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

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.

TO MR. HAMMOND

Philadelphia, June 19, 1793.

Sir,—I had the honor to address you a letter on the 29th of May was twelvemonth, on the articles still unexecuted of the treaty of peace between the two nations. The subject was extensive and important, and therefore rendered a certain degree of delay in the reply to be expected. But it has now become such as naturally to generate disquietude. The interest we have in the western posts, the blood and treasure which their detention costs us daily, cannot but produce a corresponding anxiety on our part. Permit me, therefore, to ask when I may expect the honor of a reply to my letter, and to assure you of the sentiments of respect with which I have the honor to be, Sir, your most obedient, and most humble servant.

TO J. MADISON

June 23, 1793.

Dear Sir,—My last was of the 17th, if I may reckon a single line anything. Yours of the 13th came to hand yesterday. The proclamation as first proposed was to have been a declaration of neutrality. It was opposed on these grounds: 1. That a declaration of neutrality was a declaration there should be no war, to which the Executive was not competent. 2. That it would be better to hold back the declaration of neutrality, as a thing worth something to the powers at war, that they would bid for it, and we might reasonably ask a price, the broadest privileges of neutral nations. The first objection was so far respected as to avoid inserting the term neutrality, and the drawing the instrument was left to E. R. That there should be a proclamation was passed unanimously with the approbation or the acquiescence of all parties. Indeed, it was not expedient to oppose it altogether, lest it should prejudice what was the next question, the boldest and greatest that ever was hazarded, and which would have called for extremities had it prevailed. Spain is unquestionably picking a quarrel with us. A series of letters from her commissioners here prove it. We are sending a courier to Madrid. The inevitableness of war with the Creeks, and the probability, I might say the certainty of it with Spain, (for there is not one of us who doubts it,) will certainly occasion your convocation, at what time I cannot exactly say, but you should be prepared for this important change in the state of things. The President has got pretty well again; he sets off this day to Mount Vernon, and will be absent a fortnight. The death of his manager, hourly expected, of a consumption is the call; he will consequently be absent on the 4th of July. He travels in a phaeton and pair. Doctor Logan sends you the enclosed pamphlet. Adieu. Yours affectionately.

1

A translation is here given.

2

See it in the paper called Point du Jour, No. 23.

3

Address illegible.

4

No address.

5

This paragraph was in cypher, but an explication of it preserved with the copy.

6

"The state in which things are found at the moment of the treaty, should be considered as lawful; and if it is meant to make any change in it, the treaty must expressly mention it. Consequently, all things, about which the treaty is silent, must remain in the state in which they are found at its conclusion." Vattel, 1. 4. s. 21.

7

"Those things of which nothing is said, remain in the state in which they are." Wolf, 1222.

8

Vattel, 1. 4, s. 24.—"The treaty of peace binds the contracting parties from the moment it is concluded, as soon as it has received its whole form, and they ought immediately to have it executed. But this treaty does not bind the subjects, but from the moment it is notified to them." And s. 25.—"The treaty becomes, by its publication, a law for the subjects, and they are obliged, thenceforward, to conform themselves to the stipulations therein agreed on."

9

"The paction of the peace binds the contractors immediately, as it is perfect, since the obligation is derived from the pact; but the subjects and soldiers, as soon as it is published to them; since they cannot have certain evidence of it before its publication." Wolf, s. 1229.

10

"Since it is a condition of war, that enemies may be deprived of all their rights, it is reasonable that everything of an enemy's, found among his enemies, should change its owner, and go to the treasury. It is, moreover, usually directed, in all declarations of war, that the goods of enemies, as well those found among us, as those taken in war, shall be confiscated. If we follow the mere right of war, even immovable property may be sold, and its price carried into the treasury, as is the custom with movable property. But in almost all Europe, it is only notified that their profits, during the war, shall be received by the treasury; and the war being ended, the immovable property itself is restored, by agreement, to the former owner." Bynk. Ques. Jur. Pub. 1. 1, c. 7.

11

"Lors qu'on n'a point marqué de terme pour l'accomplissement du traité, et pour l'execution de chacun des articles, le bon sens dit que chaque point doit être executé aussitôt qu'il est possible. C'est sans doute ainsi qu'on l'a entendu."

12

Instead of this, Fort Erie was, by error, inserted in my letter of December 15.

13

"If the obstacle be real, time must be given, for no one is bound to an impossibility." Vattel l. 4, s. 51.

14

"No one is bound beyond what he can do, and whether he can, may be left to the decision of the other prince, as an honest man." Bynk. Q. J. P. l. 2, c. 10.

15

"What I have said of things in action being rightly confiscated hold thus: If the prince really exacts from his subjects what they owed to our enemies, if he shall have exacted it, it is rightfully paid, if he shall not have exacted it, peace being made, the former right of the creditor revives; accordingly, it is for the most part agreed among nations, that things in action being confiscated in war, the peace being made, those which were paid are deemed to have perished and remain extinct; but those not paid, revive, and are restored to their true creditors."—Bynk. Q. J. P. l. 1, c. 7.

16

In a matter susceptible of no doubt.

17

On account of the detention of the debt.

18

"If any one is in possession of another's land, so much belongs to the owner as the use of the land is worth, and so much to the possessor as his labor and care are worth."

19

"If things are to be restored by virtue of the peace, the profits are also to be restored from the day of the cession."

20

"To whomsoever a thing is conceded by the peace, to him also the profits are conceded, from the time of the concession, BUT NOT BACK."