizes. Instead, however, of their quitting our ports, the Sans Culottes remains still, strengthening and equipping herself, and the Citoyen Genet went out only to cruise on our coast, and to brave the authority of the country by returning into port again with her prizes. Though in the letter of June the 5th, the final determination of the President was communicated, that no future armaments in our ports should be permitted, the Vainqueur de la Bastille was afterwards equipped and commissioned in Charleston, the Anti-George in Savannah, the Carmagnole in Delaware, a schooner and a sloop in Boston, and the Polly or Republican was attempted to be equipped in New York, and was the subject of reclamation by Mr. Genet, in a style which certainly did not look like relinquishing the practice. The Little Sarah or Little Democrat was armed, equipped, and manned, in the port of Philadelphia, under the very eye of the government, as if meant to insult it. Having fallen down the river, and being evidently on the point of departure for a cruise, Mr. Genet was desired in my letter of July the 2th, on the part of the President, to detain her till some inquiry and determination on the case should be had. Yet within three or four days after, she was sent out by orders from Mr. Genet himself, and is, at this time, cruising on our coasts, as appears by the protest of the master of one of our vessels maltreated by her.

The government thus insulted and set at defiance by Mr. Genet, and committed in its duties and engagements to others, determined still to see in these proceedings but the character of the individual, and not to believe, and it does not believe, that they are by instructions from his employers. They had assured the British Minister here, that the vessels already armed in our ports should be obliged to leave them, and that no more should be armed in them. Yet more had been armed, and those before armed had either not gone away, or gone only to return with new prizes. They now informed him that the order for departure should be enforced, and the prizes made contrary to it should be restored or compensated. The same thing was notified to Mr. Genet in my letter of August the 7th, and that he might not conclude the promise of compensation to be of no concern to him, and go on in his courses, he was reminded that it would be a fair article of account against his nation.

Mr. Genet, not content with using our force, whether we will or not, in the military line against nations with whom we are at peace, undertakes also to direct the civil government; and particularly, for the executive and legislative bodies, to pronounce what powers may or may not be exercised by the one or the other. Thus in his letter of June the 8th, he promises to respect the political opinions of the President, till the Representatives shall have confirmed or rejected them; as if the President had undertaken to decide what belonged to the decision of Congress. In his letter of June the 4th, he says more openly, that the President ought not to have taken on himself to decide on the subject of the letter, but that it was of importance enough to have consulted Congress thereon; and in that of June the 22nd, he tells the President in direct terms, that Congress ought already to have been occupied on certain questions which he had been too hasty in deciding: thus making himself, and not the President, the judge of the powers ascribed by the constitution to the executive, and dictating to him the occasion when he should exercise the power of convening Congress at an earlier day than their own act had prescribed.

On the following expressions no commentary shall be made.

July 9. ‘Les principes philosophiques proclames par le Président.’

June 22. ‘Les opinions privées ou publiques de M. le Président, et cette égide ne paroissant pas suffisante.’

June 22. ‘Le gouvernement fédéral s’est empressé, poussé par je ne se gais quelle influence.’

June 22. ‘Je ne puis attribuer des démarches de cette nature qu’a des impressions étrangeres dont le terns et la vérité triompheront.’

June 25. ‘On poursuit avec acharnement, en vertu des instructions de M. le Président, les armateurs Francais.’

June 14. ‘Ce refus tend a accomplir le système infernal du roi d’Angleterre, et des autres rois ses accomplices, pour faire perir par la famine les Républicans Francais avec la liberté.

June 8. ‘La lache abandon de ses amis.’

July 25. ‘En vain le desirde conserver la paix fait-il sacrifier les interets de la France a cet interêt du moment; en vain la soif des richesses l’emporte-t-elle sur l’honneur dans la balance politique de l’Amérique. Tous ces menagemens, toute cette condescendance, toute cette humilité n’aboutissent a rien: nos ennemis en rient, et les Francais trop confiants sont punis pour avoir cru que la nation Américaine avoit un pavilion, qu’elle avoit quelque egard pours ses loix, quelque conviction de ses forces, et qu’elle tenoit au sentiment de sa dignité. Il ne m’est pas possible de peindre toute ma sensibilité sur ce scandale, qui tend à la diminution de votre commerce, à l’oppression du notre, et à l’abaissement, à l’avilissement des republiques. Si nos concitoyens ont été trompes, si vous n’êtes point en état de soutenir la souveraineté de votre peuple, parlez; nous l’avons garantie quand nous étions esclaves, nous saurons la rendre rédoubtable étant devenus libres.’ We draw a veil over the sensations which these expressions excite. No words can render them; but they will not escape the sensibility of a friendly and magnanimous nation, who will do us justice. We see in them neither the portrait of ourselves, nor the pencil of our friends; but an attempt to embroil both; to add still another nation to the enemies of his country, and to draw on both a reproach, which it is hoped will never stain the history of either. The written proofs, of which Mr. Genet was himself the bearer, were too unequivocal to leave a doubt that the French nation are constant in their friendship to us. The resolves of their National Convention, the letters of their Executive Council attest this truth, in terms which render it necessary to seek in some other hypothesis, the solution of Mr. Genet’s machinations against our peace and friendship.